Case T‑418/10

voestalpine AG

and

voestalpine Wire Rod Austria GmbH

v

European Commission

‛Competition — Agreements, decisions and concerted practices — European market for prestressing steel — Price fixing, market sharing and the exchange of commercially sensitive information — Single, complex and continuous infringement — Agency agreement — Imputability to the principal of the unlawful conduct of the agent — Lack of awareness by the principal of the unlawful conduct of the agent — Participant in a component of the infringement and awareness of the overall plan — 2006 Guidelines on the method of setting fines — Proportionality — Principle that penalties must fit the individual offender — Unlimited jurisdiction’

Summary — Judgment of the General Court (Sixth Chamber), 15 July 2015

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 — Irrelevant — Compliance by the Commission with procedural guarantees — Judicial review

Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Imputation of responsibility to an undertaking for the whole of the infringement notwithstanding its limited role — Lawfulness — Account taken when assessing the gravity of the infringement and determining the amount of the fine

Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Degree of precision required of the evidence used by the Commission — Body of evidence — Judicial review — Scope — Decision leaving a doubt in the mind of the court — Compliance with the principle of the presumption of innocence

See the text of the decision. (see paras 116-118)

See the text of the decision. (see paras 119-124)

In order sufficiently to prove the participation of an undertaking in an anti-competitive cartel, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them. Where participation in such meetings has been established, it is for that undertaking to put forward indicia 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. Nor is the fact that an undertaking does not act on the outcome of a meeting having an anti-competitive purpose such as to relieve it of responsibility for the fact of its participation in a cartel, unless it has publicly distanced itself from what was agreed in the meeting. The fact that an undertaking has not taken part in all aspects of a cartel or that it has played only a minor role in the aspects in which it did participate is relevant for the purposes of assessing the gravity of the infringement and, where appropriate, determining the amount of the fine. In that regard, where the liability of undertakings for anti-competitive conduct results, according to the Commission, from their participation in meetings having such conduct as their purpose, it is for the Court to ascertain whether those undertakings had the opportunity, both during the administrative procedure and before that Court, to rebut the findings thus made and, where appropriate, to prove circumstances which cast the facts established by the Commission in a different light and thus allow another explanation of the facts to be substituted for the one adopted by the Commission. (see paras 125, 127, 128)

See the text of the decision. (see paras 134-139)

In the case of two companies having a vertical relationship, such as a principal and its agent or intermediary, two factors have been taken to be the main parameters for determining whether there is a single economic unit: first, whether the intermediary takes on any economic risk and, second, whether the services provided by the intermediary are exclusive. In so far as concerns the assumption of economic risk, an agent cannot be regarded as an auxiliary organ forming part of its principal’s business where the agreement entered into with the principal confers upon the agent or allows it to perform duties which from an economic point of view are approximately the same as those carried out by an independent dealer, because under the agreement the agent accepts the financial risks associated with sales or the performance of the contracts entered into with third parties. Thus, in the case of a contract to be analysed as an agency agreement within the meaning of point 12 of the Guidelines on Vertical Restraints, whereby the agent assumes only incidental costs without assuming a significant economic risk, the latter does not assume functions economically similar to those of an independent trader. (see paras 139, 140, 145, 147, 148)

In competition law, the existence of an economic unity between principal and agent is assessed on the basis of two main criteria: first, whether the intermediary takes on any economic risk and, second, whether the services provided by the intermediary are exclusive. In that regard, concerning the exclusive character of the services provided by the intermediary, there is nothing to support the idea of economic unity in the fact that, alongside the activities carried out on behalf of the principal, the intermediary also carries out a significant amount of business for his own account as an independent dealer in the market for the goods or services in question. However, where an agent acts in the name of two cartel participants, without being personally active in the market concerned, it is necessary to ascertain, in order to determine the existence of an economic unity between the agent and one of his principals, whether that agent is in a position, as regards the activities entrusted to him by that principal, to act as an independent trader free to determine his own business strategy. If the agent is not in a position to act in that way, the functions which he carries out on behalf of the principal form an integral part of the latter’s activities. Thus, in a case of double representation, the decisive factor in determining the existence of an economic unit lies in the assessment of the financial risks associated with sales or the performance of the contracts concluded with third parties. If the agency contract concluded with one of the companies does not give the agent the possibility of acting, for the purposes of competition law, as an independent trader in relations to the activities for which he has been designated, the double representation is not capable of calling into question the conclusion that the agent operates de facto as an auxiliary organ and therefore constitutes a single economic unit with that undertaking. Indeed, the agent may be regarded at the same time as constituting an economic unit with both participants in the cartel. Where the double representation enables him to have access to commercially sensitive information from two sources, that particularity constitutes a factor improving coordination in the cartel. (see paras 139, 141, 149, 151-153, 155, 158, 160, 161, 163)

