Keywords

Summary



Keywords

1. Competition – Administrative procedure – Limitation periods in proceedings – Suspension – Commission decision which is the subject of proceedings pending before the Court of Justice – Scope

(Council Regulation No 2988/74, Art. 3)

2. Community law – Principles – Duty to act within a reasonable time – Scope – Competition – Administrative procedure – Judicial proceedings – Distinction for the purposes of assessing the duty to act within a reasonable time

(Council Regulation No 17)

3. Competition – Administrative procedure – Obligations of the Commission – Duty to act within a reasonable time

(Council Regulation No 17)

4. Commission – Principle of collegiality – Scope – Decisions in competition matters

(Merger Treaty, Art. 17)

5. Plea of illegality – Scope – Measures the illegality of which may be pleaded – Internal rules of an institution

(Art. 241 EC)

6. Acts of the institutions – Authentification of acts adopted – Procedures

(Commission’s Rules of Procedure of 1999, Art. 16, para. 1)

7. Community law – Principles – Rights of the defence – Scope – Competition – Administrative procedure – Scope of that principle after annulment of an initial decision of the Commission

(Art. 81(1) EC)

8. Competition – Administrative procedure – Commission’s powers of investigation – Scope – Access to undertakings’ premises

(Council Regulation No 17, Art. 14)

9. Competition – Dominant position – Relevant market – Geographical limits

(Art. 82 EC)

10. Competition – Dominant position – Holding of a very large market share an indicator

(Art. 82 EC)

11. Competition – Dominant position – Abuse – Rebates with a foreclosure effect on the market – Fidelity rebates

(Art. 82 EC)

12. Competition – Dominant position – Abuse – Quantity rebates – Lawfulness – Conditions – Abusive nature of the rebate system

(Art. 82 EC)

13. Competition – Dominant position – Abuse – Exclusive supply contracts – Fidelity rebates

(Art. 82 EC)

14. Competition – Dominant position – Abuse – Quantity rebates – Lawfulness – Conditions – Rules for calculation

(Art. 82, second para., EC)

15. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Refusal to communicate a document – Consequences

16. Competition – Administrative procedure – Access to the file – Purpose – Non-disclosure of documents held by the Commission – Examination by the General Court in the light of the observance of the rights of the defence in each particular case

17. Competition – Administrative procedure – Infringement of the rights of the defence – Lack of proper access to the file – Access granted during the judicial proceedings – Rectification – Not possible

18. Competition – Administrative procedure – Commission decision – Decision finding an infringement and imposing a fine – Annulled on account of a procedural defect

(Council Regulation No 17)

19. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Particularly serious infringements

(Art. 82 EC; Council Regulation No 17, Art. 15(2))

20. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Repeated infringement – Concept of infringements of the same type – Infringements of Articles 81 EC and 82 EC – Not included

(Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2))

21. Competition – Fines – Amount – Determination – Criteria – Attenuating circumstances – Absence of repeated infringement – Not included

(Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2))

22. Competition – Fines – Amount – Determination – Criteria – Attenuating circumstances –Cooperation of an undertaking during investigations by Commission officials – Not included

(Art. 81(1) EC; Council Regulation No 17, Art. 14)

23. Competition – Fines – Amount – Determination – Turnover taken into account in order to calculate the upper limit of the fine

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

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

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

Summary

1. Under Article 3 of Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions under the rules relating to competition, the limitation period in proceedings is to be suspended for as long as the decision of the Commission is the subject of proceedings ‘pending before the Court of Justice of the European Communities’. That reference must be understood, since the establishment of what is now the General Court, as envisaging in the first place proceedings pending before this Court, since actions imposing fines or penalties in the field of competition law fall within its jurisdiction.

