Opinion of the Advocate General — ECLI:EU:C:2004:666
Date: 2004-10-28
Language of the case: English
Based on: Treaty establishing the European Coal and Steel Community (1951)
Subject matter: Competition;Agreements, decisions and concerted practices;Steel industry;ECSC matters;Concerted practices;Prices;Agreements and concentrations
Procedure: Action for annulment;Action for annulment - unfounded;Appeal - unfounded;Appeal - successful;Appeal against penalty
Origin: Germany;Spain;Italy

Summary of the Judgment 1. ECSC – Agreements, decisions and concerted practices – Prohibition – Infringement – Proof – Burden of proof on the Commission – Exception – Participation of the undertaking concerned in meetings having an anti‑competitive object – Reversal of the burden of proof (ECSC Treaty, Art. 65) 2. ECSC – Agreements, decisions and concerted practices – Prohibition – Infringement – Administrative procedure – Request for information – Rights of the defence – Right to refuse to provide answers that imply admission of an infringement (ECSC Treaty, Art. 36, first para.) 3. ECSC – Agreements, decisions and concerted practices – Fines – Amount – Determination – Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned – Larger reduction in a case of admission of the infringement –– Breach of the undertaking’s rights of defence and in particular its right to refuse to provide answers that imply admission of an infringement – None (ECSC Treaty, Art. 65(5); Commission Communication 96/C 207/04, part D) 1. Where, in the light of the evidence put forward by the Commission, the participation of the undertaking in meetings of a manifestly anti-competitive character is established, it is for the undertaking concerned to put forward evidence to establish that its participation in those meetings was without any anti‑competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. (see para. 46) 2. While, in the context of a procedure to establish the existence of an infringement of the competition rules, the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to that institution, it may not, however, compel that undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove. (see paras 85-86) 3. While the Commission may not compel an undertaking to admit its participation in an infringement in the field of competition, it is not thereby prevented from taking account, when fixing the amount of a fine, of the assistance given to it by the undertaking concerned by which it is able to establish the existence of the infringement with less difficulty and, in particular, of the fact that an undertaking admitted its participation in the infringement. It may grant an undertaking that has assisted it in that way a significant reduction of the amount of its fine and grant a substantially lesser reduction to another undertaking which merely did not deny the main factual allegations on which the Commission based its objections. The admission of an alleged infringement is entirely voluntary. It is not in any way coerced to admit the existence of the cartel. Therefore, it is not a breach of the rights of defence for the Commission to take account of the degree of cooperation with it shown by the undertaking concerned, including admission of the infringement, for the purpose of imposing a lower fine. The Leniency Notice and, in particular part D thereof, must therefore be interpreted as meaning that the type of cooperation, capable of giving rise to a reduction of the fine, which the undertaking concerned may provide is not limited to admitting the nature of the facts but also involves admitting participation in the infringement. (see paras 87-91)