Case T-446/05

Amann & Söhne GmbH & Co. KG and Cousin Filterie SAS

v

European Commission

(Competition – Agreements, decisions and concerted practices – European market in industrial thread – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Concept of a single infringement – Definition of the market – Fines – Upper limit for the fine – Gravity and duration of the infringement – Mitigating circumstances – Cooperation – Proportionality – Equal treatment – Rights of the defence – Guidelines on the method of setting fines)

Summary of the Judgment

1. Competition – Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices capable of being treated as constituting a single infringement – Concept

(Art. 81(1) EC; Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2))

2. Actions for annulment – Commission decision based on Articles 81 EC or 82 EC – Complex assessment of economic matters – Judicial review – Limits

(Arts 81 EC and 82 EC; Council Regulation Nos 17, Art. 15(2), and 1/2003, Art. 23(2))

3. Competition – Fines – Amount – Determination – Discretion of the Commission – Judicial review – Unlimited jurisdiction of the Community judicature

(Arts 81 EC, 82 EC, 229 EC and 253 EC; Council Regulations Nos 17, Art. 15(2), and 1/2003, Arts 23(2) and (3), and 31)

4. Competition – Fines – Amount – Determination – Discretion conferred on the Commission by Article 15(2), of Regulation No 17 – Infringement of the principle that penalties must have a sound legal basis – None

(Arts 81 EC and 82 EC; Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2))

5. Competition – Fines – Amount – Determination – Criteria – Several infringements

(Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2))

6. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

7. Competition – Fines – Amount – Determination – Actual capacity to cause significant damage to competition on the market concerned

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

8. Competition – Fines – Amount – Determination – Division of undertakings concerned into categories having the same starting point

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

9. Competition – Fines – Amount – Determination – Need to take account of the turnovers of the undertakings concerned and to ensure that fines are proportional to those turnovers – None

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Notice 98/C 9/03)

10. Competition – Fines – Amount – Determination – Division of undertakings concerned into categories having the same starting point

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1A, sixth para.)

11. Competition – Fines – Decision imposing fines – Duty to state reasons – Scope

(Art. 253 EC; Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

12. Competition – Agreements, decisions and concerted practices – Participation in meetings of undertakings having an anti-competitive object – Circumstances from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel

(Art. 81(1) EC)

13. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement –Infringements of average and long duration – 10% increase of the starting amount per year

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Notice 98/C 9/03, Section 1B)

14. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3, third indent)

15. Competition – Fines – Amount – Determination – Turnover to be taken into account in calculating the fine

(Commission Notice 98/C 9/03, Section 1A)

16. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Taking account of the impact of the infringement

(Council Regulation No 17, Art. 15)

17. Competition – Administrative procedure – Commission decision finding an infringement – Evidence which has to be gathered

(Council Regulation No 1/2003, Art. 27(1))

18. Competition – Administrative procedure – Request for information – Rights of the defence

(Council Regulation No 17, Art. 11(5))

19. Competition – Fines – Amount – Determination – Criteria – Cooperation by the undertaking during the administrative procedure

(Council Regulation No 17, Art. 11(4) and (5))

1. The concept of a single infringement covers a situation in which a number of undertakings have participated in an infringement consisting in continuous conduct in pursuit of a single economic aim designed to distort competition or, yet again, in individual infringements linked to one another by the same object (all the elements sharing the same purpose) and the same subjects (the same undertakings, who are aware that they are participating in the common object). An infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision. Where the various actions form part of an ‘overall plan’ because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole. In addition, the concept of a single infringement can be applied to the legal characterisation of anti-competitive conduct consisting in agreements, in concerted practices and in decisions of associations of undertakings.

The concept of a single objective cannot be determined by a general reference to the distortion of competition on the market concerned by the infringement, since an impact on competition, whether it is the object or the effect of the conduct in question, constitutes an element consubstantial with any conduct covered by Article 81(1) EC. Such a definition of the concept of a single objective is likely to deprive the concept of a single and continuous infringement of part of its meaning, since it would have the consequence that different instances of conduct which relate to a particular economic sector and are prohibited under Article 81(1) EC would have to be systematically characterised as constituent elements of a single infringement. Thus, for the purposes of characterising various instances of conduct as a single and continuous infringement, it is necessary to establish whether they display a link of complementarity in that each of them is intended to deal with one or more consequences of the normal pattern of competition and whether, through interaction, they contribute to the attainment of the set of anti-competitive effects desired by those responsible, within the framework of a global plan having a single objective. In that regard, it will be necessary to take into account any circumstance capable of establishing or of casting doubt on that link, such as the period of implementation, the content and, correlatively, the objective of the various agreements and concerted practices in question. For objective reasons, therefore, the Commission may initiate separate procedures, find a number of separate infringements and impose a number of separate fines.

The characterisation of certain unlawful actions as constituting one and the same infringement affects the penalty that may be imposed. A finding that multiple infringements exist may entail the imposition of a number of separate fines, each time within the limits laid down in Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003, on the implementation of the rules on competition laid down in Articles 81 EC and 82 EC.

(see paras 89-94, 133-134)

2. As regards the validity of Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003, on the implementation of the rules on competition laid down in Articles 81 EC and 82 EC, in the light of the principle that penalties must have a proper legal basis, as recognised by the Convention for the Protection of Human Rights and Fundamental Freedoms and the constitutional traditions of the Member States, the Commission does not have unlimited discretion in finding that the rules on competition have been infringed, or in determining whether the various unlawful acts constitute a single continuous infringement or a number of separate infringements, or in setting fines for those infringements.

First of all, the only infringements of the competition rules in respect of which the Commission may impose fines pursuant to Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003 are infringements of Article 81 EC or Article 82 EC. The question whether or not the conditions for the application of Article 81 EC or Article 82 EC are satisfied is, in principle, amenable to full review by the Community judicature. Moreover, although it is true that where such a finding involves complex economic or technical appraisals, the case-law recognises that the Commission has a certain discretion, that discretion is never unlimited. The existence of such a discretion does not mean, in the context of an annulment action, that the Court must refrain from reviewing the Commission’s interpretation of economic or technical data. The Community judicature must not only establish whether the evidence put forward is factually accurate, reliable and consistent, but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it.

(see paras 130-131)

3. The Commission does not have unlimited discretion in setting fines for infringements of the competition rules. While the objective yardstick of the upper limit for the fine and the subjective criteria of the gravity and the duration of the infringement leave the Commission a broad discretion, the fact remains that they are criteria which enable the Commission to take account of the degree of illegality of the conduct in question when adopting penalties. It must therefore be held that Article 15(2) of Regulation No 17 and Article 23(2) and (3) of Regulation No 1/2003, on the implementation of the rules on competition laid down in Articles 81 EC and 82 EC, while leaving the Commission a certain discretion, lay down the criteria and limits by which the Commission is bound in the exercise of its power with regard to fines. In addition, in setting fines pursuant to those provisions, the Commission is required to comply with the fundamental principles of law, and especially with the principles of equal treatment and proportionality, as developed by the case-law of the Court of Justice and the General Court.

Under Article 229 EC and Article 31 of Regulation No 1/2003, the Court of Justice and the General Court have unlimited jurisdiction in actions challenging decisions whereby the Commission has fixed fines and may, accordingly, not only annul the decisions taken by the Commission but also cancel, reduce or increase the fine imposed. Thus, the Commission’s administrative practice is open to full review by the Community judicature.

Under Article 253 EC, the Commission is required, despite the generally known context of the decision, to provide a statement of reasons in a decision imposing a fine, inter alia for the amount of the fine imposed and for the method chosen in that regard. That statement of reasons must show clearly and unequivocally the reasoning followed by the Commission so as to enable those concerned to know the grounds justifying the measure taken in order that they may assess whether it is appropriate to bring the matter before the Community judicature and, if they do so, to enable the Court to carry out its review.

(see paras 140, 142-144, 148)

4. The characterisation of certain unlawful actions as constituting one and the same infringement or as constituting multiple infringements affects, in principle, the penalty that may be imposed, since a finding that multiple infringements exist may entail the imposition of a number of distinct fines, each time within the limits laid down in Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003, on the implementation of the rules on competition laid down in Articles 81 EC and 82 EC, which provide that, for each undertaking and association of undertakings participating in the infringement, the fine is not to exceed 10% of its total turnover in the preceding business year. It follows that, where the Commission imposes two fines the total amount of which exceeds the upper limit of 10% of turnover, it does not infringe the principle of nulla poena sine lege.

(see paras 150-151)

5. 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 in the Treaty when conducting their business within the European Community or the European Economic Area. In the case of multiple infringements, the Commission is fully entitled to take the view that that objective could not be attained merely by imposing a penalty for one of those infringements.

