Judgment — ECLI:EU:T:2009:130
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;Definition of undertaking;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Hearing of persons concerned and of third parties / Access to the file
Procedure: Action for annulment - unfounded;Appeal against penalty - unfounded

Summary of the Judgment 1. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries (Arts 81 EC and 82 EC) 2. Competition – Fines – Amount – Determination – Division of undertakings concerned into categories having the same starting point – Conditions (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1 A) 3. Competition – Fines – Amount – Determination – Deterrent nature – Criteria for evaluating the deterrence factor (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) 4. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement (Art. 81(1) EC; Council Regulation No 17, Art. 15(2)) 5. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Participation allegedly under constraint (Art. 81(1) EC; Council Regulation No 17, Art. 3) 6. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Infringements of long duration – 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) 7. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Attenuating circumstances – Passive or ‘follow-my-leader’ role of the undertaking (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 3) 8. Competition – Fines – Amount – Determination – Criteria – Attenuating circumstances – Agreement not implemented in practice – Assessment (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 3, second indent) 9. Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence (Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Arts 2 and 4) 1. Under Community competition law different companies belonging to the same group form an economic unit and therefore an undertaking within the meaning of Articles 81 EC and 82 EC if the companies concerned do not independently determine their own conduct on the market. In the specific case of a parent company holding 100% of the capital of a subsidiary which has committed an infringement, there is a simple presumption that the parent company exercises decisive influence over the conduct of its subsidiary. It is thus for a parent company which disputes before the Community judicature a Commission decision fining it for the conduct of its subsidiary to rebut that presumption by adducing evidence to establish that its subsidiary was independent. In other words, it is sufficient for the Commission to show that the entire capital of a subsidiary is held, directly or indirectly, by the parent company in order to conclude that the parent company exercises decisive influence over its commercial policy. The Commission will then be able to hold the parent company jointly and severally liable for payment of the fine imposed on the subsidiary, unless the parent company proves that the subsidiary does not, in essence, comply with the instructions which it issues and, as a consequence, acts autonomously on the market. The fact that a parent company did not present itself as the Commission’s sole interlocutor during the administrative procedure and that it continually contested the Commission’s decision to send to it the documents in question is not capable of rebutting that presumption. Nor can the fact that a group is characterised by a decentralised and independent organisation of the business of the various subsidiaries be taken into account where no specific evidence is adduced in support of that claim, apart from the irrelevant fact that those subsidiaries employ a large number of local employees. Further, there is no requirement, in order to impute to a parent company the acts undertaken by its subsidiary, to prove that that parent company was directly involved in, or was aware of, the offending conduct. (see paras 47, 49, 51-52, 56-58) 2. The method of dividing the members of a cartel into categories in order to apply differential treatment when setting the starting amounts of the fines, the principle of which has been approved by the case‑law even though it ignores the differences in size between undertakings in the same category, results in a flat‑rate starting amount for all the undertakings in the same category. Such a division must comply with the principle of equal treatment and, furthermore, the amount of the fine must at least be proportionate in relation to the factors taken into account in the assessment of the gravity of the infringement. In order to ascertain whether a division of the members of a cartel into categories is in keeping with the principles of equal treatment and proportionality, the Community judicature, as part of its review of the lawfulness of the exercise of the Commission’s discretion in the matter, must none the less confine itself to checking that the division is coherent and objectively justified and not immediately substitute its own assessment for that of the Commission. In this respect, the Commission’s decision to divide the undertakings into several categories by reference to their market shares in the distribution of the relevant products and to place in the same category those undertakings having a market share lower than a certain threshold cannot be qualified as arbitrary and does not exceed the limits of the broad discretion which it has in that regard. The fact that the starting amounts relating to each of the categories are not strictly proportionate to the respective market shares of the undertakings concerned cannot be censured since it is merely the result of the system of division by categories and the setting of a flat-rate amount that it entails. Even if the effect of the division into groups is that certain undertakings are allocated the same basic amount even though they differ in size, the difference in treatment is objectively justified by the greater importance attached to the nature of the infringement than to the size of the undertakings in the assessment of the gravity of the infringement. The usefulness of the Commission’s right to classify undertakings into categories would be considerably diminished if any difference between market shares that is considerable in relative terms, but very small in terms of percentage points, precluded the placing of different undertakings in the same category. (see paras 73-74, 76-77, 81) 3. 