Opinion of the Advocate General — ECLI:EU:C:2017:393
Date: 2017-05-18
Language of the case: English
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal against penalty
Origin: Netherlands

Summary — Judgment of the Court (Eighth Chamber), 14 September 2017 1. Competition — Administrative procedure — Observance of the rights of the defence — Statement of objections — Sending only to the parent companies of a joint venture implicated in the cartel and not to the joint venture itself — Joint venture not the subject of administrative proceedings — Whether permissible (Charter of Fundamental Rights of the European Union, Art. 41(2); Council Regulation No 1/2003, Art. 27(1)) 2. Competition — Fines — Amount — Determination — Determination of the basic amount — Determination of the value of sales — Vertically integrated participants in a cartel — Incorporation of cartelised goods into transformed goods within an integrated undertaking — Account to be taken of the value of the sales of transformed products up to the value of the cartelised products — Whether permissible (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Communication 2006/C 210/02, point 13) 3. Competition — Agreements, decisions and concerted practices — Undertaking — Concept — Economic unit — Creation of a joint venture — Concentration that has as its subject or effect the coordination of the competitive conduct of undertakings that remain independent — Compatibility with the internal market — Assessment (Art. 101 TFEU; Council Regulation No 139/2004, Art. 2(4) and (3)) 4. EU law — Principles — Equal treatment — Need to comply with the principle of legality — Impossible to rely on an unlawful act committed in favour of a third party 1. Observance of the rights of the defence in a proceeding before the Commission, the aim of which is to impose a fine on an undertaking for infringement of competition rules, requires that the undertaking concerned must have been afforded the opportunity to make known its views on the truth and relevance of the facts and circumstances alleged as well as on the documents used by the Commission to support its claim that there has been an infringement. Those rights are referred to in Article 41(2)(a) and (b) of the Charter of Fundamental Rights of the European Union. Accordingly, Article 27(1) of Regulation No 1/2003 provides that, prior to taking a decision establishing an infringement of the rules of competition and imposing a fine, the Commission is required to give those who are the subject of the proceedings the opportunity to have their point of view heard as regards the grounds that the Commission has advanced and is to base its decisions solely on the objections in respect of which the relevant parties have been able to set out their observations. It follows that the statement of objections is designed to ensure the exercise of the rights of the defence, individually, by each natural or legal person concerned by the administrative proceedings in relation to the competition rules. By contrast, if the Commission has no intention of establishing that an infringement was committed by a company, the rights of defence do not require a statement of objections to be sent to that company. The sending of a statement of objections to a given company seeks to ensure that the rights of defence of that company are respected, rather than those of a third party, even though that latter party may well be affected by the same administrative proceedings. (see paras 43-46) 2. See the text of the decision. (see paras 65-73) 3. It follows from Article 2(4) of Regulation No 139/2004 on the control of concentrations between undertakings that, to the extent that the creation of a joint venture constituting a concentration within the meaning of Article 3 of that regulation has as its subject or effect the coordination of the competitive conduct of undertakings that remain independent, such coordination is to be appraised in accordance with the criteria of Article 101(1) and (3) TFEU, with a view to establishing whether or not the concentration is compatible with the internal market. The fact that a joint venture and its parent companies are considered to form part of the same undertaking for the purposes of establishing an infringement on a certain market does not prevent the two parent companies from being independent, within the meaning of Article 2(4) of Regulation No 139/2004, on all other markets. (see paras 78-79) 4. See the text of the decision. (see paras 91-97)