61972J0007

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COMPETITION - CARTELS - PROHIBITION - INFRINGEMENT OF COMMUNITY RULES - COMMUNITY PENALTIES AND NATIONAL PENALTIES IMPOSED BY THE AUTHORITIES OF A MEMBER STATE OR OF A THIRD STATE - CUMULATION - TAKING INTO ACCOUNT THEREOF BY THE COMMISSION - CRITERIA

( EEC TREATY, ARTICLE 85, REGULATION NO 17 OF THE COUNCIL, ARTICLE 15 )

IN FIXING THE AMOUNT OF A FINE THE COMMISSION MUST TAKE ACCUNT OF PENALTIES WHICH HAVE ALREADY BEEN BORNE BY THE SAME UNDERTAKING FOR THE SAME ACT IN A CASE WHERE PENALTIES HAVE BEEN IMPOSED FOR INFRINGEMENTS OF THE CARTEL LAW OF A MEMBER STATE AND, CONSEQUENTLY, HAVE BEEN COMMITTED ON COMMUNITY TERRITORY .

THE FACT THAT THE COMMISSION TAKES INTO ACCOUNT A PENALTY IMPOSED BY THE AUTHORITIES OF A THIRD STATE PRESUPPOSES THAT THE FACTS ESTABLISHED AGAINST THE UNDERTAKING ACCUSED BY THE COMMISSION, ON THE ONE HAND, AND THE AUTHORITIES OF THE THIRD STATE IN QUESTION, ON THE OTHER, ARE IDENTICAL .

IN CASE 7/72

BOEHRINGER MANNHEIM GMBH, HAVING ITS REGISTERED OFFICE IN MANNHEIM, REPRESENTED BY ITS MANAGERS, H . RAISER AND H . E . KOEBNER, ASSISTED BY A . DERINGER, C . TESSIN, H . J . HERRMANN AND J . SEDEMUND, ADVOCATES OF COLOGNE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF M . BADEN, ADVOCATE, 1 BOULEVARD PRINCE-HENRI, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, E . ZIMMERMANN, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, E . REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR THE AMENDMENT OF THE PART OF THE COMMISSION DECISION OF 25 NOVEMBER 1971 ( IV/26 945/BOEHRINGER ) RELATING TO THE FINE IMPOSED ON THE APPLICANT AND, ALTERNATIVELY, FOR THE ANNULMENT OF THAT DECISION .

1 BY DECISION OF 16 JULY 1969 THE COMMISSION OF THE EUROPEAN COMMUNITIES FINED BOEHRINGER MANNHEIM GMBH 190 000 U . A . FOR INFRINGEMENT OF ARTICLE 85 OF THE EEC TREATY . THIS AMOUNT WAS REDUCED TO 180 000 U . A . BY JUDGMENT OF THE COURT OF 15 JULY 1970 IN CASE 45/69 . ON 3 JULY 1969 A NEW YORK DISTRICT COURT FINED BOEHRINGER 80 000 DOLLARS FOR INFRINGEMENT OF THE PROVISIONS OF THE FEDERAL LAW OF THE UNITED STATES OF AMERICA ON RESTRICTION OF COMPETITION . THE APPLICANT PAID THIS FINE ON 11 JULY 1969 . BY LETTER OF 3 SEPTEMBER 1969 THE COMPANY ASKED THE COMMISSION TO SET THE AMOUNT OF THE FINE PAID IN THE UNITED STATES AGAINST THAT IMPOSED BY THE DECISION OF THE COMMISSION OF 16 JULY 1969 . BY DECISION OF 25 NOVEMBER 1971 THE COMMISSION REJECTED THAT REQUEST .

2 THE APPLICANT COMPLAINS THAT THE COMMISSION THEREBY VIOLATED A GENERAL PRINCIPLE OF LAW PROHIBITING DOUBLE PENALTIES FOR THE SAME ACTION .

3 IN FIXING THE AMOUNT OF A FINE THE COMMISSION MUST TAKE ACCOUNT OF PENALTIES WHICH HAVE ALREADY BEEN BORNE BY THE SAME UNDERTAKING FOR THE SAME ACTION, WHERE PENALTIES HAVE BEEN IMPOSED FOR INFRINGEMENTS OF THE CARTEL LAW OF A MEMBER STATE AND, CONSEQUENTLY, HAVE BEEN COMMITTED ON COMMUNITY TERRITORY . IT IS ONLY NECESSARY TO DECIDE THE QUESTION WHETHER THE COMMISSION MAY ALSO BE UNDER A DUTY TO SET A PENALTY IMPOSED BY THE AUTHORITIES OF A THIRD STATE AGAINST ANOTHER PENALTY IF IN THE CASE IN QUESTION THE ACTIONS OF THE APPLICANT COMPLAINED OF BY THE COMMISSION, ON THE ONE HAND, AND BY THE AMERICAN AUTHORITIES, ON THE OTHER, ARE IDENTICAL .

