Judgment of the General Court (Sixth Chamber, Extended Composition) of 16 June 2011 – Solvay Solexis v Commission

(Case T-195/06)

Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Duration of infringement – Concept of ‘agreement’ and ‘concerted practice’ – Access to the file – Fines – Equal treatment – Leniency Notice – Duty to state reasons

1. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Concept – Joint intention as to the conduct to be adopted on the market – Included – Pursuance of negotiations on certain aspects of the restriction – No effect (Art. 81(1) EC) (see paras 55-56, 98, 100)

2. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Exchange of information in the context of a cartel or with a view to its preparation – Taking into account of information exachanged – Presumption – Conditions (Art. 81(1) EC) (see paras 57-59, 102-103, 116)

3. Competition – Agreements, decisions and concerted practices – Complex infringement with elements of an agreement and elements of a concerted practice – Single description as an ‘agreement and/or concerted practice’ – Lawfulness (Art. 81(1) EC) (see paras 60-62, 81)

4. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Anti-competitive purpose – Sufficient (Art. 81(1) EC) (see paras 113, 118, 157)

5. Competition – Agreements, decisions and concerted practices – Prohibition – Agreements which continue to produce their effects after they have formally ceased to be in force – Application of Article 81 EC (Art. 81(1) EC) (see paras 124-125)

6. Competition – Agreements, decisions and concerted practices – Proof – Evidence adduced by the Commission – Participation in meetings having an anti-competitive object – Evidentiary duties of undertakings denying the unlawfulness of some of those meetings (Art. 81(1) EC) (see para. 131)

7. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Non-communication of a document – Consequences – Need to draw a distinction, at the level of the burden of proof borne by the undertaking concerned, between inculpatory and exculpatory documents (Council Regulation No 1/2003, Art. 27(2)) (see paras 146-149)

8. Competition – Administrative procedure – Commission decision – Duty to state reasons – Scope – Obligation on the Commission to take a position on documents not containing exculpatory evidence – None (Arts 81 EC and 253 EC) (see para. 159)

9. Competition – Administrative procedure – Observance of the rights of the defence – Communication of replies to a statement of objections – Conditions – Limits (Art. 81 EC) (see paras 167-171, 173, 176, 178-181)

10. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Single and continuous infringement – Taking into account of variations in intensity of the offending conduct (Council Regulation No 1/2003, Art. 23(3)) (see paras 191, 210)

11. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Obligation to take account of the actual impact on the market – Scope (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A) (see paras 195-197)

12. Competition – Fines – Amount – Determination – Division of the undertakings in question into categories with a specific starting point – Lawfulness – Conditions – Judicial review (Council Regulation No 1/2003, Art. 23(2)) (see paras 220-221)

13. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking – Criteria for assessment (Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, Section 3, first indent) (see paras 241-243, 252, 268)

14. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Conduct deviating from that agreed within the cartel – Assessment (Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, Section 3) (see paras 269, 271-272)

15. Competition – Fines – Amount – Determination – Criteria – Taking into account of cooperation of the incriminated undertaking with the Commission outside the framework laid down by the leniency notice – Conditions – Limits (Council Regulation No 1/2003, Art. 23; Commission Notices 98/C 9/03, Section 3, and 2002/C 45/03, Section 23(b), third para.) (see paras 283, 285)

16. Competition – Fines – Decision imposing fines – Duty to state reasons – Scope – Indication of the factors which led the Commission to assess the gravity and the duration of the infringement (Art. 253 EC; Council Regulation No 1/2003, Art. 23(3)) (see paras 297, 299)

17. Competition – Fines – Amount – Determination – Deterrent effect – Criteria for assessing the deterrent effect (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03) (see paras 305-306)

18. Competition – Community rules – Infringements – Attribution – Transfer of an area of business – Legal person responsible for the running of the undertaking at the time of the infringement (Art. 81(1) EC) (see paras 308, 310)

Re:

APPLICATION for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 – Hydrogen peroxide and perborate) and for a reduction of the fine imposed on the applicant.

Operative part

The Court:

1. Dismisses the action;