Case T-357/06

Koninklijke Wegenbouw Stevin BV

v

European Commission

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Existence and classification of an agreement — Restriction on competition — Guidelines on the applicability of Article 81 EC to horizontal cooperation agreements — Rights of the defence — Fine — Aggravating circumstances — Role of instigator and leader — Absence of cooperation — Commission’s powers of investigation — Right to the assistance of a lawyer — Misuse of powers — Calculation of the amount of the fines — Duration of the infringement — Unlimited jurisdiction’

Summary — Judgment of the General Court (Sixth Chamber), 27 September 2012

1. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Scope of the burden of proof — Degree of precision required of the evidence used by the Commission — Body of evidence — Judicial review — Scope

   (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2)

2. Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision relying on documentary evidence — Penalised undertaking having no commercial interest in the agreement — No effect

   (Art. 81(1) EC)

3. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — No obligation to reply to all the allegations made by the parties during the administrative procedure

   (Arts 81 EC, 82 EC and 253 EC)

4. Competition — Administrative procedure — Statement of objections — Necessary content — Commission decision finding an infringement — Decision not identical to the statement of objections — Commission not obliged to deal with all the matters mentioned in the statement of objections

   (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(1))

5. Competition — Union rules — Matters covered — Conduct imposed by national measures — Not included — Conditions

   (Arts 81 EC and 82 EC)

6. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient — Finding not subject to the obligation to prove the existence of inconveniences for end consumers — Assessment by reference to the content of the agreement and the economic context

   (Art. 81(1) EC)

7. Agreements, decisions and concerted practices — Prohibition — Exemption — Duty of the undertaking concerned to show that its request is well founded — Commission decision rejecting a request for exemption — Duty to state reasons — Scope

   (Art. 81(3) EC)

8. Agreements, decisions and concerted practices — Prohibition — Exemption — Scope — Horizontal cooperation agreements — Purchasing agreements — Assessment in the light of principles set out in the Guidelines — No obligation to take account of actual market effects

   (Art. 81(1) and (3) EC; Commission Notice 2001/C 3/02, Sections 18, 124 and 133)

9. Agreements, decisions and concerted practices — Definition of the market — Purpose — Determination of the effect on trade between Member States — Obligation to define the market in question — Limits

   (Art. 81(1) and (3) EC)

10. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Subject-matter — Communication of responses to the statement of objections — Conditions — Limits

    (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2); Commission Notice 2005/C 325/07, Sections 8 and 27)

11. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Refusal to communicate a document — Consequences — Need to make a distinction, at the level of the burden of proof on the undertaking concerned, between inculpatory and exculpatory documents

    (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2))

12. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — Horizontal price cartel and application, towards commercial partners, of unequal conditions to equivalent services — Global assessment

    (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)); Commission Notice 98/C 9/03, Section 1)

13. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — No requirement to determine their impact and their geographical extent — Commission taking market impact into account — Scope of the burden of proof

    (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

14. Competition — Fines — Amount — Determination — Division of the undertakings concerned into different categories — Conditions — Compliance with the principles of equal treatment and proportionality — Turnover of the undertakings taken into account — Discretion of the Commission

    (Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, sixth and seventh paras)

15. Competition — Fines — Amount — Determination — Criteria — No need to distinguish between the undertakings involved in an infringement by reference to their overall turnover or turnover on the market in question

    (Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, sixth para.)

16. Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Indication of the main elements of fact and law likely to involve a fine — Commission not obliged to warn of the possibility of the fine being increased in the event of the undertaking refusing to cooperate during the inquiry

    (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Arts 27(1) and 31; Commission Notice 98/C 9/03)

17. Competition — Administrative procedure — Commission’s powers of investigation — Access to undertakings’ premises — Presence of a lawyer — Legality of the investigation not dependent thereon — Commission refusal to await the arrival of an external lawyer — No infringement of defence rights

    (Arts 81 EC and 82 EC; Council Regulations No 17, Arts 14 and 15(1)(c) and No 1/2003, Art. 20; Commission Regulation No 773/2004)

18. Competition — Administrative procedure — Right of undertakings to be heard — Scope — Investigation procedure — Not included

    (Arts 81 EC and 82 EC; Council Regulations No 17, Arts 14 and 19(1) and No 1/2003, Arts 20 and 27(1))

19. Competition — Administrative procedure — Commission’s powers of investigation — Scope — Duty of undertakings actively to cooperate in investigation measures — Refusal of access to premises — Refusal completely to submit to the investigation decision

    (Arts 81 EC and 82 EC; Council Regulations No 17, Arts 14 and 15(1)(c) and No 1/2003, Art. 20)

20. Competition — Administrative procedure — Commission’s powers of investigation — Decision ordering an investigation — Refusal of an undertaking to submit to such a decision — No obligation on the Commission to establish minutes within a specified time-limit

    (Arts 81 EC and 82 EC; Council Regulations No 17, Art. 14 and No 1/2003, Art. 20)

21. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Refusal of the undertaking to cooperate during the inquiry — Commission adopting guidelines for the calculation of fines — No misuse of powers

    (Arts 81 EC and 82 EC; Council Regulations No 17, Art. 15(1)(c) and (2) and No 1/2003, Art. 23(1)(c); Commission Notice 98/C 9/03, Section 2, second para.)

22. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Refusal of the undertaking to cooperate during the inquiry — Increase of the fine — Observance of the principle of proportionality — Account to be taken of increases imposed on other undertakings

    (Arts 81 EC and 82 EC; Council Regulations No 17, Art. 15(1)(c) and No 1/2003, Art. 23(1)(c))

23. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Gravity of the participation of each undertaking — Aggravating circumstances — Role of instigator of the infringement — Concept — Scope of the burden of proof

    (Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03, Section 2)

24. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Role of leader of the infringement — Concept — Criteria for assessment

    (Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03, Section 2)

25. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Role of leader or instigator of the infringement — Necessary distinction — Relevance as to the exercise, by the EU judicature, of its unlimited jurisdiction

    (Art. 81(1) EC; Arts 261 TFEU and 263 TFEU; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03, Section 2)

1.  See the text of the decision.

   (see para. 30)

2.  See the text of the decision.

   (see paras 31, 62)

3.  See the text of the decision.

   (see para. 32)

4.  See the text of the decision.

   (see para. 43)

5.  See the text of the decision.

   (see para. 44)

6.  See the text of the decision.

   (see paras 74, 110-111, 113, 146)

7.  See the text of the decision.

   (see para. 122)

8.  See the text of the decision.

   (see paras 123-125, 127)

9.  See the text of the decision.

   (see paras 135-138)

10.  See the text of the decision.

    (see paras 155-159, 161-162)

11.  See the text of the decision.

    (see para. 160)

12.  See the text of the decision.

    (see paras 175-179)

13.  See the text of the decision.

    (see paras 185-187, 189)

14.  See the text of the decision.

    (see paras 193, 195-197, 199-200)

15.  See the text of the decision.

    (see para. 198)

16.  In competition matters, where the Commission expressly states in its statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and it also indicates the main factual and legal criteria capable of giving rise to the imposition of a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was committed intentionally or negligently, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary means to defend themselves not only against the finding of an infringement but also against the imposition of fines. So far as the setting of the amount of the fines is concerned, the rights of defence of the undertakings in question are guaranteed before the Commission by virtue of the fact that they have the opportunity to make submissions on the duration, the gravity and the foreseeability of the anti-competitive nature of the infringement. Moreover, undertakings have an additional guarantee, as regards the setting of the amount of the fine, in that the Court has unlimited jurisdiction and may in particular cancel or reduce the fine pursuant to Article 31 of Regulation No 1/2003.

