Keywords
Summary

Keywords

1. Competition – Agreements, decisions and concerted practices – Concerted practice – Adverse effect on competition – Criteria for assessment – Anti-competitive purpose – Sufficient

(Art. 81(1) EC)

2. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Need for a causal link between the concerted practice and the undertakings’ conduct on the market – Presumption that that causal link exists

(Art. 81(1) EC)

3. Competition – Agreements, decisions and concerted practices – Complex infringement comprising elements both of an agreement and of a concerted practice – Classified singly as ‘an agreement and/or concerted practice’ – Lawfulness

(Art. 81(1) EC)

4. Competition – Administrative procedure – Commission decision finding an infringement – Means of proof – Reliance on a body of evidence – Degree of evidential value required as regards items of evidence viewed in isolation

(Art. 81(1) EC)

5. Competition – Agreements, decisions and concerted practices – Participation of an undertaking in anti-competitive initiatives – Sufficiency of tacit approval without public distancing to render the undertaking liable

(Art. 81(1) EC)

6. 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)

7. Community law – Principles – Fundamental rights – Presumption of innocence – Procedures in competition matters – Applicability

(Art. 81(1) EC)

8. Competition – Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices constituting a single infringement – Attribution of liability for the entire infringement to a single undertaking – Conditions

(Art. 81(1) EC)

9. Community law – Interpretation – Acts of the institutions – Statement of reasons – To be taken into consideration

10. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission

(Art. 81(1) EC)

11. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement –Gravity of the participation of each undertaking

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

12. Competition – Fines – Amount – Determination – Criteria – Actual impact on the market – Obligation to demonstrate such an impact in order to classify an infringement as very serious – None

(Council Regulation No 17, Art.15(2); Commission Notice 98/C 9/03)

13. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking

(Art. 81 EC; Council Regulation No 17, Art. 15; Commission Notice 98/C 9/03)

14. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Conduct deviating from that agreed within the cartel

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

Summary

1. In deciding whether a concerted practice is prohibited by Article 81(1) EC, there is no need to take account of its actual effects once it is apparent that its object is to prevent, restrict or distort competition within the common market. Consequently, it is not necessary to examine the effects of a concerted practice once its anti-competitive object has been established.

(see para. 39)

2. In the context of Article 81(1) EC, even though the concept of a concerted practice implies, in addition to the participating undertakings concerting with each other, subsequent conduct on the market and a relationship of cause and effect between the two, it must be presumed, subject to proof to the contrary, which the economic operators concerned must adduce, that the undertakings taking part in the concerted action and remaining active on the market take account of the information exchanged with their competitors in determining their conduct on that market.

(see para. 40)

3. The concepts of ‘agreement’ and ‘concerted practice’ within the meaning of Article 81(1) EC cover forms of collusion having the same nature which are distinguishable from each other only by their intensity and the forms in which they manifest themselves.

In the context of a complex infringement which has involved many producers seeking over a number of years to regulate the market between them the Commission cannot be expected to classify the infringement precisely, for each undertaking and for any given moment, as an agreement or a concerted practice, as in any event both those forms of infringement are covered by Article 81 EC.

In such a situation, the dual characterisation of ‘agreement and concerted practice’ must be understood as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 81(1) EC, which lays down no specific category for a complex infringement of this type.

(see paras 34, 41-42)

4. In relation to adducing evidence of an infringement of Article 81(1) EC, it is incumbent on the Commission to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. In this respect, it must produce sufficiently precise and consistent evidence to establish the existence of the infringement.

However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement.

The items of evidence on which the Commission relies in the decision in order to prove the existence of an infringement of Article 81(1) EC by an undertaking must not be assessed separately, but as a whole.

(see paras 43-45)

5. It is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs.

The reason underlying that principle of law is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking gave the other participants to believe that it subscribed to what was decided there and would comply with it.

Nor is the fact that an undertaking does not act on the outcome of a meeting having an anti-competitive object such as to relieve it of responsibility for the fact of its participation in a cartel, unless it has publicly distanced itself from what was agreed in the meeting.

Furthermore, the notion of publicly distancing oneself as a means of excluding liability must be interpreted narrowly. In particular, silence by an operator in a meeting during which the parties colluded unlawfully on a precise question of pricing policy cannot be regarded an expression of firm and unambiguous disapproval.

(see paras 47-50)

6. In competition matters there is no general provision or principle of European Union law which prohibits the Commission from using statements against an undertaking which have been provided by other undertakings involved in the infringement. Statements made pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (‘the Leniency Notice’) cannot therefore be regarded as devoid of probative value on that ground alone.

