Case T-38/02

Groupe Danone

v

Commission of the European Communities

(Competition – Cartels – Fines – Guidelines on the method of setting fines – Leniency Notice)

Judgment of the Court of First Instance (Fifth Chamber), 25 October 2005

Summary of the Judgment

1. Competition – Administrative procedure – Access to the file – Purpose – Observance of the rights of the defence – Scope – Inculpatory evidence – Exclusion of evidence that was not disclosed

(Art. 81(1) EC)

2. Competition – Administrative procedure – Access to the file – Documents not included in the investigation file – Documents capable of assisting the defence of the parties – Obligation of the parties to ask for them to be made available

3. Competition – Administrative procedure – Observance of the rights of the defence – Statement of objections – Necessary content

(Council Regulation No 17)

4. Competition – Fines – Amount – Determination – Rights of the defence – Judicial review – Unlimited jurisdiction of the Community judicature

(Art. 229 EC; Council Regulation No 17, Art. 17)

5. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances – Obligation of the Commission to adhere to its previous decision-making practice – None

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

6. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Inculpatory evidence provided orally by a third party – Obligation to make it available to the undertaking concerned, if necessary by creating a written document

7. Competition – Fines – Amount – Whether appropriate – Judicial review – Information which may be taken into account by the Community judicature – Information not contained in the decision imposing the fine and not required by the duty to state reasons – Included

(Arts 229 EC, 230 EC and 253 EC; Council Regulation No 17, Art. 17)

8. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision imposing fines – Indication of the factors which led the Commission to assess the gravity and the duration of the infringement – Sufficient indication

(Art. 253 EC; Council Regulation No 17, Art. 15(2), second para.; Commission Communications 96/C 207/04 and 98/C 9/03)

9. Competition – Agreements, decisions and concerted practices – Definition of the market – Object – Determination of the effect on trade between Member States

(Art. 81(1) EC)

10. Competition – Community rules – Infringements – Fines – Determination – Criteria – Raising of the general level of fines – Whether permissible – Conditions

(Council Regulation No 17)

11. Competition – Fines – Amount – Determination – Method of calculation laid down by the guidelines drawn up by the Commission – Obligation of the Commission to comply with them – Consequences – Obligation to state reasons in respect of each infringement

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

12. Competition – Fines – Amount – Determination – Infringements classified as very serious on the basis of their nature alone – No requirement to determine their impact and their geographical extent

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

13. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Taking into account of the overall turnover of the undertaking concerned and the turnover achieved from sales of the goods in respect of which the infringement was committed – Limits

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

14. Competition – Agreements, decisions and concerted practices – Participation in meetings of undertakings having an anti-competitive object – Evidence 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 – Participation allegedly under pressure – Matter not providing a justification for an undertaking which did not make use of the possibility of lodging a complaint with the competent authorities

(Art. 81(1) EC; Council Regulation No 17, Art. 3)

15. Competition – Fines – Amount – Determination – Criteria – Gravity of infringements coupled with the taking into account of a deterrent effect

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

16. Competition – Administrative procedure – Commission decision finding an infringement adopted after another Commission decision referring to the same undertaking – No identity of the infringements forming the subject-matter of the two decisions – Breach of the principle ‘ non bis in idem’ – None

17. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Assessment in the light of the absolute value of the sales concerned – Whether permissible

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

18. Competition – Administrative procedure – Commission decision finding an infringement – Evidence which must be gathered – Degree of evidential value required

(Art. 81(1) EC)

19. Community law – Principles – Fundamental rights – Presumption of innocence – Procedure in competition matters – Whether applicable

20. Competition – Fines – Amount – Determination – Criteria – Gravity and duration of the infringement – Infringement committed by several undertakings – Gravity to be assessed individually

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

21. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Threat of reprisals by one undertaking against another

22. Competition – Administrative procedure – Commission decision finding an infringement – Use as evidence of statements of other undertakings which participated in the infringement – Whether permissible – Conditions

(Arts 81 EC and 82 EC)

23. Competition – Fines – Amount – Determination – Introduction of guidelines by the Commission – Method of calculation based on the inherent gravity and the duration of the infringement and complying with the maximum limit based on the turnover of each undertaking – Whether lawful

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

24. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances – Recidivism – Meaning

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

25. Competition – Fines – No infringement of the principle of legal certainty where a limitation period has not been laid down

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

26. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Attenuating circumstances – Agreement not implemented in practice – Assessment at the level of the individual conduct of each undertaking

(Council Regulation No 17, Art. 15)

27. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Attenuating circumstances – Absence of measures to monitor the implementation of the cartel – Not included

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

28. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Attenuating circumstances – Financial situation of the undertaking concerned – Not included

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

29. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned – Need for conduct which assisted the Commission to ascertain the infringement – Information concerning acts which could not give rise to fines under Regulation No 17 – Not to be taken into account

(Council Regulation No 17, Arts 11(4), (5), and 15; Commission Communication 96/C 207/04)

30. Competition – Fines – Amount – Determination – Criteria – Attitude of the undertaking during the administrative procedure – Appraisal of the extent of the cooperation shown by each of the undertakings participating in the cartel – Respect for the principle of equal treatment – Different degrees of cooperation justifying different treatment

(Council Regulation No 17, Art. 15(2); Commission Communication 96/C 207/04)

31. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned – Reduction for not disputing the facts – Conditions

(Council Regulation No 17, Art. 15(2); Commission Communication 96/C 207/04, Section D 2)

1. The right of access to the file in competition cases is intended, in particular, to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission’s file so that, on the basis of that evidence, they can express their views effectively on the conclusions reached by the Commission in its statement of objections. Access to the file is thus one of the procedural safeguards intended to protect the rights of the defence and to ensure, in particular, that the right to be heard can be exercised effectively.

The Commission is thus under a duty to make available to the undertakings involved in proceedings under Article 81(1) EC all documents, whether in their favour or otherwise, which it has obtained during the course of the investigation, save where the business secrets of other undertakings, the internal documents of the institution or other confidential information are involved

If the Commission is found to have relied in the contested decision on inculpatory documents that were not in the investigation file and were not disclosed to the applicant, those documents should be excluded as evidence.

(see paras 33-35, 65)

2. In the administrative procedure in competition matters, where documents which might have contained exculpatory evidence are contained in the Commission’s investigation file, any finding of an infringement of the rights of the defence is unconnected with the manner in which the undertaking concerned conducted itself during the administrative procedure and with the question whether that undertaking was obliged to ask the Commission for access to its file or have it send particular documents to it.

By contrast, where documents which might have contained exculpatory evidence are not in the Commission’s investigation file, the undertaking concerned must expressly ask the institution for access to those documents, and failure to do so during the administrative procedure will mean that its right in that respect is barred in any action for annulment which may be brought against the final decision.

(see paras 36-37, 42, 79)

3. Where the Commission expressly states in its statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and it also indicates the main factual and legal criteria capable of giving rise to the imposition of a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was committed intentionally or negligently, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary means to defend themselves not only against the finding of an infringement but also against the imposition of fines.

(see para. 50)

4. So far as the setting of the amount of the fines imposed for infringement of the competition rules is concerned, the rights of defence of the undertakings in question are guaranteed before the Commission by virtue of the fact that they have the opportunity to make submissions on the duration, the gravity and the foreseeability of the anti-competitive nature of the infringement. Moreover, undertakings have an additional guarantee, as regards the setting of the amount of the fine, in that the Court of First Instance has, pursuant to Article 17 of Regulation No 17, unlimited jurisdiction within the meaning of Article 229 EC in proceedings brought against decisions in which the Commission has fixed the amount of a fine and may, accordingly, cancel, reduce or increase the fine imposed. In the exercise of its unlimited jurisdiction, the Court must consider whether the amount of the fine imposed is proportionate to the gravity and duration of the infringement and must weigh the seriousness of the infringement with the circumstances invoked by the undertaking.

(see paras 51, 136)

5. The mere fact that the Commission has found in its previous decisions that certain factors did not constitute an aggravating circumstance for the purpose of determining the amount of the fine does not mean that it is obliged to do so also in a subsequent decision. Moreover, the opportunity afforded to an undertaking in another case to make known its views on the intention to make a finding of repeated infringement on its part does not mean that the Commission is obliged to do the same in all cases, or that, where such an opportunity is not afforded, the undertaking concerned is prevented from fully exercising its right to be heard.

(see paras 57, 153, 395)

6. There is no general duty on the part of the Commission to draw up minutes of discussions which it has had, in the course of the application of the Treaty’s competition rules, with some only of the participants in an infringement in meetings held with them.

