Judgment — ECLI:EU:T:2002:75
Date: 2002-03-20
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;Concerted practices
Concepts: Determining the amount of the fine;Legal certainty;Restriction of competition;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Principle of the protection of legitimate expectations;Hearing of persons concerned and of third parties / Access to the file;Measures in respect of which a plea of illegality may be raised;Payment of the fine
Procedure: Action for annulment - unfounded;Appeal against penalty - unfounded
Origin: Denmark

Summary of the Judgment 
1. Competition — Agreements, decisions and concerted practices — Participation in 
meetings held by undertakings for an anti-competitive purpose — Sufficient basis for 
concluding that, if an undertaking has not distanced itself from the decisions taken, it 
participated in the subsequent arrangements 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
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SUMMARY — CASE T-23/99 
2. Competition •— Agreements, decisions and concerted practices — Proof — Under­
taking's reply to the Commission's request for information — Probative value — 
Assessment — Effect of the absence from the meeting in issue of the signatory of the 
reply given on behalf of the undertaking or of the fact that he did not belong to the 
undertaking at the time of the meeting — None 
(Council Regulation No 17, Art. 11) 
3. Competition — Agreements, decisions and concerted practices — Adverse effect on 
competition — Criteria for assessment — Anti-competitiv e object — Finding to that 
effect sufficient 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
4. Competition — Agreements, decisions and concerted practices — Agreements 
between undertakings — Participation allegedly under pressure — Not a factor such 
as to justify failure by an undertaking to notify the competent authorities 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC); Council Regulation No 17, Art. 3) 
5. Competition — Agreements, decisions and concerted practices •— Boycott — Impu­
tation to an undertaking —· Effect of failure of undertaking actually to implement 
boycott — None — Responsibility for the conduct of other undertakings in the 
context of the same infringement — 'Whether permissible — Criteria 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
6. Competition — Administrative procedure •— Observance of the rights of the 
defence — Access to the investigation file facilitated by the Commission's organisation 
of an exchange of documents between undertakings involved — Whether permis­
sible ·— Condition 
7. Competition — Administrative procedure — Respect for the rights of the defence — 
Statement of objections — Production of further evidence after the statement of 
objections has been sent — Whether permissible — Condition 
(Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Arts 2 and 
4) 
8. Competition — Administrative procedure —• Respect for the rights of the defence — 
Statement of objections — Necessary content — Indications concerning the method 
of determining the level of the proposed fine — Premature indications — Con­
sequences 
(Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Arts 2 and 
4) 
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LF AR 1998 v COMMISSION 
9. Community law — General principles of law— Non-retroactivity of criminal 
provisions — Scope — Competition — Administrative procedure — Scope of that 
principle 
(European Convention for the Protection of Human Rights and Fundamental 
Freedoms, Art. 7; Council Regulation No 17, Art. 15) 
10. Competition •—· Fines •—· Legal framework — Determination — Effect of the Com­
mission's previous practice in taking decisions — None 
(Council Regulation No 17) 
11. Competition — Fines — Amount — Determination thereof— Commission's mar­
gin of discretion — Consequence — Economic operators precluded from relying on 
a legitimate expectation that an existing situation will he maintained 
(Council Regulation No 17, Art. 15) 
12. Plea of illegality — Scope — Measures in respect of which a plea of illegality may be 
raised — Guidelines adopted by the Commission for setting fines imposed for 
infringement of the competition rides — Whether included 
(EC Treaty, Art. 184 (now Art. 241 EC» 
13. Competition •—· Fines — Amount — Determination thereof— Criteria — Gravity 
and duration of the infringements — Assessment — Need to take into consideration 
the turnover of the undertakings concerned — None — Need to distinguish between 
the undertakings involved in the same infringement according to their total turnover or 
to their turnover in the relevant product market — None 
(Council Regulation No 17, Art. 15(2» 
14. Competition — Fines — Amount — Determination thereof — Maximum 
amount •— Calculation — Distinction between the final amount and the intermedi­
ate amount of the fine — Consequences 
(Council Regulation No 17, Art. 15(2)) 
15. Competition — Fines — Amount — Determination thereof — Maximum 
amount •—· Calculation — Turnover to be taken into consideration 
(Council Regulation No 17, Art. 15(2)) 
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SUMMARY — CASE T-23/99 
16. Competition — Fines — Amount •— Determination thereof — Criteria — Gravity 
of the infringements —· Aggravating or mitigating circumstances — Continuation or 
cessation of the infringement following the Commission's intervention — Assessment 
on a case-by-case basis 
(Council Regulation No 17, Art. 15(2)) 
17. Competition — Fines — Amount — Determination thereof — Criteria — Gravity 
of the infringements — Mitigating circumstances — Whether Commission obliged to 
abide by its previous decision-making practice — No such obligation 
(Council Regulation No 17, Art. 15(2)) 
18. Competition — Fines •— Amount — Determination thereof — Commission Notice 
on the non-imposition or reduction of fines in return for cooperation of the 
undertakings involved — Effect on the assessment of the cooperation of those 
undertakings 
(Council Regulation No 17, Art. 15(2)) 
19. Competition •— Fines — Amount — Determination thereof •— Undertakings pre­
cluded from relying on the principle of equal treatment in order to obtain unlawful 
reductions 
(Council Regulation No 17, Art. 15(2)) 
20. Competition — Fines — Payment — Default interest — Adoption by the Commis­
sion of a rate higher than the average market rate — Permissible 
(Council Regulation No 17, Art. 15(2)) 
1. Where an undertaking participates, 
even if not actively, in meetings 
between undertakings with an anti­
competitive object and does not pub­
licly distance itself from what occurred 
at them, thus giving the impression to 
the other participants that it subscribes 
to the results of the meetings and will 
act in conformity with them, it may be 
concluded that it is participating in the 
cartel resulting from those meetings. 
