Case T‑566/08

Total Raffinage Marketing

v

European Commission

‛Competition — Agreements, decisions and concerted practices — Market for paraffin waxes — Market for slack wax — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Proof of the existence of the cartel — Concept of single and continuous infringement — Duration of the infringement — Interruption of the infringement — 2006 Guidelines on the method of setting fines — Equal treatment — Presumption of innocence — Imputability of the unlawful conduct — Liability of a parent company for the infringements of the competition rules committed by its subsidiaries — Decisive influence exercised by the parent company — Presumption in the case of 100% shareholding — Proportionality — Rounding-up method — Unlimited jurisdiction’

Summary — Judgment of the General Court (Fourth Chamber), 13 September 2013

Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope — Account taken of the Guidelines on the method of setting fines — Limits — Compliance with general legal principles — Calculation of the duration of participation in the infringement — Rounding-up of the number of months of participation — Amount not reflecting the actual duration of the infringement — Infringement of the principles of equal treatment and proportionality

Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Rebuttable presumption — No infringement of the presumption of innocence — No infringement of principle that penalties should be individual to the offender

Competition — Fines — Amount — Determination — Criteria — Overall turnover of the undertaking concerned — Turnover corresponding to the goods covered by the infringement — To be taken into consideration — Limits — Observance of the principle of proportionality –No obligation on the Commission to abide by its previous decision-making practice

Competition — Fines — Amount — Determination — Criteria — Duration of the infringement — Deterrent character of the amount of the fine — Observance of the principle of proportionality — No obligation to establish a fine amount proportionate to the value of annual sales on the markets concerned

Competition — Fines — Amount — Determination — Discretion of the Commission — Automatic inclusion of an additional amount by virtue of the guidelines for the calculation of fines — No infringement of principle that penalties should be individual to the offender — Account taken of the objective of general prevention — Lawfulness — Account taken of the objective of deterrence at various stages of the process of determining the amount of the fine — Lawfulness

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 — Application of a multiplying coefficient — Assessment — Not possible for an undertaking to raise the principle of equal treatment in order to secure an unlawful reduction

Competition — Fines — Amount — Determination — Turnover taken into consideration — Reference year — Last complete year of the infringement — Exceptional character thereof in relation to certain participants — Account taken of a broader period in the same way for all participants — Lawfulness — No infringement of the principles of legal certainty and equal treatment — No error of assessment

Competition — Administrative procedure — Commission decision finding an infringement — Admissible evidence — Investigation focusing on certain aspects of the anti-competitive practices — Fact not excluding the use of all the evidence at the Commission’s disposal at the time the decision adopted

Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Concept — Participants in the various aspects of the infringement not identical — Different durations of different aspects of the infringement — Irrelevant

Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — General reference to documents annexed to the application — Inadmissibility — Introduction of new pleas during the proceedings — Plea raised for the first time at the hearing — Inadmissibility

Agreements, decisions and concerted practices — Agreements between undertakings — Burden of proof — Undertaking’s reply to the Commission’s request for information — Statement of an undertaking disputed by other undertakings — Obligation to supplement such evidence with other reliable elements

Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Probative value of voluntary statements incriminating an undertaking by the main participants in a cartel in order to benefit from application of the Leniency Notice — Statements going against the interests of the said undertaking — High probative value

Competition — Administrative procedure — Commission decision finding an infringement — Burden of proof — Proof adduced by a number of different manifestations of the infringement — Lawfulness — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation — Documentary proof — Criteria — Reliability of evidence produced — Evidential obligations on undertakings disputing the existence of the infringement

Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Exchange of information between competitors — Presumption that the information used to determine market conduct — Conditions

Agreements, decisions and concerted practices — Agreements between undertakings — Concept — Joint intention as to the conduct to be adopted on the market — Price-fixing agreement — Included — Conditions — Divergent conduct by one or more participants — Irrelevant — Proof of non-implementation of a cartel by one participant — Public distancing

In order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way. An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation. In particular, an agreement to maintain prices is also an agreement to fix prices, since there is a concurrence of wills of the participants on the application of a price level which they have fixed together. That finding does not imply the actual application of a single price for all participants. The fact of having such a common objective already constitutes an agreement within the meaning of Article 81(1) EC, since a concurrence of wills on the very principle of the restriction of competition existed. Similarly, the fact that the undertakings actually announced the agreed price increases and that the prices so announced served as a basis for fixing individual transaction prices suffices in itself for a finding that the collusion on prices had as both its object and its effect a serious restriction of competition. In such a case, the Commission is not required to examine the details of the parties’ arguments seeking to establish that the agreements in question did not have the effect of increasing prices beyond those which would have been observed under normal conditions of competition and to respond point by point to those arguments. Moreover, an infringement is not eliminated by the simple fact that certain participants do not comply with the cartel or cheat other participants. First, an undertaking which despite colluding with its competitors follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit. Second, sporadic and isolated cases of cheating or failure to apply the cartel by a particular participant, especially where they concern a cartel of long duration, cannot in themselves demonstrate that that participant did not implement the cartel or adopted competitive conduct. In that regard, the only way in which it can be concluded that an undertaking has definitively ceased to belong to a cartel is if it has publicly distanced itself from the content of the cartel. (see paras 30-32, 89, 99, 147, 184, 236, 238, 243, 254, 372)