In competition law, where the agent acts on behalf of and on account of the principal without assuming the economic risk of the activities entrusted to him, the anti-competitive conduct of that agent in the context of those activities can be imputed to the principal, just as the offending acts committed by an employee can be imputed to the employer, even without proof that the principal was aware of the agent’s anti-competitive conduct. In view of the agency contract, and as in the case of a subsidiary wholly or almost wholly controlled by its parent company or an employee acting on behalf of his employer, the agent is deemed to be acting here on behalf of the principal and forms a single entity with the latter. (see paras 175, 394)

It follows from Article 49(3) of the Charter of Fundamental Rights that the severity of penalties must not be disproportionate to the offence. In that regard, in fixing the amount of fines imposed for breach of the competition rules, regard must be had to all the factors capable of affecting the assessment of the gravity of the agreements and practices declared incompatible with the internal market by Article 101(1) TFEU and Article 53(1) of the EEA Agreement, such as, in particular, the role played by each of the parties to the infringement and the threat that infringements of that type pose to the objectives of the European Union. Similarly, the fact that an undertaking has not taken part in all aspects of a cartel or that it played only a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and if and when it comes to determining the fine. Where there has been, in particular, a single infringement, in the sense of a complex infringement, combining a number of agreements and concerted practices on separate markets, where the offending undertakings are not all present or may have only partial knowledge of the overall plan, the penalties must be made to fit the individual conduct and specific characteristics of the undertakings concerned. In that context, the principle of proportionality requires that the fine must be fixed proportionately to the factors to be taken into account both in assessing the objective gravity of the infringement, as such, and in assessing the relative gravity of the participation in the infringement of the undertaking on which the penalty is to be imposed. Thus, as regards a penalty imposed for infringement of competition law applicable to cartels, the Commission must ensure that it fits the penalties to the infringement, taking account of the particular situation of each offender. In that regard, a contravener which is not held responsible for certain aspects of a single infringement cannot have had a role in the implementation of those components. By virtue of the limited extent of the infringement found against him, the infringement of competition law is necessarily less serious than that attributed to contraveners who participated in all aspects of the infringement. Consequently, the principle of proportionality requires the Commission, in particular, to take into consideration, when calculating the amount of the fine, the fact that an undertaking participated, through an agent, in only one component of a single infringement and that, for that component, it cannot be considered, in the absence of participation at the European level of the overall cartel, that the object or effects of that participation could have exceeded the territory of a single Member State. Where an undertaking has imposed upon it a fine identical to that which it would have had to bear if all aspects of the single infringement had been attributed to it, the Commission’s decision must be annulled for failing to take account of the particular situation of the undertaking concerned. In that regard, the mere fact that that undertaking could have been aware of the pan-European dimension of the overall cartel, whereas such awareness has not been established, is not sufficient to take into consideration, for the purposes of calculating the fine, the value of sales achieved on those markets, given that it is not established in respect of the latter that the said undertaking acted anti-competitively. (see paras 408, 411-415, 437, 442-447)

As regards a penalty imposed for infringement of competition law applicable to cartels, the Commission must ensure that it fits the penalties to the infringement, taking account of the particular situation of each offender. In practice, the penalty may be made to fit the particular infringement at various stages of the determination of the amount of the fine. First, the Commission may recognise the particularity of an undertaking’s participation in the infringement at the stage of assessing the objective gravity of the single infringement, referred to in point 22 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003. Second, the Commission may recognise the particularity of an undertaking’s participation in the infringement at the stage of assessing the mitigating circumstances referred to in point 29 of the 2006 Guidelines in the context of an overall assessment of all the relevant circumstances (see point 27 of the 2006 Guidelines). Third, the Commission may recognise the particularity of an undertaking’s participation in the infringement at a later stage than that of the assessment of the objective gravity of the infringement or the mitigating circumstances put forward by the undertakings concerned. Point 36 of the 2006 Guidelines thus states that the Commission may, in certain cases, impose a symbolic fine and, as indicated in point 37 of those Guidelines, it may also depart from the general methodology laid down for the setting of fines, in the light, inter alia, of the particularities of a given case. (see paras 415-417, 420, 423)