Judgment — ECLI:EU:T:2009:131
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;General;Principle of the protection of legitimate expectations
Procedure: Action for annulment - unfounded;Appeal against penalty - successful
Origin: Germany

Summary of the Judgment 1. Competition – Fines – Amount – Determination – Division of undertakings concerned into categories having the same starting point – Infringements of a vertical nature (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1 A) 2. Competition – Fines – Amount – Determination – Deterrent nature – Criteria for evaluating the deterrence factor – Obligation to take account of the likelihood of repeat infringement by the fined undertaking – No such obligation (Art. 81(1) EC; EEA Agreement, Art. 53(1); Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) 3. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Setting up of a programme for compliance with Community competition rules – Compensation offered to third parties (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) 4. Competition – Fines – Amount – Determination – Deterrent nature – Criteria for evaluating the deterrence factor – Infringements of a vertical nature (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) 5. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Role of leader or instigator of the infringement (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) 6. Competition – Fines – Amount – Determination – Deterrent nature – Criteria for evaluating the deterrence factor– Application of different multipliers to undertakings participating in a cartel (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) 7. Competition – Fines – Amount – Determination – Deterrent nature – General requirement which must be a reference point for the Commission throughout the calculation of the fines –Specific step in which an overall assessment is made of all relevant circumstances not mandatory (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) 8. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Long‑term infringements – Increase of 10% of the starting amount per year (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1 B) 9. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Role of ringleader (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 2) 10. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Role of leader of the infringement (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 2) 11. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Continuation of the infringement after the Commission’s intervention (Council Regulation No 17, Art. 15(2)) 12. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine in return for cooperation of the undertaking concerned – Infringements of a vertical nature – Leniency Notice not applicable (Council Regulation No 17, Art. 15(2); Commission Notice 96/C 207/04) 13. Competition – Fines – Amount – Determination – Criteria – Attitude of the undertaking during the administrative procedure – Appraisal of the extent of the cooperation shown by each of the undertakings participating in the cartel – Respect for the principle of equal treatment (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 3) 14. Competition – Fines – Amount – Determination – Right to be heard – Procedures (Council Regulation No 17, Art. 19(1); Commission Regulation No 2842/98, Art. 7) 15. Community law – Principles – Protection of legitimate expectations – Conditions – Precise assurances provided by the administration– Informal statement in competition matters by a Commission official – Not included 1. In the context of the setting by the Commission of the starting amounts of the fines for infringement of the Community competition rules, differential treatment seeks to take account of the specific weight of each undertaking involved and, accordingly, the real impact of its offending conduct, particularly when there is considerable disparity between the sizes of the undertakings committing infringements of the same type. In the case of a complex of agreements and concerted practices of a vertical nature with the object and effect of restricting parallel exports of products, the respective shares held by the undertakings in the distribution of those products are representative of the specific weight of each undertaking in the distribution system. The Commission may therefore refer to the share of each undertaking in the total volume of the products purchased for the purpose of their distribution in the European Economic Area during the last year of the infringement for the purposes of the differential treatment applied when establishing the preliminary starting amounts of the fines. Since the reference to the market shares of each of the undertakings involved in the distribution of those products is used simply for the purposes of establishing the relative responsibility of each of them in an infringement aimed at limiting competition at the level of the distribution of those products, the fact that, in respect of those products, the market is characterised more by intense inter‑brand competition than by intra‑brand competition is not a factor which the Commission is required to take into account for the purposes of determining the specific preliminary starting amount of the fine imposed on the undertakings concerned. (see paras 45, 49-51) 2. The Commission has the power to decide the level of fines in order to reinforce their deterrent effect when infringements of a particular type, although established as being unlawful at the outset of Community competition policy, are still relatively frequent on account of the profit that certain of the undertakings concerned are able to derive from them. Since the objective of deterrence relates to the conduct of undertakings within the Community or the European Economic Area (EEA), the deterrence factor is assessed by taking into account a large number of factors and not merely the particular situation of the undertaking concerned. Thus when assessing the need to increase the amount of fines in order to ensure that they have deterrent effect the Commission is in no way required to evaluate the likelihood that the undertakings in question will re-offend. The pursuit of deterrent effect does not concern solely the undertakings specifically targeted by the decision imposing fines. It is