The limitation period is also suspended throughout the duration of appeal proceedings before the Court of Justice. Since Article 60 of the Statute of the Court of Justice and Article 3 of Regulation No 2988/74 are different in scope, the fact that an appeal does not have suspensory effect does not deprive Article 3 of that regulation, which concerns situations in which the Commission must await the decision of the Community judicature, of all effect. In addition, Article 3 of Regulation No 2988/74 protects the Commission against the effect of the limitation period in situations in which it must await the decision of the Community judicature in proceedings beyond its control before knowing whether the contested act is or is not vitiated by illegality. The argument that the establishment of a second court does not permit the period of suspension of the limitation period to be extended cannot therefore be accepted. The suspension of the limitation period allows the Commission to adopt a new decision only where the appeal against a judgment of the General Court annulling a decision of the Commission is dismissed. That suspension of the limitation period has no effect on the decision annulled by the judgment of the General Court. In the event of an appeal, the Commission is indeed not formally prevented from acting and adopting a new decision following the annulment of the initial decision by this Court. However, an action brought against the decision imposing penalties suspends the limitation period in proceedings pending delivery by the Community judicature of a final ruling on that action. If the Commission were to adopt a new decision following annulment of a decision of the General Court, without awaiting the judgment of the Court of Justice, there would be a risk that two decisions having the same object would coexist if the Court of Justice should set aside the judgment of the General Court. It seems to be contrary to the requirements of the economy of the administrative procedure to require the Commission, with the sole aim of ensuring that the limitation period does not expire, to adopt a new decision before it knows whether the initial decision is or is not vitiated by illegality.

Lastly, since the limitation period is suspended in accordance with Article 3 of Regulation No 2988/74 throughout the duration of the entire appeal proceedings before the Court of Justice, the Commission cannot be criticised for breaching the ‘reasonable time’ principle solely because it waits until the Court makes a determination in the context of such an appeal before adopting a new decision.

(see paras 90, 97-98, 102-103, 105-108, 121)

2. In the context of the examination of a complaint alleging breach of the ‘reasonable time’ principle, a distinction must be drawn between the administrative procedure conducted in competition matters pursuant to Regulation No 17 and the judicial proceedings in the event of an action against the Commission’s decision. The period during which the Community judicature examines the legality of the decision and, in the event of an appeal, the validity of the judgment delivered at first instance cannot be taken into account in determining the duration of the procedure before the Commission.

(see para. 124)

3. A breach of the ‘reasonable time’ principle in the adoption of a decision following an administrative procedure in a competition matter warrants annulment of a decision adopted by the Commission only where it also entails a breach of the rights of defence of the undertakings concerned. Where it has not been established that the undue delay has adversely affected the ability of the undertakings concerned to defend themselves effectively, failure to observe the ‘reasonable time’ principle cannot affect the validity of the administrative procedure.

(see para. 132)

4. The principle of collegiality is based on the equal participation of the Commissioners in the adoption of decisions, from which it follows in particular that decisions should be the subject of collective deliberation and that all the members of the College of Commissioners should bear collective responsibility at the political level for all decisions adopted. Compliance with that principle, and especially the need for decisions to be deliberated upon by the Commissioners together, must be of concern to the individuals affected by the legal consequences of such decisions, in the sense that they must be sure that those decisions were actually taken by the College of Commissioners and correspond exactly to its intention. This is particularly so in the case of acts, expressly described as decisions, which the Commission finds it necessary to adopt with regard to undertakings or associations of undertakings for the purpose of ensuring observance of the competition rules and by which it finds an infringement of those rules, issues directions to those undertakings and imposes pecuniary sanctions upon them.

The mere fact that a press release which is not issued by the Commission and is not in any way official mentions a statement by a Commission spokesperson specifying the date on which a decision in a competition matter will be adopted and the content thereof does not suffice to support the conclusion that the Commission breached the principle of collegiality. Since the College of Commissioners is not in any way bound by such a statement, it may decide, following collective deliberation, not to adopt such a decision.

(see paras 151-155)

5. Article 241 EC must extend inter alia to internal rules of an institution which, although they do not constitute the legal basis of the contested decision and do not produce effects similar to those of a regulation within the meaning of that article, determine the essential procedural requirements for adopting that decision and thus ensure legal certainty for those to whom it is addressed. Any addressee of a decision must be able indirectly to challenge the legality of the measure determining the formal validity of that decision, notwithstanding that the measure in question does not constitute the legal basis of the latter if it was not in a position to apply for the annulment of that measure before receiving notification of the contested decision. Consequently, those of the Commission’s Rules of Procedure which are designed to ensure the protection of individuals may be the subject-matter of a plea of illegality. The plea of illegality must be limited to what is essential to the outcome of the dispute. Since Article 241 EC is not intended to enable a party to contest the applicability of any measure of general application in support of any action whatsoever, the general measure claimed to be illegal must furthermore be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general measure in question.

