Judgment — ECLI:EU:T:2011:357
Date: 2011-07-13
Language of the case: English
Court formation: First Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - unfounded
Origin: Germany

Summary of the Judgment 1. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment (Arts 81 EC and 82 EC) 2. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Margin of discretion of the Commission (Arts 81 EC and 82 EC) 3. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof (Art. 81(1) EC) 4. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Effective capacity to cause significant damage to competition on the market concerned (Arts 81 EC and 82 EC; Commission Notice 98/C 9/03, Section 1A, first to fourth and sixth paras) 5. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Assessment according to the nature of the infringement – Very serious infringements (Art. 81 EC; Commission Notice 98/C 9/03) 6. Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence (Arts 81 EC and 82 EC) 7. Competition – Fines – Amount – Determination – Division of the undertakings concerned into different categories – Turnover taken into consideration (Art. 81(1) EC; Commission Notice 98/C 9/03, Section 1A) 8. Competition – Fines – Amount – Determination – Criteria – Deterrent effect of the fine (Art. 81 EC; Commission Notice 98/C 9/03) 9. Procedure – Costs – Recoverable costs – Meaning (Rules of Procedure of the General Court, Art. 91) 1. In the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules the parent company can exercise a decisive influence over the conduct of the subsidiary and, moreover, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary. In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market. Thus it is for the parent company to rebut that presumption by demonstrating that its subsidiary determines its commercial policy autonomously in such a way that the subsidiary and its parent company do not constitute a single economic entity and, therefore, a single undertaking for the purposes of Article 81 EC. Specifically, it is for the parent company to adduce any evidence relating to the organisational, economic and legal links between its subsidiaries and itself which in its view are apt to demonstrate that they do not constitute a single economic entity. When making its assessment the Court must take into account all the evidence adduced, the nature and importance of which may vary according to the specific features of each case. (see paras 56, 58-59) 2. The imputation of an infringement of the competition rules to the parent company is a power that is left to the Commission’s discretion. The mere fact that the Commission has taken the view in previous decisions that the circumstances of a case do not justify imputing the conduct of a subsidiary to its parent company does not mean that it is obliged to make the same assessment in a later case. (see para. 75) 3. As regards proof of an infringement of Article 81(1) EC, it is incumbent on the Commission to prove not only the existence of the agreement but also its duration. To calculate the duration of an infringement whose object is to restrict competition, it is necessary to determine 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. If there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued without interruption between two specific dates. That is not the case where the Commission has not adduced any concrete evidence to support the conclusion that there was a concurrence of wills between the undertaking concerned and the other members of the cartel during the period indicated, and where the documents produced to the Court do not indicate that one of the members of the cartel made any approach to the undertaking concerned that had an anticompetitive purpose. The mere fact that an employee of a company which participated in a cartel is seconded to another company does not, in itself, imply that the latter company automatically becomes a member of the cartel. It is not inconceivable that, in those circumstances, the employee in question will decide not to involve in anti‑competitive practices the company to which he is seconded or that that company will take steps to avoid that type of practice. It is for the Commission to prove that, during the period in question, the company – as a result of information obtained by that employee in his previous role – implemented the agreements reached within the cartel and did not, therefore, act independently on the market. (see paras 88-89, 91-93, 95) 4. 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 distinguish between minor infringements, serious infringements and very serious infringements (first and second paragraphs of Section 1A of the Guidelines). Furthermore, the differentiation between undertakings consists in determining, in accordance with the third, fourth and sixth paragraphs of Section 1A of the Guidelines, the individual contribution of each undertaking, in terms of actual economic capacity, to the success of the cartel for the purpose of its classification in the appropriate category. The individual contribution of each undertaking, in terms of actual economic capacity, to the success of the cartel must be distinguished from the actual impact of the infringement referred to in the first paragraph of Section 1A of the Guidelines. In the latter case, account is taken of the actual impact of the infringement, where this can be measured, in order to classify the infringement as a minor, serious or very serious infringement. The individual contribution of each undertaking, on the other hand, is taken into consideration in order to apply weightings to the amounts determined on the basis of the gravity of the infringement. Therefore, even if there is no measurable actual impact of the infringement, the Commission can decide, in accordance with the third, fourth and sixth paragraphs of Section 1A of the Guidelines, and after having classified the infringement as minor, serious or very serious, to differentiate between the undertakings concerned. (see paras 122-124) 5. It follows from the description of very serious infringements in 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 