(see para. 160)

6. The principle of proportionality requires that the measures adopted by Community institutions must not exceed what is appropriate and necessary for attaining the objective pursued. When it comes to the calculation of fines, the gravity of infringements has to be determined by reference to numerous factors and it is important not to confer on one or other of those factors an importance which is disproportionate in relation to other factors. In this context, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified.

In assessing the gravity of an infringement the Commission must have regard to a large number of factors, the nature and importance of which vary according to the type of infringement in question and the particular circumstances of the case. It cannot be ruled out that cases may arise in which one of the factors indicative of the gravity of an infringement is the size of the market for the product in question. Consequently, although market size may constitute a factor to be taken into account in establishing the gravity of the infringement, its importance varies according to the particular circumstances of the infringement concerned.

Such practices constitute horizontal restrictions of the ‘price cartel’ type within the meaning of 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 and, accordingly, are inherently ‘very serious’. In such a context, the limited size of the relevant markets is of lesser importance than all the other factors indicative of the gravity of the infringement.

(see paras 171, 175-176, 178)

7. For the purposes of the analysis – undertaken with a view to setting the fine for an infringement of the competition rules – of the actual economic capacity of the offending companies to cause significant damage to competition, which involves an assessment of the actual importance of those undertakings on the market affected, that is to say, of their influence on the market, their overall turnover gives only an incomplete picture. The possibility cannot be ruled out that a powerful undertaking with many different activities may have only a limited presence on a specific product market. Similarly, the possibility cannot be ruled out that an undertaking occupying an important position on a geographical market outside the Community occupies only a weak position on the Community market or the European Economic Area. In such circumstances, the mere fact that the undertaking concerned has a high overall turnover does not necessarily mean that it has a decisive influence on the market affected. That is why, even though the turnovers of an undertaking on the markets affected cannot be a decisive factor in concluding that that undertaking belongs to a powerful economic entity, it is nevertheless relevant for the purposes of determining the influence which that undertaking may exert on the market.

Thus, the proportion of turnover derived from the goods in respect of which the infringement was committed is likely to give a fair indication of the scale of the infringement on the relevant market. That turnover figure is likely to give a fair indication of the liability of each undertaking on those markets, since it constitutes an objective criterion which gives a proper measure of the harm which the offending conduct represents for normal competition and it is therefore a good indicator of the capacity of each undertaking to cause damage.

(see paras 187-188)

8. As regards the setting the amount of the fines to be imposed on the various participants in a cartel, the method of dividing the cartel members into a number of categories – a method which results in a flat-rate starting amount for the fines to be imposed on undertakings belonging to the same category, even though differences in size between undertakings in the same category are ultimately not reflected – cannot be criticised if the principles of proportionality and equal treatment are respected. It is not for the General Court to rule on the expediency of such a system, even supposing that it placed smaller undertakings at a disadvantage. As part of its review of the lawfulness of the Commission’s exercise of its discretion in the matter, the Court must confine itself to checking that the division of the cartel members into categories is consistent and objectively justified, and must not automatically substitute its own assessment for that of the Commission.

(see para. 196)

9. Article 23(3) of Regulation No 1/2003, on the implementation of the rules on competition laid down in Articles 81 EC and 82 EC, does not lay down any requirement that, where fines are imposed on a number of undertakings involved in the same infringement, the fine imposed on an undertaking which is small- or medium-sized must be no higher, as a percentage of turnover, than the fines imposed on the larger undertakings. It is clear from that provision that, both for small or medium-sized undertakings and for larger undertakings, account must be taken, in determining the amount of the fine, of the gravity and duration of the infringement. Where the Commission imposes on undertakings involved in a single infringement fines which are justified, for each of them, by reference to the gravity and duration of the infringement, it cannot be criticised on the ground that, for some of the undertakings, the fine is higher in relation to its turnover than that imposed on the others. Thus, the Commission is not required to reduce the fines where the undertakings concerned are small- or medium-sized companies. The size of the undertaking is taken into consideration by virtue of the upper limit laid down in Article 15(2) of Regulation No 17, Article 23(2) of Regulation No 1/2003 and 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. Apart from those considerations concerning size, there is no reason to treat small- or medium-sized undertakings differently from other undertakings. The fact that the undertakings concerned are small or medium-sized undertakings does not exempt them from their duty to comply with the competition rules.

(see paras 199-200)

10. In the context of 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, which provide in the sixth paragraph of Section 1A that a considerable disparity in size between the undertakings committing infringements of the same type is a factor which particularly justifies differentiated treatment for the purposes of assessing the gravity of the infringement, a Commission decision placing a number of undertakings in the same category where one of those undertakings had an overall turnover which was clearly, even ‘significantly’, lower than that of the others, on the basis that their turnovers on the relevant market and their market shares were very similar, and applying to them the same specific starting amount does not infringe the principle of equal treatment.

(see paras 202, 205)

11. When calculating the fine for an infringement of the rules on competition, the essential procedural requirement of stating reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration. Those requirements do not oblige the Commission to indicate in its decision the figures relating to the method of calculating the fines; in any event, the Commission cannot, by mechanical recourse to arithmetical formulae alone, divest itself of its own power of assessment. In the case of a decision imposing fines on a number of undertakings, the scope of the duty to state reasons must be assessed inter alia in the light of the fact that the gravity of the infringement depends on numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of the fines, although no binding or exhaustive list of the criteria to be applied has been drawn up.

(see para. 226)

12. The fact that an undertaking has not participated in a multilateral meeting and has ceased reporting information to the other cartel members is not sufficient to show that it has ceased to participate in a cartel as long as it has not publicly distanced itself from the content of the cartel.

(see paras 240-241, 244)

13. Under Article 23(3) of Regulation No 1/2003, on the implementation of the rules on competition laid down in Articles 81 EC and 82 EC, the duration of the infringement is one of the factors to be taken into consideration when determining the amount of the fine to be imposed on undertakings which have infringed the competition rules.

Whilst the provisions of Section 1B of 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 make no provision for an increase in respect of short-term infringements (generally less than one year), there will be an increase for infringements of average duration, generally between one and five years, which may, for example, be set as high as 50% of the starting amount of the fine. As regards long-term infringements, generally of over five years, it is provided only the amount may be increased by 10% per year. Those increases are not automatic, as the Guidelines leave the Commission a measure of discretion.

(see paras 237-247, 249)

14. 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 do not list in peremptory terms the mitigating circumstances that the Commission is required to take into account with a view to reducing the basic amount of the fine. Consequently, the Commission retains a measure of discretion in making an overall assessment of the size of any reduction in the fines to reflect mitigating circumstances. Thus, the Commission is under no obligation, in the exercise of its discretion, to reduce a fine because of the termination of a manifest infringement, whether that termination occurred before or after its intervention.

Termination of infringements of the competition rules as soon as the Commission intervenes, as referred to in the third indent of Section 3 of the Guidelines, can logically constitute a mitigating circumstance only if there are reasons for supposing that it was the Commission’s intervention that prompted the undertakings concerned to cease their anti-competitive activities. It appears that the purpose of that provision is to encourage undertakings to terminate their anti-competitive conduct as soon as the Commission launches an investigation in that regard. The fine cannot be reduced on that basis where a firm decision to terminate the infringement has already been taken by those undertakings before the date on which the Commission first intervenes or where the infringement has already come to an end before that date. The latter situation is sufficiently taken into account by the calculation of the duration of the infringement period established.

(see paras 259-260)

15. 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 to the subjective factors taken into account in setting the starting amount, the Guidelines state that it is necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers, and to set the fine at a level which ensures that it has sufficiently deterrent effect. It is also stated in the Guidelines that, in cases involving a number of undertakings, such as cartels, it may be necessary to apply weightings to the general starting amount in order to take account of the specific weight, hence the real impact on competition of the offending conduct of each undertaking, particularly where there is considerable disparity in size between undertakings which have committed infringements of the same type. Consequently, it may be necessary to adapt the general starting amount according to the specific nature of each undertaking.

The Guidelines do not preclude the Commission from taking the overall turnover of the undertakings concerned or their turnover on the relevant market into account in determining the amount of the fine, in order to ensure compliance with the fundamental principles of Community law and where circumstances so require.

Thus, dividing the undertakings into two categories, by reference to their turnover, is not an unreasonable way of taking account of their relative importance on the market in order to set the starting amount of the fine, so long as it does not lead to a grossly inaccurate representation of the market concerned.