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. The Commission may apply the same multiplier for deterrent effect to two undertakings which are members of a cartel taking account of their size and overall resources. An undertaking may not rely on the differences between the respective roles of the undertakings in question in the infringement in order to deny that the increase of the fines with a view to their deterrent effect was equitable and proportionate. (see paras 93-94, 98) 4. Under the last subparagraph of Article 15(2) of Regulation No 17, in fixing the amount of the fine regard must be had not only to the gravity of the infringement but also to its duration. Where an agreement with an anti-competitive object is not implemented, it is nevertheless necessary to take account of the period during which the agreement existed, that is, the time between the date on which it was entered into and the date on which it was terminated. The fact that the provisions of an agreement were not implemented during long periods is of no relevance whatsoever when determining the infringement period. (see paras 109, 112) 5. An undertaking which participates with others in anti-competitive conduct cannot rely on the fact that it participates in it under constraint from the other participants because it could have reported the pressure brought to bear on it to the competent authorities and made a complaint to the Commission under Article 3 of Regulation No 17 rather than participate in the activities in question. (see paras 114, 140) 6. 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 the gravity of the infringement. 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. That Section 1 B does not make an increase for duration conditional on proof that the infringement in question had a negative and long‑term impact on consumers. The assertion that, in the case of an infringement of very variable intensity, the Commission is required to apply a significantly lower level of increase, at least in respect of a part of the period taken into account, cannot be accepted. An 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 the duration and serious harm caused to the Community objectives referred to in the competition rules. (see paras 116, 118, 120, 123) 7. Where an infringement has been committed by several undertakings, it is appropriate to consider the relative gravity of the participation of each of them in order to determine whether there are any aggravating or attenuating circumstances relating to them. In particular, in accordance with the first indent of Section 3 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, ‘an exclusively passive or follow-my-leader’ role in the infringement may, where it is established, constitute an attenuating circumstance. A passive role implies that the undertaking adopts a ‘low profile’, that is to say, not actively participate in the creation of any anti‑competitive agreements. In this respect, an undertaking which is a party to a distribution agreement designed to limit parallel trade and which thus indicates its agreement to such limitation does not play a passive role in the infringement. Furthermore, the conduct of an undertaking demonstrating less zeal in the conduct of the cartel, but which does not call in question that undertaking’s full involvement in it, does not constitute evidence of ‘exclusively’ passive participation. It is not sufficient that the undertaking concerned adopted a ‘low profile’ during certain periods or in relation to certain provisions of the agreement. (see paras 134-135, 137-138) 8. According to the second indent of Section 3 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, ‘non-implementation in practice of the offending agreements or practices’ may amount to an attenuating circumstance. The Commission is not required to recognise the existence of an attenuating circumstance consisting of non-implementation of a restrictive agreement unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the agreement, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the agreement in question. It would be too easy for undertakings to reduce the risk of being required to pay a heavy fine if they were able to take advantage of an unlawful agreement and then benefit from a reduction in the fine on the ground that they had played only a limited role in implementing the infringement, when their attitude encouraged other undertakings to act in a way that was more harmful to competition. (see paras 144-145) 9. The requirement that the statement of objections must be couched in terms that, albeit succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of by the Commission is observed where the final decision does not allege that the persons concerned have committed infringements other than those referred to in the statement of objections and takes into consideration only facts on which the persons concerned have had the opportunity of making known their views. Where the statement of objections provides a clear indication of the nature of the infringement of competition law which the undertaking in question is alleged to have committed and the material facts relied on in that regard, that undertaking is in a position to reply to those allegations and to defend its rights. For the decision adopted by the Commission subsequently to categorise an economic agreement as ‘vertical’ or ‘horizontal’ does not constitute a fundamental alteration to the complaints set out in the statement of objections. (see paras 168-169)