Keywords
Summary

Keywords

1. Competition - Agreements, decisions and concerted practices - Imputation to an undertaking - Responsibility for conduct of other undertakings in the context of the same infringement - Whether permissible - Criteria

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

2. 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 product market - None

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

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

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

4. Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Aggravating circumstances - Continuation of the infringement after the Commission's intervention - Whether Commission obliged to prove that the undertaking concerned was aware of that intervention

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

Summary

1. 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 to 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.

The decision imposing a fine on an undertaking for infringement of Article 85(1) of the Treaty must be annulled where the Commission has failed to adduce evidence sufficiently precise and consistent to found the firm conviction that the undertaking knew or should have known that by participating in the agreement on the market of a Member State it was joining a cartel covering the whole of the common market.

( see paras 40, 51-52 )

2. 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. 84 )

3. 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 limit laid down in 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. 91 )

4. In order to determine whether the deliberate continuation of an agreement constitutes an aggravating circumstance, it is necessary to ascertain whether the undertaking concerned continued the infringement in the knowledge that it was the subject of a Commission inquiry.

The decision in which the basic amount of the fine to be imposed on an undertaking for infringement of Article 85(1) of the Treaty (now Article 81(1) EC) was increased because the infringement was intentionally continued must be annulled where the Commission has merely presumed without adducing any evidence to support that presumption, that the undertaking must have been aware of the Commission's inquiry.

( see paras 102, 106-107 )