Judgment of the Court (Second Chamber) of 5 December 2013 — Solvay v Commission

(Case C‑455/11 P)

‛Appeals — Agreements, decisions and concerted practices — European market for hydrogen peroxide and sodium perborate — Decision finding an infringement of Article 81 EC — Duration of the infringement — Concepts of ‘agreement’ and ‘concerted practice’ — Leniency Notice — Obligation to state reasons — Reduction of the fine’

1. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the findings of fact — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 25, 26)

2. Agreements, decisions and concerted practices — Concerted practice — Definition — Exchange of information under a cartel agreement or with a view to setting up a cartel (Art. 81(1) EC) (see paras 36-40)

3. Agreements, decisions and concerted practices — Concerted practice — Definition — Need for a causal link between the concerted action and the conduct of the undertakings on the market — Presumption that the causal link exists — Burden of reversing that presumption on the undertaking concerned — Evidence (Art. 81(1) EC) (see paras 42-44)

4. Agreements, decisions and concerted practices — Concerted practice — Definition — Anti‑competitive object or effect — Criteria for assessment — The same criteria to be applied to an agreement, decision or concerted practice — Consequences as to the evidence required (Art. 81(1) EC) (see para. 53)

5. Competition — Fines — Amount — Determination — Legal context — Guidelines adopted by the Commission — Commission Notice on immunity from fines and reduction of the amount of such fines in return for cooperation of the undertakings concerned — Discretion of the Commission — Judicial review — Scope (Art. 261 TFEU; Council Regulation No 1/2003, Art. 31; Commission Communications 98/C 9/03 and 2002/C 45/03) (see paras 64-66)

6. Competition — Fines — Amount — Determination — Principle of equal treatment — Commission’s decision-making practice — Indicative nature (Art. 81 EC; Council Regulation No 1/2003) (see paras 77, 78)

7. Acts of the institutions — Statement of reasons — Obligation — Scope (Art. 296 TFEU) (see paras 89-91)

8. Competition — Fines — Amount — Determination — Criteria — Assessment of the degree of cooperation provided by each of the undertakings during the administrative procedure — Observance of the principle of equal treatment (Council Regulation No 1/2003, Art. 23; Commission Communication 2002/C 45/03, points 21 and 23, b), first and second paras) (see paras 104, 105)

Re:

Appeal against the judgment of the General Court (Sixth Chamber, Extended Composition) of 16 June 2011 in Case T‑186/06 Solvay v European Commission by which the General Court upheld in part an action for (i) partial annulment of Commission Decision 2006/903/EC of 3 May 2006 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen Peroxide and perborate) (OJ 2006 L 353, p. 54), concerning a complex of agreements and concerted practices consisting in exchanges of information on prices and sales volumes, agreements on prices and on the reduction of production capacities in the EEA, and in the monitoring of the implementation of those agreements in the European market for hydrogen peroxide and sodium perborate, and (ii) annulment or a reduction of the fine imposed on the appellant — Concepts of ‘agreement’ and ‘concerted practice’

Operative part

The Court:

1. Dismisses the main appeal and the cross-appeal;

2. Orders Solvay SA to pay the costs of the main appeal;