Judgment — ECLI:EU:T:2003:193
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: Statement of reasons;Determining the amount of the fine;Legal certainty;Principle of the protection of legitimate expectations
Procedure: Action for annulment - unfounded;Appeal against penalty - successful
Origin: United Kingdom

Summary of the Judgment 
1. Community law — Principles — Protection of legitimate expectations — Con­
ditions — Protection against exercise by the Commission of its power to raise the 
level of fines penalising infringements of the competition rules — None 
(Council Regulation No 17) 
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SUMMARY — CASE T-220/00 
2. Community law — General principles of law — Non-retroactivity of criminal 
provisions — Scope — Fines imposed for infringements of the competition rules — 
Included — Infringement by reason of the application of the Guidelines for the 
calculation of fines to an infringement prior to their introduction — None 
(European Convention for the Protection of Human Rights and Fundamental 
Freedoms, Art. 7; Council Regulation No 17, Art. 15(2)) 
3. Competition •— Fines — Amount — Commission's margin of discretion — Possi­
bility of increasing the fines in order to strengthen their deterrent effect 
(Council Regulation No 17, Art. 15) 
4. 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)) 
5. 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)) 
6. 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» 
7. 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)) 
8. Competition — Fines — Amount •— Determination thereof — Criteria —• Serious­
ness of the infringements — Mitigating circumstances — Passive or 'follow-my-
leader' role of the undertaking 
(Council Regulation No 17, Art. 15) 
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CHEIL JEDANG v COMMISSION 
9. Competition — Fines — Amount — Determination thereof — Criteria — Serious­
ness of the infringements — Mitigating circumstances — Agreement not implemented 
in practice — Assessment at the level of the individual conduct of each undertaking 
(Council Regulation No 17, Art. 15) 
10. Competition — Fines — Amount — Appropriateness — Review by the Court — 
Factors which may be taken into account by the Community judicature — 
Iitformation not contained in the decision imposing the fine and not required in the 
statement of reasons — Included 
(Arts 119 EC, 130 EC and 153 EC; Council Regulation No 17, Art. 17) 
11. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision 
imposing fmes — Indication of the factors by which the Commission assessed the 
seriousness and duration of the infringement — Sufficient indication 
(Art. 153 EC; Council Regulation No 17, Art 15(2), second subpara.) 
12.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(1)) 
1. The right to rely on the principle of the 
protection of legitimate expectations 
extends to any individual in a situation 
where the Community authorities have 
caused him to entertain legitimate 
expectations. However, a person may 
not plead infringement of the principle 
unless he has been given precise assur­
ances by the administration. 
Traders cannot have a legitimate 
expectation that an existing situation 
which is capable of being altered by the 
Community institutions in the exercise 
of their discretionary power will be 
maintained. In the field of Community 
competition rules, effective application 
of those rules requires that the Com­
mission may at any time adjust the 
level of fines to match the needs of 
competition policy. Consequently, the 
fact that, in the past, the Commission 
imposed fines at a certain level for 
certain types of infringements docs not 
preclude it from raising that level, 
subject to the limits indicated in Regu­
lation No 17. 
(see paras 33-35) 
2. The principle that penal provisions 
may not have retroactive effect is one 
which is common to all the legal orders 
of the Member States and is enshrined 
II - 2475 
SUMMARY — CASE T-220/00 
in Article 7 of the European Conven­
tion on Human Rights, and is an 
integral part of the general principles 
of law whose observance is ensured by 
the Community judicature. 
Although Article 15(4) of Regulation 
No 17 provides that Commission 
decisions imposing fines for infringe­
ment of competition law are not of a 
criminal nature, the Commission is 
none the less required to observe the 
general principles of Community law, 
and in particular the principle of non-
retroactivity, in any administrative 
procedure capable of leading to fines 
under the Treaty rules on competition. 
Such observance requires that the fines 
imposed on an undertaking for infring­
ing the competition rules correspond 
with those laid down at the time when 
the infringement was committed. 
The change to the Commission's 
administrative practice brought about 
by 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 
does not constitute an alteration of the 
legal framework determining the level 
of fines which can be imposed that is 
contrary to the principles of non-retro-
activity of penalties and legal certainty. 
The Commission's practice in previous 
decisions does not itself serve as a legal 
framework for the fines imposed in 
competition matters, since that frame­
work is defined solely in Regulation 
No 17, from which the Guidelines do 
not diverge. Moreover, having regard 
to the wide discretion which Regu­
lation No 17 leaves the Commission, 
the fact that the latter introduces a new 
method of calculating fines, which 
may, in certain cases, lead to an 
increase in the general level of fines 
but does not exceed the maximum level 
established by that regulation, cannot 
be regarded as an aggravation, with 
retroactive effect, of the fines as legally 
provided for by Article 15(2) of Regu­
lation No 17. 