    With more particular regard to the aggravating circumstance of refusal to cooperate during the course of the investigation that was found to have been committed by an undertaking, 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 cite such refusal as an example of an aggravating circumstance. Where the Commission indicates in the statement of objections that it will take account of the individual role played by each undertaking in the agreements in question and that the amount of the fine will reflect any aggravating or attenuating circumstances, the addressee undertaking cannot fail to be aware that the Commission may take that aggravating circumstance into account if it concludes that the conditions for its application are satisfied and, therefore, the Commission does not infringe the applicant’s rights of defence.

    (see paras 217-218)

17.  In competition matters, neither Regulation No 17, nor Regulation No 1/2003, nor Commission Regulation No 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 EC and 82 EC, contains any provisions relating to the presence of a lawyer at the time of the Commission’s investigations.

    It is true that it is necessary to prevent the rights of the defence from being irremediably compromised during preliminary inquiry procedures and particularly in investigations, which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable. Consequently, although certain rights of the defence relate only to the contentious proceedings which follow the delivery of the statement of objections, other rights, such as the right to legal representation and the privileged nature of correspondence between lawyer and client must be respected as from the preliminary inquiry stage.

    However, in the context of the provisions of Article 14 of Regulation No 17, it is necessary to ensure that observance of the rights of the defence does not impair the effectiveness of investigations to enable the Commission to carry out its role as guardian of the Treaty in competition matters.

    That is why it is necessary to weigh the general principles of European Union law relating to the rights of the defence against the effectiveness of the Commission’s powers of investigation and thus to prevent the possible destruction or concealment of relevant documents.

    Therefore, the presence of an undertaking’s external or in-house lawyer is possible when the Commission carries out an investigation, but the presence of an external or in-house lawyer cannot determine the legality of the investigation. When an undertaking so desires, and in particular when it does not have a lawyer at the investigation site, it can thus request the advice of a lawyer by telephone and ask that lawyer to go there as soon as possible. In order to ensure that the exercise of that right to legal assistance does not impair the proper conduct of the investigation, the persons charged with carrying out the investigation must be able to enter all the undertaking’s premises immediately, to notify it of the inspection decision and to occupy the offices of their choice, without waiting until the undertaking has consulted its lawyer. The persons charged with carrying out the investigation must also be put in a position to control the undertaking’s telephone and computer communications in order, in particular, to prevent the undertaking from contacting other undertakings which are also the subject of an investigation decision. Moreover, the time which the Commission is required to grant an undertaking to enable it to contact its lawyer before the Commission starts consulting the books and other records, taking copies, affixing seals on premises or documents or asking any representative or member of staff of the undertaking for oral explanations depends on the particular circumstances of each individual case and, in any event, can be only extremely limited and reduced to a strict minimum.

    The Commission does not, therefore, infringe the defence rights of an undertaking by refusing its request to await the arrival of its external lawyers in a waiting room before allowing the Commission to enter its premises, and in particular the office of its managing director. Consequently, refusal by such an undertaking to grant the Commission’s inspectors access to its building before its lawyers arrived, causing a delay of 47 minutes in the carrying out of the investigation, must be classified as refusal to submit to an investigation decision within the meaning of the provisions of Article 15(1)(c) of Regulation No 17.

    (see paras 226, 228, 230-233)

18.  See the text of the decision.

    (see para. 227)

19.  In competition matters, undertakings are under an obligation to cooperate actively in the investigative measures in the course of the preliminary inquiry procedure.

    Moreover, both the purpose of Regulation No 17 and the list of powers conferred on the Commission’s officials by Article 14 thereof show that the scope of investigations may be very wide. In that regard, the right to enter any premises, land and means of transport of undertakings is of particular importance inasmuch as it is intended to permit the Commission to obtain evidence of infringements of the competition rules in the places in which such evidence is normally to be found, that is to say, on the business premises of undertakings.

    The Commission may exercise its investigative powers on all the business premises of the undertaking which is the subject of the decision taken by it, while having regard to the rights of the defence and to rights attaching to the protection of property. Furthermore, it is for the Commission, and not for the undertaking concerned or a third party, to decide whether or not a document must be produced to it.

