Judgment — ECLI:EU:T:2002:76
Date: 2002-03-20
Language of the case: Italian
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;Agreements of undertakings, decisions by associations of undertakings and concerted practices
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: Italy

Summary of the Judgment 
1. Competition — Agreements, decisions and concerted practices — Imputation to an 
undertaking — Responsibility for conduct of other undertakings in the context of the 
same infringement — Whether permissible — Criteria 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC» 
II- 1845 
SUMMARY — CASE T-28/99 
2. 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 product market — None 
(Council Regulation No 17, Art. 15(2)) 
3. Competition — Fines — Amount — Determination thereof — Maximum 
amount — Calculation — Turnover to be taken into consideration 
(Council Regulation No 17, Art. 15(2)) 
4. Competition — Fines — Amount — Determination thereof —· Criteria — Gravity 
of the infringements — Aggravating circumstances — Continuation of the infringe­
ment after the Commission's intervention — Whether Commission obliged to prove 
that the undertaking concerned was aware of that intervention 
(EC Treaty, Art. 85(1) (now Art. 81(1) EC)) 
1. An undertaking which has participated 
in a multiform infringement of the 
competition rules by its own conduct, 
which met the definition of an agree­
ment or concerted practice having an 
anti-competitive object within the 
meaning of Article 85(1) of the Treaty 
(now Article 81(1) EC) and was 
intended to help to bring about the 
infringement as a whole, may also be 
responsible for the conduct of other 
undertakings followed in the context of 
the same 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 fore­
see such conduct, and was prepared to 
accept the risk. 
The decision imposing a fine on an 
undertaking for infringement of 
Article 85(1) of the Treaty must be 
annulled where the Commission has 
failed to adduce evidence sufficiently 
precise and consistent to found the firm 
conviction that the undertaking knew 
or should have known that by par­
ticipating in the agreement on the 
market of a Member State it was 
joining a cartel covering the whole of 
the common market. 
(see paras 40, 51-52) 
II - 1846 
S I G M A T E C N O L O G I E V C O M M I S S I O N 
2. 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 are 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. 84) 
3. 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 limit 
laid down in that provision, the Com­
mission may set the fine on the basis of 
the turnover of its choice, in terms of 
geographical area and relevant prod­
ucts. 
(see para. 91) 
4. In order to determine whether the 
deliberate continuation of an agree­
ment constitutes an aggravating cir­
cumstance, it is necessary to ascertain 
whether the undertaking concerned 
continued the infringement in the 
knowledge that it was the subject of a 
Commission inquiry. 
The decision in which the basic amount 
of the fine to be imposed on an under­
taking for infringement of Article 85( 1 ) 
of the Treaty (now Article 81(1) EC) 
was increased because the infringement 
was intentionally continued must be 
annulled where the Commission has 
merely presumed without adducing any 
evidence to support that presumption, 
that the undertaking must have been 
aware of the Commission's inquiry. 
(see paras 102, 106-107) 
II- 1847