also necessary to prompt undertakings of similar sizes and resources to refrain from participating in similar infringements of the competition rules. (see paras 71-73) 3. The preventative measures taken by undertakings against which proceedings have been brought for infringement of the Community competition rules, consisting in particular of a compliance programme with those rules, their cooperation during the administrative procedure and the compensation that they offered to third parties, do not affect the reality of the infringement committed and do not have to be taken into account when evaluating the gravity of the infringement for the purpose of determining the starting amount of the fines. Those measures may, where appropriate, be taken into account when examining whether there are any attenuating circumstances. (see para. 74) 4. In the context of the increase for deterrence of the starting amount of the fines imposed for infringement of the Community competition rules, the Commission is entitled to take account of the fact that an undertaking occupies a unique position in a distribution system in the light of its position as manufacturer of the products in question. Although it is true that the size of undertakings is generally a factor which must be taken into account when setting the amount of the fine, it cannot be ruled out that other factors may also be taken into account in order to ensure that the fine has a sufficient deterrent effect. In that connection, the position of manufacturer of the products may, in the case of vertical infringements, in the same way as the size of an undertaking, relate to a factor which is representative of its effective capacity to cause significant damage to competition. In such a case, the manufacturer of the relevant products, which occupies a central position in the distribution system of those products, must display special vigilance and ensure that it observes the competition rules when concluding distribution agreements. (see paras 78-80) 5. When determining the amount of fines imposed for vertical infringements of Community competition law, the Commission is entitled to take account, in respect of aggravating circumstances, of the fact that the manufacturer of the relevant products is the leader and instigator of the infringement. To that end, the Commission is entitled to make reference to the fact that that undertaking monitors, implements and ensures compliance with a number of measures designed to limit parallel trade. The argument that the role of leader or instigator of an infringement can be found only in restrictive horizontal agreements but not in a restrictive vertical agreement cannot be accepted. The fact that, in the case of vertical agreements, that role generally merges with that of the manufacturer of the relevant products does not preclude that an aggravating circumstance in respect of the role of leader or instigator of an infringement can be taken into account for the purposes of calculating the amount of the fine. Moreover, the role of leader is not necessarily exercised by the manufacturer of the relevant products, since it cannot be ruled out that a vertical infringement is led by an undertaking that is solely the distributor and not the manufacturer of the products in question. (see paras 83, 128-129, 131) 6. In setting the amount of fines for breach of the Community competition rules, the Commission does not infringe the principle of equal treatment in applying, for deterrent effect, a different multiplier to two undertakings participating in a cartel which are not in comparable positions. In the case of a vertical infringement, the Commission is entitled to take the view that undertakings are not in comparable positions in the light inter alia of the difference in their shares of the sales of the relevant products and in their positions in the distribution system. (see paras 95-96) 7. 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 refer to the objective of deterrence in Section 1 A thereof, according to which it is necessary to set the fine at a level which ensures that it has a sufficiently deterrent effect. The need to ensure such an effect is a general requirement which must be a reference point for the Commission throughout the calculation of the fine and does not necessarily require that there be a specific step in that calculation in which an overall assessment is made of all relevant circumstances for the purposes of attaining that objective. The claim that the increase for deterrence should be applied at the final stage of the determination of the amount of the fines cannot therefore be accepted. (see paras 98-99) 8. In accordance with Section 1 B 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 Commission may, in respect of long‑term infringements, apply an increase of up to 10% per year of infringement in the amount set to reflect its gravity. The mere fact that the Commission has reserved for itself a possibility of applying an increase of up to 10% per year of infringement in no way obliges it to set that rate according to the intensity of the infringement or the varying degrees of involvement of each of the offenders. Consequently, the claim that, in the case of an infringement of very variable gravity, the Commission is required to apply a significantly lower level of increase, at least in respect of a part of the period taken into consideration, cannot be accepted. The increase in the fine by reference to the duration of the infringement is not limited to a situation in which there is a direct relation between that duration and serious harm caused to the Community objectives referred to in the competition rules. (see paras 110, 112-113) 9. Where an infringement of the competition rules has been committed by several undertakings, it is appropriate, when setting the amount of the fines, to consider the relative gravity of the participation of each of them, which implies in particular that the roles played by each of them in the infringement for the duration of their participation in it should be established. It follows, in particular, that the role of ‘ringleader’ played by one or more undertakings in a restrictive agreement must be taken into account in setting the fine, in so far as undertakings which have played such a role must for that reason bear a special responsibility by comparison with the other undertakings. 