(see paras 273-275, 280)

16. In competition matters, the burden of proving the existence of the effects of the infringement on the market at issue – a burden which is borne by the Commission when it takes such effects into account for the purposes of calculating the fine by reference to the gravity of the infringement – is lighter than the burden of proof incumbent upon the Commission when it must show the existence as such of an infringement in the case of a cartel. For the purposes of taking account of the actual impact of the cartel on the market, it is sufficient for the Commission to provide ‘good reasons for taking them into account’.

(see para. 301)

17. The rights of the defence are infringed as a result of a discrepancy between the statement of objections and the final decision only where an objection stated in the final decision was not set out in the statement of objections in a manner sufficient to enable the addressees to defend their interests.

If documents have not been mentioned in the statement of objections, the undertaking concerned is entitled to consider that they are of no importance for the purposes of the case. By not informing an undertaking that certain documents would be used in the decision, the Commission prevents it from putting forward at the appropriate time its view of the probative value of such documents. It follows that they cannot be regarded as admissible evidence so far as that undertaking is concerned.

A document used by the Commission in support of an objection in the final decision, where the same document was used in the statement of objections in order to prove another objection, may be used in the decision as against the undertaking concerned only if the latter could reasonably deduce from the statement of objections and the contents of the document the conclusions which the Commission intended to draw.

(see paras 313-315)

18. An undertaking in receipt of a request for information pursuant to Article 11(5) of Regulation No 17 cannot be recognised as having an absolute right of silence. To acknowledge the existence of such a right would go beyond what is necessary in order to preserve the rights of defence of undertakings and would constitute an unjustified hindrance to the Commission’s performance of its duty to ensure that the rules on competition within the common market are observed. A right of silence can be acknowledged only to the extent that the undertaking concerned would be compelled to provide answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove.

In order to ensure the effectiveness of Article 11 of Regulation No 17, the Commission is therefore entitled to compel the undertakings to provide all necessary information concerning such facts as may be known to them and to disclose to the Commission, if necessary, such documents relating thereto as are in their possession, even if the latter may be used to establish the existence of anti-competitive conduct. This power of the Commission to obtain information does not fall foul of either Article 6(1) and (2) of the ECHR or the case-law of the European Court of Human Rights.

In any event, the mere fact of being obliged to answer purely factual questions put by the Commission and to comply with its requests for the production of documents already in existence cannot constitute a breach of the principle of respect for the rights of the defence or impair the right to fair legal process, which offer, in the specific field of competition law, protection equivalent to that guaranteed by Article 6 of the European Convention on Human Rights. There is nothing to prevent the addressee of a request for information from showing, whether later during the administrative procedure or in proceedings before the Community judicature, when exercising its rights of defence, that the facts set out in its replies or the documents produced by it have a different meaning from that ascribed to them by the Commission.

Lastly, where, in a request for information under Article 11 of Regulation No 17, the Commission, in addition to putting purely factual questions and requesting production of pre-existing documents, asks an undertaking to describe the object and course of a number of meetings in which it participated and also the results of or the conclusions reached in those meetings, when it is clear that the Commission suspects that the object of those meetings was to restrict competition, a request of that nature is of such a kind as to require the undertaking concerned to admit its participation in an infringement of the Community competition rules, so that the undertaking is not required to answer questions of that type. In such a situation, the fact that an undertaking none the less supplies information on those points must be regarded as spontaneous cooperation on the undertaking’s part capable of justifying a reduction in the amount of the fine, in application of the Leniency Notice. It is also apparent from the case-law that, in the same situation, undertakings cannot claim that their right not to incriminate themselves has been infringed where they voluntarily replied to such a request.

(see paras 326-329)

19. In the context of an administrative procedure initiated in respect of a prohibited cartel, the cooperation of the undertaking concerned in the investigation does not entitle it to a reduction in its fine where that cooperation went no further than the cooperation incumbent upon it under Article 11(4) and (5) of Regulation No 17. Where, however, in response to a request for information under Article 11, the undertaking provides information which goes much further than the information which the Commission may require under that provision, the undertaking may receive a reduction in its fine.

(see para 340)

JUDGMENT OF THE GENERAL COURT (Fifth Chamber)

28 April 2010 ( )

(Competition – Agreements, decisions and concerted practices – European market in industrial thread – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Concept of a single infringement – Definition of the market – Fines – Upper limit for the fine – Gravity and duration of the infringement – Mitigating circumstances – Cooperation – Proportionality – Equal treatment – Rights of the defence – Guidelines on the method of setting fines)

In Case T‑446/05,

Amann & Söhne GmbH & Co. KG, established in Bönnigheim (Germany),

Cousin Filterie SAS, established in Wervicq-Sud (France),

represented by A. Röhling, M. Dietrich and C. Horstkotte, lawyers,

applicants,

v

European Commission, represented by F. Castillo de la Torre and K. Mojzesowicz, acting as Agents, and by G. Eickstädt, lawyer,

defendant,

APPLICATION for annulment of Commission Decision C(2005) 3452 of 14 September 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.337 – PO/Thread), as amended by Commission Decision C(2005) 3765 of 13 October 2005, and, in the alternative, for reduction of the fine imposed on the applicants by that decision,

THE GENERAL COURT (Fifth Chamber),

composed of M. Vilaras, President, M. Prek (Rapporteur) and V.M. Ciucă, Judges,

Registrar: T. Weiler, Administrator,

having regard to the written procedure and further to the hearing on 17 December 2008,

gives the following

Judgment

Background to the dispute

A – Subject-matter of the dispute

1 By Decision C(2005) 3452 of 14 September 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.337 – PO/Thread) (‘the contested decision’), as amended by Commission Decision C(2005) 3765 of 13 October 2005 and a summary of which was published in the Official Journal of the European Union of 26 January 2008 (OJ 2008 C 21, p. 10), the Commission of the European Communities found that the applicants – Amann & Söhne GmbH & Co. KG (‘Amann’) and Cousin Filterie SAS (‘Cousin’) – had participated in a set of agreements and concerted practices on the market in thread for automotive customers (‘automotive thread’) in the European Economic Area (EEA) during the period from May/June 1998 to 15 May 2000 and that Amann had also participated in a set of agreements and concerted practices on the market in thread for industrial customers other than automotive customers in Benelux, and in Denmark, Finland, Norway and Sweden (collectively, ‘the Nordic countries’) during the period from January 1990 to September 2001.

2 The Commission imposed a fine of EUR 4.888 million on Amann and Cousin, which were considered to be jointly and severally liable, for their participation in the EEA automotive thread cartel and a fine of EUR 13.09 million on Amann for its participation in the industrial thread cartel in Benelux and the Nordic countries.

B – Administrative procedure

3 On 7 and 8 November 2001, the Commission carried out inspections pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959‑1962, p. 87) at the premises of a number of sewing thread manufacturers. Those inspections were carried out as a result of information supplied in August 2000 by The English Needle & Tackle Company (contested decision, recital 78).

4 On 26 November 2001, Coats Viyella plc (‘Coats’) filed an application for leniency under the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the Leniency Notice’), together with documents intended to show the existence of the following cartels: (i) a cartel on the market in thread for automotive customers in the European Economic Area (EEA); (ii) a cartel on the UK industrial thread market; and (iii) a cartel on the market for industrial thread, other than for automotive customers, in Benelux and the Nordic countries (‘the industrial thread cartel in Benelux and the Nordic countries’) (contested decision, recital 82).

5 In March and August 2003, on the basis of the documents taken in the course of the inspections and those provided by Coats, the Commission sent the undertakings concerned requests for information pursuant to Article 11 of Regulation No 17 (contested decision, recital 83).

6 On 18 March 2004, the Commission issued a statement of objections which it sent to a number of undertakings on account of their participation in one or more of the cartels referred to in paragraph 4 above, including the cartel on the industrial thread market in Benelux and the Nordic countries.

7 All the undertakings to which the statement of objections was addressed submitted written observations (contested decision, recital 90).

8 A hearing took place on 19 and 20 July 2004 (contested decision, recital 92).

9 On 24 September 2004, the parties were granted access to the non-confidential version of the responses to the statement of objections, as well as to the comments made by the parties at the hearing, and were given a deadline by which to submit further comments (contested decision, recital 93).

10 On 14 September 2005, the Commission adopted the contested decision.

C – The contested decision

1. The relevant markets

(a) Product markets

11 In the contested decision, the Commission states that the thread sector can be divided into two categories: (i) the thread used in industry to sew or embroider various kinds of apparel or other items such as leather goods, textile coatings for motor vehicles and mattresses and (ii) domestic thread used by individuals for sewing or mending and for leisure activities (contested decision, recital 9).