See the text of the decision. (see paras 33, 34, 154, 187, 188, 255, 256)

See the text of the decision. (see paras 33-35, 39-48, 79-83, 177, 201, 214, 224-226, 323)

See the text of the decision. (see paras 36-38)

See the text of the decision. (see paras 63-71, 322)

See the text of the decision. (see paras 73, 74)

An undertaking may be held responsible for an overall cartel even though it is shown to have participated directly only in one or some of its constituent elements if it is shown that it knew, or must have known, that the collusion in which it participated, especially by means of regular meetings organised over several years, was part of an overall plan intended to distort competition and that the overall plan included all the constituent elements of the cartel. (see paras 108, 187)

An infringement of Article 81 EC is constituted when meetings of competitive undertakings have the object of restricting, preventing or distorting competition and are thus aimed at artificially organising the functioning of the market. In such a case, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded in order to prove that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward indicia to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. The reason underlying that rule is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking has given the other participants to believe that it subscribed to what was decided there and would comply with it. (see paras 156, 157, 184, 242-244, 254, 372-374, 384, 387, 388)

See the text of the decision. (see paras 239, 447)

See the text of the decision. (see paras 247, 536)

The concept of a single infringement of the provisions of Article 81 EC assumes conduct adopted by different parties that pursues the same anti-competitive aim. The fact that the various actions of the undertakings form part of an ‘overall plan’, because their identical object distorts competition within the common market, is decisive for the finding of a single infringement. In that regard, when determining whether there has been a single infringement and an overall plan, the Court may take into account the at least partial identity of the undertakings concerned and the fact that they are aware that they are participating in the common object of the unlawful conduct. Likewise, for the purposes of characterising various unlawful actions as a single and continuous infringement, it is necessary to establish whether they display a link of complementarity in that each of them is intended to deal with one or more consequences of the normal pattern of competition and, through interaction, contribute to the attainment of the set of anti-competitive effects desired by those responsible, within the framework of a global plan having a single objective. In that context, the fact that the anti-competitive practices relate to two separate product markets cannot prevent the Commission from concluding that there has been a single infringement, provided that the actions relating to various markets form part of an overall plan of which the participants are aware. That is particularly the case with vertically-linked markets where the agreement concluded in respect of raw materials is intended to reinforce the main agreement concerning the derived products. Thus, artificial increases in the price of raw material serve to ensure implementation of increases in the prices of derived products, thereby making it possible to establish the existence of a link of complementarity between the two aspects of a single infringement. That conclusion cannot be excluded by the fact that the anti-competitive practices concerning the raw material are limited to the territory of a single Member State where it is undisputed that the aspect of the infringement concerning derived products extended to the whole of the European Economic Area. (see paras 265-267, 271, 272, 281, 283, 303, 312)

Classification as a single and continuous infringement of Article 81(1) EC is not precluded at the outset by the fact that the participants in anti-competitive practices are not identical and the said activities concern different markets. For the purposes of such an assessment, account must be taken of the extent of the overlap between the undertakings participating in the said practices. Conversely, in a case where all the participants in practices concerning a certain market also participate in practices concerning a product vertically linked to that first market, the fact that the participants in the two aspects of the infringement are not completely identical does not preclude classification as a single infringement. In so far as practices concerning two different products form part of the same overall plan, nor can the above conclusion be called into question by a difference in duration between those practices. (see paras 296-300, 306-309)

See the text of the decision. (see para. 339)

See the text of the decision. (see paras 409-419)

See the text of the decision. (see paras 431-435)

