Judgment of the General Court (Third Chamber) of 12 December 2014 — Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission

(Case T‑544/08)

‛Competition — Agreements — Paraffin waxes market — Decision finding an infringement of Article 81 EC — Price fixing — Proof of the infringement — 2006 Guidelines for calculating the amount of fines — Rights of the defence — Calculation of the value of sales — Gravity of the infringement — No retroactivity — Equal treatment — Proportionality’

1. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for breach of the competition rules and concerning a number of addressees — Need for a sufficient statement of reasons in relation to each of the addressees (Arts 81 EC and 253 EC) (see paras 28‑32, 47)

2. Competition — Administrative procedure — Commission decision finding an infringement — Use of a single name for two companies belonging to the same group and having personnel and vertical links — No infringement of Article 81 EC (Art. 81(1) EC) (see paras 33-36, 46, 49-58)

3. Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Undertakings afforded the opportunity to make known their views on the facts, objections and circumstances alleged by the Commission (Council Regulation No 1/2003, Art. 27(1)) (see paras 61-69)

4. Agreements, decisions and concerted practices — Agreements between undertakings — Concept — Joint intention as to the conduct to be adopted on the market — Included — Pursuance of negotiations on certain aspects of the restriction — No effect (Art. 81(1) EC) (see paras 74-76, 163)

5. Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Exchange of information between competitors — Anti competitive object or effect — Presumption — Conditions (Art. 81(1) EC) (see paras 77, 78, 127, 142)

6. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proof — Proof adduced by a number of different manifestations of the infringement — Lawfulness — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation — Documentary proof — Criteria — Reliability of evidence produced — Evidential obligations on undertakings disputing the existence of the infringement (Art. 81(1) EC) (see paras 79, 83-94, 121, 199)

7. EU law — Principles — Fundamental rights — Presumption of innocence — Procedures in competition matters — Applicability — Scope — Consequences (Art. 81(1) EC) (see paras 80-82)

8. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Probative value of voluntary statements incriminating an undertaking by the main participants in a cartel in order to benefit from application of the Leniency Notice — Statements going against the interests of the said undertaking — High probative value (Art. 81(1) EC; Commission Notice 2002/C 45/03) (see paras 95-100, 117, 118)

9. Agreements, decisions and concerted practices — Agreements between undertakings — Concept — Participation in meetings having an anti-competitive object — Included — Condition — Undertaking concerned not distancing itself from the decisions adopted — Criteria for assessment (Art. 81(1) EC) (see paras 125, 126, 128, 141, 217, 225, 232)

10. Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Concept — Criteria — Single objective and overall plan — Detailed way in which infringement committed — Irrelevant — Divergent conduct by one or more participants — Irrelevant (Art. 81(1) EC) (see paras 238-240, 245, 246, 249)

11. Competition — Fines — Amount — Determination — Discretion conferred on the Commission by Article 23(2) of Regulation No 1/2003 — No infringement of the principle that penalties must have a sound legal basis — Foreseeability of amendments introduced by the new guidelines — No breach of the principle of non-retroactivity (Arts 81 EC and 82 EC; Charter of Fundamental Rights of the European Union, Art. 49(1); Council Regulation No 1/2003, Art. 23(2); Commission Notices 98/C 9/03 and 2006/C 210/02) (see paras 275-288)

12. Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Calculation of the basic amount of the fine — Determination of the value of sales — Criteria — Use of the best data available for the undertaking in question — No infringement of Article 23(3) of Regulation No 1/2003 (Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 15 and 16) (see paras 292, 311, 314, 320)

13. Competition — Fines — Guidelines on the method of setting fines — Calculation method taking various elements of flexibility into account — Discretion of the Commission — Compliance with the principles of equal treatment and proportionality — Judicial review — Unlimited jurisdiction — Relevance (Art. 229 EC; Council Regulation No 1/2003, Art. 23(2), and 31; Commission Notice 2006/C 210/02) (see paras 293-295)

14. Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Calculation of the basic amount of the fine — Determination of the value of sales — Criteria — Sales in direct or indirect relation the infringement — General turnover on the market affected by the infringement by the undertaking in question (Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13) (see paras 333-336)

15. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Determination of the fine proportionately to the assessment factors for the gravity of the infringement (Art. 81(1) EC; Charter of Fundamental Rights of the European Union, Art. 49(3); Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02) (see paras 361-363, 372, 377, 378, 381)

16. Competition — Fines — Amount — Determination — Criteria — Overall turnover of the undertaking concerned — Turnover corresponding to the goods covered by the infringement — To be taken into consideration — Limits — Respect for the principles of proportionality and equal treatment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02) (see paras 376, 379, 380, 383-386)

Re:

Primarily, application for annulment of Commission Decision C(2008) 5476 final of 1 October 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.181 — Candle Waxes), in so far as it concerns the applicants, and, in the alternative, an application for a reduction of the amount of the fine imposed on them.

Operative part

The Court:

1. Dismisses the action;