(see para. 39) 
2. The probative value of an undertak­
ing's reply to the Commission's request 
for information under Article 11 of 
Regulation No 17 is not affected by 
the fact that the person who signed it 
was not present at the meeting forming 
the subject-matter of the Commission's 
investigation or employed by that 
undertaking at that time. Once the 
reply was given on behalf of the under­
taking as such, it carries more weight 
than would the reply given by an 
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LR AF 1998 v COMMISSION 
employee of the undertaking, whatever 
his individual experience or opinion. 
(see para. 45) 
3. For t h e p u r p o s e s of a p p l y i n g 
Article 85(1) of the Treaty (now 
Article 81(1) EC), there is no need to 
take account of the concrete effects of 
an agreement once it appears that it has 
as its object the prevention, restriction 
or distortion of competition within the 
common market. In that regard, the 
fact that an undertaking participating 
with others in meetings during which 
decisions on prices are taken does not 
comply with the agreed prices does not 
lessen the anti-competitive object of 
those meetings and therefore the under­
taking's participation in the collusion, 
but tends at the most to show that it 
did not implement the agreements in 
question. 
(see para. 47) 
4. An undertaking which participates 
with others in anti-competitive behav­
iour cannot rely on the fact that it did 
so under pressure from the other par­
ticipants. It may complain to the com­
petent authorities about the pressure 
brought to bear on it and lodge a 
complaint with the Commission under 
Article 3 of Regulation No 17 rather 
than participate in the activities in 
question. 
(see para. 142) 
5. A boycott may be attributed to an 
undertaking without there being any 
need for it actually to participate, or 
even be capable of participating, in its 
implementation. Were that not so, an 
undertaking which approved a boycott 
but did not have the opportunity to 
adopt a measure to implement it would 
avoid any form of liability for its 
participation in the agreement. 
In that regard, an undertaking which 
has par t i c ipa ted in a mul t i form 
infringement of the competition rules 
by its own conduct, which met the 
definition of an agreement or concerted 
practice having an anti-competitive 
o b j e c t w i t h i n the m e a n i n g of 
Article 85(1) of the Treaty (now 
Article 81(1) EC) and was intended to 
help bring about the infringement as a 
whole, may also be responsible for the 
conduct of other undertakings fol­
lowed in the context of the same 
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SUMMARY — CASE T-23/99 
infringement throughout the period of 
its participation in the infringement, 
where it is proved that the undertaking 
in question was aware of the unlawful 
conduct of the other participants, or 
could reasonably foresee such conduct, 
and was prepared to accept the risk. 
(see paras 157-158) 
6. Due regard is had to the requirements 
laid down in the case-law of the Court 
of First Instance, namely that an 
exchange of documents between the 
undertakings cannot in any event elim­
inate the Commission's own duty to 
ensure that during the investigation of 
an infringement of competition law the 
rights of defence of the undertakings 
concerned are respected when the 
Commission, while suggesting that the 
undertakings concerned facilitate 
access to the documents by exchanging 
documents among themselves, none the 
less itself ensures the right of access to 
the entire investigation file. The 
defence of one undertaking cannot 
depend upon the goodwill of another 
undertaking which is supposed to be its 
competitor and against which the 
Commission has made similar alle­
gations, since their economic and pro­
cedural interests often conflict. 
(see para. 184) 
7. It follows from a reading of 
Article 19(1) of Regulation No 17, in 
conjunction with Articles 2 and 4 of 
Regulation No 99/63, that the Com­
mission must communicate the objec­
tions which it raises against the under­
takings and associations concerned and 
may adopt in its decisions only those 
objections on which those undertak­
ings and associations have had the 
opportunity to make known their 
views. However, there is no provision 
which prevents the Commission from 
sending to the parties after the state­
ment of objections fresh documents 
which it considers support its argu­
ment, subject to giving the undertak­
ings the necessary time to submit their 
views on the subject. 