However, the absence of such an obligation does not mean that the Commission is relieved of the obligations incumbent on it as regards access to the file. The practice of using information provided orally by third parties cannot be permitted to infringe the rights of the defence. Thus, if the Commission intends to use in its decision inculpatory evidence provided orally by another party it must make it available to the undertaking concerned so as to enable the latter to comment effectively on the conclusions reached by the Commission on the basis of that evidence. Where necessary, it must create a written document to be placed in the file.

(see paras 66-67)

7. The Court of First Instance has jurisdiction in two respects over actions contesting Commission decisions imposing fines on undertakings for infringement of the competition rules. First, under Article 230 EC, it has the task of reviewing their legality. In that context, it must in particular review compliance with the duty to state reasons laid down in Article 253 EC, infringement of which renders a decision liable to annulment. Secondly, the Court has power to assess, in the exercise of the unlimited jurisdiction accorded to it by Article 229 EC and Article 17 of Regulation No 17, the appropriateness of the amounts of fines. That assessment may justify the production and taking into account of additional information which the duty to state reasons laid down under Article 253 EC does not as such require to be set out in the contested decision.

(see para. 95)

8. The scope of the duty to state reasons as it applies to the setting of a fine imposed for infringement of the Community competition rules falls to be fixed having regard to the terms of the second subparagraph of Article 15(2) of Regulation No 17, which states that ‘in fixing the amount of the fine, regard shall be had both to the gravity and the duration of the infringement’. The essential procedural requirement to state 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. Furthermore, 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 the Notice on cooperation in cartel cases, indicate what factors the Commission is to take into consideration in measuring the gravity and duration of an infringement. That being so, the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which it took into account in accordance with the Guidelines and, where appropriate, the Leniency Notice and which enabled it to determine the gravity of the infringement and its duration for the purpose of calculating the amount of the fine.

(see para. 97)

9. For the purposes of applying Article 81(1) EC, the reason for defining the relevant market is to determine whether an agreement is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market. Consequently, there is an obligation on the Commission to define the market in a decision applying Article 81(1) EC only where it is impossible, without such a definition, to determine whether the agreement, decision by an association of undertakings or concerted practice at issue is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market.

(see para. 99)

10. In the context of Regulation No 17, the Commission possesses a wide margin of discretion when setting fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules.

The fact that in the past the Commission applied fines of a certain level to certain types of infringement does not mean that it is estopped from raising that level, within the limits set out in Regulation No 17, if that is necessary in order to ensure the implementation of Community competition policy. On the contrary, the proper application of the Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy.

(see paras 134-135, 154, 395, 407, 415)

11. Given that the Commission has adopted 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 are consistent with the Treaty and are designed to specify the criteria which it intends to apply in the exercise of its discretion, it has limited that discretion in that it must comply with the guidelines which it has imposed upon itself. In determining the gravity of infringements once guidelines are adopted, the Commission is thus obliged to take into account, amongst other factors, the matters referred to in those guidelines, save where it specifically sets out the reasons justifying, should the case arise, its departure from them in a specific area.

(see para. 138)

12. The Commission indicated 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 that horizontal restrictions such as price cartels and market-sharing quotas or other practices which jeopardise the proper functioning of the single market will more often than not be classified as very serious infringements. It follows from that indicative description that agreements or concerted practices involving in particular price-fixing and customer-sharing may be classified in that way on the basis of their nature alone, without it being necessary for such conduct to have a particular impact or cover a particular geographic area. That conclusion is supported by the fact that, while the indicative description of the types of infringement liable to be considered as serious mentions that they comprise infringements of the same type as those defined as minor ‘but more rigorously applied, with a wider market impact, and with effects in extensive areas of the common market’, the description of very serious infringements makes, by contrast, no mention of a requirement that there be an impact or that there be effects in a particular geographic area.

(see paras 150-151)

13. The criteria for assessing the gravity of an infringement may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed, the size and economic power of the undertaking and, consequently, the influence which it was able to exert on the market. It follows that, on the one hand, it is permissible, for the purpose of fixing a fine, to have regard both to the overall turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. On the other hand, it is important not to confer on one or other of those figures an importance which is disproportionate in relation to other factors and the fixing of an appropriate fine cannot be the result of a simple calculation based on overall turnover.

(see paras 158, 367)

14. Once it has been established that an undertaking has taken part in meetings between undertakings having a manifestly anti-competitive nature, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. Failing such evidence of distancing, it may be concluded from participation in those meetings that the undertaking is participating in the cartel which results from them, even if it does not actively do so. In addition, the fact that an undertaking does not abide by the outcome of those meetings is not such as to relieve it of full responsibility for the fact that it participated in the cartel. Lastly, an undertaking which has participated in such meetings cannot rely on the fact that it did so under pressure from other participants which may have had greater economic power. It could have complained to the competent authorities about the pressure brought to bear on it and lodged a complaint with the Commission under Article 3 of Regulation No 17 rather than participating in the activities in question.

(see paras 164, 245, 423)

15. The taking into account of the deterrent effect of fines imposed for infringements of the competition rules forms an integral part of the weighting of fines to reflect the gravity of the infringement, since the purpose of doing so is to ensure that a calculation method does not lead to fines which, for certain undertakings, would not be sufficiently high to ensure that the fine had a sufficiently deterrent effect.

(see para. 170)

16. The principle non bis in idem, enshrined also in Article 4 of Protocol No 7 to the European Convention on Human Rights, is a general principle of Community law which will be upheld by the Community judicature.

In the field of Community competition law, that principle prohibits an undertaking being punished or having proceedings brought against it by the Commission on a second occasion in relation to anti-competitive conduct in respect of which a penalty has been imposed on it or for which it has been declared not to be liable by an earlier decision of the Commission which is no longer capable of being appealed against. The application of the principle non bis in idem is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected.

(see paras 184-185)

17. The gravity of an infringement of the competition rules does not depend only on its geographic extent and on the proportion which the sales covered by the infringement bears to sales made in the whole of the European Union. Irrespective of those criteria, the absolute value of the sales in question is also a relevant indication of the gravity of the infringement, since it is an accurate reflection of the economic importance of the transactions which the infringement seeks to remove from the normal interplay of competition.

(see para. 191)

18. As regards proof of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. Any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine.

It is necessary for the Commission to produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place.

However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement.

(see paras 215, 217-218)

19. The principle of the presumption of innocence resulting in particular from Article 6(2) of the European Convention on Human Rights is one of the fundamental rights which, according to the settled case-law of the Court of Justice, reaffirmed in the Preamble to the Single European Act, by Article 6(2) of the Treaty on European Union and by Article 47 of the Charter of Fundamental Rights of the European Union, are protected in the Community legal order. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments.

(see para. 216)

20. Where an infringement has been committed by several undertakings, it is appropriate, when setting the amount of the fines, to consider the relative gravity of the participation of each of them, which implies in particular that the roles played by each of them in the infringement for the duration of their participation in it should be established.

That conclusion follows logically from the principle that penalties must fit the offence, according to which an undertaking may be penalised only for acts imputed to it individually. That principle applies in any administrative procedure that may lead to the imposition of sanctions under Community competition law.

(see paras 277-278)

21. The fact that an undertaking which is a member of a cartel forces another member of that cartel to extend its scope by threatening that member with reprisals if it does not cooperate may represent an aggravating circumstance. Such conduct has the direct effect of aggravating the damage caused by the cartel and an undertaking which conducts itself in that way must bear a special responsibility.

(see para. 281)

22. There is no provision or any general principle of Community law which prevents the Commission from relying, as against an undertaking, on statements made by other accused undertakings. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 82 EC, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the EC Treaty. However, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence. Where the cartel comprises only two parties, it is sufficient for one of them to challenge the material contained in the statement of the other for other evidence to be required in support of it. That applies particularly to a statement which seeks to attenuate the responsibility of the undertaking in whose name it was made by emphasising the responsibility of another undertaking.

Furthermore, as regards a document which establishes that a threat was made by one undertaking to another and the probative value of which is contested by the former, it is necessary, in order to assess the probative value of such a document, to have regard first and foremost to the credibility of the account it contains. Regard should be had in particular to the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears sound and reliable.

(see paras 285-286)

23. Under the method laid down 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, fines continue to be set according to the two criteria referred to in Article 15(2) of Regulation No 17, namely the gravity of the infringement and its duration, and the maximum percentage of turnover of each undertaking as laid down in that provision is observed.

Consequently, the Guidelines cannot be regarded as going beyond the legal framework relating to penalties set out in that provision.

