Keywords
Summary

Keywords

1. Competition - Agreements, decisions and concerted practices - Participation in meetings held by undertakings for an anti-competitive purpose - Sufficient basis for concluding that, if an undertaking has not distanced itself from the decisions taken, it participated in the subsequent arrangements

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

2. Competition - Agreements, decisions and concerted practices - Proof - Undertaking's reply to the Commission's request for information - Probative value - Assessment - Effect of the absence from the meeting in issue of the signatory of the reply given on behalf of the undertaking or of the fact that he did not belong to the undertaking at the time of the meeting - None

(Council Regulation No 17, Art. 11)

3. Competition - Agreements, decisions and concerted practices - Adverse effect on competition - Criteria for assessment - Anti-competitive object - Finding to that effect sufficient

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

4. Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Participation allegedly under pressure - Not a factor such as to justify failure by an undertaking to notify the competent authorities

(EC Treaty, Art. 85(1) (now Art. 81(1) EC); Council Regulation No 17, Art. 3)

5. Competition - Agreements, decisions and concerted practices - Boycott - Imputation to an undertaking - Effect of failure of undertaking actually to implement boycott - None - Responsibility for the conduct of other undertakings in the context of the same infringement - Whether permissible - Criteria

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

6. Competition - Administrative procedure - Observance of the rights of the defence - Access to the investigation file facilitated by the Commission's organisation of an exchange of documents between undertakings involved - Whether permissible - Condition

7. Competition - Administrative procedure - Respect for the rights of the defence - Statement of objections - Production of further evidence after the statement of objections has been sent - Whether permissible - Condition

(Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Arts 2 and 4)

8. Competition - Administrative procedure - Respect for the rights of the defence - Statement of objections - Necessary content - Indications concerning the method of determining the level of the proposed fine - Premature indications - Consequences

(Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Arts 2 and 4)

9. Community law - General principles of law - Non-retroactivity of criminal provisions - Scope - Competition - Administrative procedure - Scope of that principle

(European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 7; Council Regulation No 17, Art. 15)

10. Competition - Fines - Legal framework - Determination - Effect of the Commission's previous practice in taking decisions - None

(Council Regulation No 17)

11. Competition - Fines - Amount - Determination thereof - Commission's margin of discretion - Consequence - Economic operators precluded from relying on a legitimate expectation that an existing situation will be maintained

(Council Regulation No 17, Art. 15)

12. Plea of illegality - Scope - Measures in respect of which a plea of illegality may be raised - Guidelines adopted by the Commission for setting fines imposed for infringement of the competition rules - Whether included

(EC Treaty, Art. 184 (now Art. 241 EC))

13. Competition - Fines - Amount - Determination thereof - Criteria - Gravity and duration of the infringements - Assessment - Need to take into consideration the turnover of the undertakings concerned - None - Need to distinguish between the undertakings involved in the same infringement according to their total turnover or to their turnover in the relevant product market - None

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

14. Competition - Fines - Amount - Determination thereof - Maximum amount - Calculation - Distinction between the final amount and the intermediate amount of the fine - Consequences

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

15. Competition - Fines - Amount - Determination thereof - Maximum amount - Calculation - Turnover to be taken into consideration

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

16. Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Aggravating or mitigating circumstances - Continuation or cessation of the infringement following the Commission's intervention - Assessment on a case-by-case basis

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

17. Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Whether Commission obliged to abide by its previous decision-making practice - No such obligation

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

18. Competition - Fines - Amount - Determination thereof - Commission Notice on the non-imposition or reduction of fines in return for cooperation of the undertakings involved - Effect on the assessment of the cooperation of those undertakings

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

19. Competition - Fines - Amount - Determination thereof - Undertakings precluded from relying on the principle of equal treatment in order to obtain unlawful reductions

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

20. Competition - Fines - Payment - Default interest - Adoption by the Commission of a rate higher than the average market rate - Permissible

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

Summary

1. Where an undertaking participates, even if not actively, in meetings between undertakings with an anti-competitive object and does not publicly distance itself from what occurred at them, thus giving the impression to the other participants that it subscribes to the results of the meetings and will act in conformity with them, it may be concluded that it is participating in the cartel resulting from those meetings.

( see para. 39 )

2. The probative value of an undertaking's reply to the Commission's request for information under Article 11 of Regulation No 17 is not affected by the fact that the person who signed it was not present at the meeting forming the subject-matter of the Commission's investigation or employed by that undertaking at that time. Once the reply was given on behalf of the undertaking as such, it carries more weight than would the reply given by an employee of the undertaking, whatever his individual experience or opinion.

