Case T-50/00

Dalmine SpA

v

Commission of the European Communities

‛Competition — Agreements, decisions and concerted practices — Markets for seamless steel pipes and tubes — Duration of the infringement — Fines’

Judgment of the Court of First Instance (Second Chamber), 8 July 2004 II-2405

Summary of the Judgment

Procedure — Proof — Burden of proof — Transfer from the applicant to the defendant in a particular case — Inability of the Commission to state the date of expiry of an agreement with a nonmember State concluded by the Commission

Competition — Agreements, decisions and concerted practices — Assessment of compatibility with the common market — Independent but connected markets affected by two separate but connected infiingements — Finding of those infringements in a single decision of the Commission — Whether permitted

Competition — Agreements, decisions and concerted practices — Participation in meetings of undertakings having an anticompetitive object — Circumstance 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

Competition — Administrative procedure — Rights of the defence — Statement of objections referring to a document not annexed thereto — No infringement of the rights of the defence where access to the document is provided before the expiry of the period prescribed for replying to the statement of objections

Competition — Administrative procedure — Request for information — Rights of the defence — Right to refuse to provide an answer implying recognition of the existence of an infringement — Request for information — Voluntary reply of the undertaking entailing recognition of an infringement — No infringement of the rights of the defence

An undertaking in receipt of a request for information pursuant to Article 11(5) of Regulation No 17 is recognised as having a right to silence only to the extent that it is compelled to provide answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove, or face a periodic penalty payment. On the other hand, undertakings are under no obligation to provide answers pursuant to that rule following a simple request for information under Article 11 (1) of Regulation No 17 and they cannot therefore claim that their right not to incriminate themselves has been infringed when they voluntarily replied to such a request. (see paras 45, 46)

In order to allow the undertakings and associations of undertakings in question to defend themselves effectively against the objections raised against them in the statement of objections, the Commission has an obligation to make available to them the entire investigation file, except for documents containing business secrets of other undertakings, other confidential information and internal documents of the Commission. However, the fact that a document is referred to in a statement of objections without being annexed thereto does not, in principle, constitute an infringement of the rights of the defence provided that the addressees have access to that document before they are required to reply to the statement of objections. (see paras 59, 60)

The prevailing principle of Community law is the unfettered evaluation of evidence and the sole criterion relevant in that evaluation is the reliability of the evidence. Moreover, it may be necessary for the Commission to protect the anonymity of its informants and that fact alone cannot require the Commission to set aside evidence in its possession. Consequently, whilst an applicant's arguments concerning the fact that the Commission has not disclosed the identity of a document used against the applicant, or its origin, may be relevant in evaluating the reliability and, therefore, the probative value of that item, it should not be regarded as inadmissible evidence which should be removed from the file. (see paras 72, 73)

At the stage of the procedure involving the application of the competition rules at which the Commission requests information from undertakings which it suspects have participated in an infringement, it is under no obligation to inform them of the evidence already in its possession. The communication of that information might prejudice the effectiveness of the Commission's investigation in that it would enable the undertakings in question to identify what information was already known to the Commission and therefore what information could still be concealed from it. More generally, there is no right under Community law to be informed of the state of the administrative procedure before the statement of objections is formally issued. (see paras 83, 110)

The lawfulness of the transmission to a national authority by the Commission of information obtained pursuant to Regulation No 17 and the lawfulness of the prohibition on the direct use of that information as evidence by that national authority are matters for Community law. On the other hand, the lawfulness of the transmission to the Commission by a national prosecutor or the authorities competent in competition matters of information obtained in application of national criminal law and its subsequent use by the Commission are in principle questions covered by the national law governing the conduct of investigations by those national authorities and also, in the case of court proceedings, by the jurisdiction of the national courts. In an action brought under Article 230 EC, the Community judicature has no jurisdiction to rule on the lawfulness, as a matter of national law, of a measure adopted by a national authority. (see paras 85, 86)

There is no rule of law which enables the addressee of a decision to challenge some of the grounds of that decision by way of an action for annulment under Article 230 EC unless those grounds produce binding legal effects such as to affect that person's interests. The grounds of a decision are not in principle capable of producing such effects. For that reason, the complaints directed against grounds of a Commission decision included purely for the sake of completeness must be rejected outright since they cannot lead to the contested decision's being annulled. (see paras 134, 146)

The Commission is not required, in order to establish an infringement of Article 81 EC, to demonstrate an adverse effect on competition when it has established the existence of an agreement or concerted practice having as its object the restriction of competition. (see paras 147, 151)