(see paras 165-167)

6. The first paragraph of Article 16 of the Commission’s Rules of Procedure of 1999 provides that instruments adopted by the Commission in the course of a meeting must be attached, in the authentic language or languages, in such a way that they cannot be separated, to a summary note prepared at the end of the meeting at which they were adopted and that they are to be authenticated by the signatures of the President and the Secretary-General on the last page of the summary note. That provision is not vitiated by illegality. The formalities of authentication fixed by that provision ar e consistent with the requirements of the principle of legal certainty.

(see paras 170, 175-176)

7. Where, following the annulment of a decision imposing sanctions on undertakings which have infringed Article 81(1) EC on account of a procedural defect concerning exclusively the procedures governing its final adoption by the College of Commissioners, the Commission adopts a new decision, having substantially the same content and based on the same objections, it is not required to conduct a new hearing of the undertakings concerned.

Nor is it required to consult the Advisory Committee on Restrictive Practices and Dominant Positions again even if, between the time that that committee is consulted and the adoption of the new decision, several Member States acceded to the European Community and the composition of that committee was therefore changed. A change in the composition of an institution does not affect the continuity of the institution itself, and its final or preparatory acts in principle retain their full effect. In addition, there is no general principle of Community law requiring continuity in the composition of an administrative body handling a procedure which may lead to a fine.

As for other questions of law which may arise in the context of the application of Article 233 EC, such as those relating to the passage of time, the possibility of resuming proceedings, the access to the file required on resumption of the proceedings, the intervention of the hearing officer and the possible implications of Article 20 of Regulation No 17, they do not render a new hearing necessary either, since they do not alter the substance of the objections, being at most amenable to subsequent judicial review.

(see paras 184-185, 202, 207-209)

8. Both the purpose of Regulation No 17 and the list of powers conferred on the Commission’s officials by Article 14 thereof show that the scope of investigations may be very wide.

In that regard, the right to enter any premises, land or means of transport of undertakings is of particular importance inasmuch as it is intended to permit the Commission to obtain evidence of infringements of the competition rules in the places in which such evidence is normally to be found, that is to say, on the business premises of undertakings.

That right of access would serve no useful purpose if the Commission’s officials could do no more than ask for documents or files which they could identify precisely in advance. On the contrary, such a right implies the power to search for various items of information which are not already known or fully identified. Without such a power, it would be impossible for the Commission to obtain the information necessary to carry out the investigation if the undertakings concerned refused to cooperate or adopted an obstructive attitude.

However, the exercise of the wide powers of investigation conferred on the Commission is subject to conditions serving to ensure respect for the rights of undertakings concerned. In that regard, the Commission’s obligation to specify the subject‑matter and purpose of an investigation is a fundamental requirement not merely in order to show that the investigation to be carried out on the premises of the undertakings concerned is justified but also to enable those undertakings to assess the scope of their duty to cooperate while at the same time safeguarding the rights of the defence.

It follows that the scope of the obligation to state the reasons on which decisions ordering investigations are based cannot be restricted on the basis of considerations concerning the effectiveness of the investigation. In that regard, although the Commission is not required to communicate to the addressee of a decision ordering an investigation all the information at its disposal concerning the presumed infringements, or to make a precise legal analysis of those infringements, it must none the less clearly indicate the presumed facts which it intends to investigate.

Since the Commission is not required to undertake a precise legal analysis of the infringements, the fact that a decision ordering an investigation refers solely to Article 81 EC and does not expressly refer to Article 82 EC cannot in itself lead to the conclusion that the Commission infringed Article 14 of Regulation No 17. Even if it follows from the wording of the decision ordering the investigation that the Commission expressly seeks only to ascertain whether an undertaking was participating in agreements and/or concerted practices, there being no reason to consider that an abuse of a dominant position is also suspected, the seizure of documents does not go beyond the framework of legality constituted by the decision ordering the investigation if a part of the facts with respect to which the Commission’s officials were instructed to obtain evidence of an infringement of Article 81 EC are the same as those which form the basis of the objections of abuse of a dominant position raised against the undertaking concerned and if the decision ordering the investigation contains the essential elements required by Article 14(3) of Regulation No 17.

(see paras 218-222, 225-226)

9. In the structure of Article 82 EC, the geographic market can be defined as the territory in which all traders operate under the same conditions of competition in so far as the relevant products are concerned. It is not at all necessary for the objective conditions of competition between traders to be perfectly homogeneous. It is sufficient if they are the same or sufficiently homogeneous. Accordingly, only areas in which the objective conditions of competition are ‘heterogeneous’ may not be considered to constitute a uniform market.

