Keywords
Summary

Keywords

1. Community law — Principles — Protection of legitimate expectations — Protection refused to any person committing a manifest infringement of the rules in force

2. ECSC — Agreements, decisions and concerted practices — Prohibition — Infringement — Administrative procedure — Request for information — Rights of the defence — Right to refuse to provide answers that imply admission of an infringement

(ECSC Treaty, Article 36, first para.)

3. ECSC — Agreements, decisions and concerted practices — Fines — Amount — Determination — Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned — Larger reduction in a case of admission of the infringement — Breach of the undertaking’s rights of defence and in particular its right to refuse to provide answers that imply admission of an infringement — None

(ECSC Treaty, Art. 65(5); Commission Communication 96/C 207/04, part D)

4. ECSC — Agreements, decisions and concerted practices — Fines — Infringement committed by a subsidiary — Criteria to be applied in order to determine the legal person on whom a fine should be imposed

(ECSC Treaty, Art. 65(5))

5. ECSC — Agreements, decisions and concerted practices — Prohibition — Infringement — Administrative procedure — Respect for the rights of the defence — Notification of the statement of objections — Necessary content

(ECSC Treaty, Arts 36, first para. and 65)

Summary

1. The principle of the protection of legitimate expectations may not be relied upon by a person who has committed a manifest infringement of the rules in force. Accordingly, an undertaking which deliberately engages in anti-competitive conduct has no right to allege a breach of that principle on the pretext that the Commission did not clearly inform it that its conduct constituted an infringement.

(see para. 41)

2. While, in the context of procedures aimed at proving the existence of an infringement of competition rules, the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it, the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove.

(see paras 48-49)

3. While the Commission may not compel an undertaking to admit its participation in an infringement of competition rules, it is not thereby prevented, when fixing the amount of the fine, from taking account of the assistance given by that undertaking in order to establish the existence of the infringement with less difficulty and, in particular, of the fact that an undertaking admitted its participation in the infringement. It may grant an undertaking which has assisted it in that way a significant reduction of the amount of its fine and grant a substantially lesser reduction to another undertaking which did no more than fail to deny the main factual allegations on which the Commission based its objections.

Admission of an alleged infringement is a matter entirely within the will of the undertaking concerned. The latter is not in any way coerced to admit the existence of the agreement. The fact that the Commission took account of the degree of cooperation with it shown by the undertaking concerned, including admission of the infringement, for the purpose of imposing a lower fine does not constitute any breach of its rights of defence

The Leniency Notice and, in particular, part D thereof must thus be understood as meaning that the type of cooperation capable of giving rise to a reduction of the fine which the undertaking concerned may provide is not limited to admitting the nature of the facts, but also involves admitting participation in the infringement

(see paras 50-54)

4. Determination of an undertaking’s responsibility for an infringement of the competition rules depends on whether that undertaking acted autonomously or whether it merely followed instructions from its parent company. In the latter case, an undertaking’s anti-competitive conduct may be attributed to its parent company.

On the other hand, where undertakings in a group participating in a cartel have acted autonomously, the Commission may impose a fine on each of them, using a flat-rate amount as a starting point.

(see paras 66-67)

5. Respect for the rights of the defence in any proceedings liable to lead to penalties constitutes a fundamental principle upheld by the first paragraph of Article 36 of the ECSC Treaty. Proper observance of that principle requires that the undertaking concerned should have been given an opportunity, as early as the administrative procedure, duly to put forward its views as to the reality and relevance of the alleged facts and circumstances and on the documents relied on by the Commission in support of its allegations. In view of its importance, the statement of objections must unequivocally identify the legal persons upon whom a fine is likely to be imposed and be addressed to the latter.

(see para. 92)