Judgment — ECLI:EU:T:2009:132
Date: 2009-04-30
Language of the case: English
Court formation: Eighth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Determining the amount of the fine;Decision of the Commission;Agreements of undertakings, decisions by associations of undertakings and concerted practices;General
Procedure: Action for annulment - unfounded;Appeal against penalty - successful
Origin: Germany

Summary of the Judgment 1. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Concept – Joint intention as to the conduct to be adopted on the market – Form of the expression of intention – Immaterial (Art. 81(1) EC) 2. Competition – Administrative procedure – Commission decision finding an infringement – Evidence which has to be gathered – Degree of evidential value required (Art. 81(1) EC) 3. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Undertaking which has participated in an anti‑competitive agreement – Conduct deviating from that agreed within the cartel (Art. 81(1) EC) 4. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1 A, first and second paras) 5. Competition – Fines – Amount – Determination – Division of undertakings concerned into categories having the same starting point – Conditions (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1 A) 6. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Attenuating circumstances – Obligation to take account of the lack of knowledge of undertakings of a modest size – No such obligation (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1 A) 7. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Attenuating circumstances – Passive or ‘follow-my-leader’ role of the undertaking (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 3) 8. Competition – Administrative procedure – Intervention of the Hearing Officer (Commission Regulation No 2842/98, Art. 10; Commission Decision 2001/462, Art. 4) 9. Competition – Fines – Amount – Determination – Criteria – Reduction in the amount of the fine in exchange for cooperation by the undertaking accused of the infringement– Conditions (Council Regulation No 17; Commission Notice 98/C 9/03, paragraph 3) 1. The concept of an agreement within the meaning of Article 81(1) EC requires the existence of a concurrence of wills between at least two parties. The form of that concurrence of wills is unimportant so long as it constitutes the faithful expression of the parties’ intention. That concurrence of wills may result from both the clauses of a contract, such as a distribution contract, and from the conduct of the undertakings concerned. (see para. 48) 2. In relation to adducing evidence of an infringement of Article 81(1) EC, it is incumbent on the Commission to prove the infringements which it has found and to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. In this respect, the Commission must produce sufficiently precise and consistent evidence to establish the existence of the infringement. (see para. 49) 3. The fact that an undertaking, whose participation in an unlawful concerted practice under Article 81(1) EC is established, did not conduct itself in the market in the manner agreed with its competitors does not necessarily have to be taken into account. An undertaking which, despite colluding with its competitors, follows a policy that departs from that agreed on may simply be trying to exploit the cartel for its own benefit. (see para. 67) 4. It is necessary to distinguish the assessment of the actual impact of an infringement on the market for the purposes of determining its gravity – in the course of which it is necessary to consider the effects of the infringement as a whole rather than the actual conduct of each undertaking – from the assessment of the individual conduct of each undertaking for the purposes of assessing any aggravating or attenuating circumstances, in the course of which it is necessary, in accordance with the principle that penalties must fit the offence, to examine the relative gravity of the undertaking’s own involvement in the infringement. Where the Commission relies on the impact of the infringement in order to assess its gravity, in accordance with Section 1 A, first and second paragraphs, 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, the effects to be taken into account in that regard are those resulting from the entire infringement in which all the undertakings participated, so that consideration of the individual conduct or figures particular to each undertaking is not relevant in that regard. However, where an infringement has been committed by several undertakings, it is appropriate to consider the relative gravity of the participation of each of them in order to determine whether there are any aggravating or attenuating circumstances relating to them, in accordance with Sections 2 and 3 of the Guidelines. That conclusion follows logically from the principle that penalties must fit the offence, according to which an undertaking may be penalised only for acts imputed to it individually. That principle applies in any administrative procedure that may lead to the imposition of sanctions under Community competition law. (see paras 95-98) 5. The method of dividing the members of a cartel into categories in order to apply differential treatment when setting the starting amounts of the fines, the principle of which has been approved by the case-law even though it ignores the differences in size between undertakings in the same category, results in a flat‑rate starting amount for all the undertakings in the same category. Such a division must comply with the principle of equal treatment and, furthermore, the amount of the fine must at least be proportionate in relation to the factors taken into account in the assessment of the gravity of the infringement. In order to ascertain whether a division of the members of a cartel into categories is in keeping with the principles of equal treatment and proportionality, the Community judicature, as part of its review of the lawfulness of the exercise of the Commission’s discretion in the matter, must none the less confine itself to checking that the division is coherent and objectively justified and not immediately substitute its own assessment for that of the Commission. In this respect, the Commission’s decision to divide the undertakings into several categories by reference to their market shares in the distribution of the relevant products and to place in the same category those undertakings having a market share lower than a certain threshold cannot be qualified as arbitrary and does not exceed the limits of the broad discretion which it has in that regard. The fact that the starting amounts relating to each of the categories are not strictly proportionate to the respective market shares of the undertakings concerned cannot be censured since it is merely the result of the system of division by categories and the setting of a flat-rate amount that it entails. Even if the effect of the division into groups is that certain undertakings are allocated the same basic amount even though they differ in size, the difference in treatment is objectively justified by the greater importance attached to the nature of the infringement than to the size of the undertakings in the assessment of the gravity of the infringement. The usefulness of the Commission’s right to classify undertakings into categories would be considerably diminished if any difference between market shares that is considerable in relative terms, but very small in terms of percentage points, precluded the placing of different undertakings in the same category. (see paras 104-105, 107-108, 110) 6. The fact that an undertaking does not have the knowledge enabling it to recognise that its conduct constituted an infringement cannot be taken into account as an attenuating circumstance within the meaning 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. The reference in Section 1 A of the Guidelines to the fact that, ‘[g]enerally speaking, account may also be taken of the fact that large undertakings usually have legal and economic knowledge and infrastructures which enable them more easily to recognise that their conduct constitutes an infringement and be aware of the consequences stemming from it under competition law’ does not mean, a contrario, that the Commission is required to take account of the modest size of certain undertakings. (see paras 114-115) 7. Where the roles played by two undertakings in an infringement of Community competition law are not notably different, the Commission infringes the principle of equal treatment in deciding that one of the two undertakings does not play an exclusively passive role, whilst granting the other one the benefit of that attenuating circumstance. Such different treatment is all the less justified given that the undertaking which is refused the benefit of that attenuating circumstance entered the market affected by the infringement at a particularly late stage and, unlike the other undertaking, did not conclude a formal agreement restricting competition. (see paras 119-120) 8. It does not in any way follow from Article 10 of Regulation No 2842/98 on the hearing of parties in certain proceedings under Articles 81 EC and 82 EC, as supplemented by Article 4 of Decision 2001/462 on the terms of reference of hearing officers in certain competition proceedings, that only hearing officers can contact the undertakings in question in order to discuss and inform them of the possibility of a formal hearing. Such contact, which is part of day-to-day administrative activities, does not therefore encroach on the tasks of the hearing officer. (see para. 124) 9. The fact that an undertaking has chosen not to make a request to the Commission for an oral hearing in proceedings for infringement of the Community competition rules cannot be interpreted as cooperation entitling it to a reduction of the fine imposed on it. Cooperation conferring entitlement, as the case may be, to a reduction of the amount of the fine under Section 3 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 must be ‘effective cooperation by the undertaking in the proceedings’. That means conduct which enabled the Commission to establish the existence of the infringement more easily and, if necessary, to put an end to it. Waiving the right to a formal hearing, assuming that it enabled the Commission not to delay the adoption of its decision, cannot be categorised as cooperation within the meaning of Section 3 of the Guidelines. (see para. 125)