For a decision, agreement or practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability and on the basis of objective factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States. It follows that there is no need for the Commission to show that trade has actually been so affected but that actual or potential effect must not be insignificant. In that regard, an agreement the object of which is, by respecting domestic markets, to share national markets within the Community necessarily has the potential effect of reducing the volume of trade between Member States, which would be realised if the agreement was implemented. (see paras 156, 157)

Where an undertaking takes part in meetings between undertakings which have an anticompetitive object without publicly distancing itself from what occurred at them, thereby giving the impression to the other participants that it is participating in the cartel resulting from those meetings and that it will comply with it, it may be considered to have participated in the cartel in question. (see para. 162)

Conduct which forms part of an overall plan pursuing a common anticompetitive objective can be regarded as constituting a single agreement. If the Commission shows that, where an undertaking has participated in cartels, it knew or ought to have known that in doing so it was a party to a single agreement, its participation in the cartels concerned may constitute the expression of its accession to that agreement. (see para. 214)

There is no rule of Community law which says that the Commission cannot make a finding of two separate infringements of Article 81(1) EC in the same decision. The relevant economic situations may be complex so that two independent but connected markets may be affected by two infringements which it is logical to sanction in the same decision because those infringements themselves are separate but connected. (see para. 235)

The amount of the fine imposed on an undertaking for an infringement of the competition rules must be proportionate to the infringement as a whole and, in particular, to the gravity of that infringement. Regard must be had, in order to assess that gravity, to a large number of factors, the nature and importance of which vary according to the type of infringement in question and the particular circumstances of the case. (see para. 259)

Whilst the Commission enjoys a margin of discretion when fixing the amount of fines, it may not depart from rules which it has imposed on itself. Thus, the Commission must take account of the terms of the Guidelines on the method of setting fines when fixing the amount of the fines, in particular of the mandatory provisions therein. (see paras 261, 325)

Given the wording of the sixth paragraph of point 1 A 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, it must be held that the Commission has retained a certain margin of discretion as to whether it is appropriate to weight the fines according to the size of each undertaking. Thus, in determining the amount of the fines, the Commission is not required, where fines are imposed on several undertakings involved in the same infringement, to ensure that the final amount of the fines reflects the difference in overall turnover of the undertakings concerned. (see para. 283)

The fact that an undertaking which has been proved to have participated in collusion to share markets with its competitors did not behave on the market in the manner agreed with its competitors is not necessarily a matter which must be taken into account as an attenuating circumstance when determining the amount of the fine to be imposed. The second indent of point 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 must therefore be interpreted as meaning that the Commission is required to find that failure to implement a cartel constitutes an attenuating circumstance only if the undertaking which relies on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel to the point of disrupting its very operation and that it did not give the appearance of complying with the agreement and thereby incite other undertakings to implement the cartel in question. (see paras 291, 292)

Although, in general terms, an applicant cannot shift the burden of proof to the defendant by relying on circumstances which it was not in a position to prove, the concept of burden of proof cannot, where the Commission decided not to make a finding of infringement of the competition rules in respect of the period during which voluntary restraint agreements concluded between a nonmember country and the Community, represented by the Commission, were in force, be applied to the Commission's advantage in the present case as regards the date on which the international agreements which the applicant concluded came to an end. The Commission's inexplicable inability to adduce evidence relating to a circumstance which is of direct concern to it deprives the Court of the possibility of adjudicating with all the facts before it as regards that date of expiry and it would be contrary to the principle of the sound administration of justice to require that the consequences of that inability on the Commission's part be borne by the undertakings to which the contested decision was addressed, which, unlike the Commission, are not in a position to provide the missing evidence. (see paras 307-309)

In joined cases where all the parlies have had the opportunity to consult all the files, the Court may of its own motion take account of the evidence in the files in the parallel cases. (see para. 310)

Although the circumstances in the list at point 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 certainly among those which may be taken into account by the Commission in a specific case, the latter, in view of the wording of point 3, is not required to grant a further reduction as a matter of course when an undertaking puts forward evidence of the existence of one of those circumstances. Whether it is appropriate to grant a reduction of the fine on grounds of attenuating circumstances must be determined on the basis of a global assessment which takes account of all the relevant circumstances. (see para. 325)

The ‘termination of the infringement as soon as the Commission intervenes’, as stated in point 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, can logically constitute an attenuating circumstance only if there are reasons to suppose that the undertakings concerned were encouraged to cease their anticompetitive conduct by the interventions in question. It appears that the purpose of that provision is to encourage undertakings to terminate their anticompetitive conduct immediately when the Commission launches an investigation into it. The fine cannot be reduced on that basis where the infringement has already come to an end before the date on which the Commission first intervenes or where the undertakings concerned have already taken a firm decision to put an end to it before that date. (see paras 328, 329)