Judgment — ECLI:EU:T:2004:219
Date: 2004-07-08
Language of the case: English
Court formation: Second Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: General;Determining the amount of the fine;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Effects of a declaration that a measure is void;Hearing of persons concerned and of third parties / Access to the file
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: United Kingdom

Summary of the Judgment 1. Competition – Administrative procedure – Commission decision finding an infringement – Decision not identical to the statement of objections – Infringement of the rights of the defence – Condition – Impossibility for the undertaking to defend itself against an objection finally upheld (Council Regulation No 17, Art. 19(1)) 2. Competition – Agreements, decisions and concerted practices – Participation in meetings of undertakings having an anti-competitive object – Circumstance from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel (Art. 81(1) EC) 3. Procedure – Proof – Burden of proof – Transferred from the applicant to the defendant in a particular case – Inability of the Commission to state the date of expiry of an agreement with a non-member State concluded by the Commission 4. Procedure – Joined Cases – Taking into account of the evidence on the files in the parallel cases 5. Competition – Administrative procedure – Rights of the defence – Statement of objections – Necessary content – Provisional assessment of the duration and the gravity of the infringement and of whether it was committed intentionally or negligently – Consequence of the omission of that assessment evaluated by reference to the rights of the defence (Council Regulation No 17, Art. 19(1)) 6. Competition – Agreements, decisions and concerted practices – Undertakings that may be held responsible for an infringement consisting in participating in an overall cartel – Criteria (Art. 81(1) EC) 7. Competition – Fines – Amount – Determination – Criteria – Need to differentiate between the undertakings involved in the same infringement by reference to their size – None (Council Regulation No 17, Art. 15(2); Commission Communication 98/C 9/03, point 1.A, sixth para.) 8. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned – Reduction for not disputing the facts – Conditions (Council Regulation No 17, Art. 15(2); Commission Communication 96/C 207/04, point D.2) 9. Competition – Agreements, decisions and concerted practices – Fines – Amount – Determination – Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned – Respect for the principle of equal treatment (Council Regulation No 17, Art. 15(2)) 10. Actions for annulment – Judgment annulling a measure – Effects – Obligation to take measures to comply with the judgment – No need for an order for repayment by the Commission of a fine paid pursuant to a decision which has been annulled (Art. 233 CE) 1. The rights of the defence are not breached by the existence of a discrepancy between the statement of objections and the final decision unless a criticism appearing in the latter was not adequately set out in the former in such a way as to enable the addressees to defend themselves. Moreover, the assessment appearing in a statement of objections is often more succinct than that contained in the final decision as adopted, since it only represents the Commission’s provisional view. Divergences of wording between a statement of objections and a final decision, deriving from the difference between the respective purposes of those two documents, are not, in principle, capable of infringing the rights of the defence. (see paras 100-101) 2. Where an undertaking participates in meetings between undertakings with an anti-competitive object and does not publicly distance itself from what occurred at them, thus giving the impression to the other participants that it is participating in the cartel resulting from those meetings and will act in conformity with it, it may be concluded that it is participating in the cartel in question. (see para. 116) 3. Although, in general, an applicant cannot transfer the burden of proof to the defendant by invoking circumstances which it is not in a position to establish, the concept of burden of proof cannot, where the Commission decided not to make a finding of an infringement of the competition rules for the period during which voluntary restraint agreements concluded between a non-member country and the Community, represented by the Commission, were in force, be applied for the benefit of the Commission with regard to the date of expiry of those agreements. The Commission’s inexplicable inability to produce evidence relating to a circumstance which concerns it directly makes it impossible for the Court to give a ruling in full knowledge of the facts concerning that date of expiry and it would be contrary to the principle of sound administration of justice to cause the consequences of that inability on the part of the Commission to be borne by the addressees of the contested decision, which, in contrast to the defendant institution, are not in a position to produce the missing evidence. (see paras 124-126) 4. The Court of First Instance may, in joined cases in which all the parties have had an opportunity to consult all the files, take account of its own motion of the evidence contained in the files of the parallel cases. (see para. 129) 5. The statement of objections