(see paras 343-344)

24. In assessing the seriousness of an infringement for the purpose of setting the fine, the Commission must take into consideration not only the particular circumstances of the case but also the context in which the infringement occurred and must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the Community.

In that respect, the analysis of the gravity of the infringement must take account of any repeated infringements. In the context of deterrence, repeated infringements are a matter which justifies a significant increase in the basic amount of the fine. It is evidence that the sanction previously imposed was not sufficiently deterrent.

Furthermore, although repeated infringement relates to a characteristic specific to the perpetrator of the infringement, namely its propensity to commit such infringements, it is precisely, for that very reason, a very significant indication of the gravity of the conduct in question and, accordingly, of the need to increase the level of the penalty in order to achieve effective deterrence.

The concept of repeated infringement, as understood in certain national legal systems, implies that a person has committed new infringements after having been penalised for similar infringements.

However, bearing in mind the objective it pursues, the concept of repeated infringement does not necessarily imply that a fine has been imposed in the past, but merely that a finding of infringement has been made in the past. Repeated infringement is taken into account, for a particular infringement, so that a more severe penalty may be imposed on the undertaking responsible for the relevant facts when it transpires that a previous finding of infringement on its part has not been sufficient to prevent the repetition of unlawful conduct. It is not the previous imposition of a fine that determines that conduct constitutes repeated infringement, which is determinative of recidivism, but the fact that a previous finding of infringement has been made against the person concerned.

(see paras 347-349, 362-363)

25. A limitation period can fulfil its function of ensuring legal certainty, and its infringement can constitute a breach of the principle of legal certainty, only if the period has been fixed in advance. Such a period is not specified, as regards a finding that an undertaking has committed repeated offences, under either Article 15 of Regulation No 17, which constitutes the legal framework for the penalties which may be imposed by the Commission for an infringement of the Community competition rules, or by 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.

(see paras 352-353)

26. The attenuating circumstances referred to in Section 3 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 are based on the individual conduct of each undertaking.

It follows that in order to assess any attenuating circumstances, including that relating to the non-implementation of agreements, it is necessary to take into account not the effects arising from the infringement as a whole, which must be taken into consideration in assessing the actual impact of an infringement on the market for the purposes of determining its gravity (first paragraph of Section 1.A of the Guidelines), but the individual conduct of each undertaking, for the purposes of examining the relative gravity of the participation of each undertaking in the infringement.

(see paras 383-384)

27. The absence of measures to monitor the implementation of a cartel does not, of itself, constitute a mitigating factor.

(see para. 393)

28. The Commission is not required, when determining the amount of the fine for infringement of the Community competition rules, to take account of an undertaking’s financial losses, since recognition of such an obligation would have the effect of conferring an unfair competitive advantage on the undertakings least well adapted to the conditions of the market.

(see para. 413)

29. A reduction of the fine on grounds of cooperation during the administrative procedure is justified only if the conduct of the undertaking concerned enabled the Commission to ascertain the infringement more easily and, if appropriate, to put an end to it.

In that regard, the cooperation of an undertaking in the investigation gives no entitlement to a reduction in a fine when that cooperation did not go further than that which it was required to provide under Article 11(4) and (5) of Regulation No 17. By contrast, where the undertaking provides information in response to a request for information under Article 11 of Regulation No 17 which is well in excess of that which the Commission may require it to provide under that article, the undertaking concerned may benefit from a reduction in the fine.

Similarly, where, in the course of the Commission’s investigation of a cartel, an undertaking makes available to it information concerning acts for which it could not in any event have been required to pay a fine under Regulation No 17, that does not amount to cooperation falling within the scope of the Notice on cooperation in cartel cases or, a fortiori, Section D thereof.

(see paras 449, 451-452, 471)

30. In appraising the cooperation shown by undertakings during the administrative procedure initiated in respect of a prohibited cartel, the Commission is not entitled to disregard the principle of equal treatment, a general principle of Community law which is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference of treatment is objectively justified.

In that regard, the appraisal of the extent of the cooperation shown by undertakings cannot depend on purely random factors. A difference in the treatment of the undertakings concerned must therefore be capable of being ascribed to differences in the degree of cooperation provided, particularly where different information was provided or that information was supplied at different stages in the administrative procedure or in dissimilar circumstances.

It is also the case that where an undertaking providing cooperation does no more than confirm, in a less precise and explicit manner, certain information already provided by another undertaking by way of cooperation, the extent of the cooperation provided by the former undertaking, while possibly of some benefit to the Commission, cannot be treated as comparable to that provided by the undertaking which was the first to supply that information. A statement which merely corroborates to a certain degree a statement which the Commission already had at its disposal does not facilitate the Commission’s task significantly and therefore sufficiently to justify a reduction in the fine for cooperation.

(see paras 453-455)

31. If it is to benefit from a reduction of the fine by reason of the absence of a challenge to the facts, pursuant to the second indent of Section D.2 of the Notice, on cooperation in cartel cases, an undertaking must expressly inform the Commission that it has no intention of substantially contesting the facts, after perusing the statement of objections.

However, it is not sufficient for an undertaking to state in general terms that it does not contest the facts alleged for the purposes of the Leniency Notice if, in the circumstances of the case, that statement is not of any help to the Commission at all. In order for an undertaking to benefit from a reduction of the fine for its cooperation during the administrative procedure, its conduct must facilitate the Commission’s task of identifying and penalising infringements of the Community competition rules.

(see paras 504-505)





JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

25 October 2005( )

(Competition – Cartels – Fines – Guidelines on the method of setting fines – Leniency Notice)

In Case T‑38/02,

Groupe Danone, established in Paris (France), represented by A. Winckler and M. Waha, lawyers,

applicant,

v

Commission of the European Communities, represented by A. Bouquet and W. Wils, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for annulment of Commission Decision 2003/569/EC of 5 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case IV/37.614/F3 PO/Interbrew and Alken-Maes) (OJ 2003 L 200, p. 1), and, in the alternative, for a reduction in the fine imposed on the applicant by Article 2 of that decision,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of M. Vilaras, President, E. Martins Ribeiro and K. Jürimäe, Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 8 December 2004,

gives the following

Judgment

Legal framework

1 Article 15(2) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-62, p. 87), provides:

‘The Commission may by decision impose on undertakings or associations of undertakings fines of from [EUR] 1 000 to [EUR] 1 000 000, or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement where, either intentionally or negligently:

a) they infringe Article [81](1) or Article [82] of the Treaty; or

b) they commit a breach of any of the obligations imposed pursuant to Article 8(1) [of the regulation].

In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

2 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 (OJ 1998 C 9, p. 3) (‘the Guidelines’) lay down a method for determining the amount of such fines, ‘which start[s] from a basic amount that will be increased to take account of aggravating circumstances or reduced to take account of attenuating circumstances’ (second introductory paragraph of the Guidelines). According to the Guidelines, ‘the basic amount will be determined according to the gravity and duration of the infringement, which are the only criteria referred to in Article 15(2) of Regulation No 17’ (Section 1 of the Guidelines).

3 The Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the Leniency Notice’) ‘sets out the conditions under which [undertakings] cooperating with the Commission during its investigation into a cartel may be exempted from fines, or may be granted reductions in the fine which would otherwise have been imposed upon them’ (Section A.3 of the notice).

4 Section D of the Leniency Notice is worded as follows:

‘D. Significant reduction in a fine

1. Where an [undertaking] cooperates without having met all the conditions set out in Sections B or C, it will benefit from a reduction of 10% to 50% of the fine that would have been imposed if it had not cooperated.

2. Such cases may include the following:

– before a statement of objections is sent, an [undertaking] provides the Commission with information, documents or other evidence which materially contribute to establishing the existence of the infringement;

– after receiving a statement of objections, an [undertaking] informs the Commission that it does not substantially contest the facts on which the Commission bases its allegations.’

Facts

5 At the time when the facts took place, Interbrew NV (‘Interbrew’) and Brouwerijen Alken-Maes NV (‘Alken-Maes’) were the largest and the second-largest suppliers on the Belgian beer market. Alken-Maes was a subsidiary of Group Danone SA (‘the applicant’), which also operated on the French beer market through another subsidiary, Brasseries Kronenbourg SA (‘Kronenbourg’). In 2000, the applicant ceased its activities on the beer market.

6 In 1999, the Commission initiated an investigation under Case IV/37.614/F3 into possible infringements of the Community competition rules in the Belgian brewing sector.