Although as a general rule the Community judicature undertakes a comprehensive review of the question as to whether or not the conditions for the application of the competition rules are met, the review of complex economic appraisals made by the Commission is necessarily limited to checking whether the relevant rules on procedure and on stating reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers.

(see paras 249-250)

10. The dominant position referred to in Article 82 EC relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and, ultimately, of consumers. Unlike a monopoly or quasi-monopoly situation, such a position does not preclude some competition but enables the undertaking which profits by it, if not to determine, at least to have an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in disregard of it and without suffering any adverse effects as a result of its attitude.

The existence of a dominant position derives in general from a combination of several factors which, taken separately, would not necessarily be determinative. The examination of the existence of a dominant position on the relevant market must be carried out by examining first of all its structure and then the competitive situation on that market.

Very large market shares are in themselves, save in exceptional circumstances, evidence of the existence of a dominant position. An undertaking which has a very large market share and holds it for some time, by means of the volume of production and the scale of supply which its stands for – without those having much smaller market shares being able rapidly to meet the demand from those who would like to break away from the undertaking which has the largest market share – is in a position of strength which makes it an unavoidable trading partner and which, already because of this, secures for it, at the very least during relatively long periods, that freedom of action which is the special feature of a dominant position.

Thus, a market share of 70 to 80% constitutes in itself a clear indication of the existence of a dominant position. Likewise, a market share of 50% constitutes in itself, save in exceptional circumstances, evidence of the existence of a dominant position.

(see paras 275-279)

11. A rebate system which has a foreclosure effect on the market will be regarded as contrary to Article 82 EC if it is applied by an undertaking in a dominant position. That is the case of a fidelity rebate, which is granted in return for an undertaking by the customer to obtain his stock exclusively or almost exclusively from an undertaking in a dominant position. Such a rebate is designed, through the grant of financial advantage, to prevent customers from obtaining their supplies from competing producers.

(see paras 316-317)

12. Quantity rebate systems linked solely to the volume of purchases made from an undertaking occupying a dominant position are generally considered not to have the foreclosure effect prohibited by Article 82 EC. If increasing the quantity supplied results in lower costs for the supplier, the latter is entitled to pass on that reduction to the customer in the form of a more favourable tariff. Quantity rebates are therefore deemed to reflect gains in efficiency and economies of scale made by the undertaking in a dominant position.

It follows that a rebate system in which the rate of the discount increases according to the volume purchased will not infringe Article 82 EC unless the criteria and rules for granting the rebate reveal that the system is not based on an economically justified countervailing advantage but tends, following the example of a fidelity and target rebate, to prevent customers from obtaining their supplies from competitors.

In determining whether a quantity rebate system is abusive, it is therefore necessary to consider all the circumstances, particularly the criteria and rules governing the grant of the rebate, and to investigate whether, in providing an advantage not based on any economic service justifying it, the rebates tend to remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties or to strengthen the dominant position by distorting competition.

(see paras 318-320)

13. An undertaking which is in a dominant position on a market and ties purchasers – even if it does so at their request – by an obligation or promise on their part to obtain all or most of their requirements exclusively from that undertaking abuses its dominant position within the meaning of Article 82 EC, whether the obligation in question is stipulated without further qualification or whether it is undertaken in consideration of the grant of a rebate. The same applies if the undertaking in question, without tying the purchasers by a formal obligation, applies, either under the terms of agreements concluded with these purchasers or unilaterally, a system of fidelity rebates, that is to say, discounts conditional on the customer’s obtaining all or most of its requirements from the undertaking in a dominant position. Obligations of this kind to obtain supplies exclusively from a particular undertaking, whether or not they are in consideration of rebates or of the granting of fidelity rebates intended to give the purchaser an incentive to obtain his supplies exclusively from the undertaking in a dominant position, are incompatible with the objective of undistorted competition within the common market, because they are not based on an economic transaction which justifies this burden or benefit but are designed to deprive the purchaser of or restrict his possible choices of sources of supply and to deny producers access to the market.

(see para. 365)

14. An undertaking occupying a dominant position is entitled to offer its customers quantity discounts linked solely to the volume of purchases made from it. However, the rules for calculating such discounts must not result in dissimilar conditions being applied to equivalent transactions with other trading parties within the meaning of subparagraph (c) of the second paragraph of Article 82 EC.