12 It is apparent from the contested decision that the industrial thread business can be divided into three categories according to the use to which the thread is put: (i) sewing thread for the clothing industry, which is used for various types of garment; (ii) embroidery thread, which is used in computerised, industrial embroidery machines to embellish clothing, sports shoes and household textiles; and (iii) special thread, which is used in various sectors such as footwear, leather goods and the motor industry (contested decision, recital 11).

13 It is also apparent from the contested decision that industrial thread can also be divided into different categories according to the fibre type and the thread construction (contested decision, recital 12).

14 In the contested decision, the Commission considers that industrial thread can be regarded from a supply point of view as a single product market since there is no strict correspondence between end-use and fibre type and/or thread construction. The Commission states that, according to Coats, some apparel customers use speciality threads and some embroidery customers use apparel thread. It adds that Coats pointed out that apparel thread, embroidery thread and the various types of speciality thread may have common or easily interchangeable production processes (contested decision, recital 13).

15 Nevertheless, the Commission draws a distinction in the contested decision between thread intended for the motor industry and thread intended for industries other than the motor industry. It considers that, although the production processes for the two types of thread are similar or easily interchangeable, the demand in the motor industry comes from large customers which impose higher specification standards for certain products which they use – such as the thread used for seat belts – and which require product uniformity in the various countries in which they have need of those products for their industry (contested decision, recital 14).

16 In the present case, the product market concerned by the infringements complained of with regard to both Amann and Cousin is the automotive thread market and, with regard to Amann, the industrial thread market.

(b) Geographic markets

17 The Commission states in the contested decision that, because of the higher specification standards mentioned above, which require uniformity within the EEA, the automotive thread market must be distinguished from the industrial thread market. It therefore considers that the automotive thread market covers the whole EEA. The Commission finds that only a few suppliers are able to make a standardised offer for such products for the whole EEA. The reasons for this are that purchasers need uniform threads to facilitate their production in different countries; that those threads must achieve higher quality standards (for example, the thread used to manufacture seat belts); and that, owing to product quality and liability issues, it is essential to be able to trace the production of such threads (contested decision, recitals 21 and 22).

18 With regard to industrial thread, on the other hand, the Commission finds that, according to the information provided by the parties, the relevant geographic market is regional. It adds that the region can cover a number of EEA countries, such as Benelux or the Nordic countries, or a single country such as the United Kingdom (contested decision, recital 17).

19 It is apparent from the contested decision that the geographic market concerned by the infringement which Amann is alleged to have committed with regard to industrial thread is Benelux and the Nordic countries, whereas the geographic market concerned by the infringement which both applicants are alleged to have committed with regard to automotive thread is the EEA.

2. Size and structure of the relevant markets

20 The Commission states in the contested decision that the sales of industrial thread in Benelux and the Nordic countries amounted to approximately EUR 50 million in 2000 and approximately EUR 40 million in 2004, and that the sales of automotive thread amounted to approximately EUR 20 million in 1999 (contested decision, recitals 28 and 35).

21 It is also apparent from the contested decision that, at the end of the 1990s, the main industrial thread suppliers in Benelux and the Nordic countries included Amann, Barbour Threads Ltd (‘Barbour’) before it was acquired by Coats, Belgian Sewing Thread NV (‘BST’), Coats, Gütermann AG and Zwicky & Co. AG (‘Zwicky’) and the main suppliers of automotive thread included Amann and Cousin, Coats, Oxley Threads Ltd (‘Oxley’), Gütermann and Zwicky.

3. Description of the unlawful conduct

22 The Commission states in the contested decision that the conduct complained of with regard to both Amann and Cousin, concerning the cartel on the EEA automotive thread market, took place from May/June 1998 to May 2000.

23 The main objective of the members of the cartel on the EEA automotive thread market was the maintenance of high prices (contested decision, recital 214).

24 To that end, five meetings were held at which the participants first fixed two types of target price for the core products sold to European automotive customers: one for existing customers and the other for new customers. Information was then exchanged on prices to individual customers and on minimum target prices. Lastly, the participants agreed to avoid undercutting, to the advantage of the incumbent supplier (contested decision, recital 215).

25 The Commission finds that the conduct concerning the cartel on the industrial thread market in Benelux and the Nordic countries took place between 1990 and 2001.

26 With regard to the cartel on the industrial thread market in Benelux and the Nordic countries, the Commission states that the undertakings concerned met at least once a year and that the meetings were split into two sessions, one for the Benelux market and the other for the market in the Nordic countries, the main objective of the meetings being the maintenance of high prices on each of those two markets.

27 The participants exchanged price lists and information on rebates, on the implementation of increases in list prices, on reductions in rebates and on increases in the special prices charged to certain customers. Agreements were also made concerning future price lists, maximum rates of rebate, reductions in rebates and increases in the special prices charged to certain customers, as well as agreements to avoid undercutting, to the advantage of the incumbent supplier, and to arrange customer allocation (contested decision, recitals 99 to 125).

4. Enacting terms of the contested decision

28 By Article 1(3) of the contested decision, the Commission found that six undertakings, including Amann and Cousin, had infringed Article 81(1) EC and Article 53(1) of the EEA Agreement by participating in agreements and concerted practices affecting the EEA automotive thread market for the period – in the case of both applicants – from May/June 1998 to May 2000. Similarly, by Article 1(1) of the contested decision, the Commission found that eight undertakings, including Amann, had infringed Article 81(1) EC and Article 53(1) of the EEA Agreement by participating in agreements and concerted practices affecting the industrial thread market in Benelux and the Nordic countries for the period – in the case of Amann – from January 1990 to September 2001.

29 Under the first paragraph of Article 2 of the contested decision, the following fines were imposed:

(a) in respect of the EEA automotive thread cartel:

– Amann and Cousin, considered jointly and severally liable: EUR 4.888 million;

– Coats: EUR 0.65 million;

– Oxley: EUR 1.271 million;

– Barbour and Hicking Pentecost plc, considered jointly and severally liable: EUR 0.715 million;

(b) in respect of the industrial thread cartel in Benelux and the Nordic countries, inter alia:

– Coats: EUR 15.05 million;

– Amann: EUR 13.09 million;

– BST: EUR 0.979 million;

– Gütermann: EUR 4.021 million;

– Zwicky: EUR 0.174 million.

Procedure and forms of order sought

30 By application lodged at the Registry of the General Court on 22 December 2005, Amann and Cousin brought the present action.

31 Following a change in the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the Fifth Chamber, to which the present case was accordingly assigned.

32 Amann and Cousin claim that the General Court should:

– annul the contested decision in so far as it relates to them;

– in the alternative, reduce the fine to an appropriate amount;

– order the Commission to pay the costs.

33 The Commission contends that the General Court should:

– dismiss the action;

– order Amann and Cousin to pay the costs.

Law

34 First of all, Amann and Cousin put forward a plea to the effect that the contested decision should be annulled for infringement of the first sentence of Article 7(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1).

35 Secondly, Amann and Cousin put forward a series of pleas to the effect that the fine should be cancelled. In the first place, they complain that the Commission imposed on them a fine which exceeded the upper limit of 10% of their turnover. In the second place, they raise seven pleas, alleging respectively: (i) breach of the principles of equal treatment and proportionality in the imposition of the fine; (ii) incorrect determination of the starting amount for the fine for the industrial thread cartel; (iii) miscalculation of the duration of the infringement on the industrial thread market; (iv) failure to take account of certain mitigating circumstances concerning the infringement on the industrial thread market; (v) miscalculation of the starting amount and the basic amount of the fine for the infringement on the automotive thread market; (vi) failure to take account of the fact that the automotive thread cartel was not implemented; and (vii) breach of the right to be heard and the rights of the defence.

A – The plea, put forward by Amann and Cousin, to the effect that the contested decision should be annulled for infringement of the first sentence of Article 7(1) of Regulation No 1/2003

1. Arguments of the parties

36 Amann and Cousin claim that the imputed infringements constitute a single infringement within the meaning of the first sentence of Article 7(1) of Regulation No 1/2003, on the grounds that (i) the automotive thread market and the industrial thread market are not distinct product markets or geographic markets, (ii) there is a subjective factor common to those cartels and (iii) the criteria by reference to which the Commission found that the infringement is not a single infringement are not valid.

37 With regard, first, to the existence of a single product market, Amann and Cousin deny that they expressly confirmed that thread for the garment industry and automotive thread belonged to two separate markets. Amann’s reply to the request for information, in which it described the automotive thread market as global, did not in any way imply recognition of the allegedly autonomous character of that market. Furthermore, after providing estimates for six different thread segments, Amann was unable to do so for the automotive thread segment.

38 Nor, according to Amann and Cousin, do the statements made by other traders, such as Coats and Gütermann, support the inference that the automotive thread market is distinct from the industrial thread market.