    Consequently, the mere fact that an undertaking’s lawyers initially refuse to grant the Commission access to the office of one of its directors is sufficient for the undertaking to be considered to have refused to submit totally to the investigation decision, without there being any requirement for the Commission to show that the delay caused by that refusal may have led to the destruction or concealment of documents.

    (see paras 236-239)

20.  See the text of the decision.

    (see para. 242)

21.  An act of a Community institution is vitiated by a misuse of powers if it has been adopted with the exclusive or main purpose of achieving ends other than those stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. Thus, a measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated.

    In that regard, 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, which expressly provide that the Commission may take into account a refusal to cooperate or an attempt to obstruct the Commission in carrying out its investigations as aggravating circumstances in setting the fine, were not adopted with the main aim of avoiding the sanctions procedure laid down by the provisions of Article 15(1)(c) of Regulation No 17, and in particular the upper limit of EUR 5 000.

    Regulation No 17 leaves a wide discretion to the Commission in setting fines. Consequently, the introduction by the latter of a new method of calculating fines, by means of the Guidelines on the method of setting fines, which may, in certain cases, lead to increased fines, but without exceeding the maximum level established by that regulation, cannot be regarded as an aggravation, with retroactive effect, of the fines as legally provided for by Article 15 of Regulation No 17, which infringes the principles of legality and legal certainty.

    Moreover, since Article 15(2) of Regulation No 17 does not lay down an exhaustive list of the criteria which the Commission may take into account when fixing the amount of the fine, the conduct of the undertaking during the administrative procedure, and in particular a refusal to cooperate or attempts to obstruct the Commission in carrying out its investigations, could be one of the factors to be taken into account when fixing that fine.

    Therefore, the Commission may penalise a refusal to cooperate, either by imposing on the undertaking in question a maximum fine of EUR 5 000 pursuant to Article 15(1)(c) of Regulation No 17 or by taking account, in fixing the amount of the fine imposed on the undertaking under Article 15(2) of the same regulation (now Article 23(2) of Regulation No 1/2003), of the aggravating circumstance of refusal to cooperate with the Commission in carrying out its investigations.

    (see paras 246-251)

22.  See the text of the decision.

    (see paras 253-254)

23.  See the text of the decision.

    (see paras 262-272)

24.  In order to be classified as a leader in a cartel, an undertaking must have been a significant driving force for the cartel and have borne individual and specific liability for its operation. That circumstance must be assessed from an overall viewpoint having regard to the context of the particular case. It may, inter alia, be inferred from the fact that the undertaking, through specific initiatives, voluntarily gave a fundamental boost to the cartel or from a combination of indicia which reveal the determination of the undertaking to ensure the stability and success of the cartel.

    That is the case where the undertaking has participated in cartel meetings on behalf of another undertaking which did not attend them and notified that other undertaking of the results of those meetings. The same applies where it is shown that that undertaking played a central role in the actual operation of the cartel, for example by organising numerous meetings, collecting and distributing information within the cartel, and by most often suggesting proposals relating to the operation of the cartel.

    Moreover, the fact of actively ensuring compliance with the agreements concluded within the cartel is decisive evidence of the role of leader played by an undertaking.

    By contrast, the fact that an undertaking exerted pressure, or even dictated the conduct of other members of the cartel is not a necessary precondition for that undertaking to be described as a leader in the cartel. The market position enjoyed by an undertaking and the resources at its disposal also cannot constitute evidence of a role of leader in the infringement, even though they form part of the context in which such evidence must be assessed.

    The Commission is entitled to find that several undertakings acted as a leader in a cartel.

    (see paras 283-287)

25.  In competition matters, although the EU judicature draws a distinction between the roles of instigator and leader of a cartel, it may nevertheless, in the exercise of its unlimited jurisdiction, uphold the increase in the fine envisaged by the Commission, even if the evidence adduced by the Commission is insufficient as regards one of the two roles.

