Keywords
Summary

Keywords

1. Competition - Community rules - Infringements - Attribution - Legal person responsible for the operation of the undertaking at the time of the infringement

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

2. Competition - Fines - Amount - Determination thereof - Criteria - Position of the undertaking during the administrative procedure - Position which must enable the Commission to establish the infringement more easily - Distinction between failure to contest the facts alleged and failure to comment on the reality of those facts

(Council Regulation No 17, Art. 15)

3. Competition - Fines - Amount - Appropriateness - Review by the Court - Factors which may be taken into account by the Community court - Information not contained in the decision imposing the fine and not required in the statement of reasons - Included

(EC Treaty, Arts 172 and 190 (now Arts 229 EC and 253 EC); Council Regulation No 17, Art. 17)

4. Competition - Fines - Decision imposing fines - Obligation to state reasons - Scope - Indication of the factors by which the Commission assessed the gravity and duration of the infringement - Sufficient indication - Subsequent communication of more precise information - No effect

(EC Treaty, Art. 190 (now Art. 253 EC); Council Regulation No 17, Art. 15(2), second subpara.)

Summary

1. It falls, in principle, to the legal or natural person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, at the date of the Decision finding the infringement, the operation of the undertaking was no longer its responsibility, for example where the undertaking in question acquired a separate legal personality.

( see para. 27 )

2. A reduction in the fine imposed on an undertaking for infringment of the competition rules on grounds of cooperation during the administrative procedure is justified only if the conduct of the undertaking in question enabled the Commission to establish the existence of an infringement more easily and, where relevant, to bring it to an end.

The position of an undertaking which does not contest the facts alleged against it is not to be treated in the same way as that of an undertaking which simply refrains from commenting on the reality of those facts. An undertaking which merely states during the administrative procedure that it is not expressing any view on the Commission's factual allegations, and does not acknowledge the correctness of those allegations, does not further the Commission's task. Where the undertaking involved does not expressly acknowledge the facts, the Commission will have to prove those facts and the undertaking is free to put forward, at the appropriate time and in particular in the procedure before the Court, any plea in its defence which it deems appropriate.

( see paras 35-37 )

3. In actions contesting Commission decisions imposing fines on undertakings for infringement of the competition rules, the Community court has power to assess, in the context of the unlimited jurisdiction accorded to it by Article 172 of the Treaty (now Article 229 EC) and Article 17 of Regulation No 17, the appropriateness of the amounts of fines. That assessment may justify the production and taking into account of additional information which is not as such required, by virtue of the duty to state reasons under Article 190 of the Treaty (now Article 253 EC), to be set out in the decision.

( see paras 53, 55 )

4. The second subparagraph of Article 15(2) of Regulation No 17 provides that [i]n fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement. In those circumstances, the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration. If those factors are not stated, the decision is vitiated by failure to state adequate reasons.

The fact that more specific information, such as the turnover achieved by the undertakings or the rates of reduction applied by the Commission, were communicated subsequently, at a press conference or during the proceedings before the Court of First Instance, is not such as to call in question the adequacy of the statement of reasons in the decision. Where the author of a contested decision provides explanations to supplement a statement of reasons which is already adequate in itself, that does not go to the question whether the duty to state reasons has been complied with, though it may serve a useful purpose in relation to review by the Community court of the adequacy of the grounds of the decision, since it enables the institution to explain the reasons underlying its decision.

( see paras 56-57, 59 )