39 The point of view put forward by Amann and Cousin, namely that the market is a single market, is confirmed – they maintain – by the way in which all the undertakings present the products. This is especially true of the segmentation made by Gütermann, Amann and Coats. It can be seen from this that the same thread can be used in a number of branches.

40 Nor does the fact that the large customers in the automotive sector insist on stricter specification standards justify the distinction made between the industrial thread market and the automotive thread market. As a general rule, threads are produced in accordance with the requirements of the automotive industry and supplied to other industrial sectors in accordance with that quality standard. From an economic point of view, moreover, the production of two types of thread of different qualities is untenable. Thus, the technical characteristics of automotive thread are essentially the same as those of industrial thread. In consequence, automotive thread and industrial thread are interchangeable and they are marketed, furthermore, by reference to products rather than to customers.

41 Secondly, Amann and Cousin claim that the Commission failed to consider whether the various activities complained of were linked by a common subjective element and whether those activities thus constituted a single infringement. The Commission itself found that the infringements were all designed to distort the normal movement of prices on the relevant market.

42 The argument that the infringements found to exist constitute a single infringement is borne out by the fact that they concern price agreements and that the decisions adopted for the regions concerned are practically identical. Amann and Cousin add that, in most Member States, the subjective element is the decisive criterion for identifying a single infringement.

43 Amann and Cousin also argue that, given the average size of most of the undertakings involved, their managers and members were bound to be aware of the various infringements. Amann and Cousin state that, in their case, the subjective element arises also by virtue of the lack of any internal division of responsibility as between the marketing of industrial thread and the marketing of automotive thread.

44 In addition, they argue essentially that the Commission’s way of proceeding was inconsistent, in that the Commission assumed from the outset that the successive infringements committed in the context of each cartel amounted to a single infringement, but did not proceed in the same way with regard to the relationship between the cartels themselves. In that regard, recitals 266 to 270 of the contested decision contain a number of contradictions which show that the Commission’s argument postulating the existence of separate infringements is unsustainable.

45 Thirdly, Amann and Cousin challenge the criteria applied by the Commission for the purposes of determining whether or not there was a single infringement.

46 First of all, they claim that those criteria are not valid. They argue that, on the one hand, the Commission is itself undecided as to how to use the criteria for the purposes of determining the existence of a single infringement, since it purports to prove the existence of two distinct infringements by referring to different participants, a different modus operandi and the lack of overall coordination and then goes on to rely on the difference between the markets concerned, while stating later that the agreements concerning Benelux and the Nordic countries must be considered together because they are linked by an identical pattern of organisation, an identical modus operandi and identical participants. Accordingly, Amann and Cousin conclude that the criterion of overall coordination no longer plays any role as regards recognising the existence of a single infringement in Benelux and the Nordic countries.

47 On the other hand, Amann and Cousin maintain that the criterion used to delimit the product markets, in the case of related products, is irrelevant. Use of that criterion – except in obvious cases in which the products are in no way part of the same market – is tantamount to giving the Commission an almost unfettered discretion as regards penalties for infringements of competition law. The criterion relating to the fact that the participants are not identical is also irrelevant. Amann and Cousin state that the question of who represents the participating undertakings is unimportant, since participation can be attributed to the undertaking concerned.

48 Secondly, Amann and Cousin claim that the application of those criteria should, in any event, have led the Commission to conclude that the infringement was a single infringement.

49 On the one hand, they invoke the fact that the Commission cannot validly cite the lack of coordination between the cartels as proof of the existence of separate infringements, since the Commission itself pointed out – relying in that regard on statements made by Coats – that, since the product markets are more or less delimited by country, there was no need for coordination between the various regions concerned. Similarly, the Commission’s attempt to draw a distinction between coordination of geographic markets and coordination of distinct product markets is irrelevant since, in the case of different geographic markets, coordination between distinct product markets makes no sense. For that reason, Amann and Cousin argue that, in assessing the conduct at issue, it must be accepted that the meetings devoted to different regions were part of an overall plan approved by their respective managements and confirmed by documents mentioning frequent contacts between representatives of Coats and Amann for the purpose of dealing with questions of ‘higher strategy’ in Europe. Such documents show that there was a common subjective element. In that regard, Amann and Cousin criticise the Commission for not considering whether Coats had also had contacts of that kind with other competitors.

50 On the other hand, there is no decisive difference in terms of participants in the agreements or patterns of organisation. Amann and Cousin state that, according to case-law, a single infringement in the legal sense of the term cannot be ruled out merely because each undertaking participates in the infringement in forms specific to it, which means that an undertaking could thus have participated in a single collusive arrangement without having participated in all the constituent elements of that arrangement.

51 In the light of those considerations, Amann and Cousin state that only three of the undertakings participated in a single agreement, all the others being involved in at least two agreements, which means that there was an overlapping in terms of participants, a fact which militates in favour of the existence of a single infringement. In addition, a comparison between the meetings relating to the cartel on the industrial thread market and those relating to the cartel on the automotive thread market in no way supports the proposition that the infringements were distinct. In both cases, the meetings were held irregularly.

52 The Commission disputes those arguments.

2. Findings of the Court

(a) The distinction between product markets and geographic markets

53 It is apparent from the contested decision that the Commission considered that, by reason of its specific character, the automotive thread market had to be distinguished from the industrial thread market, both in terms of products and from the geographic point of view (see paragraphs 12 to 16 and 17 to 19 above).

54 First of all, it should be pointed out that, inasmuch as it involves complex economic appraisals on the part of the Commission, the definition of the relevant market is amenable to only limited review by the Community judicature (see, to that effect, Case T‑65/96 Kish Glass v Commission [2000] ECR II‑1885, paragraph 64, and Case T‑342/99 Airtours v Commission [2002] ECR II‑2585, paragraph 26). However, this does not prevent the Community judicature from examining the Commission’s assessment of economic data. It is required to decide whether the Commission based its assessment on accurate, reliable and coherent evidence which contains all the relevant data that must be taken into consideration in appraising a complex situation and whether that evidence is capable of substantiating the conclusions drawn from it (Case T‑201/04 Microsoft v Commission [2007] ECR II‑3601, paragraph 482).

55 It should also be borne in mind that the market to be taken into consideration comprises the totality of the products which, with respect to their characteristics, are particularly suitable for satisfying constant needs and are only to a limited extent interchangeable with other products (Case 322/81 Nederlandsche Banden-Industrie-Michelin v Commission [1983] ECR 3461, paragraph 37). More specifically, the Court of Justice has held that the concept of the product market implies that there can be effective competition between the products which form part of it and this presupposes that there is a sufficient degree of interchangeability between all the products forming part of the same market (Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 28).

56 Interchangeability is to be assessed in the light of evidence such as the characteristics of the products, the competitive conditions and the structure of supply and demand on the market (Nederlandsche Banden-Industrie-Michelin v Commission, paragraph 55 above, paragraph 37).

57 Although, from an economic point of view, demand substitutability constitutes the most immediate and effective assessment criterion in relation to the suppliers of a given product (Case T‑177/04 easyJet v Commission [2006] ECR II‑1931, paragraph 99), supply-side substitutability may also be taken into account in defining the relevant market with regard to operations in which that substitutability has effects equivalent to demand substitutability in terms of immediacy and effectiveness. Thus, the criterion of supply-side substitutability implies that producers are able, by a mere adaptation, to present themselves on that market with sufficient weight to constitute a serious counterbalance to producers already on the market (Joined Cases T‑191/98 and T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission [2003] ECR II‑3275, paragraph 829).

58 The products themselves may be regarded as constituting a distinct market if they are individualised by particular characteristics of production which make them specifically suitable for the particular purpose for which they are used or if they are individualised by their use (Case 6/72 Europemballage and Continental Can v Commission [1973] ECR 215, paragraph 33).

59 Lastly, it should be borne in mind that the Commission adopted a Notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5; ‘the Market Definition Notice’) in which it specified the criteria to be assessed in defining a relevant product market and delimiting the relevant geographic market. The relevant product market is defined in the Market Definition Notice as comprising ‘all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of the products’ characteristics, their prices and their intended use’. The geographic market is defined as comprising ‘the area in which the undertakings concerned are involved in the supply ... of products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because the conditions of competition are appreciably different in those areas’. The relevant market by reference to which a given competition issue should be assessed is therefore established through a combination of the product and geographic markets.

60 In the light of those considerations, it is necessary to examine the soundness of the Commission’s conclusions in recitals 14 and 22 of the contested decision regarding the existence of two distinct product and geographic markets, namely, the automotive thread market in the EEA and the industrial thread market in Benelux and the Nordic countries. In order to reach that conclusion, the Commission assessed the substitutability of the products, both on the demand side and on the supply side.

