Case T‑590/20

Clariant AG
and
Clariant International AG

v

European Commission

Judgment of the General Court (Third Chamber, Extended Composition), 18 October 2023

(Competition – Agreements, decisions and concerted practices – Ethylene market – Decision finding an infringement of Article 101 TFEU – Coordination on a purchase price element – Settlement procedure – Fine – Adjustment of the basic amount of the fine – Point 37 of the Guidelines on the method of setting fines – Repeated infringement – Point 28 of the Guidelines on the method of setting fines – Unlimited jurisdiction – Counterclaim for increase of the amount of the fine)

1. Competition – Fines – Amount – Determination – Adjustment of the basic amount – Aggravating circumstances – Repeated infringement – Concept – Similarity of infringements – Rate of increase of the basic amount of the fine – Discretion of the Commission – Limit – Observance of the principle of proportionality – Account to be taken of time having elapsed since the previous infringement

   (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Guidelines 2006/C 210/02, point 28)

   (see paragraphs 37-39, 48-57, 61, 71-74, 79-84, 91, 92, 95)

2. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules – Decision imposing a fine and applying a multiplier for repeat infringement – No obligation on the Commission to provide a statement of reasons for an increase for repeat infringement

   (Arts 101(1) and 296 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Guidelines 2006/C 210/02, point 28)

   (see paragraphs 100-103)

3. Competition – Fines – Amount – Determination – Adjustment of the basic amount – Discretion of the Commission – Methodology established by the Guidelines not applied – Whether permissible – Conditions – Particular features of the case and deterrent effect of the fine – Purchase cartel – No need for the Commission to take account of the effects of the infringing conduct on the market

   (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Guidelines 2006/C 210/02, points 13 and 37)

   (see paragraphs 117-123, 125-127, 141, 143, 150, 151)

4. Competition – Fines – Decision imposing fines – Obligation to state reasons – Scope – Possibility of the Commission departing from the Guidelines for the calculation of fines – Obligation to state reasons all the stricter

   (Arts 101 and 296 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Guidelines 2006/C 210/02, point 37)

   (see paragraphs 167-172)

5. Competition – Fines – Decision imposing fines – Obligation to state reasons – Scope – Indication of the factors which led the Commission to assess the gravity and the duration of the infringement – Sufficient indication – No obligation on the Commission to set out the figures relating to the method of calculating the fines

   (Arts 101 and 296, second para. TFEU; Council Regulation No 1/2003, Art. 23(2))

   (see paragraphs 177-179)

6. Competition – Fines – Amount – Determination – Discretion of the Commission – Judicial review – Unlimited jurisdiction of the EU judicature – Scope – Determination of the amount of the fine imposed – Criteria for assessment – Gravity and duration of the infringement – Respect for the principles of motivation, proportionality, that penalties must be specific to the offender and of equal treatment

   (Arts 101(1) and 261 TFEU; Council Regulation No 1/2003, Arts 23(3) and 31)

   (see paragraphs 185, 186)

7. Competition – Fines – Amount – Determination – Discretion of the Commission – Judicial review – Unlimited jurisdiction of the EU judicature – Counterclaim for increase of the amount of the fine – Included

   (Arts 101(1) and 261 TFEU)

   (see paragraphs 221, 222)

8. Competition – Fines – Amount – Determination – Settlement procedure – Reduction of the fine in return for the cooperation of the undertaking concerned – Commission’s counterclaim for increase of the amount of the fine – Withdrawal of the reduction granted to the undertakings – No need for the parties to the settlement procedure to accept the final amount of the fine and all of its parameters in order to enter into settlement discussions

   (Art. 101 TFEU; Commission Guidelines 2008/C 167/01, point 16)

   (see paragraphs 222-230)

Résumé

By decision of 14 July 2020 ( 1 ) (‘the contested decision’), the European Commission found that four undertakings had infringed Article 101 TFEU by participating, during the period from 26 December 2011 to 29 March 2017, in a single and continuous infringement consisting of exchanging sensitive commercial and pricing-related information and of fixing a price element relating to purchases of ethylene, in Belgium, Germany, France and the Netherlands.

The four undertakings sanctioned under that decision include Clariant International AG, which accepted unreservedly its liability for its direct participation in the infringement committed in the relevant period, and Clariant AG, which accepted unreservedly its ‘joint and several liability’ in its capacity as parent company of Clariant International AG.

For the purposes of calculating the fine imposed jointly and severally on those two undertakings, the Commission first determined the basic amount, using the figures for the value of purchases of ethylene acquired in the period covering the last full year of participation in the infringement, which was 2016.

Second, the Commission made some adjustments to the basic amount. First, it applied a 50% increase to the basic amount of the fine due to the aggravating circumstance that it was a repeat infringement, pursuant to point 28 of the Guidelines on the method of setting fines. ( 2 ) Second, it applied a 10% increase to the basic amount in order to take into account the particular features of the case and the need to achieve sufficient deterrence, pursuant to point 37 of those same guidelines.