(see paras 188, 190) 
8. Where the Commission expressly states 
in its statement of objections that it will 
consider whether it is appropriate to 
impose fines on the undertakings and it 
indicates the main factual and legal 
criteria capable of giving rise to a fine, 
such as the gravity and the duration of 
the alleged infringement and whether 
that infringement was committed 'in­
tentionally or negligently', it fulfils its 
obligation to respect the undertakings' 
right to be heard. In doing so, it 
provides them with the necessary 
means to defend themselves not only 
II - 1710 
LR AF 1998 v COOMMISSION 
against the finding of an infringement 
but also against the imposition of fines. 
In those circumstances, the Commis­
sion is under no obligation to explain 
the way in which it will use each of 
those elements in determining the level 
of the fine. To give indications as 
regards the level of the fines envisaged, 
before the undertaking has been invited 
to submit its observations on the alle­
gations against it, would be to antici­
pate the Commission's decision and 
would thus be inappropriate. Nor, 
consequently, is the Commission 
bound to inform the undertakings 
concerned, during the administrative 
procedure, that it intends to use a new 
method to calculate the amount of the 
fines. In particular, the Commission is 
not under an obligation to put the 
undertakings on notice by warning 
them of its intention to increase the 
general level of fines. 
(see paras 199, 206-208) 
9. The principle that penal provisions 
may not have retroactive effect, 
enshrined in Article 7 of the European 
Convention on Human Rights as a 
fundamental right, is one which is 
common to all the legal orders of the 
Member States and takes its place 
among the general principles of law 
whose observance is ensured by the 
Community judicature. 
In that regard, although Article 15(4) 
of Regulation No 17 provides that 
Commission decisions imposing fines 
for infringement of competition law 
are not of a criminal nature, the Com­
mission is none the less required to 
observe the general principles of Com­
munity 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 infringing the compe­
tition rules correspond with those laid 
clown at the time when the infringe­
ment was committed. 
However, having regard to the wide 
discretion which Regulation No 17 
leaves to the Commission, the fact that 
the latter introduces a new method of 
calculating fines, which may, in certain 
cases, lead to increased fines, but does 
not exceed the maximum level estab­
lished by that regulation, cannot be 
regarded as an aggravation, with retro­
active effect, of the fines as legally 
provided for by Article 15 of Regu­
II - 1711 
SUMMARY — CASE T-23/99 
lation No 17, which infringes the 
principles of legality and legal cer­
tainty. 
(see paras 219-221, 235) 
10. In competition matters, the Commis­
sion's practice in previous decisions 
does not itself serve as a legal frame­
work for the fines imposed, since that 
framework is defined solely in Regu­
lation No 17. 
(see para. 234) 
11. As regards the setting of the amount of 
fines for infringements of the compe­
tition rules, the Commission exercises 
its powers within the limits of the 
discretion conferred on it by Regu­
lation No 17. 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 discretion will 
be maintained. It follows that under­
takings involved in an administrative 
procedure which may lead to a fine 
cannot acquire a legitimate expectation 
that the Commission will not exceed 
the level of fines previously applied. 
(see paras 241, 243) 
12. Article 184 of the Treaty (now 
Article 241 EC) expresses a general 
principle conferring upon any party to 
proceedings the right to challenge, for 
the purpose of obtaining the annulment 
of a decision of direct and individual 
concern to that party, the validity of 
previous acts of the institutions which, 
although they are not in the form of a 
regulation, form the legal basis of the 
decision under challenge, if that party 
was not entitled under Article 173 of 
the Treaty (now, after amendment, 
Article 230 EC) to bring a direct action 
challenging those acts by which it was 
thus affected without having been in a 
position to ask that they be declared 
void. Since Article 184 of the Treaty is 
not intended to enable a party to 
contest the applicability of any meas­
ure of general application in support of 
any action whatsoever, the general 
measure claimed to be illegal must be 
applicable, directly or indirectly, to the 
issue with which the action is con­
cerned and there must be a direct legal 
connection between the contested indi­
vidual decision and the general meas­
ure in question. 
II - 1712 
LR AF 1998 v COMMISSION 
In that regard, although the guidelines 
adopted by the Commission 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 do not constitute the legal basis 
of the decision imposing a fine on an 
economic operator, as that decision is 
based on Articles 3 and 15(2) of Regu­
lation No 17, they determine, generally 
and abstractly, the method which the 
Commission has bound itself to use in 
assessing the fine imposed by the 
decision and, consequently, ensure 
legal certainty on the part of the 
undertakings. Thus, provided that it is 
apparent that the Commission actually 
assessed the fine imposed on the in 
accordance with the general method 
which it laid down for itself in the 
guidelines, there is a direct legal con­
nection between the individual decision 
in issue and the general measure repre­
sented by the guidelines. Since the 
economic operator concerned was not 
in a position to ask that the guidelines 
be declared void, as a general measure, 
the guidelines may form the subject-
matter of an objection of illegality. 