7 On 29 September 2000, in the context of that investigation, the Commission initiated the procedure and adopted a statement of objections against the applicant and also Interbrew, Alken-Maes, NV Brouwerij Haacht (‘Haacht’) and NV Brouwerij Martens (‘Martens’). The procedure initiated against the applicant and the statement of objections addressed to it related solely to its alleged involvement in the cartel referred to as ‘Interbrew/Alken-Maes’ concerning the Belgian beer market.

8 On 5 December 2001, the Commission adopted Decision 2003/569/EC relating to a proceeding under Article 81 of the EC Treaty (Case IV/37.614/F3 PO/Interbrew and Alken-Maes) (OJ 2003 L 200, p. 1), addressed to the applicant and also to Interbrew, Alken-Maes, Haacht and Martens (‘the contested decision’).

9 The contested decision finds two separate infringements of the competition rules, namely, first, a complex set of agreements and/or concerted practices in respect of beer sold in Belgium (‘the Interbrew/Alken-Maes Cartel’) and, secondly, concerted practices in respect of private-label beer. The contested decision finds that Interbrew and Alken-Maes participated in the first infringement, while Interbrew, Alken-Maes, Haacht and Martens participated in the second.

10 Although the applicant was, at the material time, the parent company of Alken-Maes, the contested decision makes only one finding of infringement on its part. In the light of its active involvement in the Interbrew/Alken-Maes Cartel, the applicant was held responsible both for its own involvement in the cartel and for that of Alken-Maes. By contrast, the Commission considered that there was no reason to attribute responsibility to the applicant for the participation of its subsidiary in the concerted practice relating to private-label beer, since the applicant was not itself involved in that cartel.

11 The infringement found to have been committed by the applicant consists in its participation, both directly and through its subsidiary Alken-Maes, in a complex set of agreements and/or concerted practices relating to a general non-aggression pact, prices and promotions in the off-trade, customer sharing in the on-trade, including ‘national’ customers, the restriction of investment and advertising in the on-trade, a new pricing structure for the on-trade and the off-trade, and the exchange of information about sales in both the on-trade and the off‑trade.

12 The contested decision finds that the infringement took place over the period from 28 January 1993 to 28 January 1998.

13 Being of the view that a series of factors enabled it to conclude that the infringement had ceased, the Commission did not deem it necessary to require the undertakings concerned to bring the infringement to an end pursuant to Article 3 of Regulation No 17.

14 However, the Commission considered it appropriate, pursuant to Article 15(2) of Regulation No 17, to impose a fine on Interbrew and the applicant for their participation in the Interbrew/Alken-Maes Cartel.

15 In that regard, the Commission held in the contested decision that all the participants in the Interbrew/Alken-Maes Cartel had committed the infringement intentionally.

16 For the purpose of setting the fines to be imposed, the Commission applied in the contested decision the method laid down in the Guidelines and the Leniency Notice decision.

17 The operative part of the contested decision is worded as follows:

‘Article 1

[Interbrew], [Alken-Maes] and [the applicant] have infringed Article 81(1) [EC] by taking part in a complex set of agreements and/or concerted practices relating to a general non-aggression pact, prices and promotions in the off-trade, customer sharing in the on-trade (both the “traditional” sector and national customers), the restriction of investment and advertising in the on-trade, a new pricing structure for the on-trade and the off-trade, and the exchange of information about sales in both the on-trade and the off‑trade during the period from 28 January 1993 to 28 January 1998.

Article 2

The following fines are hereby imposed on [Interbrew] and [the applicant] in respect of the infringements found in Article 1:

a) on [Interbrew]: a fine of EUR 45.675 million;

b) on [the applicant]: a fine of EUR 44.043 million.

…’

Procedure and forms of order sought

18 By application lodged at the Registry of the Court of First Instance on 22 February 2002, the applicant brought the present action.

19 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Fifth Chamber) decided to open the oral procedure. Pursuant to Article 64 of its Rules of Procedure, the Court requested the parties to produce certain documents and to answer a number of written questions. The parties complied with those requests within the prescribed period.

20 By letter of 30 November 2004, the applicant requested the Court, first, to place on the file the Commission Decision of 29 September 2004 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/C.37750/B2 – Brasseries Kronenbourg, Brasseries Heineken), notified under number C (2004) 3597 final (‘the Kronenbourg/Heineken Decision’), and, secondly, by way of measures of organisation of procedure under Article 64(4) of the Rules of Procedure, to invite the Commission to indicate, before or at the hearing, the results of its investigation into possible abuses of Interbrew’s dominant position on the Belgian beer market.

21 By decision of 3 December 2004, the Court, first, added to the file the letter referred to above and informed the Commission that it would be invited at the hearing to put forward its observations on the applicant’s request that the Kronenbourg/Heineken Decision be added to the file. Secondly, it rejected the application for a measure of organisation of procedure directing the Commission to indicate the results of its investigation into possible abuses of Interbrew’s dominant position on the Belgian beer market.

22 The parties presented oral argument and their answers to the questions put by the Court at the hearing on 8 December 2004. The Commission stated at the hearing that it did not object to the applicant’s request that the Kronenbourg/Heineken Decision be added to the file, which was done by decision of the Court.

23 The applicant claims that the Court should:

– annul the contested decision in accordance with Article 230 EC or, in the alternative, reduce the fine imposed by Article 2 of that decision in accordance with Article 229 EC;

– order the Commission to pay the costs.

24 The Commission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

Law

25 In support of its application, the applicant raises eight pleas in law. Two pleas, which are raised as primary pleas, seek annulment of the contested decision and allege infringement of the rights of the defence and the principle of sound administration (first plea) and infringement of the obligation to state reasons (second plea). Six other pleas, raised in the alternative, seek a reduction in the amount of the fine. They allege: incorrect assessment of the gravity of the infringement for the purpose of setting the starting amount of the fine, in breach of the principles of proportionality, equal treatment and non bis in idem (third plea); incorrect assessment of the duration of the infringement (fourth plea); lack of basis for the finding that the pressure put on Interbrew constituted an aggravating circumstance (fifth plea); lack of basis for the taking account of the applicant’s repeated infringements as an aggravating circumstance against it (sixth plea), failure to take sufficient account of the applicable attenuating circumstances (seventh plea) and an incorrect assessment of the extent of the cooperation provided by the applicant, in breach of the principle of equal treatment and the Leniency Notice (eighth plea).

A – The heads of claim seeking annulment of the contested decision

1. The plea alleging infringement of the rights of the defence and the principle of sound administration

26 The plea is divided into three parts. In the first part, the applicant submits that it was not given an opportunity to enquire into the circumstances in which a document used against it by the Commission was drawn up. In the second part, it states that, prior to the adoption of the contested decision, the Commission refused to inform it of the matters taken into account in setting the amount of the fine. Lastly, in the third part, the applicant submits that the fact that no records were kept of meetings between the Commission and Interbrew and the Commission’s refusal to send it Interbrew’s response to the statement of objections constitute not only an infringement of the rights of the defence but also an infringement of the principle of sound administration.

a) The first part, alleging that the applicant was not given an opportunity to enquire into the circumstances in which a document used against it by the Commission was drawn up

Arguments of the parties

27 The applicant maintains that the contested decision should be annulled on the ground that it was not given the opportunity to comment on and challenge a passage in a document a copy of which was originally taken by the Commission at the premises of Heineken NV (‘Heineken’) in the context of an investigation into a related matter in the Netherlands (‘the Heineken Document’). The Commission invoked that document in recital 55 to the contested decision in support of its finding that the applicant had put pressure on Interbrew by threatening it with reprisals on the French market in order to force it to widen the scope of the cartel. The other items taken into account in support of that finding, which are referred to in recital 54 to the contested decision, consist solely of unilateral statements by Interbrew.

28 The applicant acknowledges that the Heineken Document is referred to in the statement of objections and that it read that document when it was given access to the file. In the contested decision, however, the Commission merely referred to the place where and the circumstances in which the Heineken Document was obtained, treating that document as reliable without further formalities, and failed to give the applicant an opportunity to investigate the circumstances in which it had been prepared.

29 Thus, since they are not included in the file, the applicant did not have access to the letters or internal memoranda which preceded or followed that document. No material connected with that document which might have been obtained during the investigation in the Netherlands was placed on the file, despite the applicant having requested that this be done. Nor were any observations made by Heineken and Interbrew regarding the implications of the document placed on the file. Furthermore, the correspondence between the Commission and Heineken regarding the confidential nature of the Heineken Document, which the Commission did disclose, provided no new information and did not demonstrate that the Commission itself had the material which it needed in order to interpret the document.