61 First, as regards substitutability on the demand side, the contested decision sets out a series of factors to demonstrate that there is no demand substitutability.

62 In the first place, it is clear from recitals 14 and 22 of the contested decision that demand for automotive thread comes from large customers and that such customers are much fewer in number than the other undertakings which are customers on the industrial thread market. Amann and Cousin do not deny this. They confirmed at the hearing that the customers in the automotive sector were the most powerful because of the very large quantities which they purchase.

63 In the second place, it is apparent from recitals 14 and 22 of the contested decision that the customers in the automotive sector buy thread for factories located in different countries and that they therefore need a uniform product in each of those countries. That need for uniformity – which Amann and Cousin do not deny – can be easily explained from an economic point of view. It is reasonable to accept that the adaptation of production machinery to the type of thread used entails costs. Accordingly, the motor industry tries to reduce those costs by buying, in great quantities, a very specific type of thread and by adapting, in a single operation, its production machines in the various countries to that thread.

64 In the third place, it follows from recitals 14 and 22 of the contested decision that automotive threads must meet the particularly high standards which prevail in that sector and that traceability is a key factor for reasons relating to product quality and liability issues. That finding was confirmed by Amann and Cousin both in the application initiating proceedings and at the hearing.

65 Indeed, Amann and Cousin admitted that, in general, it is the customers who decide what thread is necessary for their production and who therefore choose the product which meets their needs as users. With specific regard to customers in the automotive sector, Amann and Cousin admitted that such customers insist that the thread meet at least ISO standard 9002. Amann and Cousin even stated at the hearing that particular characteristics – known as ‘TS 950’ – exist for the motor industry and that they take account of those factors in their production.

66 Amann and Cousin also described the process for the certification of threads by automotive customers. First of all, Amann and Cousin develop a type of thread which meets at least ISO standard 9002. That thread is then tested by the motor manufacturer which wishes to use it for production and, lastly, the thread is certified by the motor manufacturer if the test is successful.

67 In the light of those considerations, it must be accepted that other industrial threads cannot be substituted for the specific thread chosen by the motor industry. The fact that that type of thread is sold to customers other than those in the motor industry is irrelevant in that regard. Unlike other potential purchasers of that product, undertakings in the automotive sector buy only thread which has specific intrinsic characteristics and which has been certified by those undertakings by reason of those special characteristics. Amann and Cousin cannot reasonably claim, therefore, that demand substitutability exists.

68 The statements made by Coats in reply to the Commission’s request for information also confirm the lack of demand substitutability. Coats pointed out that some customers in the clothing sector use embroidery thread, just as some customers in the embroidery sector use thread intended for the clothing industry. On the other hand, no reference was made to similar demand substitutability on the part of customers in the automotive sector.

69 Secondly, although the Commission considered that, from the supply point of view, industrial thread could be regarded as a single product market because of the lack of a strict correspondence between final use and the fibre type and/or the thread construction and because of the similarity or interchangeability of the processes by which that thread is produced, it none the less concluded that that was not the position in the case of automotive thread.

70 To reach that conclusion, the Commission based its considerations on the specific characteristics of automotive thread, the need to guarantee a standardised offer and the capacity to fulfil orders from the large customers in that sector. It also relied on the fact that the geographic market for automotive thread covers the whole territory of the EEA, unlike that for industrial thread, which is merely regional. In the light of those factors, the Commission formed the view that only a few undertakings could meet that sort of demand (see recital 22 of the contested decision).

71 First of all, according to paragraph 20 of the Market Definition Notice, there is supply-side substitutability where suppliers are able to switch production to the relevant products and to market them in the short term without incurring significant additional costs or risks in response to small and permanent changes in relative prices. In paragraph 21 of the Market Definition Notice, the Commission points out that such substitutability typically arises where companies market a range of qualities or grades of one product; even if, for a given final customer or group of consumers, the different qualities are not substitutable, the different qualities will be grouped into one product market. At first glance, industrial thread corresponds to the type of product referred to in paragraph 21 of the Market Definition Notice.

72 Lastly, in paragraphs 22 and 23 of the Market Definition Notice, the Commission confirms, with practical examples, that the suppliers concerned must be able to offer and sell the various qualities of product immediately and without a substantial increase in costs and that there must be no particular distribution difficulties.

73 It must be determined, in the light of those considerations, whether the Commission correctly applied the criterion of supply-side substitutability.

74 First of all, as was pointed out above in paragraph 63 et seq., automotive thread producers have to adapt their production machinery so that the thread produced meets specific standards.

75 Secondly, the reasoning put forward by Amann and Cousin regarding the low cost of producing automotive thread is unconvincing. It is true that they claim that, as a general rule, threads are produced in accordance with the requirements of the motor industry and supplied at that standard to customers in other industrial sectors, but they also argue that the costs of adapting the production line would be far too high if a product had to be manufactured solely for the automotive sector and the production line had then to be adjusted for the manufacture of products for other industrial sectors.

76 The fact remains that, although – for reasons related to rationalisation of production – a company already present on the automotive thread market produces essentially thread which meets the higher standard, irrespective of the intended use of the product, it does so only because it is present on the automotive market, by reason of the high cost of manufacturing in conformity with the specific standards applying to automotive thread. In other words, a company which is mainly engaged in producing thread for clothing or embroidery will have no interest in manufacturing a special thread for the automotive industry solely on the ground that it might sell that thread to customers from the motor industry.

77 Thus, the assertion made by Amann and Cousin that the costs of manufacturing automotive thread are so low that it is always produced to a higher specification standard has not been established with regard to producers of industrial thread.

78 Thirdly, Amann and Cousin did not call into question during the administrative procedure the distinct geographic difference between the two markets. In reply to the Commission’s request for information, Amann even described the market for automotive thread as global. Coats also pointed out that because of the specific characteristics of that market it is limited to ‘regional’ and ‘global’ suppliers, terms which must be understood, in the context of the reply, as meaning ‘covering the whole territory of the EEA’ and ‘covering the whole world’.

79 Thus, for there to be supply-side substitutability, most thread producers must be capable of producing a large quantity of specific and uniform thread for each customer in the automotive sector and of distributing it quickly across the whole territory of the EEA. In the light of the preceding considerations, such a line of reasoning is hardly sustainable.

80 Consequently, the Commission did not commit a manifest error of assessment in concluding that there were two distinct product and geographic markets from the point of view of supply.

81 It should be stated in that regard that the Commission correctly assessed and interpreted the replies provided by Amann and Cousin, and by the other undertakings concerned, on the basis of which it reached the conclusion that there were two distinct product markets.

82 First of all, the Commission asked Amann and Cousin whether sewing thread for clothing for industrial use, embroidery thread for industrial use, special thread for industrial use and thread for domestic use constituted different product markets in the thread sector. The Commission also presented a table intended to determine the relevant geographic markets for each of the above categories of thread, with a specific category entitled ‘Automotive thread’. It stated that the ‘Automotive thread’ category was included in special thread for industrial use, but that it wished to hear the opinion of Amann and Cousin on the relevant geographic market for that type of thread.

83 In reply to the abovementioned request for information, Amann stated that the detailed breakdown carried out by the Commission was correct on the ground that ‘there are product specifications and specific customer requirements which, in the clothing industry, in particular, are clearly distinct from those of the other two sectors at the level of the range of shades etc.’. Cousin, for its part, also expressed its complete agreement with the breakdown carried out by the Commission. It stated, however, that it was very difficult to assess markets, especially with regard to special threads, given the very great diversity of uses concerned, and mentioned that it had identified more than 80 trades.

84 Thus, it is true that Amann and Cousin expressly admitted that the market for special thread constitutes a distinct product market, but – contrary to the assertions made by the Commission in its written pleadings – did not expressly admit that the market for automotive thread, included in the market for special thread, was itself a distinct product market.

85 Gütermann, too, confirmed the breakdown proposed by the Commission, but did not make any express statement on the automotive thread market. Coats stated in reply to the question concerning the product markets that it did not think that the differences between the products were sufficient to support the conclusion that there were three distinct markets, even though it recognised the specific characteristics of the automotive thread market, as stated in paragraph 78 above. Only Oxley directly confirmed and justified the distinct character of the automotive thread market.

86 Although the interpretation of those factors concerning the existence of a distinct market for automotive thread does not seem to be as clear as the Commission is inclined to claim, the fact remains that its conclusions are not vitiated by a manifest error of assessment or any distortion of the facts.

87 Moreover, those conclusions are confirmed by other evidence, such as the internet sites of the undertakings, which, in general, contain a distinct heading for automotive thread. Similarly, those undertakings are proprietors of thread brands specifically created for that sector.