Some caution as to the evidence provided voluntarily by the main participants in an unlawful agreement is understandable, since they might tend to play down the importance of their contribution to the infringement and maximise that of others. However, given the inherent logic of the procedure provided for in the Leniency Notice, the fact of seeking to benefit from the application of the Leniency Notice in order to obtain a reduction in the fine does not necessarily create an incentive for the other participants in the cartel in question to submit distorted evidence. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the undertaking seeking to benefit, and thereby jeopardise its chances of benefiting fully under the Leniency Notice.

In particular, when a person admits that he committed an infringement and thus admitted the existence of facts going beyond those whose existence could be directly inferred from the documents in question, that fact implies, a priori, in the absence of special circumstances indicating otherwise, that that person had resolved to tell the truth. Statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence.

However, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence.

For the purpose of examining the probative value of statements by undertakings which have submitted an application under the Leniency Notice, the Court takes into account inter alia the strength of consistent evidence supporting the relevance of those statements and the absence of evidence that they might have tended to play down the importance of their contribution to the infringement and maximise that of other undertakings. Similarly, the relevance of a statement has a bearing on the degree of corroboration required.

The fact that a statement was introduced at a very late stage of the procedure, namely in the response to the statement of objections, does not in itself mean that no probative value whatsoever must be accorded to that statement, which must be examined in the light of all of the relevant facts of the case. However, such a statement has less probative value than one made spontaneously, irrespective of a statement made by another undertaking. In particular, when the undertaking lodging an application for immunity is aware of the information gathered by the Commission in its investigation, the inherent logic of the procedure provided for in the Leniency Notice, according to which any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the undertaking, does not apply to the same degree as where it is a spontaneous statement, made without knowledge of the Commission’s objections. Similarly, the consideration that statements made under the Leniency Notice run counter to the interests of the declarant and must in principle be regarded as particularly reliable evidence may not be fully applicable in respect of the response to the statement of objections coming from an undertaking lodging an application for immunity.

(see paras 52-56, 97, 108-109)

7. Regarding the scope of the judicial review, where it hears an action for the annulment of a decision applying Article 81(1) EC, the General Court must undertake in general a comprehensive review of the question whether or not the conditions for applying Article 81(1) EC are met.

Where the Court is in doubt the undertaking which is the addressee of the decision finding an infringement must have the benefit of that doubt, in keeping with the principle of the presumption of innocence which, as a general principle of European Union law, applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments.

(see paras 57-58)

8. Given the nature of the infringements of the competition rules and also the nature and the degree of severity of the related sanctions, responsibility for committing those infringements is personal in nature.

The agreements and concerted practices referred to in Article 81(1) EC are necessarily the result of collusion on the part of a number of undertakings, all of whom are co-perpetrators of the infringement, but whose participation can take different forms, varying, in particular, according to the characteristics of the market concerned and the position of each undertaking on that market, the aims pursued and the means of implementation chosen or envisaged.

However, the mere fact that each undertaking takes part in the infringement in ways particular to it does not suffice to exclude its liability for the entire infringement, including its liability for conduct which, in practical terms, is put into effect by other participating undertakings, but which has the same anti-competitive object or effect.

Moreover, an infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute in themselves and individually an infringement of that provision. When the various acts form part of an ‘overall plan’ because they have the same object of distorting competition within the common market, the Commission is entitled to attribute liability for those actions on the basis of participation in the infringement considered as a whole, even if it is established that the undertaking concerned directly participated in only one or some of the constituent elements of the infringement. Equally, the mere fact that the undertaking was not active in the sector concerned does not necessarily mean that that undertaking cannot be held liable for the entire single infringement.

In order to establish that an undertaking participated in such a single infringement, the Commission must show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of those same objectives, or that it could reasonably have foreseen it, and that it was prepared to take the risk.

Thus, an undertaking may be held liable for an overall cartel if it knew, or must have known, that the collusion in which it participated, especially by means of regular meetings organised over several years, was part of an overall plan intended to distort competition and if that overall plan included all the constituent elements of the cartel. The mere fact that there is identity of object between an agreement in which an undertaking participated and a global cartel does not suffice to render that undertaking responsible for the global cartel. It is only if the undertaking knew or should have known when it participated in the agreement that in doing so it was joining in the global cartel that its participation in the agreement concerned can constitute the expression of its accession to that global cartel.