30 The applicant puts forward two alternative complaints in that regard. Either the material needed to interpret the document existed and was not on the file, in which case the applicant was not given proper access to the file, in breach of the rights of the defence, or that material did not exist, in which case it was for the Commission, under its duty to investigate all matters favourable to the applicant too, to ascertain the credibility of the information contained in the Heineken Document by seeking to determine the circumstances in which it had been drawn up.

31 The applicant submits that, in any event, if it had been aware of the identity of the author of the Heineken Document and of the circumstances in which it was drawn up, the outcome of the administrative procedure might well have been different, as it might have been in a position to establish that the document was not authentic or that it was inaccurate. Were that to have been the case, Interbrew’s individual statements would not have been sufficient to prove the alleged pressure put on that company. There was therefore an infringement of the rights of the defence, according to the case-law of the Court of First Instance (Joined Cases T‑25/95, T‑26/95, T-30/95, T-31/95, T-32/95, T‑34/95, T-35/95, T-36/95, T‑37/95, T-38/95, T-39/95, T-42/95, T‑43/95, T-44/95, T-45/95, T‑46/95, T-48/95, T-50/95, T-51/95, T‑52/95, T‑53/95, T-54/95, T‑55/95, T-56/95, T-57/95, T-58/95, T‑59/95, T‑60/95, T-61/95, T‑62/95, T-63/95, T-64/95, T-65/95, T‑68/95, T‑69/95, T-70/95, T‑71/95, T-87/95, T-88/95, T-103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491 (‘Cement’), paragraph 247).

32 The Commission observes that the applicant had access to the Heineken Document and was fully able to assess the ‘circumstances’ in which it was drawn up and that it never claimed during that administrative procedure that there had been an infringement of the rights of the defence. In any event, the Heineken Document is not the only evidence of the threat made by the applicant against Interbrew.

B – Findings of the Court

33 According to settled case-law, the right of access to the file in competition cases is intended, in particular, to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission’s file so that, on the basis of that evidence, they can express their views effectively on the conclusions reached by the Commission in its statement of objections (see 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 334 and the case-law cited). Access to the file is thus one of the procedural safeguards intended to protect the rights of the defence and to ensure, in particular, that the right to be heard can be exercised effectively (see Atlantic Container Line and Others, paragraph 334 and the case-law cited).

34 The Commission is thus under a duty to make available to the undertakings involved in proceedings under Article 81(1) EC all documents, whether in their favour or otherwise, which it has obtained during the course of the investigation, save where the business secrets of other undertakings, the internal documents of the institution or other confidential information are involved (see Atlantic Container Line v Commission, paragraph 33 above, paragraph 335 and the case-law cited).

35 If the Commission is found to have relied in the contested decision on inculpatory documents that were not in the investigation file and were not disclosed to the applicant, those documents should be excluded as evidence (see, to that effect, Case 107/82 AEG v Commission [1983] ECR 3151, paragraphs 24 to 30; Cement, paragraph 31 above, paragraph 382; and Atlantic Container Line and Others v Commission, paragraph 33 above, paragraph 338).

36 As regards the documents which might have contained exculpatory evidence, where those documents are contained in the Commission’s investigation file, any finding of an infringement of the rights of the defence is unconnected with the manner in which the undertaking concerned conducted itself during the administrative procedure and with the question whether that undertaking was obliged to ask the Commission for access to its file or have it send particular documents to it (Case T-30/91 Solvay v Commission [1995] ECR II-1775, paragraph 96, and Atlantic Container Line and Others v Commission, paragraph 33 above, paragraph 340).

37 By contrast, where the documents which might have contained exculpatory evidence are not in the Commission’s investigation file, the applicant must expressly ask the institution for access to those documents, and failure to do so during the administrative procedure will mean that its right in that respect is barred in any action for annulment which may be brought against the final decision (Cement, paragraph 31 above, paragraph 383, and Atlantic Container Line and Others v Commission, paragraph 33 above, paragraph 340).

38 It is in the light of those principles that the Court must determine whether the applicant’s claims are well founded.

39 The first point to note is that there is no dispute that the Heineken Document originally came into the Commission’s possession in the course of an investigation carried out by it under Article 14(3) of Regulation No 17 in the premises of Heineken in the Netherlands on 22 and 23 March 2000, in a different case from the present one. The Commission subsequently demanded, on 14 April 2000, in the administrative procedure relating to the present case and by means of a request for information under Article 11 of Regulation No 17, that Heineken send it a fresh copy of the document, which was placed on the file.

40 It should also be noted that the applicant acknowledges that the Heineken Document is referred to in the statement of objections and that it read it when it had access to the file during the administrative procedure. As regards that particular document, the applicant was therefore actually able to exercise its right to be heard.

41 However, the applicant maintains that it was not given access to any letters or internal memoranda which might have preceded or followed the drawing-up of the Heineken Document and which might have contained exculpatory evidence.

42 The applicant’s claim that the Commission failed to disclose such letters or internal memoranda in its possession cannot be accepted. According to settled case-law, the applicant may rely on an infringement of the rights of the defence only if it submitted to the Commission during the administrative procedure an express request for access to the documents in question (see paragraph 37 above).

43 The applicant made no such request. First, in its response to the statement of objections, the applicant merely asserted in relation to the Heineken Document that ‘the probative value of that document appears doubtful [and that] there is nothing in the [statement of objections] or in the document which allows the applicant to establish the author or to examine the circumstances in which it was written’. That assertion cannot be regarded as an express request for access to the letters or internal memoranda in question. Moreover, when questioned on that point by the Court at the hearing, the applicant confirmed that its request for access to the file during the administrative procedure was a general one. Secondly, in its letters of 24 and 28 January 2002, the applicant merely makes, in very general terms and without any express reference to the documents in question, a second request for access to the file, which in any event was made after the administrative procedure had been closed.

44 As regards the applicant’s claim that, if the Commission was not in possession of any letter or internal memorandum which preceded or followed the drawing-up of the Heineken Document, it was in breach of its duty of impartiality since it failed to investigate whether the contents of that document were true, it is sufficient to observe that that claim has no bearing on the problematic of the rights of the defence. The applicant is in effect asking the Court to determine whether the Commission established to the requisite standard what it intended to prove by means, inter alia, of the Heineken Document and whether, to the extent that that document was essential for such proof, the truth of the words reported in it is sufficiently established. The applicant is thus calling into question the probative value of the Heineken Document, an issue which is irrelevant to the consideration of the present plea alleging infringement of the rights of the defence (see, to that effect, Case T-37/91 ICI v Commission [1995] II-1901, paragraph 72) and which will be analysed in paragraphs 260, 261, 271 to 273 and 284 to 290 below.

45 The first part of the plea must accordingly be rejected.

b)The second part, alleging that, prior to the adoption of the contested decision, the Commission refused to inform the applicant of the matters taken into account in setting the amount of the fine

Arguments of the parties

46 The applicant alleges an infringement of the rights of the defence on the ground that at no time did the Commission give it the opportunity to be aware of or to express views on the matters the latter proposed to take into account in setting the amount of the fine. In the statement of objections, the Commission simply summarised in a few lines the method set out in the Guidelines and the statement of objections contained nothing to enable the applicant to foresee the particularly unfavourable treatment which the Commission had in store for it and that it would consequently receive unequal treatment by comparison with Interbrew.

47 In particular, there was nothing in the statement of objections to indicate to the applicant that the Commission intended to rely on the fact that this constituted a repeated infringement by the applicant, while that aggravating circumstance has been applied only intermittently in the Commission’s decision-taking practice. Thus, in 2001, the Commission made findings of re-infringement against a number of undertakings but did not invoke that aggravating circumstance when setting the amount of the fine. That was the case with F. Hoffmann-La Roche AG (‘Hoffmann‑La Roche’) in Commission Decision 2003/2/EC of 21 November 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E‑1/37.512 – Vitamins) (OJ 2003 L 6, p. 1) (‘the Vitamins Decision’), and Commission Decision 2002/742/EC of 5 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E‑1/36.604 – Citric acid) (OJ 2002 L 239, p. 18) (‘the Citric Acid Decision’), and, although it was the addressee of the decision under another name, with Stora Kopparbergs Bergslags AB (‘Stora’) in the case which gave rise to Commission Decision 2004/337/EC of 20 December 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E‑1/36.212 – Carbonless paper) (OJ 2004 L 115, p. 1) (‘the Carbonless Paper Decision’), or again with Volkswagen AG (‘Volkswagen’) in Commission Decision 2001/711/EC of 29 June 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/F‑2/36.693 – Volkswagen) (OJ 2001 L 262 p. 14) (‘the Volkswagen II Decision’). The applicant maintains that there is no justification for such a difference in treatment.