88 It follows from all the above that the Commission did not commit a manifest error of assessment in considering that, in the present case, the market for automotive thread and the market for industrial thread were different.

(b) The alleged existence of an ‘overall plan’

89 It should first be recalled that the concept of a single infringement covers a situation in which a number of undertakings have participated in an infringement consisting in continuous conduct in pursuit of a single economic aim designed to distort competition or, yet again, in individual infringements linked to one another by the same object (all the elements sharing the same purpose) and the same subjects (the same undertakings, which are aware that they are participating in the common object) (see, to that effect, Case T‑53/03 BPB v Commission [2008] ECR II-1333, paragraph 257).

90 It should also be pointed out that an infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision. Where the various actions form part of an ‘overall plan’ because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 258).

91 In addition, according to settled case-law, the concept of a single infringement can be applied to the legal characterisation of anti-competitive conduct consisting in agreements, in concerted practices and in decisions of associations of undertakings (see, to that effect, Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraphs 696 to 698; Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 186; and Joined Cases T‑101/05 and T‑111/05 BASF v Commission [2007] ECR II‑4949, paragraph 159).

92 It must also be made clear that the concept of a single objective cannot be determined by a general reference to the distortion of competition on the market concerned by the infringement, since an impact on competition, whether it is the object or the effect of the conduct in question, constitutes an element consubstantial with any conduct covered by Article 81(1) EC. Such a definition of the concept of a single objective is likely to deprive the concept of a single and continuous infringement of part of its meaning, since it would have the consequence that different instances of conduct which relate to a particular economic sector and are prohibited under Article 81(1) EC would have to be systematically characterised as constituent elements of a single infringement. Thus, for the purposes of characterising various instances of conduct as a single and continuous infringement, it is necessary to establish whether they display a link of complementarity in that each of them is intended to deal with one or more consequences of the normal pattern of competition and whether, through interaction, they contribute to the attainment of the set of anti-competitive effects desired by those responsible, within the framework of a global plan having a single objective. In that regard, it will be necessary to take into account any circumstance capable of establishing or of casting doubt on that link, such as the period of implementation, the content (including the methods used) and, correlatively, the objective of the various agreements and concerted practices in question (see, to that effect, BASF v Commission, paragraph 91 above, paragraphs 179 to 181).

93 For objective reasons, therefore, the Commission may initiate separate procedures, find a number of separate infringements and impose a number of separate fines (see, to that effect, Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission (not published in the ECR) (‘Tokai II’), paragraph 124).

94 Lastly, it should also be pointed out that, as a general rule, the characterisation of certain unlawful actions as constituting one and the same infringement affects the penalty that may be imposed. A finding that multiple infringements exist may entail the imposition of a number of separate fines, each time within the limits laid down in Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003 (BASF v Commission, paragraph 91 above, paragraph 158).

95 The existence of an ‘overall plan’ must be assessed in the light of those considerations.

96 It should be observed, first of all, that Amann and Cousin primarily maintain that, in the present case, the common subjective element lies in the fact that all the infringements were intended to distort the normal movement of prices. That objective of price distortion is inherent in any price cartel and cannot, of itself, prove the existence of a common subjective element. Contrary to assertions made by Amann and Cousin, the Commission did not assume from the outset in the contested decision that there was a connection between the infringements. In recital 269 of that decision, the Commission merely referred to the single anti-competitive object and the single economic aim – namely, distortion of the normal movement of prices, which is inherent in this type of cartel – although it emphasised that that object and aim were pursued in each of the three different infringements.

97 Next, in order to refute the existence of a single infringement other than by reference to the fact that the market for automotive thread and the market for industrial thread are distinct, as was pointed out moreover in paragraphs 53 to 88 above, the Commission essentially relied on the fact that most of the participants in the cartels were different in each case and that there was no overall coordination between the cartels. Amann and Cousin were unable to call those criteria into question and have accordingly failed to prove the existence of a ‘close connection’ between the various instances of anti-competitive conduct.

98 With regard, first, to the criterion concerning the fact that the participants were not the same, the Commission listed – in recitals 96 and 216 of the contested decision – the participants in the cartel on the automotive thread market and those in the cartel on the industrial thread market. The Commission went on, in point (a) of recital 265 of the contested decision, to state that most undertakings took part in only one cartel, as they were not active on the markets covered by the other cartel.

99 It should be noted that, of the 10 undertakings which took part in one or other of the cartels, or in both, only three took part in both cartels. Ackermann Nähgarne GmbH & Co., Bieze Stork BV, BST, Cousin, Gütermann, Zwicky and Oxley were involved in only one of the cartels. Only Coats, Barbour (until it was acquired by Coats) and Amann took part in both cartels. The mere fact that those three undertakings participated in both cartels is not, in itself, evidence of a common strategy (see, to that effect, Tokai II, paragraph 93 above, paragraph 120). It must also be emphasised that, apart from Barbour, the representatives of the undertakings present at the meetings held in the framework of the cartel on the automotive thread market were not the same as those who took part in the meetings held in the framework of the cartel on the industrial thread market during the period when the two cartels overlapped (1998 to 2000).

100 Consequently, the finding made by the Commission in point (a) of recital 265 of the contested decision is not vitiated by a manifest error of assessment.

101 Nor, secondly, can the subject-matter of the cartels be taken as indicative of the existence of an overall plan. It is apparent from the contested decision that the subject-matter of the cartel on the automotive thread market is quite distinct from the subject-matter of the cartel on the industrial thread market.

102 With regard to the cartel on the automotive thread market, recitals 215, 220, 223, 224, 226, 228 to 230, 233 to 236 and 238 of the contested decision show, on the one hand, that the information exchanged between the cartel members concerned the prices to be charged to certain customers and, on the other hand, that the agreements arrived at involved the fixing of minimum target prices for the core products sold to customers in the automotive sector, the fixing of two types of minimum target prices, one for existing customers and the other for new customers, and the fixing of minimum target prices for certain customers covered by the exchange of information. The cartel members also agreed to avoid undercutting each other’s prices, to the advantage of the incumbent supplier.

103 With regard to the cartel on the industrial thread market, it is apparent from recitals 99 to 153 of the contested decision that, on the one hand, the information exchanged concerned price lists and rebates, the implementation of increases in list prices, reductions in rebates and increases in the special prices charged to certain customers and, on the other hand, the parties agreed on future price lists, maximum rates of rebate, reductions in rebates and increases in the special prices charged to certain customers, and agreed to avoid undercutting each other’s prices, to the advantage of the incumbent supplier.

104 The abovementioned recitals of the contested decision confirm that there is a clear difference between the subject-matter of the two cartels. The existence of any resemblance between the two cartels, such as the agreements to avoid undercutting, to the advantage of the incumbent supplier, cannot of themselves cast doubt on that finding.

105 Thirdly, the way in which each of the two cartels functioned was, to a great extent, different. As the Commission pointed out in recital 218 of the contested decision, the cartel on the automotive thread market was rather flexibly organised, through small irregular meetings supplemented by frequent bilateral contacts. Recitals 96 to 99 and 149 to 153 of the contested decision show that the cartel on the industrial thread market in Benelux and the Nordic countries took the practical form of meetings held at least once a year and split into two sessions, that is to say, a session during which the Nordic markets were discussed and a session during which the Benelux markets were discussed. It also appears from those recitals that bilateral contacts took place periodically.

106 In the light of those factors, the Commission did not commit a manifest error of assessment in concluding, in recitals 265 to 267 of the contested decision, that the cartel on the automotive thread market and the cartel on the industrial thread market in Benelux and the Nordic countries fell to be distinguished one from the other and that, in consequence, they constituted two distinct infringements.

107 It should be pointed out in that regard that, unlike the cartel on the automotive thread market, the cartel on the industrial thread market in Benelux and the cartel on the industrial thread market in the Nordic countries were regarded as a single infringement on the ground that the products were identical, the cartel members were the same, the cartel subject-matter and modus operandi were similar, the meetings were held on the same day and the participating undertakings were represented at those meetings by the same persons.

108 Furthermore, the argument based on the lack of an internal division of responsibility within Amann and Cousin between the marketing of industrial thread and the marketing of automotive thread is irrelevant, as is the argument based on the fact that the managers and members of the participating undertakings were bound to be aware of the various cartels. Those arguments in no way prove the existence of a subjective common element.

109 It is also necessary to reject the argument put forward by Amann and Cousin concerning the existence of overall coordination, an inference drawn from the frequent contacts between a representative of Coats and the manager of Amann. It is apparent from the documents before the Court that no statement was made which could be interpreted as indicating overall coordination. At the hearing, Amann and Cousin admitted that they were unable to submit any document to the Court specifically disclosing a desire for overall coordination as between Amann and Coats.