    (see para. 302)

Case T-357/06

Koninklijke Wegenbouw Stevin BV

v

European Commission

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Existence and classification of an agreement — Restriction on competition — Guidelines on the applicability of Article 81 EC to horizontal cooperation agreements — Rights of the defence — Fine — Aggravating circumstances — Role of instigator and leader — Absence of cooperation — Commission’s powers of investigation — Right to the assistance of a lawyer — Misuse of powers — Calculation of the amount of the fines — Duration of the infringement — Unlimited jurisdiction’

Summary — Judgment of the General Court (Sixth Chamber), 27 September 2012

1. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Scope of the burden of proof — Degree of precision required of the evidence used by the Commission — Body of evidence — Judicial review — Scope

   (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2)

2. Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision relying on documentary evidence — Penalised undertaking having no commercial interest in the agreement — No effect

   (Art. 81(1) EC)

3. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — No obligation to reply to all the allegations made by the parties during the administrative procedure

   (Arts 81 EC, 82 EC and 253 EC)

4. Competition — Administrative procedure — Statement of objections — Necessary content — Commission decision finding an infringement — Decision not identical to the statement of objections — Commission not obliged to deal with all the matters mentioned in the statement of objections

   (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(1))

5. Competition — Union rules — Matters covered — Conduct imposed by national measures — Not included — Conditions

   (Arts 81 EC and 82 EC)

6. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient — Finding not subject to the obligation to prove the existence of inconveniences for end consumers — Assessment by reference to the content of the agreement and the economic context

   (Art. 81(1) EC)

7. Agreements, decisions and concerted practices — Prohibition — Exemption — Duty of the undertaking concerned to show that its request is well founded — Commission decision rejecting a request for exemption — Duty to state reasons — Scope

   (Art. 81(3) EC)

8. Agreements, decisions and concerted practices — Prohibition — Exemption — Scope — Horizontal cooperation agreements — Purchasing agreements — Assessment in the light of principles set out in the Guidelines — No obligation to take account of actual market effects

   (Art. 81(1) and (3) EC; Commission Notice 2001/C 3/02, Sections 18, 124 and 133)

9. Agreements, decisions and concerted practices — Definition of the market — Purpose — Determination of the effect on trade between Member States — Obligation to define the market in question — Limits

   (Art. 81(1) and (3) EC)

10. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Subject-matter — Communication of responses to the statement of objections — Conditions — Limits

    (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2); Commission Notice 2005/C 325/07, Sections 8 and 27)

11. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Refusal to communicate a document — Consequences — Need to make a distinction, at the level of the burden of proof on the undertaking concerned, between inculpatory and exculpatory documents

    (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2))

12. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — Horizontal price cartel and application, towards commercial partners, of unequal conditions to equivalent services — Global assessment

    (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)); Commission Notice 98/C 9/03, Section 1)

13. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — No requirement to determine their impact and their geographical extent — Commission taking market impact into account — Scope of the burden of proof

    (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

14. Competition — Fines — Amount — Determination — Division of the undertakings concerned into different categories — Conditions — Compliance with the principles of equal treatment and proportionality — Turnover of the undertakings taken into account — Discretion of the Commission

    (Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, sixth and seventh paras)

15. Competition — Fines — Amount — Determination — Criteria — No need to distinguish between the undertakings involved in an infringement by reference to their overall turnover or turnover on the market in question

    (Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, sixth para.)

16. Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Indication of the main elements of fact and law likely to involve a fine — Commission not obliged to warn of the possibility of the fine being increased in the event of the undertaking refusing to cooperate during the inquiry

    (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Arts 27(1) and 31; Commission Notice 98/C 9/03)

17. Competition — Administrative procedure — Commission’s powers of investigation — Access to undertakings’ premises — Presence of a lawyer — Legality of the investigation not dependent thereon — Commission refusal to await the arrival of an external lawyer — No infringement of defence rights

    (Arts 81 EC and 82 EC; Council Regulations No 17, Arts 14 and 15(1)(c) and No 1/2003, Art. 20; Commission Regulation No 773/2004)

18. Competition — Administrative procedure — Right of undertakings to be heard — Scope — Investigation procedure — Not included

    (Arts 81 EC and 82 EC; Council Regulations No 17, Arts 14 and 19(1) and No 1/2003, Arts 20 and 27(1))

19. Competition — Administrative procedure — Commission’s powers of investigation — Scope — Duty of undertakings actively to cooperate in investigation measures — Refusal of access to premises — Refusal completely to submit to the investigation decision

    (Arts 81 EC and 82 EC; Council Regulations No 17, Arts 14 and 15(1)(c) and No 1/2003, Art. 20)

20. Competition — Administrative procedure — Commission’s powers of investigation — Decision ordering an investigation — Refusal of an undertaking to submit to such a decision — No obligation on the Commission to establish minutes within a specified time-limit

    (Arts 81 EC and 82 EC; Council Regulations No 17, Art. 14 and No 1/2003, Art. 20)

21. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Refusal of the undertaking to cooperate during the inquiry — Commission adopting guidelines for the calculation of fines — No misuse of powers

    (Arts 81 EC and 82 EC; Council Regulations No 17, Art. 15(1)(c) and (2) and No 1/2003, Art. 23(1)(c); Commission Notice 98/C 9/03, Section 2, second para.)

22. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Refusal of the undertaking to cooperate during the inquiry — Increase of the fine — Observance of the principle of proportionality — Account to be taken of increases imposed on other undertakings

    (Arts 81 EC and 82 EC; Council Regulations No 17, Art. 15(1)(c) and No 1/2003, Art. 23(1)(c))

23. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Gravity of the participation of each undertaking — Aggravating circumstances — Role of instigator of the infringement — Concept — Scope of the burden of proof

    (Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03, Section 2)

24. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Role of leader of the infringement — Concept — Criteria for assessment

    (Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03, Section 2)

25. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Role of leader or instigator of the infringement — Necessary distinction — Relevance as to the exercise, by the EU judicature, of its unlimited jurisdiction

    (Art. 81(1) EC; Arts 261 TFEU and 263 TFEU; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03, Section 2)

1.  See the text of the decision.

   (see para. 30)

2.  See the text of the decision.

   (see paras 31, 62)

3.  See the text of the decision.

   (see para. 32)

4.  See the text of the decision.

   (see para. 43)

5.  See the text of the decision.

   (see para. 44)

6.  See the text of the decision.

   (see paras 74, 110-111, 113, 146)

7.  See the text of the decision.

   (see para. 122)

8.  See the text of the decision.

   (see paras 123-125, 127)

9.  See the text of the decision.

   (see paras 135-138)

10.  See the text of the decision.

    (see paras 155-159, 161-162)

11.  See the text of the decision.

    (see para. 160)

12.  See the text of the decision.

    (see paras 175-179)

13.  See the text of the decision.

    (see paras 185-187, 189)

14.  See the text of the decision.

    (see paras 193, 195-197, 199-200)

15.  See the text of the decision.

    (see para. 198)

16.  In competition matters, where the Commission expressly states in its statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and it also indicates the main factual and legal criteria capable of giving rise to the imposition of a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was committed intentionally or negligently, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary means to defend themselves not only against the finding of an infringement but also against the imposition of fines. So far as the setting of the amount of the fines is concerned, the rights of defence of the undertakings in question are guaranteed before the Commission by virtue of the fact that they have the opportunity to make submissions on the duration, the gravity and the foreseeability of the anti-competitive nature of the infringement. Moreover, undertakings have an additional guarantee, as regards the setting of the amount of the fine, in that the Court has unlimited jurisdiction and may in particular cancel or reduce the fine pursuant to Article 31 of Regulation No 1/2003.

