Keywords

Summary



Keywords

1. Competition – Administrative procedure – Commission decision – Decision establishing an infringement and imposing a fine – Decision annulled in part as regards the imposition of a fine

(Art. 229 EC; Council Regulations No 17, No 2988/74 and No 4056/86, Arts 11(2), 19(2) and 21)

2. Competition – Administrative procedure – Limitation periods in proceedings – Interruption – Scope

(Council Regulations No 17 and No 2988/74, Art. 2(1)(d) and (2))

3. Competition – Administrative procedure – Limitation periods as regards fines – Regulation No 2988/74 alone applicable

(Council Regulation No 2988/74, Art. 2(1) and (3))

4. Competition – Fines – Assessment by reference to the individual conduct of the undertaking

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

5. Competition – Fines – Amount – Determination – Criteria defined in guidelines issued by the Commission – Applicability to infringements of the competition rules in the maritime transport sector

(ECSC Treaty, Art. 65(5); Council Regulations No 17, Art. 15(2), and No 4056/86, Art. 19(2); Commission Notice 98/C 9/03)

6. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating or mitigating circumstances

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, points 2 and 3)

7. Competition – Fines – Amount – Determination – Need to take account of the turnover of the undertakings concerned – None

(Council Regulation No 4056/86)

Summary

1. Where, when required to adjudicate on a Commission decision establishing an infringement of the competition rules and imposing a fine, the Community judicature has annulled the decision in part as far as concerns the imposition of the fine on account of a procedural defect, while at the same time rejecting the substantive pleas relating to the establishment of the infringement, the Commission is entitled to adopt a new decision with a view to, first, imposing a new fine on the basis of the parts of the first decision that were not annulled and, second, correcting the procedural flaws identified by the court. The new decision is therefore to be analysed exclusively as a decision imposing a fine and not as a decision finding an infringement and must, on pain of illegality, be adopted in compliance with the rules on limitation laid down in Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions under the rules relating to transport and competition. With regard in particular to infringements in the maritime transport sector, neither Regulation No 4056/86 laying down detailed rules for the application of Articles [81 EC] and [82 EC] to maritime transport nor Regulation No 17 expressly precluded the formally separate adoption, on two distinct legal bases, of two distinct measures, namely the decision establishing the infringement (in the case of Regulation No 4056/86, on the basis of Article 11(1)) and the decision imposing the fine (on the basis of Article 19(2) of that regulation).

After the legal remedies available against a judicial decision have been exhausted or after the time‑limits for pursuing such remedies have expired, those parts of the Commission’s first decision which have not been annulled acquire the authority of res judicata , definitively form part of the Community legal structure and produce all their legal effects. It follows that in an action for annulment of the Commission’s new decision the undertaking which was fined cannot challenge once again the correctness of the facts underlying the infringement, since that was definitively established by the Commission in its first decision. For the same reasons, nor can that undertaking successfully rely on alleged breach of its rights of defence in the administrative procedure prior to adoption of the first decision or a failure to state reasons on the basis of the fact that the new decision imposing a fine simply referred to those parts of the first decision establishing the infringement which were not annulled. Moreover, in the exercise of its unlimited jurisdiction under Article 21 of Regulation No 4056/86, within the meaning of Article 229 EC, the Court can legitimately refer to those parts for the purpose of assessing the amount of the fine imposed.

(see paras 22-23, 55, 57, 60, 62-63, 76, 83, 110)

2. In accordance with the wording of Article 2(2) of Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions under the rules relating to transport and competition, the interruption of the limitation period is to apply for all the undertakings which participated in the infringement in question. Consequently, an undertaking which is a member of a shipping conference cannot prevent the interruption of the limitation period in respect of an infringement in which it participated along with other members of that conference from applying to itself on the sole ground that it was not the addressee of the statement of objections which was addressed to the shipping conference.

(see paras 30-31)

3. Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions under the rules relating to transport and competition established a complete system of rules covering in detail the periods within which the Commission is entitled, without undermining the fundamental requirement of legal certainty, to impose fines on undertakings which are the subject of procedures under the Community competition rules. In the light of those rules, there is no room for consideration of the Commission’s duty to exercise its power to impose fines within a reasonable period.

That conclusion cannot be affected by a plea alleging infringement of the principle of legal certainty or the rights of defence. First, Regulation No 2988/74 expressly takes into account, in the second recital in the preamble thereto, the need to ensure legal certainty, specifically by the introduction of the principle of a limitation period. Second, so long as the limitation period laid down in that regulation has not expired, any undertaking or association of undertakings which is the subject of a competition policy investigation under Regulation No 17 remains uncertain as to the outcome of the procedure and as to whether sanctions or fines will be imposed. Thus, the prolongation of that uncertainty is inherent in proceedings implementing Regulation No 17 and does not in itself constitute a breach of the rights of defence.

(see paras 41, 43)

4. Where an undertaking has acted in breach of Article 82 EC, it cannot escape being penalised altogether on the ground that other traders have not been fined when those traders’ circumstances are not even the subject of proceedings before the Courts.

(see para. 94)

5. The guidelines for calculating fines imposed under Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty are also applicable by analogy to infringements of the competition rules in the maritime transport sector which are established and penalised pursuant to Regulation No 4056/86 laying down detailed rules for the application of Articles [81 EC] and [82 EC] to maritime transport.

(see para. 109)

6. The Commission cannot be required, as a general rule, either to regard the continuation of the infringement as an aggravating circumstance or to consider that the termination of an infringement constitutes an attenuating circumstance. In effect, a reduction applied in such circumstances would duplicate the reduction for duration of the infringement which is applied in calculating the fine. Consequently, the Commission cannot be required to grant, in the exercise of its discretion, a reduction in the fine for termination of a manifest infringement, whether that infringement was terminated before or after the Commission became involved.

(see para. 120)

7. When determining the amount of a fine for infringement of the competition rules in the maritime transport sector, the Commission is not required to calculate the fine on the basis of the turnover of the undertakings concerned.

In that regard, the previous decision-making practice of the Commission is irrelevant because, first, that practice does not itself serve as a legal framework for fines imposed in competition matters in that sector, since that framework is established solely in Regulation No 4056/86 laying down detailed rules for the application of Articles [81 EC] and [82 EC] to maritime transport and, second, the Commission has a wide discretion when determining the amount of fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules.

(see paras 131-133)