must set out clearly all the essential evidence on which the Commission relies in order to give its addressees the information necessary to defend themselves not only against the finding of an infringement but also, if appropriate, against the imposition of fines. The Commission is therefore under an obligation, in order to respect the rights of defence of the addressees, to give, on the basis of the evidence available to it, a sufficient indication, at the statement of objections stage, of the duration of the alleged infringement, its gravity and whether the infringement was committed intentionally or negligently. In that connection, the obligation to give an indication of the gravity and intentional or negligent nature of the infringement would be rendered pointless if a simple paraphrase of Article 15(2) of Regulation No 17 were in itself sufficient to satisfy it. Indeed, it would make no sense for the Commission merely to be obliged – on pain of the infringement decision being annulled in the event of its failure to do so – to inform the addressees of a statement of objections about the provisions of Regulation No 17, with which they are supposed to be acquainted in any case. It follows that the Commission is required to give, in the statement of objections, a brief provisional assessment as to the duration of the alleged infringement, its gravity and the question whether, in the circumstances of the case, the infringement was committed intentionally or negligently. However, on the one hand, the adequacy of that provisional assessment, whose purpose is to give the addressees of the statement of objections an opportunity to defend themselves, must be evaluated in relation not only to the wording of the measure in question but also to its context and the entirety of the legal rules governing the matter concerned and, on the other, the obligation to issue that provisional assessment is inseparable from and dependent on the principle of the rights of the defence, so that it is not appropriate for the Community judicature to annul the Commission’s final decision if the fact that that obligation was not satisfied had no repercussions on the defence of the undertakings concerned. (see paras 144-146, 155) 6. An undertaking may be held responsible for an overall cartel even though it is shown to have participated directly only in one or some of its constituent elements if it is shown that it knew, or must have known, that the collusion in which it participated, especially by means of regular meetings organised over several years, was part of an overall plan intended to distort competition and that the overall plan included all the constituent elements of the cartel. (see para. 176) 7. In view of the terms of the sixth paragraph of point 1.A of 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 it must be considered that the Commission retains a degree of discretion concerning the appropriateness of weighting fines according to the size of each undertaking. (see para. 180) 8. In order for a reduction of the fine imposed for an infringement of the competition rules to be justified on the basis of the Leniency Notice, the conduct of the undertaking concerned must facilitate the Commission’s task of identifying and penalising infringements of the Community competition rules. Thus, it is not sufficient for an undertaking to state in general terms that it does not contest the facts alleged, in accordance with that notice, if, in the circumstances of the case, that statement is not of any help to the Commission at all. (see paras 193, 208) 9. To the extent to which undertakings provide the Commission, at the same stage of the administrative procedure and in similar circumstances, with similar information concerning the facts attributed to them, the degrees of cooperation provided by them must be regarded as comparable, with the consequence that those undertakings must be treated equally as regards the determination of the amount of the fine imposed on them. (see paras 207, 213) 10. Following a judgment of annulment, which takes effect ex tunc and thus has the effect of retroactively eliminating the annulled measure from the legal order, the defendant institution is required, by virtue of Article 233 EC, to take the necessary measures to reverse the effects of the illegalities as found in the judgment of annulment, and, in the case of an act that has already been executed, this may take the form of restoring the applicant to the position he was in prior to that act. Foremost amongst the steps referred to in Article 233 EC, in the case of a judgment annulling or reducing the fine imposed on an undertaking for infringement of the Treaty competition rules, is the Commission’s obligation to repay all or part of the fine paid by the undertaking in question, in so far as that payment must be described as a sum unduly paid following the annulment decision. That obligation applies not only to the principal amount of the fine overpaid but also to default interest on that amount. It follows that there is no need, in annulment proceedings, to give a decision on an application for the Commission to be ordered to repay the amount of a fine or, in the alternative, the amount by which it is reduced, plus interest. It cannot be presumed that the Commission will fail to fulfil the obligations imposed on it by the combined effect of the present judgment and of Article 233 EC. (see paras 222-225)