Judgment of the General Court (Fourth Chamber) of 16 November 2011 – Sachsa Verpackung v Commission

(Case T-79/06)

Competition – Agreements, decisions and concerted practices – Plastic industrial bags sector – Decision finding an infringement of Article 81 EC – Price fixing – Allocation of sales quotas by geographic area – Allocation of customers – Exchange of individualised information – Proof of the infringement – Duration of the infringement – Fines – Gravity of the infringement – Proportionality – Attenuating circumstances – Follow-my-leader role

1. Competition – Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices constituting a single infringement – Liability attributed to an undertaking by reason of participation in the infringement considered as a whole despite its limited role – Lawfulness (Art. 81(1) EC) (see paras 27-28, 33-34)

2. Competition – Agreements, decisions and concerted practices – Participation in meetings of undertakings having an anti-competitive object – Circumstances from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel (Art. 81(1) EC) (see para. 29)

3. Competition – Administrative procedure – Commission decision finding an infringement – Means of proof – Reliance on a body of evidence – Degree of evidential value necessary as regards items of evidence viewed in isolation (Art. 81(1) EC) (see para. 60)

4. Competition – Community 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 (Art. 81(1) EC) (see paras 85-87)

5. Procedure – Introduction of new pleas during the proceedings – Conditions – Pleas based on matters which have come to light in the course of the procedure – Entry into force of the Treaty of Lisbon – New fact justifying late submission of a claim based on infringement of the principle of the presumption of innocence – Not included (Art. 6 TEU; Charter of Fundamental Rights of the European Union, Art. 48; Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Arts 44(1)(c) and 48(2)) (see paras 91-95)

6. Competition – Fines – Amount – Determination – Maximum amount – Calculation – Turnover to be taken into consideration – Cumulative turnover of all the companies constituting the economic unit acting as an undertaking (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 105-108)

7. Competition – Fines – Amount – Determination – Criteria – Gravity and duration of the infringement – Infringement committed by several undertakings – Gravity in relation to the participation of each of them (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 135-138)

8. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Absence of benefit – Not included (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)) (see para. 153)

9. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Measure of the actual impact on competition of the infringing conduct of each undertaking – Relevance of the turnover achieved with sales of the goods subject to a restrictive practice (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03) (see para. 175)

10. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3, first indent) (see paras 212-213)

11. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Actual cooperation of the undertaking in the procedure, outside the scope of the Leniency Notice – Inclusion – Conditions (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3, sixth indent) (see paras 223-225)

12. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation of the undertaking concerned – Need for conduct which facilitated the Commission’s finding of an infringement – Information concerning acts not capable of giving rise to fines under Regulation No 1/2003 – Mere willingness to cooperate insufficient – Assessment of the degree of cooperation provided by each of the undertakings which participated in the cartel – Respect for the principle of equal treatment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 96/C 207/04) (see paras 235-241, 244)

13. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Determination of the fine in proportion to the factors for assessing the gravity of the infringement (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)) (see para. 258)

Re:

APPLICATION for annulment in part of Commission Decision C (2005) 4634 final of 30 November 2005 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.354 – Industrial bags), concerning a cartel on the market for plastic industrial bags, and, in the alternative, for amendment of that decision.

Operative part

The Court:

1. Dismisses the action;