48 The failure to give such an indication was all the more damaging since, in the case which culminated in Commission Decision 2002/405/EC of 20 June 2001 relating to a proceeding under Article 82 of the EC Treaty (COMP/E-2/36.041/PO – Michelin) (OJ 2002 L 143, p. 1) (‘the Michelin II Decision’), where the Commission also established a repeated infringement as an aggravating circumstance, the undertaking concerned was given an opportunity to submit arguments on that point prior to the adoption of the decision.

49 The Commission contends that it has a discretion in setting the amount of a fine and that it set out in the statement of objections all the matters which it proposed to take into account for that purpose, including those necessary to comply with the requirement to state reasons. Furthermore, it was not required to indicate its intention to take into account the aggravating circumstance of a repeated infringement. In any event, the applicant could not fail to be aware that the Guidelines expressly refer to repeated infringement as an aggravating circumstance or that it had already been held to have committed an infringement on two previous occasions.

Findings of the Court

50 It is settled case-law that where the Commission expressly states in its statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and it also indicates the main factual and legal criteria capable of giving rise to the imposition of a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was committed intentionally or negligently, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary means to defend themselves not only against the finding of an infringement but also against the imposition of fines (Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 21, and Case T-31/99 ABB Asea Brown Boveri v Commission [2002] ECR II-1881, paragraph 78).

51 So far as the setting of the amount of the fines is concerned, the rights of defence of the undertakings in question are guaranteed before the Commission by virtue of the fact that they have the opportunity to make submissions on the duration, the gravity and the foreseeability of the anti-competitive nature of the infringement. Moreover, undertakings have an additional guarantee, as regards the setting of the amount of the fine, in that the Court of First Instance has unlimited jurisdiction and may in particular cancel or reduce the fine pursuant to Article 17 of Regulation No 17 (Case T‑83/91 Tetra Pak v Commission [1994] ECR II-755, paragraph 235, and, to that effect, ABB Asea Brown Boveri v Commission, paragraph 50 above, paragraph 79).

52 In the present case, it must be held, in the first place, that the Commission stated in point 213 of the statement of objections that its intention, in the light of the facts, was to impose fines on the undertakings to which the statement was addressed, including the applicant. In point 214 of the statement of objections, the Commission added that, in determining the amount of the fines to be imposed, it was required to take into account all the circumstances of the case and, in particular, the gravity and the duration of the infringement. Furthermore, the Commission stated in point 216 of the statement that, among the facts set out in the statement of objections, it would pay particular attention to the fact that the agreements in question constituted a deliberate infringement of Article 81(1) EC.

53 The Commission also indicated in point 216 that the market-sharing and price-fixing agreements described in the statement of objections constituted by their very nature the most serious type of infringement of Article 81(1) EC. In point 215 of the statement of objections, it stated that in assessing the gravity of the infringement it would take account of its nature, its actual impact on the market, where that could be measured, and the size of the relevant geographic market. It also indicated in point 216 of the statement of objections that it would determine the role of each undertaking in the infringement by taking account, inter alia, of the role played by each of them in the secret agreements in question and the duration of their participation in the infringement.

54 The Commission also stated in point 217 of the statement of objections that the amount of the fine to be imposed on each undertaking would reflect any aggravating or attenuating circumstances, and that it would apply, where relevant, the Leniency Notice. Lastly, the Commission indicated in point 218 that it proposed to set the amount of the fines at a sufficiently high level to ensure that they had a deterrent effect.

55 It follows from the foregoing that, in accordance with the case-law referred to above, the Commission expressly indicated in the statement of objections (points 213 to 218) that it intended to impose fines on the undertakings to which the statement was addressed and the factual and legal matters which it would take into account in setting the fine that would be imposed on the applicant, so that its right to be heard was therefore observed in that regard.

56 In the second place, with more particular regard to the aggravating circumstance of repeated infringement that was found in the applicant’s case, it must be observed that the Guidelines cite repeated infringement of the same type by the same undertaking as an example of an aggravating circumstance and also that the Commission indicated in the statement of objections that it would take account of the individual role played by each undertaking in the secret agreements in question and that the amount of the fine would reflect any aggravating or attenuating circumstances. The applicant could not therefore fail to be aware that the Commission would take that aggravating circumstance into account if it were to conclude that conditions for its application were satisfied.

57 In the third place, as regards more specifically the argument that the applicant suffered discriminatory treatment by comparison with other undertakings which had committed repeated infringements and which had not had that aggravating circumstance taken into account against them, it must be pointed out that the mere fact that the Commission has found in its previous decisions that certain factors did not constitute an aggravating circumstance for the purpose of determining the amount of the fine does not mean that it is obliged to do so also in a subsequent decision (see, inter alia, by way of analogy, Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 357; Case T‑347/94 Mayr-Melnhof v Commission [1998] ECR II-1751, paragraph 368; and Case T-23/99 LR AF 1998 v Commission [2002] ECR II-1705, paragraphs 234 and 337). Moreover, as the considerations set out in paragraph 56 above make clear, the opportunity afforded to an undertaking in another case to make known its views on the intention to make a finding of repeated infringement on its part does not mean that the Commission is obliged to do the same in all cases, or that, where such an opportunity is not afforded, the applicant is prevented from fully exercising its right to be heard.

58 In those circumstances, the second part of the plea must be rejected.

b) The third part, based on the fact that no record was kept of meetings between the Commission and Interbrew and the Commission’s refusal to send the applicant a copy of Interbrew’s response to the statement of objections

Arguments of the parties

59 The applicant claims, first, that neither the statement of objections nor the contested decision contains detailed information which would enable it to determine what was discussed at and the scope of the meetings between the Commission’s staff and representatives of Interbrew referred to in recital 34 of the contested decision. Nor was any minute of those meetings, which were not drawn to the applicant’s attention before the adoption of the contested decision in this case, placed on the Commission’s file. Secondly, in refusing, by letter of 7 February 2002, to grant the applicant access to Interbrew’s response to the statement of objections, the Commission infringed its rights of defence and the principle of sound administration.

60 The applicant maintains, in the first place, that it was not given the opportunity of checking and, if appropriate, challenging any statements made by Interbrew at those meetings, which may nevertheless have had a significant influence on the Commission’s assessment of the facts at issue and of the cooperation provided by the undertakings under investigation.

61 In that regard, the applicant submits in particular that the Commission displayed a generally favourable attitude towards Interbrew, in contrast to the severity shown to the applicant. Thus, the absence of any reference during the procedure to the dominant position held by Interbrew, which was none the less at the origin of the investigation, may be explained in the light of the matters discussed at the informal meetings in question. Furthermore, there is no support in the file for the reference in the contested decision to a telephone conversation between Mr L.B. (Alken-Maes) and Mr A.B. (Interbrew) on 9 December 1996. The same is true of the summary of an internal meeting at Interbrew on 5 May 1994, where the Chief Executive Officer (‘CEO’) of Interbrew (Mr M.) described a scenario allegedly demanded by the applicant, under which Interbrew was to transfer 500 000 hectolitres of beer to Alken-Maes.

62 The applicant claims, in the second place, that it did not have access to Interbrew’s response to the statement of objections, as access was refused by the Commission. By letters of 24 and 28 January 2002, the applicant again expressly requested the Commission to provide it with fresh access to the file, in particular access to Interbrew’s response to the statement of objections, which the Commission refused by letter of 7 February 2002.

63 The Commission contends that the applicant was aware that the informal meetings had taken place and that during the administrative procedure it never requested access to any minutes of those meetings, which, moreover, do not exist and which in any event would have served no purpose. All the factual information contained in the contested decision is based on the documents in the file, to which the applicant has never denied having had access. As regards the request for access to documents made under Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), it was withdrawn.

Findings of the Court

64 With respect, in the first place, to the informal meetings with the parties, it should be noted that neither the applicant nor the Commission denies in its written pleadings that no minutes were taken of those meetings. This part of the first plea relating to those meetings thus amounts to a contention that observance by the Commission of the right of access to the file in competition cases requires that it draw up minutes of such meetings and make them available to the parties.

65 It should be borne in mind in that regard that the case-law paragraphs 33 and 34 above establishes that the right of access to the file in competition cases is intended to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission’s file so that the right to be heard can be effectively exercised. Thus, the Commission has an obligation to make available to the undertakings involved all documents, whether in their favour or otherwise, which it has obtained during the investigation, with the exception of the business secrets of other undertakings, the internal documents of the Commission or other confidential information.