( see para. 45 )

3. For the purposes of applying Article 85(1) of the Treaty (now Article 81(1) EC), there is no need to take account of the concrete effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition within the common market. In that regard, the fact that an undertaking participating with others in meetings during which decisions on prices are taken does not comply with the agreed prices does not lessen the anti-competitive object of those meetings and therefore the undertaking's participation in the collusion, but tends at the most to show that it did not implement the agreements in question.

( see para. 47 )

4. An undertaking which participates with others in anti-competitive behaviour cannot rely on the fact that it did so under pressure from the other participants. It may complain to the competent authorities about the pressure brought to bear on it and lodge a complaint with the Commission under Article 3 of Regulation No 17 rather than participate in the activities in question.

( see para. 142 )

5. A boycott may be attributed to an undertaking without there being any need for it actually to participate, or even be capable of participating, in its implementation. Were that not so, an undertaking which approved a boycott but did not have the opportunity to adopt a measure to implement it would avoid any form of liability for its participation in the agreement.

In that regard, an undertaking which has participated in a multiform infringement of the competition rules by its own conduct, which met the definition of an agreement or concerted practice having an anti-competitive object within the meaning of Article 85(1) of the Treaty (now Article 81(1) EC) and was intended to help bring about the infringement as a whole, may also be responsible for the conduct of other undertakings followed in the context of the same infringement throughout the period of its participation in the infringement, where it is proved that the undertaking in question was aware of the unlawful conduct of the other participants, or could reasonably foresee such conduct, and was prepared to accept the risk.

( see paras 157-158 )

6. Due regard is had to the requirements laid down in the case-law of the Court of First Instance, namely that an exchange of documents between the undertakings cannot in any event eliminate the Commission's own duty to ensure that during the investigation of an infringement of competition law the rights of defence of the undertakings concerned are respected when the Commission, while suggesting that the undertakings concerned facilitate access to the documents by exchanging documents among themselves, none the less itself ensures the right of access to the entire investigation file. The defence of one undertaking cannot depend upon the goodwill of another undertaking which is supposed to be its competitor and against which the Commission has made similar allegations, since their economic and procedural interests often conflict.

( see para. 184 )

7. It follows from a reading of Article 19(1) of Regulation No 17, in conjunction with Articles 2 and 4 of Regulation No 99/63, that the Commission must communicate the objections which it raises against the undertakings and associations concerned and may adopt in its decisions only those objections on which those undertakings and associations have had the opportunity to make known their views. However, there is no provision which prevents the Commission from sending to the parties after the statement of objections fresh documents which it considers support its argument, subject to giving the undertakings the necessary time to submit their views on the subject.

( see paras 188, 190 )

8. Where the Commission expressly states in its statement of objections that it will consider whether it is appropriate to impose fines on the undertakings and it indicates the main factual and legal criteria capable of giving rise to a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was committed intentionally or negligently, it fulfils its obligation to respect the undertakings' right to be heard. In doing so, it provides them with the necessary means to defend themselves not only against the finding of an infringement but also against the imposition of fines. In those circumstances, the Commission is under no obligation to explain the way in which it will use each of those elements in determining the level of the fine. To give indications as regards the level of the fines envisaged, before the undertaking has been invited to submit its observations on the allegations against it, would be to anticipate the Commission's decision and would thus be inappropriate. Nor, consequently, is the Commission bound to inform the undertakings concerned, during the administrative procedure, that it intends to use a new method to calculate the amount of the fines. In particular, the Commission is not under an obligation to put the undertakings on notice by warning them of its intention to increase the general level of fines.

( see paras 199, 206-208 )

9. The principle that penal provisions may not have retroactive effect, enshrined in Article 7 of the European Convention on Human Rights as a fundamental right, is one which is common to all the legal orders of the Member States and takes its place among the general principles of law whose observance is ensured by the Community judicature.

In that regard, although Article 15(4) of Regulation No 17 provides that Commission decisions imposing fines for infringement of competition law are not of a criminal nature, the Commission is none the less required to observe the general principles of Community law, and in particular the principle of non-retroactivity, in any administrative procedure capable of leading to fines under the Treaty rules on competition. Such observance requires that the fines imposed on an undertaking for infringing the competition rules correspond with those laid down at the time when the infringement was committed.

However, having regard to the wide discretion which Regulation No 17 leaves to the Commission, the fact that the latter introduces a new method of calculating fines, which may, in certain cases, lead to increased fines, but does not exceed the maximum level established by that regulation, cannot be regarded as an aggravation, with retroactive effect, of the fines as legally provided for by Article 15 of Regulation No 17, which infringes the principles of legality and legal certainty.

( see paras 219-221, 235 )

10. In competition matters, the Commission's practice in previous decisions does not itself serve as a legal framework for the fines imposed, since that framework is defined solely in Regulation No 17.