    With more particular regard to the aggravating circumstance of refusal to cooperate during the course of the investigation that was found to have been committed by an undertaking, 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 cite such refusal as an example of an aggravating circumstance. Where the Commission indicates in the statement of objections that it will take account of the individual role played by each undertaking in the agreements in question and that the amount of the fine will reflect any aggravating or attenuating circumstances, the addressee undertaking cannot fail to be aware that the Commission may take that aggravating circumstance into account if it concludes that the conditions for its application are satisfied and, therefore, the Commission does not infringe the applicant’s rights of defence.

    (see paras 217-218)

17.  In competition matters, neither Regulation No 17, nor Regulation No 1/2003, nor Commission Regulation No 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 EC and 82 EC, contains any provisions relating to the presence of a lawyer at the time of the Commission’s investigations.

    It is true that it is necessary to prevent the rights of the defence from being irremediably compromised during preliminary inquiry procedures and particularly in investigations, which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable. Consequently, although certain rights of the defence relate only to the contentious proceedings which follow the delivery of the statement of objections, other rights, such as the right to legal representation and the privileged nature of correspondence between lawyer and client must be respected as from the preliminary inquiry stage.

    However, in the context of the provisions of Article 14 of Regulation No 17, it is necessary to ensure that observance of the rights of the defence does not impair the effectiveness of investigations to enable the Commission to carry out its role as guardian of the Treaty in competition matters.

    That is why it is necessary to weigh the general principles of European Union law relating to the rights of the defence against the effectiveness of the Commission’s powers of investigation and thus to prevent the possible destruction or concealment of relevant documents.

    Therefore, the presence of an undertaking’s external or in-house lawyer is possible when the Commission carries out an investigation, but the presence of an external or in-house lawyer cannot determine the legality of the investigation. When an undertaking so desires, and in particular when it does not have a lawyer at the investigation site, it can thus request the advice of a lawyer by telephone and ask that lawyer to go there as soon as possible. In order to ensure that the exercise of that right to legal assistance does not impair the proper conduct of the investigation, the persons charged with carrying out the investigation must be able to enter all the undertaking’s premises immediately, to notify it of the inspection decision and to occupy the offices of their choice, without waiting until the undertaking has consulted its lawyer. The persons charged with carrying out the investigation must also be put in a position to control the undertaking’s telephone and computer communications in order, in particular, to prevent the undertaking from contacting other undertakings which are also the subject of an investigation decision. Moreover, the time which the Commission is required to grant an undertaking to enable it to contact its lawyer before the Commission starts consulting the books and other records, taking copies, affixing seals on premises or documents or asking any representative or member of staff of the undertaking for oral explanations depends on the particular circumstances of each individual case and, in any event, can be only extremely limited and reduced to a strict minimum.

    The Commission does not, therefore, infringe the defence rights of an undertaking by refusing its request to await the arrival of its external lawyers in a waiting room before allowing the Commission to enter its premises, and in particular the office of its managing director. Consequently, refusal by such an undertaking to grant the Commission’s inspectors access to its building before its lawyers arrived, causing a delay of 47 minutes in the carrying out of the investigation, must be classified as refusal to submit to an investigation decision within the meaning of the provisions of Article 15(1)(c) of Regulation No 17.

    (see paras 226, 228, 230-233)

18.  See the text of the decision.

    (see para. 227)

19.  In competition matters, undertakings are under an obligation to cooperate actively in the investigative measures in the course of the preliminary inquiry procedure.

    Moreover, both the purpose of Regulation No 17 and the list of powers conferred on the Commission’s officials by Article 14 thereof show that the scope of investigations may be very wide. In that regard, the right to enter any premises, land and means of transport of undertakings is of particular importance inasmuch as it is intended to permit the Commission to obtain evidence of infringements of the competition rules in the places in which such evidence is normally to be found, that is to say, on the business premises of undertakings.

    The Commission may exercise its investigative powers on all the business premises of the undertaking which is the subject of the decision taken by it, while having regard to the rights of the defence and to rights attaching to the protection of property. Furthermore, it is for the Commission, and not for the undertaking concerned or a third party, to decide whether or not a document must be produced to it.

