Keywords

Summary



Keywords

1. Community law - Principles - Rights of the defence - Observance of those rights during administrative procedures

2. Competition - Administrative procedure - Statement of objections - Matters to be stated

(Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Art. 4)

3. Competition - Administrative procedure - Professional secrecy - Leak of information in breach of the duty of confidentiality - No bearing on the lawfulness of the decision

(EC Treaty, Art. 214; Council Regulation No 17, Art. 20(2))

4. Competition - Agreements, decisions and concerted practices - Participation under compulsion - Evidence - Reporting of the cartel

(Council Regulation No 17, Art. 3)

5. Acts of the institutions - Statement of reasons - Obligation - Scope - Decision applying the competition rules - Decision concerning several addressees - Identification of the body liable for the alleged infringement

(EC Treaty, Art. 190)

6. Competition - Community rules - Infringements - Attribution - Companies participating in an infringement - Acquisition of those companies by a group taking part in the same infringement

7. Competition - Fines - Amount - Determination thereof - Criteria - Gravity and duration of the infringements - Criteria to be applied - Possibility of increasing the fines in order to strengthen their deterrent effect

(Council Regulation No 17, Art. 15(2))

8. Acts of the institutions - Statement of reasons - Obligation - Scope - Decision imposing fines on several undertakings for an infringement of the competition rules

(EC Treaty, Art. 190; Council Regulation No 17, Art. 15)

9. Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Conduct at odds with that agreed by the cartel - Assessment

(Council Regulation No 17, Art. 15)

10. Competition - Fines - Amount - Determination thereof - Criteria - Conduct of the undertaking during the administrative procedure - Illegality of reductions given to undertakings which have not expressly acknowledged the Commission's factual allegations - Undertakings precluded from relying on the principle of equal treatment in order to obtain an unlawful reduction

(Council Regulation No 17, Art. 15)

Summary

1. Observance of the right to be heard is, in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed, a fundamental principle of Community law which must be respected even if the proceedings in question are administrative proceedings.

2. The statement of objections - the purpose of which is to give undertakings under investigation in application of the competition rules all the information necessary to enable them properly to defend themselves before the Commission adopts a final decision - must be framed in terms which, albeit concise, are sufficiently clear to enable the persons concerned properly to identify the conduct to which the Commission objects.

3. Even on the assumption that Commission officials have been responsible, in breach of the legislative provisions governing confidentiality, for leaking information on the existence and progress of a procedure applying the competition rules and on the nature of the decision to be adopted on termination of that procedure, that would in any event not affect the legality of such a decision, failing proof that the decision would not in fact have been adopted, or would have been different, had the leak not occurred or that the Commission, in adopting the decision, based itself on considerations other than those set out in it.

4. Where an undertaking maintains that it was compelled by the members of a cartel to join it, the reporting of such anti-competitive acts to the competent authorities or the lodging of a complaint with the Commission under Article 3 of Regulation No 17 may constitute evidence of unlawful pressure.

5. The statement of the reasons on which a decision having an adverse effect on an individual is based must enable effective review of its legal validity to be carried out and must provide the person concerned with information sufficient to allow him to ascertain whether or not the decision is well founded. The adequacy of such a statement of reasons must be assessed according to the circumstances of the case, and in particular the content of the measure in question, the nature of the reasons relied on and the interest which addressees may have in receiving explanations. In order to fulfil those purposes, an adequate statement of reasons must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question.

Where a decision taken in application of Article 85 or Article 86 of the Treaty relates to several addressees and poses a problem of attribution of liability for the infringement, it must include an adequate statement of reasons with respect to each of the addressees, in particular those of them who, according to the decision, must bear the liability for that infringement.

6. Where an undertaking acquires control of a number of companies and it is common ground that at the time when those companies were acquired they were participating in an infringement in which the acquiring undertaking was also participating by virtue of the involvement of some of its other subsidiaries, the Commission is entitled to attribute to it the conduct of the companies acquired in respect of the period before and the period after their acquisition.