( see para. 234 )

11. As regards the setting of the amount of fines for infringements of the competition rules, the Commission exercises its powers within the limits of the discretion conferred on it by Regulation No 17. Traders cannot have a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretion will be maintained. It follows that undertakings involved in an administrative procedure which may lead to a fine cannot acquire a legitimate expectation that the Commission will not exceed the level of fines previously applied.

( see paras 241, 243 )

12. Article 184 of the Treaty (now Article 241 EC) expresses a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which, although they are not in the form of a regulation, form the legal basis of the decision under challenge, if that party was not entitled under Article 173 of the Treaty (now, after amendment, Article 230 EC) to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void. Since Article 184 of the Treaty is not intended to enable a party to contest the applicability of any measure of general application in support of any action whatsoever, the general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general measure in question.

In that regard, although the guidelines adopted by the Commission on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty do not constitute the legal basis of the decision imposing a fine on an economic operator, as that decision is based on Articles 3 and 15(2) of Regulation No 17, they determine, generally and abstractly, the method which the Commission has bound itself to use in assessing the fine imposed by the decision and, consequently, ensure legal certainty on the part of the undertakings. Thus, provided that it is apparent that the Commission actually assessed the fine imposed on the in accordance with the general method which it laid down for itself in the guidelines, there is a direct legal connection between the individual decision in issue and the general measure represented by the guidelines. Since the economic operator concerned was not in a position to ask that the guidelines be declared void, as a general measure, the guidelines may form the subject-matter of an objection of illegality.

( see paras 272-276 )

13. The Commission is not required, when assessing fines in accordance with the gravity and duration of the infringement in question, to calculate the fines on the basis of the turnover of the undertakings concerned, or to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover or their turnover in the relevant product market.

( see para. 278 )

14. Article 15(2) of Regulation No 17, in providing that the Commission may impose fines of up to 10% of turnover during the preceding business year for each undertaking which participated in the infringement, requires that the fine eventually imposed on an undertaking be reduced if it should exceed 10% of its turnover, independently of the intermediate stages in the calculation intended to take the gravity and duration of the infringement into account. Consequently, that provision does not prohibit the Commission from referring, during its calculation, to an intermediate amount exceeding 10% of the turnover of the undertaking concerned, provided that the amount of the fine eventually imposed on the undertaking does not exceed that maximum limit. In such a situation, the Commission cannot be criticised because certain factors taken into consideration in its calculation, such as duration or mitigating or aggravating circumstances, do not affect the final amount of the fine, since that is the consequence of the prohibition laid down in Article 15(2) of Regulation No 17 on exceeding 10% of the turnover of the undertaking concerned.

( see paras 286-288, 290 )

15. The turnover referred to in Article 15(2) of Regulation No 17 must be understood as referring to the total turnover of the undertaking concerned, which alone gives an approximate indication of its size and influence on the market. Provided that it complies with the time-limit set by that provision, the Commission may set the fine on the basis of the turnover of its choice, in terms of geographical area and relevant products.

( see para. 306 )

16. The fact that terminating an infringement of the competition rules after the Commission has first intervened may be regarded as a mitigating circumstance does not mean that continuing an infringement in such a situation cannot be regarded as an aggravating circumstance. An undertaking's reaction to the opening of an investigation into its activities can be assessed only by taking account of the particular context of the case. Since the Commission cannot therefore be required, as a general rule, either to regard a continuation of the infringement as an aggravating circumstance or to regard the termination of an infringement as a mitigating circumstance, the fact that it may classify such termination as a mitigating circumstance in one particular case cannot deprive it of its power to find that such continuation constitutes an aggravating circumstance in another case.

( see para. 324 )

17. The mere fact that the Commission considered in previous decisions that certain factors constituted mitigating circumstances for the purposes of determining the amount of the fine to be imposed for an infringement of the competition rules does not mean that it is obliged to make the same assessment in a subsequent decision.

( see para. 337 )

18. Commission Notice on the non-imposition or reduction of fines in cartel cases creates legitimate expectations on which undertakings wishing to inform the Commission of the existence of a cartel rely. Having regard to the legitimate expectation which undertakings wishing to cooperate with the Commission are able to derive from that notice, the Commission is obliged to comply with it when assessing an undertaking's cooperation for the purpose of setting the fine.

( see para. 360 )

19. Even supposing that the Commission granted too high a reduction of the fine to another undertaking for an infringement of the competition rules, respect for the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party.

( see para. 367 )

20. Although the interest rate must not be so high as to oblige undertakings to pay fines even though they consider that they have good grounds for challenging the validity of the Commission decision, the Commission may none the less adopt a point of reference higher than the applicable market rate offered to the average borrower, to an extent necessary to discourage dilatory behaviour.

( see para. 398 )