**Judgment of the Court of First Instance (Third Chamber) of 8 July 2008 – Lafarge v Commission**

**(Case T-54/03)**

Competition – Agreements, decisions and concerted practices – Plasterboard market – Decision finding an infringement of Article 81 EC – Liability – Deterrence – Repeat infringement – Fine – Guidelines on the method of setting fines

1.                     *Competition – Administrative procedure – Article 6 of the European Convention on Human Rights not applicable – Compliance
by the Commission with procedural guarantees (Arts 81 EC and 82 EC; Council Regulation No 17, Art. 17; Council Decision 88/591)
(see paras 36-47)*

2.                     *Competition – Administrative procedure – Commission decision finding an infringement – Use as evidence of statements of other
undertakings which participated in the infringement – Lawfulness – Conditions (Arts 81 EC and 82 EC) (see paras 57-59, 293-294)*

3.                     *Competition – Administrative procedure – Hearings – Hearing of other participants in the same infringement in camera – Infringement
of the defence rights – None (Commission Regulation No 2842/98, Art. 9) (see paras 142-149)*

4.                     *Competition – Administrative procedure – Observance of the rights of the defence – Incriminating document – Meaning – Commission
document summarising the factual data supplied by the participants in the infringement – Not included (Art. 81(1) EC) (see
paras 156-157)*

5.                     *Actions for annulment – Pleas in law – Challenge to the factual findings underlying a decision imposing penalties for breach
of the competition rules – Challenge concerning a meeting between competitors by an undertaking which did not take part –
Admissibility – Conditions (Art. 230 EC) (see paras 212-214)*

6.                     *Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Agreement creating an information
exchange system – Not permissible in an oligopolistic market – Rebuttable presumption (Art. 81(1) EC) (see paras 256-259,
397)*

7.                     *Competition – Agreements, decisions and concerted practices – Concerted practice – Meaning – Parallel conduct – Presumption
of the existence of a concerted practice – Limits (Art. 81(1) EC) (see paras 318, 324)*

8.                     *Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Burden of proving the infringement
borne by the Commission – Degree of probative value required for the evidence on which the Commission relies (Art. 81(1) EC)
(see paras 426, 452)*

9.                     *Competition – Agreements, decisions and concerted practices – Concerted practice – Meaning – Coordination and cooperation
incompatible with the obligation on each undertaking to determine independently its conduct on the market – Receipt by an
operator of information emanating from a competitor concerning its future market conduct (Art. 81(1) EC (see paras 458-463)*

10.                     *Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement
– Undertakings that may be held responsible for participating in an overall cartel – Criteria (Art. 81(1) EC) (see paras 479,
482-487, 490, 613-616)*

11.                     *Competition – Community rules – Infringement committed by a subsidiary – Imputation to the parent company – Conditions – Separate
legal personality of the subsidiary not relevant – Relevance of the fact that the subsidiary is wholly owned – Obligation
of the parent company to rebut the presumption that management power was actually exercised over its subsidiary (Art. 81(1)
EC) (see paras 539-541, 545, 557-558)*

12.                     *Competition – Fines – Amount – Determination – Criteria – Actual impact on the market (Council Regulation No 17, Art. 15(2);
Commission Notice 98/C 9/03, point 1 A, first para.) (see paras 580-585)*

13.                     *Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Horizontal cartel concerning prices
– Very serious infringement (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1 A) (see paras 618-624)*

14.                     *Competition – Fines – Amount – Determination – Need to take account of the turnover of undertakings in the same infringement
or similar previous infringements and to ensure the proportionality of the fines to those turnovers – None – Judicial review
– Unlimited jurisdiction (Council Regulation No 17, Art. 15(2)) (see paras 634-639)*

15.                     *Competition – Fines – Amount – Determination – Deterrent effect – Account taken of the size and global resources of the fined
undertaking (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1 A) (see paras 663-673, 678-684)*

16.                     *Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Discretion
of the Commission – Taking into account of repeat offences – Infringement of the principles that penalties must have a legal
basis, of legal certainty, and ne bis in idem – None (Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2); Commission
Notice 98/C 9/03) (see paras 716-730)*

17.                     *Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Recidivism
– Meaning (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 2) (see paras 733-739)*

18.                     *Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive
or ‘follow-my-leader’ role of the undertaking – Criteria for assessment (Council Regulation No 17, Art. 15(2); Commission
Notice 98/C 9/03, point 3, first indent) (see paras 763-767)*

19.                     *Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Termination of the infringement after
the Commission’s intervention – Conditions (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 3) (see
paras 780-784)*

20.                     *Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking –
Conditions (Council Regulation No 17, Art. 15(2); Commission Notice 96/C 207/04, title D, point 2) (see paras 791-794)*

**Re:**

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| APPLICATION for annulment of Commission Decision 2005 | **/** : | 471 | **/** : | EC of 27 November 2002 relating to proceedings under Article 81 [EC] against BPB plc, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E-1/37.152 – Plasterboard) (OJ 2005 L 166, p. 8), or, in the alternative, an application for the annulment of or a reduction in the fine imposed on the applicant. |

**Operative part**

The Court:

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| 1. | | Dismisses the action; |

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| 2. | | Orders Lafarge SA to bear its own costs and to pay those incurred by the Commission; |

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| 3. | | Orders the Council to bear its own costs. |