7. In determining the amount of the fine for infringement of the Community competition rules, regard is to be had to both the gravity and the duration of the infringement. The gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case, and the deterrent character of the fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up.

When assessing the general level of fines, the Commission is entitled to take account of the fact that clear infringements of the Community competition rules are still relatively frequent and, accordingly, it may raise the level of fines in order to strengthen their deterrent effect. Consequently, the fact that in the past the Commission has applied fines of a certain level to certain types of infringement does not mean that it is estopped from raising that level, within the limits set out in Regulation No 17, if that is necessary in order to ensure the implementation of Community competition policy.

Furthermore, when assessing the gravity of the infringement, the Commission may take into account measures adopted in order to conceal the existence of the collusion.

Lastly, in fixing the general level of fines, the Commission is entitled to take into account inter alia the lengthy duration and obviousness of an infringement of Article 85(1) of the Treaty which has been committed despite the warning which the Commission's previous decisions should have provided.

8. The purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted.

Where decisions impose fines on several undertakings for infringement of the Community competition rules, the scope of the obligation to state reasons must be assessed in the light of the fact that the gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines; moreover, no binding or exhaustive list of criteria to be applied has been drawn up.

Furthermore, when fixing the amount of each fine, the Commission has a margin of discretion and cannot be considered to be obliged to apply a precise mathematical formula for that purpose.

Lastly, the reasons for a decision must appear in the actual body of the decision and, save in exceptional circumstances, explanations given ex post facto cannot be taken into account.

When the Commission finds in a decision that there has been an infringement of the competition rules and imposes fines on the undertakings participating in it, it must, if it has systematically taken into account certain basic factors in order to fix the amount of fines, set out those factors in the body of the decision in order to enable the addressees of the decision to verify that the level of the fine is correct and to assess whether there has been any discrimination.

9. The fact that an undertaking which has been proved to have participated in collusion on prices with its competitors has not behaved on the market in the manner agreed with its competitors is not necessarily a matter which must be taken into account as a mitigating circumstance when the amount of the fine to be imposed is determined. An undertaking which, despite colluding with its competitors, follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit.

10. In determining the amount of the fine to be imposed for infringement of the Community competition rules, a reduction on grounds of cooperation during the administrative procedure is justified only if the undertaking's conduct enabled the Commission to establish an infringement more easily and, where relevant, to bring it to an end.

In those circumstances, an undertaking which expressly states that it is not contesting the factual allegations on which the Commission bases its objections may be regarded as having facilitated the Commission's task of finding and bringing to an end infringements of the Community competition rules. In its decisions finding infringements of those rules, the Commission is entitled to take the view that such conduct constitutes an acknowledgement of the factual allegations and thus proves that those allegations are correct. Such conduct may therefore justify a reduction in the fine.

However, the situation is different where the essential allegations made by the Commission in its statement of objections are contested by an undertaking in its reply to that statement, or where the undertaking does not reply or merely states that it is not expressing any view on the Commission's factual allegations. By adopting such an attitude during the administrative procedure the undertaking does not facilitate the Commission's task.

Since reductions in fines can be considered lawful only in so far as the undertakings concerned have expressly stated that they do not contest the factual allegations, an undertaking which has not adopted that attitude cannot lay claim to a reduction on grounds of its cooperation during the administrative procedure because, even if the Commission has applied an unlawful criterion by reducing the fines imposed on undertakings which did not expressly state that they were not contesting the factual allegations, it is necessary that respect for the principle of equal treatment be reconciled with the principle of legality, according to which a person may not rely, to his benefit, on an unlawful act committed in favour of a third party.

In that connection, cooperation in an investigation which does not go beyond that which is required of undertakings under Article 11(4) and (5) of Regulation No 17 does not justify a reduction in the fine.