66 It is also clear from case-law that there is by contrast no general duty on the part of the Commission to draw up minutes of discussions in meetings with the other parties which take place in the course of the application of the Treaty’s competition rules (see, to that effect, Atlantic Container Line and Others v Commission, paragraph 33 above, paragraph 351).

67 However, the absence of such an obligation does not mean that the Commission is relieved of the obligations incumbent on it as regards access to the file. The practice of using information provided orally by third parties cannot be permitted to infringe the rights of the defence. Thus, if the Commission intends to use in its decision inculpatory evidence provided orally by another party it must make it available to the undertaking concerned so as to enable the latter to comment effectively on the conclusions reached by the Commission on the basis of that evidence. Where necessary, it must create a written document to be placed in the file (see, to that effect, Atlantic Container Line and Others v Commission, paragraph 33 above, paragraph 352).

68 In the present case, with the exception of two specific allegations, the applicant’s arguments merely consist in generally asserting, first, that the informal meetings may have had a significant influence on the assessment of the facts and of the cooperation provided by the undertakings under investigation, secondly, that the Commission adopted a generally favourable attitude towards Interbrew during the procedure, in contrast to the severity with which the contested decision treats the applicant and, lastly, that if the information provided at the informal meetings was helpful to Interbrew, it could not fail to affect the applicant’s position.

69 Those general arguments, which do not explain how the inculpatory evidence relied on by the Commission in the contested decision is based on information provided at the informal meetings, are not of such a kind as to establish that there was, in fact, an infringement of the rights of the defence, which is a question to be examined in the light of the circumstances of each particular case (see, to that effect, Solvay v Commission, paragraph 36 above, paragraph 60). As was stated in paragraph 33 above, the right of access to the file in competition cases is recognised solely so that the undertakings concerned can express their views effectively on the conclusions reached by the Commission in its statement of objections. Since the applicant has not, apart from the two specific allegations considered below, identified any objection taken into account in the statement of objections and subsequently in the contested decision which was based on evidence provided orally at the informal meetings and to which it did not have access, it cannot maintain that the Commission infringed the rights of the defence on that point (see, to that effect, Atlantic Container Line and Others v Commission, paragraph 33 above, paragraphs 353 and 354).

70 As regards the two specific allegations mentioned above, according to which the references in the contested decision to a telephone conversation of 9 December 1996 and the discussions that took place at an internal meeting of 5 May 1994 could only be based on discussions that took place during informal meetings, it is necessary to consider whether the facts in question are based on specific information in the file.

71 With respect, first of all, to the telephone conversation of 9 December 1996, referred to in recital 91 of the contested decision, it must be noted that point 93 of the statement of objections states that ‘following a meeting which [took place] on 19 September, Mr L.B. (Alken-Maes) [had] a telephone conversation on 9 December 1996 with Mr A.B. (Interbrew)’. Those words are accompanied by footnote 116, which indicates: ‘Letter from Alken-Maes of 7 March 2000, and especially Annexes 42 and 44 to that letter ([pp.] 7884, 8513 and 8528 to 8530 [of the Commission’s file]), with references to the following documents: inspection at the offices of Alken-Maes, document AvW19 ([pp.] 150 to 153 [of the Commission’s file]) and document MV17 ([pp.] 532 to 541 [of the Commission’s file])’. The same references appear in the contested decision, in footnote 123, corresponding to recital 91.

72 In answer to a written question from the Court asking it to specify the factors which led it to conclude that a telephone conversation took place on 9 December 1996 relating to Interbrew’s prices between Mr L.B. (Alken-Maes) and Mr A.B. (Interbrew), the Commission stated that it reached that conclusion on the basis of p. 8513 of the Commission’s file, which comprises the last page of Annex 42 to Alken-Maes’s letter to the Commission of 7 March 2000.

73 Examination of that document, which consists of handwritten notes by Mr L.B. (Alken-Maes), shows that, although no telephone conversation of 9 December 1996 is referred to in it, it does however include several annotations, plainly added after it was originally prepared, which appear to represent replies to questions, drawn up at the outset, relating to Interbrew’s pricing conditions. Three of those annotations include the date ‘(9/12/96)’ and two of them the abbreviation ‘IB’ (Interbrew), one also including the initials of Mr A.B. (Interbrew).

74 Accordingly, it must first be held that the statement of objections does indeed refer to there having been contact on 9 December 1996 between Interbrew and Alken-Maes relating to Alken-Maes’s pricing conditions and that the contact to which the Commission refers is supported by a document which, as it was included in the file, was accessible to the applicant, since its former subsidiary Alken-Maes itself supplied it to the Commission. Whether or not the contact took place by telephone is irrelevant as regards the right to be heard, since, although it is unfortunate that the Commission’s assertion on that point is not supported, the applicant’s right to be heard arises in relation to the question whether contact took place and not whether or not such contact took the form of a telephone conversation, a matter which is of no relevance to the determination of whether or not it constituted an infringement.

75 As regards, next, the statement in recital 53 of the contested decision that the ‘scenario’ described by Interbrew’s CEO at an internal meeting of 5 May 1994 was ‘requested by Danone/Kronenbourg’, that is to say that ‘Interbrew was to transfer 500 000 hectolitres to Alken-Maes, essentially in the off-trade’, it must be held that point 55 of the statement of objections states that ‘at an internal discussion within Interbrew, [Mr M.] described the following scenario, corresponding to Danone/Kronenbourg’s request. Interbrew was to transfer 500 000 hectolitres to Alken-Maes (essentially in the off-trade)’ and that if ‘Interbrew did not comply with that request, Interbrew France would be annihilated in France with Heineken’s assistance, and an attack would be mounted on Interbrew in Belgium by means of very low prices’. Point 56, which follows, states that ‘the scenario put forward by Kronenbourg [was] examined at an internal meeting of Interbrew on 5 May 1994’. Point 55 of the statement of objections is accompanied by footnotes 35 and 36, which refer to a letter from Interbrew of 28 February 2000 and Annex 18 to that letter (p. 7683 of the Commission’s file). The same document references are given in the contested decision, in recital 53.

76 It must be noted in that regard that Annex 18 to Interbrew’s letter of 28 February 2000, which consists in a statement by Mr C. of Interbrew, contains, on p. 2 of that statement, the following comment:

‘During an internal meeting (held on 5 May 1994), [Mr M.] described to us the scenario requested by Kronenbourg. Essentially, KRO was using blackmail to persuade ITW to transfer 500 000 [hectolitres] to AM (especially in the off-sales sector). Otherwise, they would annihilate ITW-France with Heineken’s assistance and an attack would be mounted on ITW-Belgium by means of very low prices.’

77 It is therefore plain that the statement set out in recital 53 of the contested decision and points 55 and 56 of the statement of objections essentially amounts to a repetition of information provided by Interbrew in writing, which is contained in the file and was, accordingly, available to the applicant. The applicant cannot therefore claim with respect to the statement referred to in recital 53 of the contested decision that it was unable effectively to exercise its right to be heard.

78 It follows from the foregoing, first, that the statements allegedly made at informal meetings with Interbrew were set out in the statement of objections and, secondly, that, in so far as they were necessary for the purpose of establishing an infringement of Article 81(1) EC, they had their basis in documents to which the applicant had access. It must therefore be held that the applicant had the opportunity of stating its position in relation to those statements and that its right to be heard was observed.

79 With respect, in the second place, to the argument that, in breach of its rights of defence, the applicant was refused access to documents placed on the file after it had access to the file on 5 October 2002, including, in particular, Interbrew’s response to the statement of objections in so far as it might have contained evidence favourable to the applicant, it is sufficient to observe that the request for access to documents added to the file was made by letters of 24 and 28 January 2002, after the administrative procedure had been closed. A failure to make such a request during the administrative procedure will mean that an applicant’s right to do so in any subsequent action for annulment is barred (see, to that effect, Cement, paragraph 31 above, paragraph 383). That argument must accordingly be rejected.

80 As regards the application for access made on 4 March 2002 under Regulation No 1049/2001, it is sufficient to observe that Article 7(2) of that regulation states that ‘in the event of a total or partial refusal, the applicant may, within 15 working days of receiving the institution’s reply, make a confirmatory application asking the institution to reconsider its position’. Following the Commission’s refusal of 26 March 2002 to consent to the applicant’s request for access, it must be held that, by failing to make a confirmatory application within the prescribed period, the applicant withdrew its request of 4 March 2002, as it accepted at the hearing in answer to a question from the Court.

