Keywords

Summary



Keywords

1 Competition - Fines - Amount - Determination thereof - Turnover figure taken into account - Reference year - Last complete year of the infringement

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

2 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Financial situation of the undertaking concerned - Excluded

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

3 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Setting up of an effective programme for compliance with the Community competition rules - Commission obliged to abide by its previous decision-making practice - No such obligation

(Council Regulation No 17, Art. 15)

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

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

Summary

1 When determining the amount of individual fines to impose on several undertakings for infringement of the Community competition rules, the Commission is entitled to take into account the turnover achieved by each of the undertakings concerned on the market in question during the last complete year of the period of the infringement found. The taking into account of the turnover achieved by each undertaking during that reference year enables the Commission to assess the size and economic power of each undertaking in the sector concerned and the scale of the infringement committed by each of them, those aspects being relevant for an assessment of the gravity of the infringement committed by each undertaking.

Furthermore, to the extent to which reliance is to be placed on the turnover of the undertakings involved in the same infringement for the purpose of determining the proportions between the fines to be imposed, the period to be taken into consideration must be ascertained in such a way that the resulting turnovers are as comparable as possible. Consequently, an individual undertaking cannot compel the Commission to rely, in its case, upon a period different from that generally used, unless it proves that, for reasons peculiar to it, its turnover in the latter period does not reflect its true size and economic power or the scale of the infringement which it committed.

2 When determining the amount of the fine to impose for infringement of the Community competition rules, the Commission is not obliged to take into account, by way of a mitigating circumstance, the loss-making situation of the undertaking concerned. Recognition of such an obligation would be tantamount to conferring an unjustified competitive advantage on the undertakings least well adapted to the conditions of the market.

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

Although the implementation of a programme for compliance with the Community competition rules demonstrates the intention of the undertaking in question to prevent future infringements and thus better enables the Commission to accomplish its task of applying the principles laid down by the Treaty in competition matters and of influencing undertakings in that direction, the mere fact that in certain of its previous decisions the Commission has taken the implementation of a compliance programme into consideration as a mitigating factor does not mean that it is obliged to act in the same manner in a particular case.

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

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

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

The Commission cannot be criticised for not having expressly indicated in the decision the reasons for its view that it need not take into consideration the alleged mitigating circumstances upon which the undertakings concerned relied. Although Article 190 of the Treaty requires the Commission to mention the facts forming the basis of the decision and the considerations which have led it to adopt the decision, it does not require the Commission to discuss all the points of fact and of law dealt with during the administrative procedure.

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

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