110 Lastly, Amann and Cousin are incorrect in claiming that the criterion used to delimit the product markets cannot constitute a valid criterion for assessment inasmuch as it would give the Commission an unfettered discretion, in regard to related products, to conclude that there were two separate infringements. In the first place, the Commission’s discretion is not unlimited since it remains subject to review by the Court, as stated in paragraph 54 above. In the second place, the criterion concerning product markets was, in the present case, merely one of a number of criteria on which the conclusion that there were two separate infringements was based.

111 In the light of all the above considerations, the plea alleging infringement of the first sentence of Article 7(1) of Regulation No 1/2003 must be rejected as unfounded.

B – The pleas to the effect that the fine should be reduced

1. The plea, put forward by Amann and Cousin, alleging failure to respect the upper limit for penalties, laid down in Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003

(a) Arguments of the parties

112 The plea put forward by Amann and Cousin comprises three complaints.

113 By their first complaint, Amann and Cousin claim that the two infringements are in reality only a single infringement and that, consequently, only one fine can be imposed on them, the amount of which must not exceed the upper limit of 10% of their total turnover. However, the total resulting from that addition exceeds the upper limit and Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003 have therefore been infringed.

114 Amann and Cousin argue in that regard that the Community constitutional law principle nulla poena sine lege has been infringed. Essentially, they criticise the fact that, by dividing the markets on which parallel infringements had been found to exist, the Commission can arrogate to itself an unlimited discretion to set fines which exceed the upper limit of 10% of total turnover. They maintain that the principle of legality implies not only that the courts may not impose penalties for which there is no legal basis, but also that the legislature must draft penal measures in a precise and clear manner. The requirement of clarity thus applies not only to the constituent elements of a rule, but also to the legal consequences of that rule. Those requirements also apply to the abovementioned provisions laying down fines for infringements of the rules on competition.

115 When asked to clarify their arguments at the hearing, Amann and Cousin stated that those arguments were to be understood as also challenging the legality of the rule itself and that, consequently, they were raising a plea of illegality in respect of Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003.

116 Moreover, Amann and Cousin dispute the Commission’s argument regarding its obligation to comply with the non bis in idem principle, inasmuch as that principle provides no guarantee that the identification of a single infringement, or of multiple infringements, is correct. They argue essentially that the problem arises at an earlier stage, that is to say, at the very point at which it is determined that there has been one infringement or several infringements.

117 By their second complaint, Amann and Cousin claim that the Commission can impose a single fine for multiple infringements where those infringements concern the same types of conduct on different markets and where the participants are, to a great extent, the same undertakings. Those two conditions are fulfilled in the present case.

118 Amann and Cousin state that the Commission departed from its previous practice without giving the slightest reason for doing so. They maintain that, if the Commission waives its power to impose a single fine for multiple infringements, it is required, in accordance with the general principles of European administrative law, to give reasons for not exercising that power. In the present case, therefore, the Commission infringed Article 253 EC.

119 Amann and Cousin go on to compare the contested decision with Commission Decision 2003/2/EC of 21 November 2001 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/37.512 – Vitamins) (OJ 2003 L 6, p. 1; ‘the Vitamins decision’). In the Vitamins decision, the Commission grouped the fines for the various infringements into a single overall fine and, as a consequence, considered it necessary to respect the upper limit of 10% of total turnover. However, as in the Vitamins decision, the cartels in the present case share the same material and ‘spatio-temporal’ context.

120 By their third complaint, Amann and Cousin claim that the deterrent effect which the Commission sought to achieve had already been achieved by the fine imposed for the infringement on the industrial thread market. Accordingly, the Commission should have taken account of that when setting the fine penalising the automotive thread cartel.

121 The Commission disputes those arguments.

(b) Findings of the Court

122 The present plea put forward by Amann and Cousin comprises, essentially, three complaints alleging: (i) breach of the principle nulla poena sine lege; (ii) breach of the obligation to impose a single fine for multiple infringements; and (iii) failure to have regard for the legal objectives of the penalty.

The complaint alleging breach of the principle nulla poena sine lege, and the plea of illegality in respect of Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003

123 The plea of illegality raised by Amann and Cousin in respect of Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003 must first be considered at three levels. First of all, they claim, essentially, that the very concept of an infringement, as referred to in Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003, is unclear. Secondly, they argue that the concept of a single, continuous infringement is also not clearly defined and that the Commission can therefore exercise an arbitrary influence on the setting of the amount of the fine by dividing the markets on which parallel infringements have been found to exist. Thirdly, they claim that the penalties provided for in those provisions are also unclear.

124 At the outset, it should be borne in mind that, according to the case-law of the Court of Justice, the principle that penalties must have a proper legal basis is a corollary of the principle of legal certainty, which constitutes a fundamental principle of Community law and requires, inter alia, that any Community legislation, in particular if it imposes penalties or permits their imposition, must be clear and precise, so that the persons concerned may know without ambiguity what rights and obligations flow from it and may take steps accordingly (see, to that effect, Case 169/80 Gondrand and Garancini [1981] ECR 1931, paragraph 17; Case C‑143/93 Van Es Douane Agenten [1996] ECR I‑431, paragraph 27; and Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 66).

125 That principle, which forms part of the constitutional traditions common to the Member States and which has been enshrined in various international treaties – notably in Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) – must be observed with regard both to penal provisions and to specific administrative instruments imposing administrative penalties or permitting their imposition (see, to that effect, Case 137/85 Maizena and Others [1987] ECR 4587, paragraph 15). It applies not only to the rules which establish the constitutive elements of an offence, but also to the provisions which define the consequences of infringing those rules (see, to that effect, Joined Cases C‑74/95 and C‑129/95 X [1996] ECR I‑6609, paragraph 25, and Degussa v Commission, paragraph 124 above, paragraph 67).

126 In that connection, it should be pointed out that, under Article 7(1) of the ECHR:

‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.’

127 According to the European Court of Human Rights, it follows from that provision that offences and the relevant penalties must be clearly defined by law. That requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of that provision, what acts and omissions will make him criminally liable (see Eur. Court H. R., Coëme and Othersv.Belgium, judgment of 22 June 2000, Reports of Judgments and Decisions 2000-VII, p. 1, § 145) (Degussa v Commission, paragraph 124 above, paragraph 69).

128 It is clear from the case-law of the European Court of Human Rights that, in order to satisfy the requirements of Article 7(1) of the ECHR, it is not necessary for the wording of the provisions pursuant to which those penalties are imposed to be so precise that the consequences which may flow from an infringement of those provisions are foreseeable with absolute certainty (Degussa v Commission, paragraph 124 above, paragraph 71).

129 According to the case-law of the European Court of Human Rights, the existence of vague terms in the provision does not necessarily entail an infringement of Article 7 of the ECHR, and the fact that a law confers a discretion is not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, regard being had to the legitimate aim in question, to give the individual adequate protection against arbitrary interference (see Eur. Court H. R., Margareta and Roger Anderssonv.Sweden, judgment of 25 February 1992, Series A no. 226, § 75). In that connection, apart from the text of the law itself, the European Court of Human Rights takes account of whether the indeterminate concepts used have been defined by consistent and published case-law (see Eur. Court H. R., G.v.France, judgment of 27 September 1995, Series A no. 325-B, § 25) (Degussa v Commission, paragraph 124 above, paragraph 72).

130 As regards the validity of Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003 in the light of the principle that penalties must have a proper legal basis, as recognised by the Community judicature in accordance with the guidance provided by the ECHR and the constitutional traditions of the Member States, it should be pointed out that, contrary to the assertions made by Amann and Cousin, the Commission does not have unlimited discretion in finding that the rules on competition have been infringed, or in determining whether the various unlawful acts constitute a single continuous infringement or a number of separate infringements, or in setting fines for those infringements.

131 First of all, the only infringements of the competition rules in respect of which the Commission may impose fines pursuant to Article 15(2) of Regulation No 17 and Article 23(2) of Regulation No 1/2003 are infringements of Article 81 EC or Article 82 EC. However, Amann and Cousin are wrong to claim that the Commission has an unlimited discretion in finding that such infringements have occurred. On the one hand, it should be borne in mind that the question whether or not the conditions for the application of Article 81 EC or Article 82 EC are satisfied is, in principle, amenable to full review by the Community judicature (see, to that effect and by analogy, Case C‑7/95 P Deere v Commission [1998] ECR I‑3111, paragraph 34 and the case-law cited, and Case T‑99/04 AC-Treuhand v Commission [2008] ECR II‑1501, paragraph 144). On the other hand, although it is true that where such a finding involves complex economic or technical appraisals, the