Keywords

Summary



Keywords

1. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Effect on trade between Member States – Criteria for assessment – Possible significant effect – Agreement covering the whole territory of a Member State – Partitioning of national markets – Not permissible

(Arts 81 EC and 82 EC)

2. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Effect on trade between Member States – Appreciable effect – Assessment in the light of the position and importance of the parties on the market

(Art. 81 EC)

3. Competition – Division of powers between the Commission and the national competition authorities – Commission Notice on cooperation within the Network of Competition Authorities – Right of undertakings to have their cases dealt with by a given competition authority – No such right

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 11(6); Commission Notice 2004/C 101/03, paras 8 and 31)

4. European Communities – Rules on languages – Notification of documents in a language other than the language of the parties – Parties’ consent – No irregularity

(Council Regulation No 1, Art. 3)

5. Competition – European Union rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2))

6. Competition – European Union rules – Infringements – Attribution – Parent company and subsidiaries – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2))

7. Competition – European Union rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries – Infringement of the principle that penalties must be specific to the offender – None – Infringement of the presumption of innocence – None

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2))

8. Competition – European Union rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment – Presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries – Subsidiary held by an intermediate holding company – Circumstance not sufficient to rebut the presumption

(Art. 81(1) EC)

9. Acts of the institutions – Statement of reasons – Obligation – Scope – Decisions – Correction during the proceedings before the Court of shortcomings in the statement of reasons – Not permissible

(Art. 253 EC)

10. Procedure – Measures of inquiry – Hearing of witnesses

(Rules of Procedure of the General Court, Arts 64 and 65)

11. Competition – Fines – Commission decision finding an infringement adopted after a national competition authority has provisionally granted amnesty – Infringement of the principle ne bis in idem – None

(Art. 81 EC; Convention implementing the Schengen Agreement, Art. 54; Council Regulation No 1/2003, Arts 5, 14 and 23)

12. Competition – Fines – Commission decision finding an infringement adopted after a national competition authority has provisionally granted amnesty – Infringement of principle of the protection of legitimate expectations – None – Infringement of the principle of sound administration – None

(Council Regulation No 1/2003, Art. 23)

13. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Criteria for assessment

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

14. Competition – Fines – Amount – Determination – Criteria – Consistency as between the amounts imposed on a number of undertakings

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

15. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Account taken of the effective economic capacity of the undertaking to cause damage

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

16. Competition – Fines – Amount – Determination – Deterrent effect

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

17. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Repeated infringement – Concept

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 2)

18. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine in return for cooperation of the fined undertaking – Conditions – Significant added value of the evidence provided by the undertaking concerned

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03)

19. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Commission’s discretion

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03)

20. Competition – Fines – Amount – Determination – Reduction of the fine for cooperation of the fined undertaking – Conditions – Reduction of the fine for not contesting the facts

(Council Regulation No 1/2003, Art. 23(2); Commission Notices 96/C 207/04 and 2002/C 45/03)

21. Competition – Fines – Amount – Determination – Criteria – Non-imposition or reduction of the fine in return for cooperation of the undertaking concerned – Application of the Leniency Notice – Reduction for not contesting the facts outside that notice

(Council Regulation No 1/2003, Art. 23(2); Commission Notices 96/C 207/04 and 2002/C 45/03)

22. Competition – Fines – Amount – Determination – Criteria – Non-imposition or reduction of the fine in return for cooperation of the undertaking concerned – Reduction for not contesting the facts outside the Leniency Notice – Proportionality

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03)

23. Competition – Fines – Amount – Determination – Criteria – Non-imposition or reduction of the fine for cooperation of the fined undertaking – Reductions granted, first, under the Leniency Notice and, second, for not contesting the facts outside the scope of the Leniency Notice

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03)

24. Competition – Fines – Amount – Determination – Criteria – Overall turnover of the undertaking concerned

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 5(b))

25. Competition – Fines – Amount – Determination – Criteria – Observance of the principle of proportionality – Conditions

(Council Regulation No 1/2003, Art. 23(2))

Summary

1. The interpretation and application of the condition relating to effects on trade between Member States, which is found in Articles 81 EC and 82 EC, must take as its starting point the purpose of the condition, which is to define, in the context of the law governing competition, the boundary between the areas respectively covered by EU law and the law of the Member States. Thus, EU law covers any agreement or any practice which is capable of constituting a threat to freedom of trade between Member States in a manner which might harm the attainment of the objectives of a single market between the Member States, in particular by sealing off domestic markets or by affecting the structure of competition within the common market.