Third and lastly, after having made sure that the fine did not exceed 10% of the two undertakings’ total turnover in 2019, the Commission granted them a reduction of 30% of the amount of the fine by way of leniency pursuant to the 2006 Leniency Notice, ( 3 ) as well as a 10% reduction for their cooperation in the settlement procedure.

Clariant AG and Clariant International AG brought an action for partial annulment of the contested decision as regards the amount of the fine imposed and, in the alternative, a reduction of that amount. They also seek dismissal of the Commission’s counterclaim for an increase in the amount of the fine, to be achieved through a withdrawal of the 10% reduction granted for their cooperation in the settlement procedure.

The General Court rejects the action in its entirety and also the Commission’s counterclaim. In its judgment, it addresses inter alia the question of the well-foundedness and statement of reasons for the application of an increase applied to the basic amount of the fine pursuant to point 37 of the Guidelines on the method of setting fines, on the ground that the cartel was a purchase cartel. Moreover, in the exercise of its unlimited jurisdiction, it rules on the Commission’s counterclaim, seeking withdrawal of the 10% reduction granted to the applicants for their cooperation in the settlement procedure on the ground that, by the present action, they were challenging facts recognised and accepted by them for the purposes of the settlement procedure.

Findings of the Court

In the first place, the Court rejects the plea alleging that the Commission was wrong to increase the basic amount of the fine pursuant to point 37 of the Guidelines on the method of setting fines, referring to the need to take into account both the particular features of a given case and the need to achieve sufficient deterrent effect.

In the present case, the Court observes, first of all, that, given that the infringement concerned a purchase cartel and not all the parties were present on the same downstream markets, the Commission calculated the basic amount of the fine using the purchase value rather than the value of sales of downstream products.

Next, it finds that, in applying a 10% increase to that basic amount pursuant to point 37 of the Guidelines on the method of setting fines, the Commission duly exercised its discretion and made no manifest error of assessment. The Commission took account of the particular features of the case, namely the fact that the cartel in question was a purchase cartel and that the value of purchases, taken into account in lieu and stead of the value of sales, was not in itself liable to constitute a suitable proxy to reflect the economic importance of the infringement. It also took account of the need to achieve a deterrent effect of the fine in finding that, if the general method provided for by the Guidelines on the method of setting fines was being applied without the slightest adjustment, the deterrent effect would not be assured. The Commission was not, however, required to take account of the effects of the infringing conduct on the market, since a fine increase pursuant to point 37 of the Guidelines on the method of setting fines is not conditional on prior proof being made out of such effects.

Lastly, the Court considers that the Commission provided a statement of the reasons that led it to find that the particular features of the case and the need to achieve a deterrent effect with the fine justified departing from the general method and increasing the basic amount and that it duly explained the factors it took into consideration for determining that a 10% increase applied to the basic amount of the fine was appropriate. In that regard, given that the Commission is not required to state the figures relating to each step in the calculation method, it was not required to provide any additional explanations about the specific increase chosen.

In the second place, the Court dismisses the Commission’s counterclaim. It finds that, in the settlement procedure, in return for a 10% reduction of the amount of the fine imposed on them under the standard procedure, the parties to the settlement procedure must acknowledge, inter alia, their liability for the infringement and provide an indication of the maximum amount of the fine they foresee to be imposed by the Commission and which they would accept. The Court nevertheless observes that the parties to the settlement procedure are not required under the settlement notice ( 4 ) to accept the final amount of the fine and all of its parameters in order to enter into settlement discussions.

Thus, the fact that Clariant AG and Clariant International AG accepted a maximum amount of the fine in their settlement submission is not the same as accepting the exact final amount of the fine and the method of its calculation, including the adjustments made under points 28 and 37 of the Guidelines on the method of setting fines. Moreover, the fine increases applied pursuant to points 28 and 37 of the Guidelines on the method of setting fines had not been expressly acknowledged by those undertakings in their settlement submission and had not been the subject of a common understanding with the Commission at the time of the procedure. It follows that the Commission could not assume that the applicants would no longer question the fine increases applied pursuant to points 28 and 37 of the Guidelines on the method of setting fines in the context of an action.

Accordingly, given that, by the present action, those undertakings are challenging the amount of the fine imposed on them by arguing that the application of those points was incorrect, the Commission has not succeeded in demonstrating that it is justified not to grant a 10% reduction to compensate them for their cooperation during the administrative procedure.

In the light of the foregoing, the Court dismisses the action in its entirety and also the Commission’s counterclaim.

( 1 ) Commission Decision C(2020) 4817 final, of 14 July 2020, relating to a proceeding under Article 101 TFEU (AT.40410 – Ethylene).

( 2 ) Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2).

( 3 ) Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17).

( 4 ) Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Articles 7 and 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ 2008 C 167, p. 1).