4 ALTHOUGH THE ACTIONS ON WHICH THE TWO CONVICTIONS IN QUESTION ARE BASED ARISE OUT OF THE SAME SET OF AGREEMENTS THEY NEVERTHELESS DIFFER ESSENTIALLY AS REGARDS BOTH THEIR OBJECT AND THEIR GEOGRAPHICAL EMPHASIS .

5 THE COMMUNITY CONVICTION WAS DIRECTED ABOVE ALL TOWARDS THE GENTLEMEN' S AGREEMENT FOR THE DIVISION OF THE COMMON MARKET AND GREAT BRITAIN AND TOWARDS THE RESTRICTION OF THE PRODUCTION OF SYNTHETIC QUINIDINE TO THE NEDCHEM, BOEHRINGER AND BUECHLER UNDERTAKINGS . ALTHOUGH THE CONVICTION INCURRED IN THE UNITED STATES MAY HAVE BEEN BASED IN PART ON THOSE FACTORS, IT RELATED TO A WIDER BODY OF FACTS AND WAS DIRECTED IN PARTICULAR AGAINST THE AGREEMENT ON QUINQUINA BARK AND THE ACQUISITION AND DIVISION OF AMERICAN STRATEGIC STOCKS BY THE CARTEL, AND THE SUCCESSIVE APPLICATION OF PARTICULARLY HIGH SELLING PRICES IN THE UNITED STATES UNTIL THE MIDDLE OF 1966 . THE PARTIES DISAGREE AS TO THE APPRAISAL OF THE ACTIONS ON WHICH THIS LATTER CONVICTION WAS BASED IN SUBSTANCE BECAUSE THE JUDGMENT AGAINST THE APPLICANT WAS DELIVERED ON THE BASIS OF A PLEA OF NOLO CONTENDERE SO THAT ONLY THE INDICTMENT IS AVAILABLE AND NOT THE ARGUMENTS PUT FORWARD OR A REASONED JUDGMENT WHICH IS CAPABLE OF REMOVING THE DOUBTS AS TO THE SCOPE OF THE CONVICTION . IT IS FOR THE APPLICANT TO ESTABLISH THAT THE ACTIONS ARE IDENTICAL, WHICH IT WAS FOR THIS REASON UNABLE TO DO .

6 IN ANY CASE THE ARGUMENT WHEREBY THE ACTION PENALIZED CONSISTS IN THE CARTEL AGREEMENT ITSELF AND NOT IN ITS APPLICATION CANNOT BE ACCEPTED . IN THIS CONNEXION IT IS SUFFICIENT TO RECALL THAT THE JUDGMENT OF THE COURT OF 15 JULY 1970 BETWEEN THE SAME PARTIES ADOPTED A CONTRARY POINT OF VIEW WHEN, HAVING ESTABLISHED THAT THE AGREEMENT HAD IN SEVERAL RESPECTS BEEN " IN ABEYANCE " BETWEEN CERTAIN DATES, IT CONCLUDED THAT THE INFRINGEMENTS OF THE TREATY WERE MORE LIMITED THAN THE COMMISSION HAD CONSIDERED AND DREW THE APPROPRIATE CONCLUSIONS WITH REGARD TO THE FIXING OF THE FINE . IN ACCORDANCE WITH ARTICLE 85 OF THE TREATY, THAT JUDGMENT TOOK ACCUNT ONLY OF SUCH INSTANCES OF APPLICATION OF THE CARTEL AS MAY HAVE AFFECTED TRADE BETWEEN MEMBER STATES OR HAVE DISTORTED COMPETITION WITHIN THE COMMON MARKET . FURTHERMORE, THE APPLICANT HAS PUT FORWARD NOTHING CAPABLE OF CONFIRMING THE ARGUMENT THAT THE CONVICTION IN THE UNITED STATES WAS DIRECTED AGAINST THE APPLICATION OR EFFECTS OF THE CARTEL OTHER THAN THOSE OCCURRING IN THAT COUNTRY . NOR, CONSEQUENTLY, HAS IT BEEN ESTABLISHED IN THIS RESPECT THAT THE ALLEGED ACTIONS WERE IDENTICAL .

7 THERE ARE THEREFORE NO GROUNDS FOR SETTING EVEN PART OF THE AMOUNT OF THE FINE IMPOSED ON THE APPLICANT IN THE UNITED STATES AGAINST THE FINE OF 180 000 U . A . WHICH IT WAS ORDERED TO PAY FOR INFRINGEMENT OF ARTICLE 85 OF THE TREATY .

8 ACCORDINGLY, THE APPLICATION MUST BE DISMISSED .

UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

THE APPLICANT HAS FAILED IN ITS PLEAS .

THE COURT

HEREBY :

1 . DISMISSES THE ACTION AS UNFOUNDED;

2 . ORDERS THE APPLICANT TO BEAR THE COSTS OF THE ACTION .