Judgment — ECLI:EU:T:2003:196
Date: 2003-07-09
Language of the case: English
Court formation: Fourth 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
Procedure: Action for annulment - unfounded;Appeal against penalty - successful
Origin: Germany

Summary of the Judgment 
1. Competition — Fines — Amount — Determination thereof — Guidelines adopted 
by the Commission — Obligation on the Commission to comply with them 
(Council Regulation No 17, Art. 15(2)) 
2. Competition — Fines — Amount — Determination thereof — Criteria — Serious­
ness of the infringements — Taking into account of the total turnover of the 
undertaking concerned and the turnover achieved by sales of goods which were the 
subject-matter of the infringement — Limits 
(Council Regulation No 17, Art. 15(2)) 
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SUMMARY — CASE T-230/00 
3. Competition — Fines — Amount •— Determination thereof — Criteria — Serious­
ness of the infringements — Measure of the effective capacity to cause damage on the 
relevant market — Relevance of the market share held by the undertaking concerned 
(Art. 81(1) EC; Council Regulation No 17, Art. 15(2)) 
4. Competition — Fines — Amount — Determination thereof •—• Criteria — Serious­
ness of the infringements •—• Measure of the actual impact on competition of the 
infringing conduct of each undertaking •— Relevance of the turnover achieved with the 
products forming the subject-matter of a restrictive practice 
(Art. 81(1) EC; Council Regulation No 17, Art. 15(2)) 
5. Competition — Fines — Amount — Determination thereof — Criteria — Cooper­
ation of the undertaking during the administrative procedure — Reduction of the 
fine — Request for information — Investigation — Relevance 
(Council Regulation No 17, Arts 11 and 15) 
6. Competition — Fines — Amount — Determination thereof — Method of calcu­
lation defined by guidelines laid down by the Commission — Application of 
percentages to the basic amount of the fine 
(Council Regulation No 17, Art. 15(2)) 
1. The Commission may not depart from 
rules which it has imposed on itself. In 
particular, whenever it adopts guide­
lines for the purpose of specifying, in 
accordance with the Treaty, the criteria 
which it proposes to apply in the 
exercise of its power to assess the 
seriousness of an infringement, there 
arises a self-imposed limitation of that 
discretion inasmuch as it must then 
follow those guidelines. 
(see paras 38, 89) 
2. The criteria for assessing the serious­
ness of an infringement of Community 
competition rules may include the 
volume and value of the goods in 
respect of which the infringement was 
committed, the size and economic 
power of the undertaking and, con­
sequently, the influence which it was 
able to exert on the market. It follows 
that, on the one hand, it is permissible, 
for the purpose of fixing a fine, to have 
regard both to the total turnover of the 
undertaking, which gives an indication, 
albeit approximate and imperfect, of 
the size of the undertaking and of its 
economic power, and to the proportion 
of that turnover accounted for by the 
goods in respect of which the infringe­
ment was committed, which gives an 
indication of the scale of the infringe­
ment. On the other hand, it follows 
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DAESANG AND SEWON EUROPE v COMMISSION 
that it is important not to confer on 
one or other of those figures an import­
ance which is disproport ionate in 
relation to other factors and that the 
fixing of an appropriate fine cannot be 
the result of a simple calculation based 
on total turnover. 
(see para. 44) 
3. When determining the amount of fines 
imposed for infringement of Commu­
nity competition rules, assessment of 
the effective capacity of the undertak­
ings concerned to cause significant 
damage to a given market implies an 
assessment of the real importance of 
the under t ak ings on the marke t 
affected, that is to say their influence 
on it. For that purpose, an undertak­
ing's share of the affected market is 
relevant, whereas its total turnover is 
not. 
(see para. 49) 
4. When determining the amount of fines 
imposed for infringement of Commu­
nity competition rules, an assessment 
of the specific weight, that is to say of 
the real impact of the infringement 
committed by each of the undertakings, 
which the Commission must now carry 
out by virtue of the Guidelines on the 
method of setting fines imposed pur­
suant to Article 15(2) of Regulation 
No 17 and Article 65(5) of the ECSC 
Treaty where it considers that the 
starting amounts of the fines must be 
weighted because the infringement is 
one that involves several undertakings 
(a cartel) among which there is con­
siderable disparity in size, involves 
establishing the scale of the infringe­
ment committed by each of them, 
rather than the importance of the 
undertaking in question in terms of its 
size or economic power. In that regard, 
the proportion of turnover derived 
from the sale of goods in respect of 
which the infringement was committed 
is likely to give a fair indication of the 
scale of the infringement on the rel­
evant market. In particular, the turn­
over in products which have been the 
subject of a restrictive practice con­
stitutes an objective criterion which 
gives a proper measure of the harm 
which that practice causes to normal 
competition. 
(see paras 50, 52) 
5. Cooperation in an investigation by the 
Commission into a possible infringe­
ment of Community competition rules 
which does not go beyond that which 
undertakings are required to provide 
under Article 11(4) and (5) of Regu­
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SUMMARY — CASE T-230/00 
lation No 17 does not justify a reduc­
tion in the fine. A reduction in the fine 
is justified, however, where an under­
taking provides the Commission with 
information well in excess of what the 
Commission may require under 
Article 11 of Regulation No 17. 
The fact that the Commission has sent 
a request for information to an under­
taking which has cooperated, pursuant 
to Article 11(1) of Regulation No 17, 
cannot of itself exclude the possibility 
of a substantial reduction of between 
50 and 75% of the fine, pursuant to 
Section C of the Leniency Notice, 
particularly as a request for infor­
mation is a less coercive measure than 
an investigation ordered by decision. 
Such an investigation does not in itself 
necessarily exclude the application of 
Section C of the Leniency Notice if it 
does not provide sufficient grounds for 
initiating the procedure leading to a 
decision for infringement of the com­
petition rules. 
(see paras 136-137, 140-141) 
6. Given the wording 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, any percentage increases or 
reductions decided upon to reflect 
aggravating or mitigating circum­
stances must be applied to the basic 
amount of the fine set by reference to 
the seriousness and duration of the 
infringement, not to any increase 
already applied for the duration of the 
infringement or to the figure resulting 
from any initial increase or reduction 
to reflect aggravating or mitigating 
circumstances. That method for calcu­
lating fines ensures equal treatment 
between the various undertakings 
involved in a cartel. 
(see para. 152) 
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