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 provide, at Section 2, under aggravating circumstances, a non‑exhaustive list of circumstances which can lead to an increase in the basic amount of the fine and includes in particular ‘the role of leader in or instigator of the infringement’. (see paras 126-127) 10. In order to classify an undertaking as a ‘leader’ and to increase the amount of the fine imposed on it for infringement of the Community competition rules, it is not necessary to prove that, in the absence of the role played by that undertaking, the infringement committed would have been less serious, since such an argument is based on confusion between the assessment of the gravity of the infringement in absolute terms and the examination of the gravity in relative terms of the participation of each of the undertakings concerned when examining aggravating and attenuating circumstances. (see para. 130) 11. The Commission is entitled to take account of the fact that an undertaking continued an infringement of the competition rules after the beginning of the investigation as an aggravating circumstance, since such conduct shows that the parties to the restrictive agreement were particularly determined to continue their infringement in spite of the risk of fines. (see para. 142) 12. It is apparent from the Commission Notice of 1996 on the non-imposition or reduction of fines in cartel cases, the aim of which is to encourage undertakings to disclose the existence of restrictive agreements that are particularly difficult to detect, that it is applicable only in cases where infringements of a horizontal nature are involved, such as cartels. That notice refers at Section A(1), first subparagraph, to the case of ‘[s]ecret cartels … aimed at fixing prices, production or sales quotas, sharing markets or banning imports or exports’. That notice must not therefore be applied where undertakings have taken part in a vertical infringement aimed at restricting parallel exports of products. In addition, even if such an infringement is treated like a cartel in terms of the sanction imposed, it is not appropriate to apply that notice by analogy. The classification of the infringement as very serious and the assessment of the cooperation provided during the administrative procedure are unconnected. (see paras 157-158) 13. Although when appraising the cooperation provided by undertakings during an administrative procedure initiated in respect of a prohibited agreement, the Commission is not entitled to disregard the principle of equal treatment, it has a wide discretion in assessing the quality and usefulness of the cooperation provided by them, and only a manifest error of assessment can be censured. The appraisal of the extent of the cooperation provided by undertakings cannot depend on purely random factors. A difference in the treatment of the undertakings concerned must therefore be capable of being ascribed to differences in the degree of cooperation provided, particularly where different information was provided or that information was supplied at different stages in the administrative procedure or in dissimilar circumstances. In so far as undertakings supply the Commission, at the same stage of the administrative procedure and in similar circumstances, with similar information concerning the matters of which they are accused, the degrees of cooperation afforded by them must be regarded as comparable, with the consequence that those undertakings must be treated equally when the amount of the fine imposed on them is determined. The cooperation provided must therefore be compared from both a chronological point of view, which first entails an examination of the stage at which the cooperation was provided, and a qualitative point of view, which then leads to a comparison of the circumstances in which the undertakings cooperated and the intrinsic value of the information communicated by each of them as part of that cooperation. For the purposes of the comparative assessment of the value of the cooperation from a chronological point of view, in order to be considered comparable, the undertakings’ cooperation does not necessarily have to commence on the same day, but it must commence at the same stage of the procedure. (see paras 161, 171-172, 176, 178) 14. Article 19(1) of Regulation No 17 and Article 7 of Regulation No 2842/98 on the hearing of parties in certain proceedings under Articles 81 EC and 82 EC expressly provide that, where the Commission proposes to impose a fine, the undertakings concerned must have the opportunity to make their submissions on the matters to which the Commission has taken objection. It is thus by way of their submissions on the duration, the gravity and the foreseeability of the anti‑competitive nature of the infringement that the rights of the defence of the undertakings concerned are guaranteed before the Commission in relation to setting the amount of the fine. (see para. 194) 15. The right to rely on the principle of the protection of legitimate expectations extends to any individual in a situation where the Community authorities have caused him to entertain legitimate expectations. A person may not plead infringement of the principle unless he has been given precise assurances by the administration. Moreover, in order to be able to give rise to a legitimate expectation, the assurances provided must emanate from authorised and reliable sources. In the context of the implementation of the Community competition rules, a statement by a Commission representative to the representative of an undertaking at an informal meeting that the payment of compensation to third parties would be taken into account in the calculation of the fine imposed on the undertaking cannot be described as a precise and unconditional assurance that all that compensation would be deducted from the final amount of the fine. In addition, in any event, in the light of the exclusive competence of the College of Commissioners to adopt a decision imposing a fine, a Commission official cannot provide an undertaking, at an informal meeting, with precise assurances from an authorised, reliable source that the compensation offered to the third parties would be deducted from the final amount of the fine. (see paras 203, 206-208)