Keywords
Summary

Keywords

1. Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement

(Art. 81(1) EC)

2. Competition – Fines – Amount – Determination – Criteria – Turnover

(Commission Notice 2006/C 210/02, Section 13)

3. Competition – Fines – Amount – Determination – Imposition of the maximum amount on an undertaking

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02)

Summary

1. It would be artificial to split up continuous conduct, characterised by a single purpose, by treating it as consisting of several separate infringements, when what was involved was a single infringement which progressively manifested itself in both agreements and concerted practices.

Accordingly, an undertaking that has taken part in an infringement through conduct of its own which fell within the scope of an agreement or concerted practice having an anti-competitive object for the purposes of Article 81(1) EC and which was intended to help bring about the infringement as a whole is also responsible, throughout the entire period of its participation in that infringement, for conduct of other undertakings in the context of the same infringement.

In order to establish that there has been a single and continuous 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 conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk.

Restrictive practices can be regarded as constituent elements of a single anti‑competitive agreement only if it is established that they form part of an overall plan pursuing a common objective. In addition, only where the undertaking knew, or ought to have known, when it participated in those practices, that it was taking part in the single agreement, can its participation in them constitute the expression of its accession to that agreement.

Thus, three conditions must be met in order to establish participation in a single and continuous infringement, namely the existence of an overall plan pursuing a common objective, the intentional contribution of the undertaking to that plan, and its awareness (proved or presumed) of the offending conduct of the other participants.

A single and continuous infringement may well pursue the twofold objective of influencing prices and sharing the market. In addition, the mere fact that each undertaking participates in the infringement in forms specific to it does not affect the categorisation of the infringement as a single and continuous infringement.

(see paras 31-35, 41)

2. Section 13 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 provides that: ‘In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates …’. It does not follow from that provision that only the value of sales for transactions actually affected by the infringement may be taken into account in order to determine the relevant value of sales. Thus, Section 13 of those Guidelines refers to ‘sales … to which the infringement directly or indirectly relates’ and not to ‘sales affected by the infringement’. The wording of Section 13 therefore covers sales in the relevant market.

That interpretation is confirmed by the objective of the EU rules on competition. In order to determine the basic amount of the fines to be imposed in cartel cases, the Commission is not obliged in each case to ascertain the individual sales which were affected by the cartel. An obligation of that kind has never been imposed by the Courts of the European Union and there is no indication that the Commission intended to assume such an obligation in the above Guidelines.

In addition, the proportion of the turnover accounted for by the goods in respect of which the infringement was committed gives a proper indication of the scale of the infringement on the relevant market. In particular, the turnover in the products which were the subject of a restrictive practice constitutes an objective criterion giving a proper measure of the harm which that practice does to normal competition.

(see paras 57-61)

3. The mere fact that the fine ultimately imposed amounts to 10% of the turnover of the undertaking concerned, while that percentage is lower for the other participants in the cartel, cannot constitute infringement of the principles of equal treatment or proportionality. That consequence is inherent in the interpretation of the 10% ceiling as a capping ceiling which is applied after any reduction in the fine on account of mitigating circumstances or the principle of proportionality.

However, the multiplication of the amount determined on the basis of the value of sales by the number of years of participation in the infringement may mean that, in the context of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, the application of the 10% ceiling laid down in Article 23[2] of Regulation No 1/2003 is now the rule rather than the exception for any undertaking which operates mainly on a single market and has participated in a cartel for over a year. In that case, any distinction on the basis of gravity or mitigating circumstances will as a matter of course no longer be capable of impacting on a fine which has been capped in order to be brought below the 10% ceiling. The failure to draw a distinction with regard to the final fine that results presents a difficulty in terms of the principle that penalties must be specific to the offender and to the offence, which is inherent in the new methodology. It may require the Court to exercise fully its unlimited jurisdiction in those specific cases where the application of the above Guidelines alone does not enable an appropriate distinction to be drawn.

(see paras 74-75)