    Consequently, the mere fact that an undertaking’s lawyers initially refuse to grant the Commission access to the office of one of its directors is sufficient for the undertaking to be considered to have refused to submit totally to the investigation decision, without there being any requirement for the Commission to show that the delay caused by that refusal may have led to the destruction or concealment of documents.

    (see paras 236-239)

20.  See the text of the decision.

    (see para. 242)

21.  An act of a Community institution is vitiated by a misuse of powers if it has been adopted with the exclusive or main purpose of achieving ends other than those stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. Thus, a measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated.

    In that regard, 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, which expressly provide that the Commission may take into account a refusal to cooperate or an attempt to obstruct the Commission in carrying out its investigations as aggravating circumstances in setting the fine, were not adopted with the main aim of avoiding the sanctions procedure laid down by the provisions of Article 15(1)(c) of Regulation No 17, and in particular the upper limit of EUR 5 000.

    Regulation No 17 leaves a wide discretion to the Commission in setting fines. Consequently, the introduction by the latter of a new method of calculating fines, by means of the Guidelines on the method of setting fines, which may, in certain cases, lead to increased fines, but without exceeding the maximum level established by that regulation, cannot be regarded as an aggravation, with retroactive effect, of the fines as legally provided for by Article 15 of Regulation No 17, which infringes the principles of legality and legal certainty.

    Moreover, since Article 15(2) of Regulation No 17 does not lay down an exhaustive list of the criteria which the Commission may take into account when fixing the amount of the fine, the conduct of the undertaking during the administrative procedure, and in particular a refusal to cooperate or attempts to obstruct the Commission in carrying out its investigations, could be one of the factors to be taken into account when fixing that fine.

    Therefore, the Commission may penalise a refusal to cooperate, either by imposing on the undertaking in question a maximum fine of EUR 5 000 pursuant to Article 15(1)(c) of Regulation No 17 or by taking account, in fixing the amount of the fine imposed on the undertaking under Article 15(2) of the same regulation (now Article 23(2) of Regulation No 1/2003), of the aggravating circumstance of refusal to cooperate with the Commission in carrying out its investigations.

    (see paras 246-251)

22.  See the text of the decision.

    (see paras 253-254)

23.  See the text of the decision.

    (see paras 262-272)

24.  In order to be classified as a leader in a cartel, an undertaking must have been a significant driving force for the cartel and have borne individual and specific liability for its operation. That circumstance must be assessed from an overall viewpoint having regard to the context of the particular case. It may, inter alia, be inferred from the fact that the undertaking, through specific initiatives, voluntarily gave a fundamental boost to the cartel or from a combination of indicia which reveal the determination of the undertaking to ensure the stability and success of the cartel.

    That is the case where the undertaking has participated in cartel meetings on behalf of another undertaking which did not attend them and notified that other undertaking of the results of those meetings. The same applies where it is shown that that undertaking played a central role in the actual operation of the cartel, for example by organising numerous meetings, collecting and distributing information within the cartel, and by most often suggesting proposals relating to the operation of the cartel.

    Moreover, the fact of actively ensuring compliance with the agreements concluded within the cartel is decisive evidence of the role of leader played by an undertaking.

    By contrast, the fact that an undertaking exerted pressure, or even dictated the conduct of other members of the cartel is not a necessary precondition for that undertaking to be described as a leader in the cartel. The market position enjoyed by an undertaking and the resources at its disposal also cannot constitute evidence of a role of leader in the infringement, even though they form part of the context in which such evidence must be assessed.

    The Commission is entitled to find that several undertakings acted as a leader in a cartel.

    (see paras 283-287)

25.  In competition matters, although the EU judicature draws a distinction between the roles of instigator and leader of a cartel, it may nevertheless, in the exercise of its unlimited jurisdiction, uphold the increase in the fine envisaged by the Commission, even if the evidence adduced by the Commission is insufficient as regards one of the two roles.

    (see para. 302)