For an agreement, decision or practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective elements of fact and law, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concerns that they might hinder the attainment of a single market between Member States. Moreover, that influence must not be insignificant. Accordingly, an effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive. A cartel extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thus impeding the economic interpenetration which the Treaty is designed to bring about.

(see paras 55-57, 60)

2. The influence which an agreement or concerted practice may have on trade between Member States is to be determined by taking into account in particular the position and importance of the parties on the market for the products concerned. When undertakings participating in a cartel jointly represent the vast majority of supplies of the products concerned on the market in question, that cartel may be considered capable of having an appreciable effect on trade between Member States.

Moreover, the Commission is under no obligation to prove that the anti-competitive practices have an appreciable effect on trade between Member States. Indeed, Article 81(1) EC requires only that anti-competitive agreements and concerted practices should be capable of having an effect on trade between Member States.

(see paras 67-69)

3. It is clear from the provisions of Regulation No 1/2003 that the Commission retains a leading role in investigating and finding infringements of the EU competition rules, which is not affected by the parallel powers of the national competition authorities under that regulation. Indeed, under Article 11(6) of Regulation No 1/2003, the Commission is entitled to initiate proceedings for the adoption of a decision even if a national authority is already acting on a case, following consultation of that authority. Furthermore, under that provision, the Commission’s initiation of proceedings will relieve a national competition authority of its competence to apply the EU competition rules in the case.

Moreover, according to paragraph 31 thereof, the Notice on cooperation within the Network of Competition Authorities does not create individual rights for the undertakings involved to have the case dealt with by a particular authority. Accordingly, an undertaking cannot maintain that it has a right or legitimate expectation that national competition authorities will investigate a given infringement in place of the Commission.

In addition, paragraph 8 of that notice has no binding effect, its wording showing that the mere possibility of sharing tasks to which it refers does not impose an obligation on the Commission not to deal with a case where the conditions set out in paragraph 8 are met.

(see paras 76-77, 80)

4. The Commission is a multilingual institution which is to be regarded as able to work in all the official languages of the Community. An applicant undertaking cannot claim that the notification of the statement of objections and the decision closing the administrative procedure in one official language, when it has used two other official languages during the administrative procedure, impedes its rights of defence where it acknowledges having consented to the notification of the documents in that language.

(see paras 86, 414)

5. The conduct of a subsidiary may be imputed to the parent company in particular where, although it has a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities. In such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking. Thus, the fact that a parent company and its subsidiary constitute a single undertaking within the meaning of Article 81 EC enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement.

In the specific case in which a parent company has a 100% shareholding in a subsidiary which has infringed the EU competition rules, the parent company is able to exercise decisive influence over the conduct of the subsidiary and there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary.

In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the paren t company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market.

(see paras 94-97, 310-313)

6. In the specific case in which a parent company has a 100% shareholding in a subsidiary which has infringed the EU competition rules, there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the conduct of its subsidiary. Where the organisational, economic and legal links between those undertakings can establish that the parent companies exercise an influence over the strategies of their subsidiaries, those undertakings may be viewed as a single economic entity.

However, the fact that the applicant undertakings participated in the administrative procedure independently and gave individual replies to the statement of objections does not rebut the presumption of the parent companies’ liability for the conduct of their subsidiaries. While the fact that a parent company presents itself as the Commission’s sole interlocutor concerning an infringement may point to the exercise of a decisive influence over a subsidiary’s conduct, the fact that the subsidiaries of a group give separate replies to a statement of objections cannot, however, constitute proof of the independence of those subsidiaries.

(see paras 96, 125-127)

7. In accordance with the principle that penalties must be specific to the offender, which is applicable in any administrative proceedings which may lead to the imposition of penalties under the EU competition rules, an undertaking may be penalised only for acts imputed to it individually. However, that principle must coexist with the concept of an undertaking. It is not because of a parent-subsidiary relationship in which the parent company instigates the infringement, nor a fortiori because of the parent company’s involvement in the infringement, but because they constitute a single undertaking for the purposes of Article 81 EC that the Commission is able to address a decision imposing fines to the parent company. The Commission’s practice in previous decisions cannot be transposed to a particular case. Indeed, decisions in other cases can only give an indication, since the facts of the cases are not the same.

