Judgment of the Court of First Instance (Third Chamber) of 8 July 2008 – Lafarge v Commission

(Case T-54/03)

Competition – Agreements, decisions and concerted practices – Plasterboard market – Decision finding an infringement of Article 81 EC – Liability – Deterrence – Repeat infringement – Fine – Guidelines on the method of setting fines

1.                     Competition – Administrative procedure – Article 6 of the European Convention on Human Rights not applicable – Compliance by the Commission with procedural guarantees (Arts 81 EC and 82 EC; Council Regulation No 17, Art. 17; Council Decision 88/591) (see paras 36-47)

2.                     Competition – Administrative procedure – Commission decision finding an infringement – Use as evidence of statements of other undertakings which participated in the infringement – Lawfulness – Conditions (Arts 81 EC and 82 EC) (see paras 57-59, 293-294)

3.                     Competition – Administrative procedure – Hearings – Hearing of other participants in the same infringement in camera – Infringement of the defence rights – None (Commission Regulation No 2842/98, Art. 9) (see paras 142-149)

4.                     Competition – Administrative procedure – Observance of the rights of the defence – Incriminating document – Meaning – Commission document summarising the factual data supplied by the participants in the infringement – Not included (Art. 81(1) EC) (see paras 156-157)

5.                     Actions for annulment – Pleas in law – Challenge to the factual findings underlying a decision imposing penalties for breach of the competition rules – Challenge concerning a meeting between competitors by an undertaking which did not take part – Admissibility – Conditions (Art. 230 EC) (see paras 212-214)

6.                     Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Agreement creating an information exchange system – Not permissible in an oligopolistic market – Rebuttable presumption (Art. 81(1) EC) (see paras 256-259, 397)

7.                     Competition – Agreements, decisions and concerted practices – Concerted practice – Meaning – Parallel conduct – Presumption of the existence of a concerted practice – Limits (Art. 81(1) EC) (see paras 318, 324)

8.                     Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Burden of proving the infringement borne by the Commission – Degree of probative value required for the evidence on which the Commission relies (Art. 81(1) EC) (see paras 426, 452)

9.                     Competition – Agreements, decisions and concerted practices – Concerted practice – Meaning – Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market – Receipt by an operator of information emanating from a competitor concerning its future market conduct (Art. 81(1) EC (see paras 458-463)

10.                     Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement – Undertakings that may be held responsible for participating in an overall cartel – Criteria (Art. 81(1) EC) (see paras 479, 482-487, 490, 613-616)

11.                     Competition – Community rules – Infringement committed by a subsidiary – Imputation to the parent company – Conditions – Separate legal personality of the subsidiary not relevant – Relevance of the fact that the subsidiary is wholly owned – Obligation of the parent company to rebut the presumption that management power was actually exercised over its subsidiary (Art. 81(1) EC) (see paras 539-541, 545, 557-558)

12.                     Competition – Fines – Amount – Determination – Criteria – Actual impact on the market (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1 A, first para.) (see paras 580-585)

13.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Horizontal cartel concerning prices – Very serious infringement (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1 A) (see paras 618-624)

14.                     Competition – Fines – Amount – Determination – Need to take account of the turnover of undertakings in the same infringement or similar previous infringements and to ensure the proportionality of the fines to those turnovers – None – Judicial review – Unlimited jurisdiction (Council Regulation No 17, Art. 15(2)) (see paras 634-639)

15.                     Competition – Fines – Amount – Determination – Deterrent effect – Account taken of the size and global resources of the fined undertaking (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1 A) (see paras 663-673, 678-684)

16.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Discretion of the Commission – Taking into account of repeat offences – Infringement of the principles that penalties must have a legal basis, of legal certainty, and ne bis in idem – None (Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) (see paras 716-730)

17.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Recidivism – Meaning (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 2) (see paras 733-739)

18.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking – Criteria for assessment (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 3, first indent) (see paras 763-767)

19.                     Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Termination of the infringement after the Commission’s intervention – Conditions (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 3) (see paras 780-784)

20.                     Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Conditions (Council Regulation No 17, Art. 15(2); Commission Notice 96/C 207/04, title D, point 2) (see paras 791-794)

Re:

APPLICATION for annulment of Commission Decision 2005

/ :

471

/ :

EC of 27 November 2002 relating to proceedings under Article 81 [EC] against BPB plc, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E-1/37.152 – Plasterboard) (OJ 2005 L 166, p. 8), or, in the alternative, an application for the annulment of or a reduction in the fine imposed on the applicant.

Operative part

The Court:

1.

Dismisses the action;

2.

Orders Lafarge SA to bear its own costs and to pay those incurred by the Commission;

3.

Orders the Council to bear its own costs.