Keywords
Summary

Keywords

1 Competition - Agreements, decisions and concerted practices - Agreements and concerted practices constituting a single infringement - Undertakings to which an infringement in the form of participation in an overall cartel may be imputed - Criteria

(EC Treaty, Art. 85(1))

2 Competition - Fines - Amount - Determination thereof - Criteria - Gravity and duration of the infringements - Criteria to be applied - Possibility of increasing the fines in order to strengthen their deterrent effect

(Council Regulation No 17, Art. 15(2))

3 Competition - Fines - Amount - Determination thereof - Turnover figure taken into account - Value of the internal deliveries of the product concerned to factories manufacturing a secondary product belonging to the undertaking - Covered

(Council Regulation No 17, Art. 15(2))

4 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Damage to the undertaking as a result of the cartel - Not covered

(Council Regulation No 17, Art. 15)

5 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Aggravating circumstances - Concealment of the cartel - Proof inferred from the absence of notes on meetings of cartel members

(Council Regulation No 17, Art. 15)

Summary

1 For the Commission to be entitled to hold that each undertaking addressed in a decision applying the competition rules is responsible for an overall cartel covering various anti-competitive actions during a given period, it must demonstrate that they each either consented to the adoption of an overall plan comprising the constituent elements of the cartel or participated directly in all those elements during that period. An undertaking may also be held responsible for an overall cartel even though it is shown that it participated directly only in one or some of the constituent elements of that cartel, if it is shown that it knew, or must have known, that the collusion in which it participated was part of an overall plan and that the overall plan included all the constituent elements of the cartel. Where that is the case, the fact that the undertaking concerned did not participate directly in all the constituent elements of the overall cartel cannot relieve it of responsibility for the infringement of Article 85(1) of the Treaty. Such a circumstance may nevertheless be taken into account when assessing the seriousness of the infringement which it is found to have committed.

2 In determining the amount of the fine for infringement of the Community competition rules, regard is to be had to both the gravity and the duration of the infringement. The gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case, and the deterrent character of the fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up.

When assessing the general level of fines, the Commission is entitled to take account of the fact that clear infringements of the Community competition rules are still relatively frequent and, accordingly, it may raise the level of fines in order to strengthen their deterrent effect. Consequently, the fact that in the past the Commission has applied fines of a certain level to certain types of infringement does not mean that it is estopped from raising that level, within the limits set out in Regulation No 17, if that is necessary in order to ensure the implementation of Community competition policy.

Furthermore, when fixing the general level of the fines, the Commission may, in particular, take into account the lengthy duration and obviousness of an infringement of Article 85(1) of the Treaty which has been committed despite the warning which the Commission's previous decisions should have provided.

3 When determining the amount of the fine to impose for infringement of the Community competition rules, the Commission is entitled to use a constructive turnover figure which comprises, in addition to the turnover from sales of the product concerned to third persons, the value of internal deliveries of the product to factories manufacturing a derived product, which are owned by the undertaking and do not therefore have separate legal personality from it.

No provision states that internal supplies within one company may not be taken into account in order to determine the amount of the fine.

Second, the upper limit for a fine, set at 10% of the undertaking's turnover, seeks to prevent fines from being disproportionate in relation to the size of the undertaking and, since only total turnover can effectively give an approximate indication of that size, that percentage must be understood as referring to the total turnover. In determining the amount of the fines on the basis of turnover solely from sales of the product concerned by the infringement, the Commission bases its calculation on the part of the undertakings' total turnover which best reflects the benefit derived from the cartel. Factories belonging to the same legal person benefit from the infringement by using its own production as a raw material.

To ignore the value of internal deliveries would inevitably give an unjustified advantage to vertically integrated companies. In such a situation the benefit derived from the cartel may not be taken into account and the undertaking in question would avoid the imposition of a fine proportionate to its importance on the product market to which the infringement relates.

4 The fact that an undertaking which has participated in collusion on prices with its competitors may have acted against its own economic interests and, as a result, may have suffered the effects of that collusion does not automatically have to be taken into account as a mitigating factor when the amount of the fine to be imposed on it is determined. An undertaking which continues to collude on prices with its competitors despite the alleged harm which it is suffering cannot be considered to have committed a less serious infringement than the other undertakings also involved in the collusion. The position may, however, be different if that undertaking were to prove that it had been compelled to act illegally.

5 The fact that the undertakings participating in price collusion planned the announcement of price increases together and were discouraged from taking notes on meetings in that regard proves that they were aware of the unlawfulness of their conduct and that they took steps to conceal the collusion. The Commission is fully entitled to hold those steps to be aggravating circumstances when assessing the gravity of the infringement.

The absence of official minutes and the almost total absence of internal notes relating to the meetings may constitute, having regard to the number of such meetings, to the length of time for which they continued and to the nature of the discussions in question, sufficient proof that the participants were discouraged from taking notes.