The principle of the presumption of innocence, as it results in particular from Article 6(2) of the European Convention on Human Rights, is one of the fundamental rights which are recognised in the legal order of the European Union and has, moreover been reaffirmed by Article 6(2) EU and Article 48(1) of the Charter of Fundamental Rights of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to procedures relating to infringements of the competition rules applicable to undertakings which may result in the imposition of fines or periodic penalty payments.

In that context, a rule concerning the possibility of imputing an infringement, such as the presumption of decisive influence exercised by the parent company over its wholly‑owned subsidiaries, does not breach that presumption. The European Court of Human Rights has held that Article 6 of the European Convention on Human Rights does not preclude presumptions of fact or of law provided for in the criminal law, but requires them to be confined within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence. Thus, the presumption of innocence is not disregarded if in competition proceedings certain conclusions are drawn on the basis of common experience, provided that the undertakings concerned are at liberty to refute those conclusions.

(see paras 106-108, 112, 114)

8. The possibility of imposing a penalty on the ultimate parent company for its subsidiary’s unlawful conduct does not mean that an intermediate holding company or the subsidiary itself may not be penalised, provided that the Commission is entitled to regard those companies as forming a single undertaking. Thus, in such case, the Commission may, if the conditions governing imputation are met, choose to penalise the subsidiary which participated in the infringement, the intermediate parent company which controlled it during the relevant period and the ultimate parent company of the group. In that regard, in the context of a group of companies, a holding company is a company which seeks to regroup shareholdings in various companies and whose function is to ensure that they are run as one.

(see paras 119, 122)

9. Whilst, in stating the reasons for the decisions which it takes to enforce the rules on competition, the Commission is not required to discuss all the issues of fact and law and the considerations which have led it to adopt its decision, it is none the less required under Article 253 EC to set out at least the facts and considerations having decisive importance in the context of the decision in order to make clear to the Courts of the European Union and the persons concerned the circumstances in which it has applied the Treaty. In addition, other than in exceptional circumstances, the statement of reasons must be contained in the decision itself, and it is not sufficient for it to be explained subsequently for the first time before the Court. Thus the statement of reasons must in principle be notified to the person concerned at the same time as the decision adversely affecting him.

(see paras 133, 146, 399)

10. As regards the assessment by the court at first instance of applications made by a party for measures of organisation of procedure or measures of inquiry, the General Court is the sole judge of any need to supplement the information available to it concerning the cases before it.

In that regard, an applicant undertaking’s request for witnesses to be heard cannot be granted when the statements which the applicant seeks to obtain before the General Court have already been given before the Commission and were considered not to be supported by documentary evidence and even to be contradicted by certain information in the file.

A request for a previous Commission decision to be produced cannot be regarded as necessary, since the Commission’s practice in previous decisions cannot serve as a legal framework for the imposition of fines in competition matters.

(see paras 151-153, 211)

11. The principle non bis in idem , also enshrined in Article 4 of Protocol No 7 to the European Convention on Human Rights, constitutes a fundamental principle of EU law the observance of which is guaranteed by the Courts of the European Union. In the field of EU competition law, the principle precludes an undertaking from being held liable by the Commission, or made the defendant to proceedings brought by the Commission, a second time in respect of anti-competitive conduct for which it has already been penalised or of which it has been exonerated by a previous decision of the Commission that is no longer amenable to challenge. The application of the principle non bis in idem therefore presupposes that a ruling has been given on the question whether an offence has in fact been committed or that the legality of the assessment thereof has been reviewed. Thus, the principle non bis in idem merely prohibits a fresh assessment in depth of the alleged commission of an offence which would result in the imposition of either a second penalty, in addition to the first, in the event that liability is established a second time, or a first penalty in the event that liability not established by the first decision is established by the second.

As for the question whether a decision of a national competition authority can prevent the Commission from penalising the same undertaking a second time or making it the defendant to proceedings a second time, the application of the principle non bis in idem is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. That principle therefore precludes a penalty being imposed on the same person more than once for the same unlawful conduct for the purpose of protecting the same legal asset.

In that regard, a provisional amnesty decision taken by a national competition authority, as it is not a definitive bar on further prosecution of an infringement of competition law, does not prevent the Commission from finding and imposing penalties for that infringement.