In that connection, it is of the very essence of a system of quantity discounts that larger purchasers of a product or users of a service enjoy lower average unit prices or – which amounts to the same – higher average reductions than those offered to smaller purchasers of that product or users of that service. Even where there is a linear progression in quantity discounts up to a maximum discount, initially the average discount rises (or the average price falls) mathematically in a proportion greater than the increase in purchases and subsequently in a proportion smaller than the increase in purchases, before tending to stabilise at or near the maximum discount rate. The mere fact that the result of quantity discounts is that some customers enjoy in respect of specific quantities a proportionally higher average reduction than others in relation to the difference in their respective volumes of purchase is inherent in this type of system, but it cannot be inferred from that alone that the system is discriminatory.

None the less, where as a result of the thresholds of the various discount bands, and the levels of discount offered, discounts, or additional discounts, are enjoyed by only some trading parties, giving them an economic advantage which is not justified by the volume of business they bring or by any economies of scale they allow the supplier to make compared with their competitors, a system of quantity discounts leads to the application of dissimilar conditions to equivalent transactions.

In the absence of any objective justification, having a high threshold in the system which can only be met by a few particularly large partners of the undertaking occupying a dominant position, or the absence of linear progression in the increase of the quantity discounts, may constitute evidence of such discriminatory treatment.

(see para. 396)

15. The right of access to the file, which is a corollary of the principle of respect for the rights of the defence, means, in an administrative procedure applying the rules on competition, that the Commission provides the undertaking concerned with the opportunity to examine all the documents in the investigation file that might be relevant for its defence. Those documents comprise both inculpatory and exculpatory evidence, with the exception of business secrets of other undertakings, documents which are internal to the Commission and other confidential information.

As regards the inculpatory evidence, the undertaking concerned must demonstrate that the result which the Commission reached in its decision would have been different if a document that was not disclosed on which the Commission relied to make a finding of infringement against that undertaking ought to have been excluded as inculpatory evidence. As regards the exculpatory evidence, the undertaking concerned must establish that its non-disclosure was able to influence, to its detriment, the course of the procedure and the content of the Commission’s decision. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents for its defence, in the sense that, if it had been able to rely on them during the administrative procedure, it would have been able to invoke evidence which was not consistent with the inferences made at that stage by the Commission and therefore could have had an influence, in any way at all, on the assessments made by the Commission in any decision, at least as regards the gravity and duration of the conduct in which the undertaking was found to have engaged and, accordingly, the level of the fine. The possibility that a document that had not been disclosed might have had an influence on the conduct of the procedure and the content of the Commission’s decision can be established only after a provisional examination of certain evidence showing that the undisclosed documents might have had – from the aspect of that evidence – a significance which ought not to have been overlooked.

A breach of the right of access to a file can entail annulment of a Commission decision in whole or in part only where the lack of proper access to the investigation file during the administrative procedure had prevented the undertaking or undertakings concerned from perusing documents which were likely to be of use in their defence and had thus infringed their rights of defence. That would be the case if disclosure of a document would have had even a slight chance of altering the outcome of the administrative procedure if the undertaking concerned had been able to rely on it during that procedure.

(see paras 405-407)

16. Access to the file is one of the procedural safeguards intended to protect the rights of the defence, and a breach of the right of access to the Commission’s file during the procedure preceding the adoption of a decision can, in principle, cause the decision to be annulled if there has been a breach of the rights of defence of the undertaking concerned.

A breach of the rights of the defence must be examined in relation to the specific circumstances of each particular case, since it depends essentially on the objections raised by the Commission in order to prove the infringement which the undertaking concerned is alleged to have committed. It is therefore necessary to examine the burden of the substantive objections raised by the Commission in the statement of objections and in the contested decision and to take account of the arguments which the undertaking concerned has specifically raised against the contested decision.

In a situation in which, during the administrative procedure preceding the adoption of a decision penalising an undertaking, the Commission did not draw up an enumerative list of the documents making up the file and did not communicate to the undertaking concerned all the documents in the file which were accessible to that undertaking, but only the inculpatory documents, without inviting the applicant to come and inspect all the documents at its premises, the administrative procedure is irregular. However, it is not necessary to annul the final decision if it has not been established that the undertaking did not have the opportunity to examine all the documents in the file that might be relevant for its defence, even if, in the context of the judicial proceedings brought against that decision, following measures of organisation of procedure designed to ensure full access to the file, it transpires that a part of the file is missing.

