Opinion of the Advocate General — ECLI:EU:C:2008:568
Date: 2008-10-16
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Appeal against penalty
Origin: France

Summary of the Judgment 1. Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence (Council Regulation No 17; Commission Regulation No 99/63, Art. 4) 2. Appeals – Grounds – Inadequate statement of reasons – Reliance by the Court of First Instance on implied reasoning – Lawfulness (Art. 225 EC; Statute of the Court of Justice, Art. 51; Rules of Procedure of the Court of First Instance, Art. 64) 3. Competition – Fines – Amount – Determination – Turnover taken into consideration – Turnover of all the undertakings constituting an association of undertakings – Lawfulness (Council Regulation No 17, Art. 15(2)) 4. Competition – Fines – Decision imposing fines on an association constituted of associations of undertakings and members thereof – Infringement of the principles of non bis in idem and of proportionality (Council Regulation No 17, Art. 15(2)) 1. Provided that the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and that it sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined. However, to give indications, at the stage of the statement of objections, as regards the level of the fines envisaged, before the undertakings have been invited to submit their observations on the allegations against them, would be to anticipate inappropriately the Commission’s decision. (see paras 47, 49) 2. In order properly to discharge the duty of assessing the facts of the dispute, the Court of First Instance must carefully examine all the documents submitted to it by the parties and take them into account including those which were put on the file after the oral hearing, in connection with a measure of organisation under Article 64 of its Rules of Procedure. However, the obligation to state reasons does not require the Court of First Instance to provide an account that follows exhaustively and point by point all the reasoning articulated by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the measures in question were taken and provides the competent Court with sufficient material for it to exercise its power of review. (see paras 74-75) 3. When the members of an association of undertakings have participated actively in implementing an anti-competitive agreement, those members’ turnover could be taken into account for the purposes of determining the sanction, even if the association in question has no power to bind its members. Such taking into account is justified in cases where an infringement on the part of an association involves its members’ activities and where the anti-competitive practices at issue are engaged in by the association directly for the benefit of its members and in cooperation with them, the association having no objective interests independent of those of its members. Any other interpretation would run counter to the necessity of ensuring the deterrent effect of sanctions imposed in respect of infringements of the Community competition rules. The Commission’s option of imposing fines of an amount appropriate to the infringements at issue could otherwise be jeopardised, as associations with a very small turnover but bringing together a large number of undertakings which could not be formally bound but which together have a substantial turnover could be sanctioned only by very small fines, even if the infringements for which they were responsible could have a considerable influence on the markets in question. (see paras 97-98) 4. A Commission decision imposing fines on an association constituted of associations of undertakings and members thereof by reason of the participation and the degree of responsibility of each of them in an infringement, does not infringe the principle of non bis in idem. The fact that the latter associations are members of the former does not mean that they were sanctioned several times for the same infringement, since although they have separate legal personality with separate budgets and objectives which do not always coincide, and carry out their activity in defence of their own specific interests, the unity of offenders necessary for the application of the principle of non bis in idem is lacking. Nor does that decision infringe the principle of proportionality even if the Commission took into account the turnover of the members of each association for the purpose of determining the 10% limit referred to in Article 15(2) of Regulation No 17. The members, whether direct or indirect, of the associations fined were not thereby fined twice for one and the same infringement because the taking into account of that turnover does not mean that a fine has been imposed on the members of the association or even, by itself, that the association has an obligation to recover the amount of the fine from its members. (see paras 127-130)