Moreover, even supposing that Article 54 of the Convention implementing the Schengen Agreement, inasmuch as it constitutes the expression of a general principle of EU law, namely the principle non bis in idem , could be relied upon in the field of EU competition law, a provisional amnesty decision taken by a national competition authority cannot, in any event, be regarded as falling within the scope of that provision. Indeed, the provisional grant of leniency does not have the finality of a definitive bar on further prosecution, as is required by that provision.

(see paras 158-161, 166-167, 174-176)

12. In the case of a Commission decision imposing a penalty for an infringement of the EU competition rules after national competition authorities have adopted provisional amnesty decisions, an applicant undertaking cannot rely on the principle of protection of legitimate expectations when it puts forward no evidence to show, on the one hand, that the Commission gave it precise assurances that the acts of those authorities would protect it from any proceedings and any penalty or, on the other, that it received precise assurances from those authorities that the acts that they adopted would prevent the Commission from finding and imposing penalties for that infringement.

Nor does the Commission’s failure to take account of the provisional amnesty decisions of national competition authorities infringe the principle of sound administration. Although the Commission must, in accordance with the principle of natural justice, take account of any penalties that have already been borne by the undertaking in question in respect of the same conduct where these were imposed for infringement of the law relating to cartels of a Member State and where, consequently, the infringement was committed within the European Union, that is not the situation where those national authorities imposed no fines on the applicant undertaking.

(see paras 181, 185-186)

13. The gravity of infringements of EU competition law must be determined by reference to numerous factors such as, in particular, the specific circumstances and context of the case and the deterrent effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up. In this connection, the size of the relevant market is not as a rule a factor which must be taken into account, but just one among a number of other factors for evaluating the gravity of the infringement, since moreover the Commission is not obliged to define the market concerned or to assess its size where the infringement in question has an anti-competitive object. 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 do not provide that fines are to be calculated according to the overall turnover of undertakings or their turnover on the market affected. However, nor do they preclude the Commission from taking either figure into account in determining the amount of the fine in order to ensure compliance with the general principles of EU law and where circumstances demand it.

In this connection, where the Commission has not set the general starting amount of a fine for an infringement concerning one Member State on the basis of the size of the market affected but has based its decision on the nature of the infringement and its geographic scope, the view that the general starting amount of a fine set for the infringement in that Member State should reflect the allegedly limited size of the market affected is based on an incorrect assumption and the Commission’s decision does not infringe the principle of proportionality.

The same is true of the fact that the impact of the infringement on the market was not taken into account. Under Section 1A of the Guidelines, the Commission must, when assessing the gravity of the infringement, undertake an examination of the actual impact on the market only where it is apparent that that impact can be measured. In order to assess that impact, the Commission must take as a reference the competition that would normally have existed had there been no infringement. However, when the Commission considers that it was impossible to measure the precise effects of an infringement on the market – and the undertakings concerned cannot show otherwise – and bases its decision on the serious nature of the infringement and on its geographic scope without taking into account the impact of the infringement on the market, it does not manifestly go beyond the bounds of the margin of assessment that it has when setting fines for infringements of the competition rules.

(see paras 193, 208-211, 215-216, 218-220, 226-230, 239-240, 243)

14. Even assuming that, when it finds in one and the same decision that a number of very serious infringements have been committed, the Commission were required to maintain a coherent relationship between the general starting amounts and the sizes of the various markets affected, there is no indication that the general starting amounts set for infringements committed in a number of Member States lack coherence, or that they were the result of failing to follow any supposed method of calculation, where the Commission set general starting amounts that were larger where the size of the market was larger, although it did not use a precise mathematical formula – and was not in any event required to do so.

(see paras 235-236)

15. In the context of calculating fines imposed under Article 23(2) of Regulation No 1/2003, differentiated treatment of the undertakings concerned is inherent in the exercise of the Commission’s powers under that provision. In exercising its discretion, the Commission is required to fit the penalty to the individual conduct and specific characteristics of the undertakings concerned in order to ensure that, in each case, the EU competition rules are fully effective. Thus, according to 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, where an infringement is sufficiently serious, it may be necessary in cases involving several undertakings, such as cartels, to apply weightings to the general starting amount in order to establish a specific starting amount taking account of the weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type. In particular, it is necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers.

