Opinion of the Advocate General — ECLI:EU:C:2006:52
Date: 2006-01-19
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Appeal - unfounded;Appeal against penalty

Summary of the Judgment 1. Competition – Fines – Amount – Determination – Deterrent nature (Council Regulation No 17, Art. 15(2)) 2. Competition – Fines – Community penalties and penalties imposed in a non-member State for infringement of national competition law (Art. 3(1)(g) EC; Council Regulation No 17, Art. 15) 3. Competition – Fines – Amount – Discretion of the Commission (Council Regulation No 17, Art. 15) 4. Competition – Administrative procedure – Observance of the rights of the defence – Statement of objections – Necessary content (Council Regulation No 17, Art. 19(1)) 1. The fine imposed on an undertaking for infringement of the competition rules may be calculated by including a deterrence factor. That factor is assessed by taking into account a large number of factors and not merely the particular situation of the undertaking concerned. (see para. 23) 2. The principle of non bis in idem, also enshrined in Article 4 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, constitutes a fundamental principle of Community law the observance of which is guaranteed by the judicature. Where the context of a cartel is an international one, characterised in particular by action of legal systems of non-member States within their respective territories, the exercise of powers by the authorities of those States responsible for protecting free competition under their territorial jurisdiction meets requirements specific to those States. The elements forming the basis of other States’ legal systems in the field of competition not only include specific aims and objectives but also result in the adoption of specific substantive rules and a wide variety of legal consequences, whether administrative, criminal or civil, when the authorities of those States have established that there have been infringements of the applicable competition rules. It follows that, when the Commission imposes sanctions on the unlawful conduct of an undertaking, even conduct originating in an international cartel, it seeks to safeguard the free competition within the common market which constitutes a fundamental objective of the Community under Article 3(1)(g) EC. On account of the specific nature of the legal interests protected at Community level, the Commission’s assessments pursuant to its relevant powers may diverge considerably from those by authorities of non-member States. Accordingly, the principle of non bis in idem does not apply to situations in which the legal systems and competition authorities of non-member States intervene within their own jurisdiction. (see paras 50-53, 55-56) 3. Any consideration concerning the existence of fines imposed by the authorities of a non-member State can be taken into account only under the Commission’s discretion in setting fines for infringements of Community competition law. Accordingly, although it cannot be ruled out that the Commission may, on grounds of proportionality and equity, take into account fines imposed previously by the authorities of non-member States, it cannot be required to do so. The objective of deterrence which the Commission is entitled to pursue when setting the amount of a fine is to ensure compliance by undertakings with the competition rules laid down by the Treaty for the conduct of their activities within the common market. Consequently, when assessing the deterrent nature of a fine to be imposed for infringement of those rules, the Commission is not required to take into account any penalties imposed on an undertaking for infringement of the competition rules of non-member States. (see paras 60-61) 4. Observance of the right to be heard in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed constitutes a fundamental principle of Community law which must be respected even if the proceedings in question are administrative proceedings. In that regard, the obligation to hear undertakings subject to proceedings under Article 81 EC is fulfilled when the Commission states, in the statement of objections, that it will examine whether fines should be imposed on the undertakings considered and when it indicates the main matters of fact and of law which may result in the imposition of a fine, such as the duration and gravity of the infringement involved. (see paras 68-69)