The mere fact that the undertaking was aware of and pursued the anti-competitive objectives in respect of one of the products in the relevant sector does not mean that it was aware of the single objective pursued by the cartel as a whole in that sector. The concept of a single objective cannot be determined by a general reference to the distortion of competition in a given sector, since an impact on competition, whether as object or effect, is an essential element of any conduct covered by Article 81(1) EC. Such a definition of the concept of a single objective is likely to deprive the concept of a single and continuous infringement of a part of its meaning, since it would have the consequence that different instances of conduct which relate to a particular economic sector and are prohibited by Article 81(1) EC would have to be systematically characterised as constituent elements of a single infringement.

(see paras 125-128, 143-144, 149)

9. The operative part of an act is indissociably linked to the statement of reasons for it and when it has to be interpreted account must be taken of the reasons that led to its adoption.

(see para. 131)

10. The duration of the infringement is an intrinsic element of an infringement under Article 81(1) EC, the burden of proof of which is borne principally by the Commission. If there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates.

The fact that the cartel as such was uninterrupted does not exclude the possibility that one or more of its participants may have interrupted their participation for a certain time.

Although the period separating two manifestations of infringing conduct is a relevant criterion in order to establish the continuous nature of an infringement, the fact remains that the question whether or not that period is long enough to constitute an interruption of the infringement cannot be examined in the abstract. On the contrary, it needs to be assessed in the context of the functioning of the cartel in question, including, where appropriate, the specific ways in which the undertaking concerned participated therein.

(see paras 155-156, 159)

11. In the determination of the amount of a fine for infringement of the competition rules under the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, a distinction must be drawn between the assessment of the gravity of the infringement, which is used to determine the general starting amount of the fine, and the assessment of the relative gravity of the participation of each of the undertakings concerned, which must be examined in the context of any aggravating or mitigating circumstances.

Sections 2 and 3 of the Guidelines provide for a variation in the basic amount of the fine on the basis of certain aggravating or mitigating circumstances, which are specific to each of the undertakings concerned. In particular, Section 3 of the Guidelines sets out, under the title of ‘attenuating circumstances’, a non-exhaustive list of circumstances which might lead to a reduction in the starting amount of the fine. Thus, reference is made to the passive role of the undertaking, to the non-implementation in practice of the offending agreements or practices, to termination of the infringement as soon as the Commission intervenes, to the existence of reasonable doubt on the part of the undertaking as to whether the restrictive conduct does indeed constitute an infringement, to the fact that the infringement was committed as a result of negligence and to the effective cooperation by the undertaking in the proceedings outside of the scope of the Leniency Notice.

By contrast, in the determination of the starting amount of the fine, the Commission is not required to assess the effects resulting from the conduct of an undertaking in particular. The effects to be taken into consideration in determining the general level of fines are not those resulting from the actual conduct which an undertaking claims to have adopted but those resulting from the whole of the infringement in which it participated.

However, when the undertaking is not liable for the entire cartel, but can only be held liable for one branch of the cartel, this fact must be taken into account in the determination of the starting amount of the fine. In that case, the infringement of the competition rules is necessarily less serious than that attributed to the offenders who participated in all branches of the infringement and thereby contributed more to the effectiveness and the gravity of the cartel than an offender involved in only one branch of it. An undertaking may never be fined an amount which is calculated to reflect its participation in collusion for which it is not held liable.

(see paras 183-185, 197-200)

12. In the assessment of the gravity of an infringement of the Community competition rules for the purposes of determining the starting amount of the fine imposed on an undertaking, it is apparent from the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty that the Commission may classify horizontal price or market sharing agreements as very serious infringements solely on account of their nature and is not required to demonstrate an actual impact of the infringement on the market. By reason of their very nature, such agreements merit the severest fines. Their possible concrete impact on the market, particularly the question to what extent the restriction of competition resulted in a market price higher than would have obtained without the cartel, is not a decisive factor for determining the level of fines.

(see para. 189)

13. A passive role implies that the undertaking adopted a ‘low profile’, that is to say, that it did not actively participate in the creation of any anti-competitive agreements. Amongst the circumstances that may indicate the adoption by an undertaking of a passive role within a cartel is the situation where the undertaking’s participation in cartel meetings is significantly more sporadic than that of the ‘ordinary’ members of the cartel, and likewise its belated entry to the market where the infringement occurred, irrespective of the duration of its participation in the infringement, or again the existence of express statements to that effect emanating from representatives of other undertakings which participated in the infringement.

(see para. 224)

14. For the purpose of determining whether a party may benefit from mitigating circumstances on the basis of the non-implementation in practice of agreements under Section 3, second indent, of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, it is necessary to determine whether the circumstances put forward by the undertaking concerned are capable of showing that, during the period in which it was party to the offending agreements, it actually avoided implementing them by adopting competitive conduct on the market or, at the very least, that it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation.

(see para. 231)