Furthermore, in accordance with the seventh paragraph of Section 1A of the Guidelines, the differentiation between undertakings involved in the same infringement need not be governed by arithmetic calculation. Indeed, the principles of proportionality and equal treatment do not dictate that the starting amount of the fine should represent the same percentage of individual turnover for all the various members of a cartel. Thus, to check whether a division of the members of a cartel into categories is consistent with the principles of equal treatment and proportionality, the General Court, in the course of its review of the legality of the way in which the Commission exercised its discretion in the area, must restrict itself to reviewing whether that division is coherent and objectively justified. When an undertaking has participated only in one part of a cartel, its capacity to cause significant damage to competition is less. Accordingly, a Commission decision that determines the specific starting amount of the fine in a different way in relation to such an undertaking is not discriminatory.

Moreover, the fact that the starting amount of the fine does not necessarily represent the same percentage of respective turnovers for all members of a cartel is inherent in the method of dividing undertakings into categories, which has the consequence that a flat-rate starting amount is fixed for all the undertakings in the same category. Although such an approach ignores the differences in size between undertakings in the same category, it cannot in principle be condemned.

Lastly, EU law contains no general principle that the penalty must be proportionate to the undertaking’s size on the market for the products in respect of which the infringement was committed.

(see paras 247-248, 253-254, 259-260, 263, 274, 277)

16. The need to ensure that a fine has a sufficient deterrent effect, where that need is not found to justify raising the general level of fines in the context of the implementation of a competition policy, requires that the amount of the fine be adjusted in order to take account of the desired impact on the undertaking on which it is imposed, so that the fine is not rendered negligible, or on the contrary excessive, in particular in light of the financial capacity of the undertaking in question, in accordance with the requirements arising from, on the one hand, the need to ensure effectiveness of the fine and, on the other, compliance with the principle of proportionality.

In that regard, the Commission is entitled to use the overall turnover of each undertaking participating in a cartel as a criterion relevant for the purpose of setting a deterrence multiplier. Thus, the size and overall resources of an undertaking are relevant criteria in view of the objective pursued, namely ensuring that the fine is effective by adjusting its amount in light of the overall resources of the undertaking and its capacity to raise the funds necessary to pay that fine. The setting of the rate of increase of the starting amount in order to ensure that the fine has a sufficiently deterrent effect is intended more to ensure the effectiveness of the fine than to reflect the harmfulness of the infringement to normal competition and thus the gravity of the infringement.

An increase in the starting amount to ensure the deterrent objective of the fine is also justified, as that procedure entails applying differential treatment to the members of an individual cartel to take account of the way in which they are actually affected by the fine. Such an increase does not mean that there is an infringement of the principle of equal treatment merely because the Commission refers to the overall turnover of the participants, rather than to their turnover within the European Union, or indeed on the relevant national market, in order to assess the need to increase the amounts of the fines so as to ensure their deterrent effect.

(see paras 285, 287, 292, 294-295)

17. The concept of repeated infringement, as understood in a number of national legal orders, implies that a person has committed new infringements after being punished for similar infringements. Furthermore, Section 2 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 specifically mentions repeated infringement of the same type by the same undertakings among the illustrative list of aggravating circumstances which may justify an increase in the basic amount of a fine.

In that connection, it cannot be accepted that the Commission is entitled to decide, when making a determination as to the aggravating circumstance of repeated infringement, that an undertaking should be held liable for a previous infringement in relation to which it was not penalised by a Commission decision and in the establishment of which it was not the addressee of a statement of objections, with the result that such an undertaking was not given an opportunity, in the procedure leading to the adoption of the decision establishing the previous infringement, to make representations with a view to disputing that it formed an economic unit with certain other undertakings.

That conclusion appears all the more valid since, whilst it is true that the principle of proportionality requires that the time that has elapsed between the infringement at issue and a previous breach of the competition rules be taken into account in assessing the undertaking’s tendency to infringe those rules, the Commission cannot be bound by any limitation period when reaching a finding of repeated infringement.

Similarly, whilst it would be reasonable to assume that a parent company would actually have knowledge of a previous Commission decision addressed to a subsidiary of which it owns almost the entire share capital, such knowledge cannot remedy the absence in the previous decision of any finding that the parent company and the subsidiary form an economic unit reached for the purpose of imputing to the parent company liability for the previous infringement and increasing the fines imposed on the parent company for repeated infringement.

