Keywords

Summary



Keywords

1. Competition – Administrative procedure – Statement of objections – Provisional nature – Required content

(Art. 81 EC)

2. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – No binding or exhaustive list of criteria

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

3. Competition – Fines – Amount – Determination – Measure of the actual capacity to cause significant damage to competition on the market concerned – Relevance of the market share of the undertaking concerned

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

4. Appeals – Grounds – Grounds of a judgment vitiated by an infringement of Community law – Operative part well founded on other legal grounds – Rejection

5. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Obligation to take account of the actual market impact

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

6. Competition – Fines – Amount – Determination – Criteria – Effect of an anti-competitive practice

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

7. Competition – Fines – Amount – Determination – Criteria – Attenuating circumstances

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3, third indent)

8. Appeals – Jurisdiction of the Court – Whether it may review, on grounds of fairness, the appraisal at first instance of the amount of a fine imposed on an undertaking – Not included

(Art. 81 EC; Statute of the Court of Justice, Art. 58; Council Regulation No 1/2003, Art. 23)

Summary

1. As regards proceedings under Article 81 EC, it is appropriate to draw a distinction between the two phases of the administrative procedure, namely the investigation phase preceding the statement of objections and the phase corresponding to the remainder of the administrative procedure. Each of these successive stages has its own internal logic; the first stage must enable the Commission to adopt a position on the course which the procedure is to follow, and the second must enable the Commission to reach a final decision on the infringement concerned.

The assessments made in the statement of objections provided for under Community rules are intended to define the scope of the administrative procedure vis-à-vis the undertakings in respect of which it was initiated. To that end, the statement of objections must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure. That may be done summarily, since the statement of objections is a preparatory document containing assessments of fact and of law which are purely provisional in nature.

The Commission cannot be expected to detail in that statement not only the basic matters of fact and of law which it finds, at that stage of the administrative procedure, amount to an infringement of Community competition law, but also – at least summarily – why, within that same procedure, it does not propose to act on the basis of certain matters which it had initially investigated or intended to investigate. If it were otherwise, the Commission’s obligation to state reasons at the stage of sending the statement of objections would be extended to cover matters which, by definition, are not essential to the conduct of the procedure which it proposes to pursue. Such an obligation to state reasons would exceed the requirements established in the case-law.

(see paras 27-28, 33)

2. The gravity of infringements of Community competition law must be assessed in the light of numerous factors, such as, inter alia, the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up.

In consequence, 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 to be taken into account in evaluating the gravity of the infringement and setting the amount of the fine.

According to the fourth paragraph of Section 1A of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, it is necessary, in assessing the gravity of the infringement, to take account of the effective economic capacity of undertakings to cause significant damage to other operators. This entails the need to determine the size of the markets.

(see paras 54-56)

3. Although, for the purposes of setting the amount of the fine imposed for an infringement of Community competition law, the market shares held by an undertaking are relevant in order to determine what influence it may exert on the market, the Commission is not obliged to measure the effective economic capacity of that undertaking to cause significant damage to other operators by first defining the market and assessing its size, taking into account the volume of its turnover.

If the Commission were so obliged, an obligation would, in the case of an infringement which consists of market sharing, be imposed on it to which it is not subject for the purposes of applying Article 81 EC where the infringement in question has an anti-competitive object.

The economic capacity of an undertaking to cause significant damage to other operators can be established by means of findings such as its leading position in the relevant market.

(see paras 62-65)

4. If the grounds of a judgment of the Court of First Instance disclose an infringement of Community law but its operative part is shown to be well founded on other legal grounds, the appeal must be dismissed.

(see para. 72)

5. In the context of setting the amount of a fine imposed for an infringement of Community competition law, while the actual impact of the infringement on the market is a factor to be taken into account in assessing the gravity of the infringement, it is one of a number of criteria, such as the nature of the infringement and the size of the geographic market. Likewise, it is apparent from the first paragraph of Section 1A 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 that that impact is to be taken into account only where this can be measured.

As regards horizontal price or market sharing agreements, it is also apparent from those Guidelines that the Commission may classify these agreements as very serious infringements solely on account of their nature, without being required to demonstrate an actual impact of the infringement on the market. In that case, the actual impact of the infringement is only one among a number of factors which, if it can be measured, may allow the Commission to increase the starting amount of the fine.

Where the Commission considers that the actual impact of an infringement on the market can be measured and it intends to take that into account for the purposes of calculating the amount of the fine, the Commission cannot simply refer to the implementation of the cartel in order to establish an actual impact of the infringement on the market. Such a reference, without any additional evidence, amounts in effect to a presumption that the implementation of the cartel has created an effect on the market.

While it is not necessary for the infringement to have an actual impact in order for it to be classified as very serious where an agreement has an anti‑competitive object, the additional consideration of that factor allows the Commission to increase the starting amount of the fine beyond the minimum amount fixed by the Guidelines, without any cap other than the maximum limit of 10% of the total turnover of the undertaking concerned in the preceding business year laid down, in respect of the total amount of the fine, in Article 23(2) of Regulation No 1/2003.

In the light of those consequences, where the Commission considers it appropriate for the purposes of calculating the fine to take that optional element – the actual impact of the infringement on the market – into account, it cannot just put forward a mere presumption but must provide specific, credible and adequate evidence with which to assess what actual influence the infringement may have had on competition in that market.

(see paras 74-75, 78-82)

6. In order to determine the amount of a fine imposed for an infringement of Community competition law, it is necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the Community. It follows from this that the effect of an anti‑competitive practice is not, in itself, a conclusive criterion for assessing the proper amount of a fine. In particular, factors relating to the intentional aspect may be more significant than those relating to the effects, particularly where they relate to infringements which are intrinsically serious, such as market sharing.

(see para. 96)

7. The benefit of an attenuating circumstance cannot be granted under the third indent of Section 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty where the infringement has already come to an end before the date on which the Commission first intervenes or where the undertakings concerned have already taken a firm decision to put an end to it before that date.

(see para. 105)

8. It is not for the Court of Justice, when ruling on matters of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for their infringement of Community law.

(see para. 112)