(see paras 272-276) 
13. The Commission is not required, when 
assessing fines in accordance with the 
gravity and duration of the infringe­
ment in question, to calculate the fines 
on the basis of the turnover of the 
undertakings concerned, or to ensure, 
where fines arc imposed on a number 
of undertakings involved in the same 
infringement, that the final amounts of 
the fines resulting from its calculations 
for the undertakings concerned reflect 
any distinction between them in terms 
of their overall turnover or their turn­
over in the relevant product market. 
(see para. 278) 
14. Article 15(2) of Regulation No 17, in 
providing that the Commission may 
impose fines of up to 10% of turnover 
during the preceding business year for 
each undertaking which participated in 
the infringement, requires that the fine 
eventually imposed on an undertaking 
be reduced if it should exceed 10% of 
its turnover, independently of the inter­
mediate stages in the calculation 
intended to take the gravity and dur­
ation of the infringement into account. 
Consequently, that provision docs not 
prohibit the Commission from refer­
ring, during its calculation, to an inter­
mediate amount exceeding 10% of the 
turnover of the undertaking concerned, 
provided that the amount of the fine 
eventually imposed on the undertaking 
does not exceed that maximum limit. 
In such a situation, the Commission 
II - 1713 
SUMMARY — CASE T-23/99 
cannot be criticised because certain 
factors taken into consideration in its 
calculation, such as duration or miti­
gating or aggravating circumstances, 
do not affect the final amount of the 
fine, since that is the consequence of 
the p roh ib i t i on laid down in 
Article 15(2) of Regulation No 17 on 
exceeding 10% of the turnover of the 
undertaking concerned. 
(see paras 286-288, 290) 
15. The turnover referred to in Article 15(2) 
of Regulation No 17 must be under­
stood as referring to the total turnover 
of the undertaking concerned, which 
alone gives an approximate indication 
of its size and influence on the market. 
Provided that it complies with the 
time-limit set by that provision, the 
Commission may set the fine on the 
basis of the turnover of its choice, in 
terms of geographical area and relevant 
products. 
(see para. 306) 
16. The fact that terminating an infringe­
ment of the competition rules after the 
Commission has first intervened may 
be regarded as a mitigating circum­
stance does not mean that continuing 
an infringement in such a situation 
cannot be regarded as an aggravating 
circumstance. An undertaking's reac­
tion to the opening of an investigation 
into its activities can be assessed only 
by taking account of the particular 
context of the case. Since the Commis­
sion cannot therefore be required, as a 
general rule, either to regard a continu­
ation of the infringement as an aggra­
vating circumstance or to regard the 
termination of an infringement as a 
mitigating circumstance, the fact that it 
may classify such termination as a 
mitigating circumstance in one particu­
lar case cannot deprive it of its power 
to find that such continuation consti­
tutes an aggravating circumstance in 
another case. 
(see para. 324) 
7. The mere fact that the Commission 
considered in previous decisions that 
certain factors constituted mitigating 
circumstances for the purposes of 
determining the amount of the fine to 
be imposed for an infringement of the 
competition rules does not mean that it 
is obliged to make the same assessment 
in a subsequent decision. 
(see para. 337) 
II - 1714 
LR AF 1998 v COMMISSION 
18. Commission Notice on the non-imposi­
tion or reduction of fines in cartel cases 
creates legitimate expectations on 
which undertakings wishing to inform 
the Commission of the existence of a 
cartel rely. Having regard to the legit­
imate expectation which undertakings 
wishing to cooperate with the Com­
mission are able to derive from that 
notice, the Commission is obliged to 
comply with it when assessing an 
undertaking's cooperation for the pur­
pose of setting the fine. 
(see para. 360) 
19. Even supposing that the Commission 
granted too high a reduction of the fine 
to another undertaking for an infringe­
ment of the competition rules, respect 
for the principle of equal treatment 
must be reconciled with the principle of 
legality, according to which a person 
may not rely, in support of his claim, 
on an unlawful act committed in 
favour of a third party. 
(see para. 367) 
20. Although the interest rate must not be 
so high as to oblige undertakings to pay 
fines even though they consider that 
they have good grounds for challenging 
the validity of the Commission 
decision, the Commission may none 
the less adopt a point of reference 
higher than the applicable market rate 
offered to the average borrower, to an 
extent necessary to discourage dilatory 
behaviour. 
(sec para. 398) 
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