(see paras 308, 319-320, 322)

18. The Notice on immunity from fines and reduction of fines in cartel cases constitutes an instrument intended to define, while complying with higher-ranking law, the criteria which the Commission proposes to apply in the exercise of its discretion in setting fines imposed for infringements of the EU competition rules. That discretion is thus subject to a self-imposed limitation which is not, however, incompatible with the Commission retaining a considerable margin of assessment.

Thus, the Commission enjoys a broad margin of assessment when it is required to determine whether the evidence provided by an undertaking that has stated that it wishes to benefit from the Leniency Notice represents significant added value for the purposes of point 21 of the notice.

Similarly, the Commission, once it has found that the evidence represents significant added value within the meaning of point 21 of the Leniency Notice, has a margin of assessment when it is required to determine the exact level of the reduction of the fine to be granted to the undertaking concerned. The first paragraph of point 23(b) of the Leniency Notice in fact provides for fine-reduction bands for the various categories of undertakings concerned. In view of the abovementioned margin of assessment, it is only where the Commission manifestly goes beyond the bounds of that margin that it may be criticised by the EU judicature.

Accordingly, the Commission does not make a manifest error of assessment in setting the reduction in the fine under the Leniency Notice at the minimum level within such a band where the information provided by the undertaking concerned was already in its possession, or did not relate to facts previously unknown to it, and, although it may have strengthened the Commission’s ability to prove the infringement, does not represent significant added value. Nor can an undertaking claim to be entitled to a further reduction in the fine imposed on it by the Commission on account of a document dating from the time of the infringement which it provided to the Commission, where that document was already in the Commission’s possession and the undertaking merely provided an additional explanation so that the document’s significance could be understood.

Furthermore, the Commission is not entitled, in its appraisal of the cooperation provided by members of a cartel, to disregard the principle of equal treatment. That principle is not disregarded where, first, evaluation of the added value of an application under the Leniency Notice is made by reference to evidence already in the Commission’s possession and, second, one of the undertakings concerned has provided contemporaneous documentary evidence representing significant added value, whilst another has produced only one piece of contemporaneous evidence, so that, since the two undertakings are not in a similar position, the differential treatment applied to them is justified.

(see paras 332-333, 335, 337, 350, 355, 357, 361, 363, 367-369)

19. An applicant undertaking that has been fined for infringement of the EU competition rules cannot rely on the principle in dubio pro reo to seek a more favourable percentage reduction in the fine imposed by the Commission in a case in which the reasons in the decision that relate to determination of that percentage are alleged to be uncertain. The principle relates to the taking of evidence regarding the existence of an infringement and is intended to establish whether the Commission’s findings of fact in a contested decision are supported by the evidence which it has adduced.

(see para. 343)

20. Unlike the second indent of Section D2 of the 1996 notice on the non-imposition or reduction of fines in cartel cases, the 2002 notice on immunity from fines and reduction of fines in cartel cases does not provide for any reduction in the fine for undertakings which, after receiving a statement of objections, do not substantially contest the facts on which the Commission bases its allegations. Under the 2002 notice, in order to qualify for a reduction in a fine, an undertaking must provide the Commission with evidence of the suspected infringement which offers significant added value with respect to the evidence already in the Commission’s possession.

In that regard, in accordance with points 21 and 22 of the 2002 Leniency Notice, in assessing the added value of the evidence provided by an undertaking, the Commission must take account not only of the nature and/or level of detail of the evidence, but also of the evidence already in its possession at the time when the undertaking concerned makes its application. Consequently, the Commission carries out its assessment by reference to both the quality of the cooperation of the undertaking concerned and the comparison of the added value in question with the evidence already in its possession.

(see paras 378-379, 382, 393, 398)

21. The right to rely on the principle of the protection of legitimate expectations extends to any individual who is in a situation in which it is clear that the EU authorities have given him precise assurances, thereby causing him to entertain justified expectations. On the other hand, a person may not plead infringement of the principle of the protection of legitimate expectations unless he has been given precise assurances by the authorities. Information that is precise, unconditional and consistent which comes from an authorised and reliable source constitutes such an assurance.

