Opinion of the Advocate General — ECLI:EU:C:2012:317
Date: 2012-05-24
Language of the case: Dutch
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - successful;Action for damages;Appeal - successful;Appeal against penalty - successful
Origin: Belgium

Summary – Judgment of the Court (Fourth Chamber), 6 December 2012 1. Actions for annulment – Judgment annulling a measure – Scope – Partial annulment of an act of EU law – Condition – Annulment, in its entirety, of a Commission decision categorising a global cartel as a single and continuous infringement and imposing a fine, notwithstanding the applicant undertaking having been found liable for part of the anti-competitive conduct – Not permissible (Art. 81(1) EC; Art. 264, first para., TFEU) 2. Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices constituting a single infringement – Attribution of liability for the entire infringement to a single undertaking – Conditions (Art. 81(1) EC) 3. Appeals – Appeal held to be well-founded – Final judgment on the substance by the Court of Justice (Statute of the Court of Justice, Art. 61, first para.) 4. Competition – Administrative procedure – Commission decision finding a single infringement – Burden on the Commission of proving an undertaking’s participation – Extent of the burden of proof (Art. 81(1) EC) 5. Agreements, decisions and concerted practices – Prohibition – Infringements – Proof – Burden of proof on the Commission – Proof adduced by a number of indicia and coincidences showing the existence and duration of anti-competitive practices – Lack of evidence in relation to certain specific periods of the overall period – No effect (Art. 81(1) EC) 6. Agreements, decisions and concerted practices – An undertaking’s participation in anti-competitive initiatives – Sufficiency, in order to engage the liability of the undertaking, of tacit approval without publicly distancing itself or reporting the matter to the competent authorities (Art. 81(1) EC) 7. Competition – Fines – Amount – Judicial review – Unlimited jurisdiction – Scope – Limit – Observance of the principle of non-discrimination (Art. 261 TFEU; Council Regulation No 1/2003, Arts 23(2), second para., (3) and 31; Commission Notice 2006/C 210/02) 8. Judicial proceedings – Costs – Order that the successful party bear its own costs and pay part of the applicants’ costs (Rules of Procedure of the Court, Arts 138(1) and (3) and 184(1) and (2)) 1. The mere fact that the General Court finds that a plea relied on in support of an action for annulment is well founded does not automatically enable it to annul the contested measure in its entirety. Annulment of the measure in its entirety is not acceptable where it is obvious that, being directed only at a specific part of the contested measure, that plea can provide a basis only for partial annulment. However, partial annulment of an act of EU law is possible only if the elements which it is sought to have annulled can be severed from the remainder of the measure. That requirement is not satisfied where the partial annulment of a measure would cause the substance of that measure to be altered, a point which must be determined on the basis of an objective criterion and not of a subjective criterion linked to the political intention of the authority which adopted the measure at issue A Commission decision categorising a global cartel as a single and continuous infringement can be divided in the manner referred to only if the applicant undertaking has been put in a position, during the administrative procedure, to understand that it is also alleged to have engaged in each of the forms of conduct comprising that infringement, hence to defend itself on that point, and only if the decision is sufficiently clear in that regard. It follows that, if a Court of the European Union finds that the Commission has not proved to the requisite legal standard that, when participating in one of the forms of anti-competitive conduct comprising a single and continuous infringement, the undertaking was aware of the other anti-competitive conduct adopted by the other participants in the cartel in pursuit of the same objectives or could reasonably have foreseen that conduct and was prepared to take the risk, the only inference which that Court must draw is that the undertaking may not be attributed liability for that other conduct and, in consequence, may not be attributed liability for the single and continuous infringement as a whole, and, to that extent alone, the contested decision must be held to be unfounded. In such circumstances, the General Court errs in law when it annuls, in its entirety, a Commission decision categorising a global cartel as a single and continuous infringement in respect of an undertaking, while not calling in question that the latter has participated in part of the cartel or the fact that that participation may in itself constitute an infringement of Article 81 EC. (see paras 37, 38, 46, 47, 54) 2. See the text of the decision. (see paras 41-44) 3. See the text of the decision. (see paras 55, 56) 4. In order to establish that an undertaking has participated in the implementation of a single and continuous infringement, the Commission must prove that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen such conduct and was prepared to take the risk. The Commission fails to meet those requirements when it claims that it is entitled to assume such knowledge on the part of an undertaking, particularly given that the latter does not deny that it was aware of the agreement concerned and that, in addition, the Commission expressly acknowledges that its decision is not based upon specific evidence on that point. (see paras 60, 66) 5. In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules. Such coincidences and indicia, when evaluated overall, may provide information not just about the mere existence of anti-competitive practices or agreements, but also about the duration of continuous anti-competitive practices or the period of application of anti-competitive agreements. As regards the lack of evidence that there was an agreement during certain specific periods or, at least, the lack of evidence of its implementation by an undertaking during a given period, it should be recalled that the fact that such evidence has not been produced in relation to certain specific periods does not preclude the infringement from being regarded as established during a longer overall period than those periods, provided that such a finding is supported by objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that the agreement is shown to have applied during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the agreement, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement. (see paras 70-72) 6. See the text of the decision. (see para. 73) 7. See the text of the decision. (see paras 79-82) 8. See the text of the decision. (see paras 83-85)