Judgment — ECLI:EU:T:2013:260
Date: 2013-05-17
Language of the case: Italian
Court formation: First Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: Italy

Summary — Judgment of the General Court (First Chamber), 17 May 2013 1. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Degree of precision required of the evidence used by the Commission — Body of evidence — Judicial review — Scope — Decision leaving a doubt in the mind of the court — Compliance with the principle of the presumption of innocence (Art. 81(1) EC; Art. 6(2) TEU; Charter of Fundamental Rights of the European Union, Art. 48(1); Council Regulation No 1/2003, Art. 2) 2. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision finding a breach of the competition rules (Arts 81 EC and 253 EC; EEA Agreement, Art. 53) 3. Competition — Fines — Guidelines on the method of setting fines — Legal nature — Indicative rule of conduct implying a self-limitation on the discretion of the Commission — Obligation to comply with the principles of equal treatment, protection of legitimate expectations and legal certainty (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 298/11) 4. Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned — Conditions — Significant added value of the evidence provided by the undertaking concerned — Scope — Account taken of the chronological element of the cooperation provided — Rate of reduction (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 298/11, Sections 23 to 26) 5. Agreements, decisions and concerted practices — Complex infringement comprising elements both of an agreement and of a concerted practice — Single classification as an ‘agreement and/or concerted practice’ — Lawfulness — Consequences as to the evidence required (Art. 81(1) EC) 6. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Single and continuous infringement — Lack of evidence relating to certain specific periods of the overall period considered — No effect — Interruption of the participation of the undertaking in the infringement — Repeated infringement — Concept — Consequences for limitation (Art. 81(1) EC; Council Regulation No 1/2003, Arts 2, 25(2), and 31) 7. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Determination of the fine proportionately to the assessment factors for the gravity of the infringement — Overall turnover of the undertaking concerned — Turnover corresponding to the goods covered by the infringement — To be taken into consideration — Limits (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, Sections 19 and 20) 8. EU law — Principles — Protection of legitimate expectations — Conditions — Specific assurances given by the authorities 9. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Evidence for assessment — Factors specific to the infringement — Circumstances specific to the undertaking concerned (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, Section 20) 10. Competition — Fines — Amount — Determination — No need to take account of the turnovers of the undertakings concerned or to ensure that fines are proportional to those turnovers (Art. 81(1) EC; (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02) 11. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Establishment of a programme for compliance with competition rules — Not imperative to take into account (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, Section 29) 12. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Threats and pressure exerted on an undertaking — Not included — Passive or ‘follow-my-leader’ role of the undertaking — Conduct deviating from that agreed within the cartel — Agreement not implemented in practice — Criteria for assessment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, Section 29) 13. Competition — Fines — Amount — Determination — Criteria — Gravity and duration of the infringement — Discretion of the Commission — Judicial review — Unlimited jurisdiction — Effect (Arts 81(1) EC and 229 EC; Council Regulation No 1/2003, Arts 23(2) and (3), and 31) 1. See the text of the decision. (see paras 100-107) 2. See the text of the decision. (see paras 108, 109) 3. See the text of the decision. (see paras 114, 115) 4. See the text of the decision. (see paras 116-121, 318-322, 337) 5. See the text of the decision. (see paras 160-165, 169) 6. In competition matters, under Article 25(2) of Regulation No 1/2003, time is to begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time is to begin to run on the day on which the infringement ceases. Accordingly, 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 indicia and coincidences 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. Furthermore, such an infringement may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision. When the different actions form part of an overall plan because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole. As regards lack of evidence that there was an agreement during certain specific periods or, at least, lack of evidence of its implementation by an undertaking during a given period, the fact that evidence of the infringement 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 a cartel reveals itself at different periods, which may be separated by more or less lengthy intervals, has no impact on the existence of that cartel, provided that the various actions which form part of the infringement pursue a single aim and come within the framework of a single and continuous infringement. In that regard a number of criteria have been identified as being relevant for the assessment of the single nature of an infringement, namely the identity of the objectives of the practices in question, the identity of the goods and services concerned, the identity of the undertakings that took part in the practices, and the identity of the means of implementing it. Furthermore, the identity of the natural persons involved on behalf of the undertakings and the identity of the geographic scope of the practices at issue may also be taken into consideration for the purposes of that examination. Thus, as regards continuous infringement, the Commission may assume that the infringement — or the participation of an undertaking in the infringement — has not been interrupted, even if it has no evidence of the infringement in relation to certain specific periods, provided that the various actions which form part of the infringement pursue a single purpose and are capable of falling within the framework of a single and continuous infringement; such a finding must be supported by objective and consistent indicia showing that an overall plan exists. If those conditions are satisfied, the concept of continuous infringement therefore allows the Commission to impose a fine in respect of the whole of the period of infringement taken into consideration and establishes the date on which the limitation period begins to run, namely the date on which the continuous infringement ceased. However, the undertakings accused of collusion may rebut that presumption, by putting forward indicia or evidence showing that, on the contrary, the infringement — or their participation therein — did not continue during those periods. Furthermore, the concept of repeated infringement is distinct from that of continuous infringement, as is confirmed, moreover, by the use of the conjunction ‘or’ in Article 25(2) of Regulation No 1/2003. Thus, where it can be established that an undertaking’s participation in the infringement was interrupted and that the infringement committed by the undertaking before and after that period has the same features, to be assessed, in particular, by reference to the identity of the objectives and practices at issue, the products concerned, the undertakings which took part in the collusion, the principal means of implementing it, the natural persons involved on behalf of the undertakings and, last, the geographic scope of those practices, the infringement in question must be characterised as a single infringement and as a repeated infringement. Furthermore, in accordance with Article 25(1)(b) of Regulation No 1/2003, the duration of the interruption cannot exceed five years, in which case the imposition of a fine for the infringement period before that interruption would be time barred. (see paras 190-201) 7. See the text of the decision. (see paras 225, 234, 235, 351) 8. See the text of the decision. (see para. 226) 9. See the text of the decision. (see para. 260) 10. See the text of the decision. (see para. 264) 11. See the text of the decision. (see para. 272) 12. See the text of the decision. (see paras 286-289) 13. See the text of the decision. (see paras 345-350)