It is clear from the wording and the structure of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (‘the 2006 Guidelines’), that the Commission, when determining the amount of the fine, uses both the factors the rate of which is common to all participants, in order to reflect the fact that those undertakings participated in the same unlawful practices, thus respecting the principle of equal treatment, and the factors the rate or coefficient of which is adjusted in the light of the particular situation of each participant, in order to comply with the principle that penalties must be specific to the offender. Therefore, in order to comply with the principle that penalties must be specific to the offender, it is sufficient that the final amount of the fine reflects the differences in the situations of the various participants, without there being any need for the Commission to differentiate the treatment of the participants at each stage of the calculation of the amount of the fine. It is moreover apparent from the wording and the structure of the 2006 Guidelines that the provision, in point 25 thereof, concerning the inclusion in the basic amount of the fine of an additional amount for deterrence reflects participation in the most harmful anti-competitive practices. The additional amount included on that basis relates to the characteristics of the practices of all the participants and not of the individual situation of each of them. Accordingly, the lawfulness of that provision and of its application cannot be called into question on the basis of the principle that penalties must be specific to the offender. Moreover, the deterrent effect of the fine is not designed solely to deter the undertaking in question from repeating the infringement. The Commission has the power to determine the level of fines with a view to reinforcing their deterrent effect in general. Accordingly, an applicant cannot rely on the fact that it is no longer present on the market in question and that its code of conduct prescribes compliance with the competition rules. Finally, the requirements of deterrence do not form the subject-matter of a separate assessment to be carried out at a specific stage of the calculation of the amount of fines, but must underpin the entire process of setting the amount of the fine. (see paras 453-456, 460, 461, 463, 464)

See the text of the decision. (see paras 466-473)

It is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. It is important not to confer on one or the other of those figures an importance disproportionate in relation to the other factors and, consequently, the fixing of an appropriate fine cannot be the result of a simple calculation based on total turnover. That is particularly so when the goods concerned account for only a small part of that figure turnover. Conversely, Union law contains no general principle that the penalty must be proportionate to the undertaking’s size on the product market in respect of which the infringement was committed. (see paras 475, 477, 478, 481, 482)

See the text of the decision. (see paras 487-508)

As regards the presumption that a parent company actually exercises a decisive influence on the commercial behaviour of a wholly-owned subsidiary, the fact that a subsidiary has its own local management and its own resources does not prove, in itself, that that company decides upon its conduct on the market independently of its parent company. In the case of a wholly-owned or virtually wholly-owned subsidiary directly involved in an infringement of EU competition rules, the evidence adduced in respect of the division of tasks between subsidiaries and their parent companies and, in particular, the fact that a wholly-owned subsidiary is entrusted with the management of day-to-day activities, which is normal practice in large undertakings composed of a multitude of subsidiaries ultimately owned by the same holding company, is not capable of rebutting the presumption that decisive influence over the subsidiary’s conduct was effectively exercised by the parent company and by the holding company. Similarly, the fact that the parent company handles matters such as human resources policy, keeping consolidated accounts, and determination of the fiscal policy for the group, and some other horizontal operational tasks, such as industrial security, environment, ethical fund management, financing activities being in the hands of the subsidiary for the whole group, further indicate the lack of full organisational autonomy for the subsidiary within the group. Finally, the fact that the sector or the activity affected by the infringement accounts for only a small percentage of the overall activities of the group or the parent company is not such as to prove the autonomy of the subsidiary vis-à-vis its parent company and, accordingly, has no impact on the application of the presumption that the parent company effectively exercised decisive influence over the commercial conduct of the subsidiary on the market. (see paras 518-520, 522)

In the area of the fixing of the amount of fines imposed for infringement of the competition rules, the self-limitation of the Commission’s discretion arising from the adoption of the 2006 Guidelines is not incompatible with the Commission’s maintaining a substantial margin of discretion. However, when exercising that discretion, the Commission is bound to comply with general principles of law, in particular the principles of equal treatment and proportionality. Similarly, the Commission’s discretion and the limits placed thereon in those Guidelines do not, in principle, prejudge the exercise by the EU judicature of its unlimited jurisdiction. In that regard, the Commission infringes the principle of proportionality by holding an undertaking liable in respect of a considerable number of days for which no participation in the infringement has been established, since the amount of the fine thus calculated does not appropriately reflect the duration of the infringement. Similarly, the Commission infringes the principle of equal treatment without objective justification if it holds an undertaking liable, by virtue of its participation in such an infringement, in respect of a period of participation during which no infringing conduct has been established in respect of that undertaking, whereas, for other undertakings involved in the same infringement, a far shorter time has been added to the actual duration of participation in the infringement for the purposes of calculating the amount of the fine. (see paras 543-545, 548, 551, 553, 554, 559, 560)

Review of the lawfulness of decisions adopted by the Commission is supplemented by the unlimited jurisdiction conferred on the Courts of the Union by Article 31 of Regulation No 1/2003, in accordance with Article 229 EC. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed. However, the exercise of unlimited jurisdiction does not amount to a review undertaken of the Court’s own motion, and proceedings before the Courts of the European Union are inter partes. (see paras 562, 564)