Judgment of the General Court (Third Chamber) of 27 June 2012 —

Berning & Söhne v Commission



(Case T-445/07)

Competition — Agreements, decisions and concerted practices — Markets in zip fasteners and ‘other fasteners’ and attaching machines — Decision finding an infringement of Article 81 EC — Coordinated price increases, fixing of minimum prices, sharing of customers and of markets and exchange of other business information — Proof — Rights of the defence — Single and continuing infringement — Time-bar — Fines — Duration and gravity of the infringement — Mitigating circumstances — Equal treatment — Proportionality

1. Proceedings — Measures of inquiry — Hearing of witnesses — Discretion of the General Court (Rules of Procedure of the General Court, Art. 68) (see paras 37, 38)

2. Competition — Administrative procedure — Statement of objections — Necessary content — Commission decision finding an infringement — Decision not identical to the statement of objections — Infringement of the rights of the defence — Condition (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(1)) (see paras 47-50)

3. Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Undertakings that may be held responsible for participating in an overall cartel — Criteria (Art. 81(1) EC) (see paras 69-72)

4. Competition — Administrative procedure — Time-limit with regard to proceedings — Interruption — Commission’s decision to inspect — Scope (Council Regulation No 1/2003, Art. 25(3) and (4)) (see paras 104, 105)

5. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the duration of the infringement on the Commission — Extent of the burden of proof (Arts 81 EC and 82 EC) (see paras 107, 109, 110)

6. Agreements, decisions and concerted practices — Participation in meetings having an anti-competitive object — Circumstances from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel — Conduct deviating from that agreed within the cartel — Not relevant (Art. 81(1) EC) (see paras 113-118, 130-134)

7. Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation (Arts 81 EC and 82 EC) (see paras 125-129)

8. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Probative value of voluntary depositions made by the main participants in a cartel with a view to benefiting from the Leniency Notice (Art. 81(1) EC; Commission Notices 96/C 207/04 and 2002/C 45/03) (see paras 135, 136, 167, 168)

9. Competition — Fines — Amount — Determination — Criteria — Commission's margin of discretion — Judicial review — Scope (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03) (see paras 202-206)

10. Competition — Fines — Amount — Determination — Criteria — Gravity and duration of the infringement — Matters to be assessed (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03) (see paras 207, 208, 210)

11. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Passive or ‘follow-my-leader’ role of the undertaking — Criteria for assessment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03, Section 3, first indent) (see paras 216, 217, 219)

Re:

APPLICATION for annulment of Commission Decision C(2007) 4257 final of 19 September 2007 relating to a proceeding under Article 81 [EC] (Case COMP/39.168 — PO/Hard Haberdashery: Fasteners) or, in the alternative, reduction of the amount of the fine imposed on the applicant by that decision.

Operative part

The Court:

1. Dismisses the action;