that agreements or concerted practices aimed in particular at setting target prices or the allocation of market shares may entail, solely on the basis of their very nature, the characterisation as ‘very serious’, without the Commission being required to demonstrate an actual impact of the infringement on the market. Similarly, horizontal price agreements are amongst the most serious infringements under competition law and may, by reason of that fact alone, be classified as very serious. (see para. 126) 6. The right to a fair hearing during an administrative procedure before the Commission is a principle that requires, in particular, that the statement of objections addressed by the Commission to an undertaking on which it intends to impose a penalty for infringement of competition rules should include the essential factors taken into consideration against that undertaking, such as the facts alleged, the classification of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively during the administrative procedure brought against it. As regards, more particularly, the calculation of the fines, the Commission fulfils its obligation to respect the undertakings’ right to be heard provided that it indicates expressly in the statement of objections that it is going to consider whether it is appropriate to impose fines on the undertakings concerned and provided that it sets out the main elements of fact and of law which might entail a fine, such as the gravity and duration of the alleged infringement and the fact that the infringement was committed deliberately or negligently. In doing so, the Commission provides the undertakings concerned with the necessary material to defend themselves not only against a finding of infringement but also against the imposition of a fine. (see para. 128) 7. Where the Commission divides the undertakings concerned into categories for the purpose of setting the amount of the fines for infringement of Article 81(1) EC, the thresholds for each of the categories thus identified must be coherent and objectively justified. In addition, the criteria for assessing the gravity of an infringement may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed as well as the size and economic power of the undertaking and, consequently, 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 setting a fine, for the Commission to have regard both to the overall 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 infringement was committed, which gives an indication of the scale of the infringement. On the other hand, it follows that it is important not to confer on one or other of those figures an importance which is disproportionate in relation to other factors and that the setting of an appropriate fine cannot be the result of a simple calculation based on overall turnover. To the extent to which reliance is to be placed on the turnover of the undertakings involved in the same infringement for the purpose of determining the proportions between the fines to be imposed, the period to be taken into consideration must be ascertained in such a way that the resulting turnovers are as comparable as possible. Consequently, an individual undertaking cannot compel the Commission to rely, in its case, upon a period different from that used for the other undertakings, unless it proves that, for reasons peculiar to it, its turnover in the latter period does not reflect its true size and economic power or the scale of the infringement which it committed. (see paras 131, 133) 8. The Commission’s power to impose fines on undertakings which, intentionally or negligently, commit an infringement of Article 81 EC is one of the means given to it with which to carry out the task of supervision conferred on it by Community law. That task encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles. It follows that, in assessing the gravity of an infringement for the purpose of setting the amount of the fine, the Commission must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the Community. This requires that the amount of the fine be adjusted in order to take account of the desired impact on the undertaking on which it is imposed. This is so that the fine is not rendered negligible or excessive, notably by reference to the financial capacity of the undertaking in question, in accordance with the requirements resulting from, first, the need to ensure that the fine is effective and, second, respect for the principle of proportionality. A large undertaking, owing to its considerable financial resources by comparison with those of the other members of a cartel, can more readily raise the necessary funds to pay its fine, which, if the fine is to have a sufficiently deterrent effect, justifies the imposition, in particular by the application of a multiplier, of a fine proportionately higher than that punishing the same infringement committed by an undertaking without such resources. In particular, it is relevant for the purposes of setting the amount of the fine for the overall turnover of each undertaking participating in a cartel to be taken into account. The objective of deterrence which the Commission is entitled to pursue when setting fines is intended to ensure that undertakings comply with the competition rules laid down by the Treaty in respect of the conduct of their activities within the Community or the European Economic Area. It follows that the deterrence factor which may be included in the calculation of the fine is assessed by taking into account a large number of factors and not merely the particular situation of the undertaking concerned. That principle applies, in particular, where the Commission has determined a deterrence multiplier with which the fine imposed on an undertaking is adjusted. (see paras 148-151) 9. The costs which the undertakings concerned incurred in providing a bank guarantee in lieu of the amount of the fine imposed on them are not expenses necessarily incurred by the parties for the purpose of the proceedings and are not, therefore, recoverable costs within the meaning of Article 91 of the Rules of Procedure. (see para. 172)