Case T‑521/09

Alstom Grid SAS

v

European Commission

‛Competition — Agreements, decisions and concerted practices — Market in power transformers — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market sharing agreement — 2002 Commission Leniency Notice — Immunity from fines — Legitimate expectations — Obligation to state reasons’

Summary — Judgment of the General Court (Ninth Chamber), 27 November 2014

Competition — Fines — Amount — Determination — Criteria — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Distinction between one situation giving rise to immunity from a fine and another giving rise to a reduction in its amount — Partial immunity — Conditions — Adoption of a decision finding an infringement following an application for immunity — Irrelevant

Competition — Fines — Amount — Determination — Commission notice on the non-imposition or reduction of fines in cartel cases in return for the cooperation of the fined undertakings — Binding upon the Commission — Breach of principle of the protection of legitimate expectations — Conditions

Competition — Fines — Amount — Determination — Criteria — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Immunity from fines — Conditions — Provision of evidence such as to enable the Commission to adopt a decision ordering inspections — Commission not having enough evidence at its disposal at the time the evidence provided — Criteria for assessment

Competition — Fines — Amount — Determination — Criteria — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Immunity from fines — Conditions — Provision of evidence such as to enable the Commission to adopt a decision ordering inspections — Use of information gathered during an earlier inspection concerning another infringement — Lawfulness

Competition — Fines — Amount — Determination — Criteria — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Immunity from fines — Conditions — Provision of evidence such as to enable the Commission to adopt a decision ordering inspections — Criteria for assessment

In the context of an infringement of the competition rules, paragraph 8(a) and paragraph 9 of the 2002 Leniency Notice require, first, that an undertaking be the first to provide evidence to the Commission such as to enable it to adopt a decision ordering inspections concerning a suspected cartel affecting the European Community and, second, that the Commission did not, when that evidence was disclosed, have sufficient information to adopt a decision ordering inspections concerning the suspected cartel. In that regard, in order to be able to adopt a decision ordering inspections under Article 20(4) of Council Regulation (EC) No 1/2003, the Commission must refer to factual circumstances capable of justifying them. In order to justify inspections, it is not necessary for the documents seized by the Commission to be of such a kind as to establish beyond reasonable doubt the existence of the infringement found in the contested decision. To adopt an inspection decision within the meaning of Article 20(4) of Regulation No 1/2003, it is sufficient that it is in possession of information and evidence providing reasonable grounds for suspecting an infringement. In that context, the various grounds must be assessed not in isolation but as a whole and they must be capable of reinforcing each other. (see paras 46, 52-54)

For the purposes of applying paragraph 9 of the 2002 the Leniency Notice, it is not necessary to consider whether the Commission already had sufficient evidence to establish the existence of an unlawful cartel in a decision finding the existence of an infringement and imposing a fine. It is necessary merely to consider whether it had sufficient information to adopt an inspection decision within the meaning of Article 20(4) of Regulation No 1/2003. In that regard, whilst information obtained during investigations must not be used for purposes other than those indicated in the decision under which the investigation is carried out, there is nothing to prevent the Commission from relying on its knowledge of documents seized during an earlier investigation concerning another suspected infringement in order to adopt a new decision ordering investigations. The fact that, in an inspection, the Commission had notice for the first time of documents indicating the existence of an infringement not falling within the subject-matter of the decision ordering an inspection does not confer upon those documents such absolute protection that they could not be legally called for and used as evidence. Were it otherwise, undertakings would have an incentive, when a first matter is investigated, to give all the documents providing evidence of another infringement, thereby forearming themselves against any prosecution in that respect. Such a solution would go beyond what is required to safeguard professional secrecy and the rights of the defence and would thus constitute an unjustified hindrance to the Commission in the accomplishment of its task of ensuring compliance with the competition rules in the common market. (see paras 69-72)