81 It follows that the third part of the plea must be rejected, as, accordingly, must the plea in its entirety.

2. The plea alleging infringement of the obligation to state reasons

a) Arguments of the parties

82 The applicant argues that the contested decision is inadequately reasoned in that, first, it contains no definition of the relevant markets, which is a necessary precondition for any assessment of anti-competitive conduct and, secondly, that, in setting the amount of the fine, it does no more than refer to the Guidelines, without indicating the precise impact of the criteria used in determining the amount of the fine imposed on it.

83 Thus, in the first place, the contested decision is inadequately reasoned in that, contrary to what the Court’s case-law requires (Joined Cases T‑68/89, T‑77/89 and T-78/89 SIV and Others v Commission [1992] ECR II-1403 ‘Flat Glass’, paragraph 159), it is not founded on an adequate definition of the market relevant to the case, but only on a finding that a ‘Belgian beer market’ existed. The Commission erred in failing to carry out an analysis of the precise geographic extent of the market or markets in question and of the potential substitutability of the various beer products. The use by the Commission in its defence of the expression ‘Belgian brewing industry’ in place of that of ‘Belgian beer market’ does not address the applicant’s complaint that in the present case the definition of the market was one and the same as the definition of the infringement. The geographic markets referred to, namely the Belgian and French markets, are defined in an insufficiently documented manner in the contested decision.

84 Furthermore, the Commission took into account factual information relating to the French market without considering it necessary to analyse its significance against the yardstick of the actual characteristics of that market. In particular, the Commission relied on the argument of a threat of reprisals on the French market, allegedly made by the applicant to Interbrew, whereas the existence of such anti-competitive conduct can be established only when a certain power on a properly-defined market has been found.

85 In the present case, the Commission took the view that the relevance of some of the material used in support of the finding of infringement in the contested decision, including the meeting of 11 May 1994, the telephone conversation of 6 July 1994 and the meeting of 17 April 1997 was not limited to Belgium. Furthermore, the interrelationship between France and Belgium and the similarity of the conduct in both countries were, in the Commission’s view, important elements of the infringement, particularly as regards the alleged threat.

86 In that regard, the Commission’s decision to deal separately with conduct which displays similarities differs from its customary practice of making findings of more than one infringement in a single decision where there is a connection between them owing to the identity of the parties to the cartel, the similarity of the mechanisms used by the cartel in different countries or the interrelationship between different territories or products (see, for example, Commission Decision 96/478/EC of 10 January 1996 relating to a proceeding under Article 85 of the EC Treaty (IV/34.279/F3 – ADALAT) (OJ 1996 L 201 p. 1) (‘the ADALAT Decision’), and the Vitamins and Carbonless Paper Decisions).

87 The adoption of several decisions places the applicant in a position of legal uncertainty and has the effect that the Commission, by the repeated application of starting amounts and possibly weightings, can artificially inflate the total amount of the fines imposed in respect of a given set of facts, without the undertakings in question having had the opportunity of knowing why the activities were treated separately and why they constituted separate infringements.

88 In the second place, the contested decision is also inadequately reasoned as regards the calculation of the fine. In referring, in recital 294 of the contested decision, simply to the method set out in the Guidelines, when their purpose is to ‘ensure the transparency and impartiality of the Commission’s decisions, in the eyes of the undertakings and of the Court of Justice alike’, the Commission failed to fulfil its obligation to state adequate reasons and infringed the principle of legal certainty.

89 As the basis of determining the amount of the fine consists in taking a figure as a starting point and applying adjustments to it, it is essential that the Commission sets out in sufficient detail the full significance of the criteria used in setting the fine in order to satisfy the objective of the obligation to state reasons, namely to allow the applicant to assess whether the fine has been set in a manner which is both consistent and lawful in order to defend its rights, to allow the Court of First Instance and the Court of Justice to exercise their power of review and to allow any party concerned to be aware of the manner in which the Commission applied the EC Treaty.

90 In the present case, notwithstanding the fact that the Commission is not tied to an arithmetical formula, the contested decision sets out neither the detail of the calculation of the fine imposed nor the precise significance of each of the criteria used in determining its amount. Thus, contrary to the procedure followed in other cartel decisions, such as the Vitamins and Carbonless Paper Decisions, the arbitrary selection of a fixed amount of EUR 25 million and the reasons underlying the attempt to ensure that the fine had a deterrent effect, invoked in recital 305 of the contested decision, are not supported by quantified criteria. The absence of an adequate definition of the relevant market also demonstrates the lack of sufficient reasoning in the calculation of the fine, as the Guidelines provide that the starting amount is to be fixed having regard to the size of the relevant geographic market, the impact of the cartel on that market and the turnover achieved there.

91 In particular, in respect of the two aggravating circumstances found against the applicant, namely the fact that it put pressure on Interbrew and the fact that its conduct constituted a repeated infringement, the Commission applied only a single percentage increase of 50%, without indicating the extent to which each relevant aggravating circumstance gave rise to it. The absence of detailed information regarding the respective importance of the criteria used in setting the amount of the fine did not allow the applicant to assess the proportions in which the fine imposed should be reduced.

92 Furthermore, that absence of clear and relevant information is all the more inexcusable since the Commission acknowledges the existence of documents prepared by its staff for internal consultation and discussion regarding the calculation of the fine and no access to those documents was provided. That suggests that the Commission took account in the contested decision of information other than that which was available to the applicant, but made no reference to it in the decision.

93 More specifically, the applicant maintains that the Commission failed to provide adequate reasons for applying the aggravating circumstance of repeated infringement to the applicant. That failure to state proper reasons is particularly prejudicial to the applicant inasmuch as the Commission does not systematically increase the amount of the fine on that ground, but has shown evidence in its past decisions of some hesitation as to the role and importance to be attributed to it in the determination of the fine, and the adoption of the Guidelines has not been sufficient to remove the consequent uncertainty.

94 The Commission disputes the applicant’s arguments.

b) Findings of the Court

95 The Court of First Instance has jurisdiction in two respects over actions contesting Commission decisions imposing fines on undertakings for infringement of the competition rules. First, under Article 230 EC, it has the task of reviewing their legality. In that context, it must in particular review compliance with the duty to state reasons laid down in Article 253 EC, infringement of which renders a decision liable to annulment. Secondly, the Court has power to assess, in the exercise of the unlimited jurisdiction accorded to it by Article 229 EC and Article 17 of Regulation No 17, the appropriateness of the amounts of fines. That assessment may justify the production and taking into account of additional information which the duty to state reasons laid down under Article 253 EC does not as such require to be set out in the contested decision (Case C‑248/98 P KNP BT v Commission [2000] ECR I-9641, paragraphs 38 to 40, and Case T‑220/00 Cheil Jedang v Commission [2003] ECR II-2473, paragraph 215).

96 As regards the review of compliance with the duty to state reasons, it is settled case-law that the statement of reasons required by Article 253 EC must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19; Case C-56/93 Commission v Belgium [1996] ECR I-723, paragraph 86; Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63; and Cheil Jedang v Commission, paragraph 95 above, paragraph 216).

97 As regards the scope of the duty to state reasons as it applies to the setting of a fine imposed for infringement of the Community competition rules, it should be noted, first, that such a fine falls to be fixed having regard to the terms of the second subparagraph of Article 15(2) of Regulation No 17, which states that ‘in fixing the amount of the fine, regard shall be had both to the gravity and the duration of the infringement’. The essential procedural requirement to state 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 (Case C-291/98 P Sarrió v Commission [2000] ECR I‑9991, paragraph 73, and Joined Cases C-238/99 P, C-244/99 P, C‑245/99 P, C-247/99 P, C-250/99 P to C‑252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 463). Secondly, the Guidelines and the Leniency Notice indicate what factors the Commission is to take into consideration in measuring the gravity and duration of an infringement (Cheil Jedang v Commission, paragraph 95 above, paragraph 217). That being so, the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which it took into account in accordance with the Guidelines and, where appropriate, the Leniency Notice and which enabled it to determine the gravity of the infringement and its duration for the purpose of calculating the amount of the fine (Cheil Jedang v Commission, paragraph 95 above, paragraph 218).

98 In the present case, the Commission has satisfied those requirements.

99 As regards, in the first place, the complaint alleging the absence of a prior definition of the relevant market by the Commission, it must be held that the Commission was, in the circumstances, under no duty to define the relevant market. It is clear from case-law that, for the purposes of applying Article 81 EC, the reason for defining the relevant market is to determine whether an agreement is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market (Case T-29/92 SPO and Others v Commission [1995] ECR II-289, paragraph 74; Cement, paragraph 31 above, paragraph 1093; and Case T-62/98 Volkswagen v Commission [2000] ECR II-2707, paragraph 230). Consequently, there is an obligati