Opinion of the Advocate General — ECLI:EU:C:2007:128
Date: 2007-03-01
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: Action for annulment;Appeal - unfounded;Appeal against penalty
Origin: United Kingdom

Summary of the Judgment 1. Competition – Fines – Amount – Determination – Maximum amount (Council Regulation No 17, Art. 15(2), first para.) 2. Competition – Fines – Amount – Determination – Maximum amount (Council Regulation No 17, Art. 15(2), first para.) 3. Competition – Fines – Amount – Determination – Maximum amount (Council Regulation No 17; Commission Notice 98/C 9/03) 1. The limit relating to turnover laid down in the first subparagraph of Article 15(2) of Regulation No 17 seeks to prevent fines imposed by the Commission from being disproportionate in relation to the size of the undertaking concerned. It follows that, in determining the ‘preceding business year’, the Commission must assess, in each specific case and having regard both to the context and the objectives pursued by the scheme of penalties created by Regulation No 17, the intended impact on the undertaking in question, taking into account in particular a turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed. Therefore, where the undertaking concerned has not achieved any turnover for the business year preceding the adoption of the Commission decision, the Commission is entitled to refer to another business year in order to be able to make a correct assessment of the financial resources of that undertaking and to ensure that the fine has a sufficient deterrent effect. Moreover, the determination of the upper limit of the fine is not a mere question of choosing between the two possibilities provided for in the first subparagraph of Article 15(2) of Regulation No 17, that is, between a maximum fine of EUR 1 million and an upper limit set by reference to the turnover of the undertaking concerned. (see paras 24-25, 30-31) 2. When establishing the business year to be taken into account in order to ensure compliance with the upper limit of 10% of turnover applicable to fines imposed for breach of Community competition rules, the Commission does not infringe the principle of equal treatment by applying to one of the undertakings which participated in a cartel, but which had no turnover in the business year preceding the adoption of the penalising decision, different treatment from that applied to the other participants in the cartel which were still active when that decision was taken and had turnover for the previous business year giving a strong indication of their economic situation. Moreover, in the context of calculating fines imposed under Article 15(2) of Regulation No 17, differentiated treatment of the undertakings concerned is inherent in the exercise of the Commission’s powers under that provision. In exercising its discretion, the Commission is required to fit the penalty to the individual conduct and specific characteristics of the undertakings concerned in order to ensure that, in each case, the Community competition rules are fully effective. Even if the Commission’s previous practice had been different concerning an undertaking in breach which withdrew from the market concerned by the infringement before the penalising decision was taken, that change of practice cannot constitute an infringement of the principle of the protection of legitimate expectations, since a decision-making practice of the Commission cannot serve as a legal framework for the imposition of fines in competition matters. (see paras 41-44, 60-62) 3. The provisions governing the implementation of the Community competition rules, and in particular Regulation No 17 and the Guidelines, enable undertakings to foresee with certainty the financial consequences likely to result from an infringement of those rules. Consequently, the principle of legal certainty can give an undertaking no guarantee that its cessation of commercial activities in the sector concerned will result in its escaping the imposition of a fine for the infringement committed in that sector. Moreover, in the light of the Commission’s discretion in this field, an undertaking participating in a cartel cannot acquire any certainty as to the amount of the fine likely to be imposed on it by the Commission under the provisions of Regulation No 17. In those circumstances, the fact that it was not able to ascertain in advance the relevant reference year for the purposes of determining the upper limit of the fine does not, by itself, constitute an infringement of the principle of legal certainty. (see paras 80-81, 83-84)