It is clear from paragraph 9 of the 2002 Leniency Notice that immunity under paragraph 8(a) and paragraph 11 of that notice cannot be granted unless the Commission did not yet have sufficient information to adopt a decision ordering inspections. Paragraph 9 of the notice therefore refers not to such knowledge as a possible team responsible for the case might have but to knowledge which the Commission might have as an institution. In that regard, an approach whereby the decisive criterion was the extent of such knowledge as the members of a possible team responsible for the case might have when an application for immunity is lodged is hardly consistent with the spirit of the 2002 Leniency Notice and the aims that it pursues. Such an approach would result in immunity under paragraphs 8(a), 9 and 11 having to be granted, even if it turned out that the information and evidence providing reasonable grounds which were already available to the Commission when the application for immunity was submitted would already have enabled it to adopt a decision ordering an inspection against the suspected cartel. The aim of the Commission leniency programme is not to make available to undertakings participating in secret cartels an opportunity to escape the pecuniary consequences of their responsibility, but to facilitate the detection of such practices and then, in the administrative procedure, to assist the Commission in its efforts to re-construct relevant facts as far as possible. Accordingly, the benefits which may be obtained by undertakings participating in such practices cannot exceed the level that is necessary to ensure full effectiveness of the leniency programme and of the administrative procedure carried out by the Commission. Therefore, immunity from fines is justified only by reference to the value of the cooperation of the undertaking seeking immunity. Thus, as the Commission properly observed in paragraph 6 of the 2002 Leniency Notice, collaboration of an undertaking which informs it of the existence of an unlawful cartel of which it did not yet have knowledge has an intrinsic value capable of justifying immunity from fines. On the other hand, cooperation by an undertaking which merely gives information about an unlawful cartel, of which it might suspect the existence on the basis of information and grounds already known to it, has no comparable intrinsic value. On the contrary, as is apparent from paragraph 8(b) of that notice, in the latter case immunity from fines is only justified where the undertaking does not limit itself to reporting the existence of the cartel, but also provides evidence enabling the Commission to establish its existence in a decision finding an infringement of Article 81 EC. (see paras 78-82)

See the text of the decision. (see para. 88)

It is clear from paragraphs 8 to 11 of the 2002 Leniency Notice that, in the event of the Commission already having information and evidence providing reasonable grounds that might justify the adoption of an inspection decision, an undertaking can be granted immunity from fines only when it submits evidence enabling the Commission to find an infringement of Article 81 EC. In that regard, the risk of a ‘snowball’ effect, that is to say a risk that an application for immunity from an undertaking concerning a cartel might trigger an investigatory measure by the Commission, which, in its turn, might trigger applications for immunity from other undertakings concerning the same sector, but relating to unlawful cartels separate from the one covered by the initial application for immunity, is an inherent feature of the Commission leniency programme. It encourages undertakings wishing to cooperate with it not to confine themselves to selective cooperation concerning one cartel alone but to cooperate fully with regard to all the cartels it knows about. Therefore, even if it were assumed that the causal link between the applicant’s application for immunity and the adoption of the contested decision is established, that would be not sufficient for it to be granted immunity from fines under the 2002 Leniency Notice. (see paras 91-93)

See the text of the decision. (see paras 98, 103, 105)

Paragraph 23(b), third subparagraph, of the 2002 Leniency Notice is concerned specific circumstances surrounding an undertaking not benefiting from immunity from a fine but only a reduction thereof. By providing additional evidence concerning a cartel, such an undertaking runs the risk of disclosing information liable to affect the gravity or duration of such infringement as may be established by the Commission, with consequent aggravation of the penalties imposed for its participation in that cartel. In order to encourage all undertakings to cooperate fully, even those which are not granted immunity from fines, paragraph 23(b), third subparagraph, of the notice provides for ‘partial immunity’ in respect of such evidence. In that regard, in order to assess whether an undertaking provided evidence of facts previously unknown to the Commission which have a direct impact on the gravity or duration of the suspected infringement, a possible causal link between the application for immunity and the subsequent adoption of a decision finding an infringement of the competition rules does not have to be taken into account. It is not in any way the objective of the Leniency Notice to take account of such a causal link. (see paras 111, 112, 114)