(see paras 450, 454, 456, 458, 465, 467-468, 481-482)

17. The General Court is free, in the context of the judicial proceedings brought against a Commission decision imposing sanctions on an undertaking for infringement of the Community competition rules, to order measures of organisation of procedure designed to ensure full access to the file, in order to determine whether the Commission’s refusal to disclose or communicate a document might have been detrimental to the defence of the undertaking concerned. Since that examination is limited to a judicial review of the pleas in law, it has neither the object nor the effect of replacing a full investigation of the case in the context of an administrative procedure. Belated disclosure of documents in the file does not put the undertaking which has brought the action back into the situation it would have been in if it had been able to rely on those documents in presenting its written and oral observations to the Commission. Furthermore, where access to the file is granted at the stage of the judicial proceedings, the undertaking concerned does not have to show that, if it had had access to the non-disclosed documents, the Commission decision would have been different in content, but only that those documents could have been useful for its defence.

(see paras 458-459)

18. Where a Commission decision in a competition case is annulled on the ground of a procedural defect, the Commission is entitled to adopt a new decision without a new administrative procedure being initiated. Where the content of the new decision is virtually identical to that of the previous one, and where both decisions are based on the same grounds, the new decision is subject, in the context of the fixing of the fine, to the rules in force at the time when the previous decision was adopted. The Commission resumes the procedure at the stage at which the procedural error was committed and adopts a new decision without reappraising the case in the light of rules which did not exist when the first decision was adopted.

(see paras 492-494)

19. In order to appraise the gravity of the infringements of the Community competition rules attributable to an undertaking, for the purposes of determining the amount of a fine which will be proportional to such gravity, the Commission may take into account the exceptional duration of certain infringements, the number and diversity of the infringements, which concerned all or almost all the products of the undertaking concerned and some of which affected all Member States, the particular gravity of infringements forming part of a deliberate and coherent strategy seeking by various eliminatory practices towards competitors and by a policy of retaining customers to maintain artificially or to strengthen the undertaking’s dominant position on markets where competition was already limited, the particularly harmful effects of abuse in terms of competition and the benefit gained by the undertaking from its infringements.

The Commission is entitled to categorise as extremely serious the practices of an undertaking in a dominant position which, by granting rebates on marginal tonnages to its customers and entering into fidelity agreements with them, artificially maintains or strengthens its dominant position on the relevant market, where competition is already limited.

(see paras 498-500)

20. The analysis of the gravity of an infringement of the Community competition rules must take account of any repeated infringement. 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. 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 make similar provision where they refer to an ‘infringement of the same type’. The Commission is therefore not entitled to find that an aggravating circumstance in respect of repeated infringement exists in the case of an undertaking which abuses its dominant position on a market within the meaning of Article 82 EC on account of earlier collusive practices relating to Article 81 EC which were moreover very different from those giving rise to the infringement of Article 82 EC.

(see paras 507-511)

21. The analysis of the gravity of an infringement of the Community competition rules must take account of any repeated infringement, which may provide a ground for increasing the amount of the fine. On the other hand, the absence of a repeated infringement cannot constitute an attenuating circumstance, since, as a matter of principle, an undertaking is required not to infringe the Community competition rules.

(see paras 522-523)

22. An undertaking’s cooperation with the Commission during visits to its premises is covered by the obligations borne by the undertaking and cannot therefore constitute an attenuating circumstance justifying a reduction in the amount of the fine imposed for infringement of the Community competition rules.

(see paras 527, 529)

23. Concerning the determination of fines in competition cases, the turnover referred to in Article 15(2) of Regulation No 17 as the upper limit of a fine must be understood as referring to the total turnover of the undertaking concerned, which alone gives an approximate indication of its size and influence on the market. Article 15(2) of Regulation No 17 contains no territorial limit in regard to the turnover. Provided that it remains within the limit laid down by Article 15(2), the Commission may choose which turnover to take in terms of territory and products in order to determine the fine.

(see para. 548)

24. In determining the amount of fines for infringements of Community competition law, the Commission must take into account not only the gravity of the infringement and the particular circumstances of the case but also the context in which the infringement was committed and must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the Community. A fine cannot therefore lose its punitive and deterrent effect, provided that it is established that the undertaking concerned infringed competition law, in particular by committing an infringement of extreme gravity, even if the fine is imposed by a decision adopted, after a certain time has elapsed, following annulment of a first decision.

(see paras 554-555)