(see paras 43-45, 55-59) 
3. Under Regulation No 17, the Commis­
sion has a margin of discretion when 
fixing fines, in order that it may direct 
the conduct of undertakings towards 
compliance with the competition rules. 
The fact that it may in the past have 
imposed fines of a certain level for 
II - 2476 
CHEIL JEDANG v COMMISSION 
certain types of infringement does not 
deprive it of the possibility of raising 
that level within the limits indicated in 
Regulation No 17 if that is necessary to 
ensure the implementation of Commu­
nity competition policy. On the 
contrary, the proper application of the 
Community competition rules requires 
that the Commission may at any time 
adjust the level of fines to the needs of 
that policy. 
(see paras 60, 76) 
4. 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 in as much as it must then 
follow those guidelines. 
(see para. 77) 
5. 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 
that it is important not to confer on 
one or other of those figures an import­
ance which is disproportionate 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 paras 61-62, 83) 
6. 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 undertakings on the market 
II - 2477 
SUMMARY — CASE T-220/00 
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. 88) 
7. 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 
N o 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 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 89, 91) 
8. Sections 2 and 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 provide for the basic amount of 
fines to be varied in accordance with 
certain aggravating and mitigating cir­
cumstances. 
In particular, in accordance with the 
first indent of Section 3 of the Guide­
lines, 'an exclusively passive or "fol-
low-my-leader" role in the infringe­
ment' will, where it is established, 
constitute a mitigating circumstance. 
A passive role implies that the under­
taking will adopt a 'low profile', that is 
to say not actively participate in the 
creation of any anti-competitive agree­
ments. 
One circumstance that may indicate 
the adoption by an undertaking of a 
passive role within a cartel is where the 
undertaking's participation in cartel 
II - 2478 
CHHIL JEDANG v COMMISSION 
meetings is significantly more sporadic 
than that of the 'ordinary' members of 
the cartel; another is where it enters the 
market affected by the infringement 
late, regardless of the length of its 
involvement in the infringement; and 
another is where a representative of 
another undertaking which has partici­
pated in the infringement makes an 
express declaration to such effect. 
(see paras 166-168) 
9. 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, which speaks of 
'non-implementation in practice of the 
offending agreements', must therefore 
be understood not as referring only to 
cases where a cartel as a whole is not 
implemented, irrespective of the con­
duct of each undertaking, but must be 
understood as a fact based on the 
individual conduct of each undertak­
ing. 
(see paras 187-189) 
10. The Court of First Instance has juris­
diction in two respects over actions 
contes t ing Commiss ion decis ions 
imposing fines on undertakings for 
infringement of the Community com­
petition rules. First, under Article 230 
EC, it has the task of reviewing the 
legality of those decisions. In that 
context, it must in particular review 
compliance with the duty to state 
reasons laid down in Article 253 EC, 
infringement of which renders a 
decision liable to annulment. Secondly, 
the Court of First Instance has power 
to assess, in the exercise of the unli­
mited jurisdiction accorded to it by 
Article 229 EC and Article 17 of 
Regulation No 17, the appropriateness 
of the amounts of fines. That assess­
ment may justify the production and 
taking into account of additional infor­
mation which the duty to state reasons 
docs not as such require to be set out in 
the decision. 
(sec para. 215) 
11. As regards the scope of the duty to 
state reasons for the calculation of the 
amount of a fine imposed for infringe­
ment of the Community competition 
rules, the second subparagraph of 
Article 15(2) of Regulation No 17 
provides that 'in fixing the amount of 
the fine, regard shall be had both to the 
seriousness and to the duration of the 
infringement'. In this connection, the 
Guidelines on the method of setting 
I I - 2479 
SUMMARY — CASE T-220/00 
fines imposed pursuant to Article 15(2) 
of Regulation No 17 and Article 65(5) 
of the ECSC Treaty and the Leniency 
Notice indicate what factors the Com­
mission takes into consideration in 
measuring the seriousness and duration 
of an infringement. 
That being so, the essential procedural 
requirement to state reasons is satisfied 
where the Commission indicates in its 
decision the factors which it took into 
account in accordance with the Guide­
lines and, where appropriate, the Leni­
ency Notice and which enabled it to 
determine the seriousness and duration 
of the infringement for the purpose of 
calculating the amount of the fine. 
(see paras 217-218) 
12. 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. 229) 
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