In the determination of the amounts of fines for infringement of the EU competition rules, an announcement in the statement of objections that the Commission is considering whether to grant any reduction in the fine for cooperation outside the Notice on immunity from fines and reduction of fines in cartel cases does not amount to a precise assurance as to the extent or the rate of the reduction that might, where appropriate, be granted to the undertakings concerned. Accordingly, such an announcement can in no case give rise to any legitimate expectation whatsoever in that regard.

Nor can the Commission’s practice in previous decisions serve as a legal framework for the imposition of fines in competition matters.

(see paras 421-425)

22. The principle of proportionality requires that measures adopted by the EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.

In that regard, a Commission decision which grants only a minimal reduction of 1% of the fine for not contesting the facts and has regard to the limited value of cooperation offered after the statement of objections does not infringe the principle of proportionality where that reduction is added to those already granted under the Notice on immunity from fines and reduction of fines in cartel cases.

(see paras 428, 432, 449)

23. In its appraisal of the cooperation provided by cartel members during the administrative procedure, the Commission is not entitled to disregard the principle of equal treatment. However, leaving aside the fact that reductions in the fines granted under the Notice on immunity from fines and reduction of fines in cartel cases and reductions granted for reasons falling outside the scope of that notice constitute separate stages in the calculation of the fines, undertakings which have cooperated both under that notice and outside the scope thereof, on the one hand, and undertakings which have cooperated solely outside the scope of the notice, on the other, are not in the same situation. Accordingly, the Commission is fully entitled to apply a reduction in the fine for cooperation outside the scope of the Leniency Notice, on the one hand, directly to the total amount of the fine as regards undertakings which have not cooperated under that notice and, on the other, to the amount which has already been reduced pursuant to that notice as regards undertakings which have cooperated thereunder.

(see paras 435-437)

24. Under Article 23(2) of Regulation No 1/2003, for each undertaking and association of undertakings participating in an infringement of the EU competition rules the fine is not to exceed 10% of its total turnover in the preceding business year. The turnover figure referred to in that provision is the overall turnover of the undertaking concerned. Thus, the 10% of turnover limit laid down in that provision must be calculated on the basis of the aggregated turnover of all the companies comprising the economic unit that acted as an undertaking for the purposes of Article 81 EC.

(see paras 443-444)

25. By virtue of the principle of proportionality, in the determination of the amounts of fines for infringements of the EU competition rules, such fines must not be disproportionate to the aims pursued, that is to say, to compliance with the competition rules, and the amount of the fine imposed on an undertaking for an infringement of competition law must be proportionate to the infringement, viewed as a whole, account being taken, in particular, of the gravity of the infringement. Furthermore, in determining the amounts of fines, the Commission is entitled to take into account the need to ensure that fines have a sufficient deterrent effect.

In that regard, first, infringements consisting primarily of secret collusion between cartel participants to share markets or freeze market shares by allocating projects for the sale and installation of new elevators and/or escalators, as well as not to compete with each other for the maintenance and modernisation of elevators and escalators, are, by their very nature, among the most serious infringements of Article 81 EC. In this connection, the relatively small size of the market for the products in question, assuming that factor to be established, is of only lesser importance compared with all the other factors evidencing the gravity of the infringement.

Second, the rule that the fines be proportionate to the size and economic strength of the economic units concerned, which acted, for the purposes of Article 81 EC, as undertakings, is not infringed where the fines do not exceed the ceiling referred to in Article 23(2) of Regulation No 1/2003, the purpose of which is to ensure that fines are not disproportionate in relation to the size of the undertaking.

Third, the Commission, when calculating fines, may take into account, inter alia, the size and economic strength of the economic unit which, for the purposes of Article 81 EC, is acting as an undertaking. However, it is possible that the relevant undertaking to be taken into account is not each of the subsidiaries which participated in the infringements found, but the undertakings constituted by the parent company and each of the subsidiaries.

Fourth, the Commission is not required, when determining fines according to the gravity and duration of the infringement, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover or their turnover on the market concerned by the infringement. The final amount of the fine is not necessarily an appropriate factor in determining a lack of proportionality of the fine in view of the size of the participants in the cartel. That final amount is set, inter alia, on the basis of various factors linked to the individual conduct of the undertaking in question, such as the duration of the infringement, the existence of aggravating or attenuating circumstances and the degree to which that undertaking cooperated, but not to its market share or turnover.

(see paras 450-456)