The principles following from Article 47 of the Charter of Fundamental Rights of the European Union, in conjunction with Article 263 TFEU on the one hand, and Article 31 of Regulation No 1/2003 on the other, as referred to in paragraph 41 of the Settlement Notice, are applicable mutatis mutandis to the obligation the Commission is under, by virtue of the second paragraph of Article 296 TFEU, to state the reasons for the decision imposing fines which it adopts at the conclusion of a settlement procedure, in which it is assumed that the undertaking concerned accepts only the maximum amount of the fine proposed. Indeed, it is in the light of the provisions of primary and secondary law referred to above that the Court of Justice has emphasised the special importance attached to the Commission’s duty to state the reasons for its decisions imposing fines in competition cases and, in particular, to explain the weighting and assessment of the various factors taken into account in determining the amount of fines, and to the court’s duty to verify of its own motion whether such reasons have been given.

When the Commission decides to depart from the general methodology set out in the Guidelines for the calculation of fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, by which it limited the discretion it may itself exercise in setting the amount of fines, and relies on point 37 of those Guidelines, the requirements relating to the duty to state reasons must be complied with all the more rigorously. In that regard, the Guidelines lay down a rule of conduct indicating the approach to be adopted from which the Commission cannot depart, in an individual case, without giving reasons which are compatible with, inter alia, the principle of equal treatment. Those reasons must be all the more specific because point 37 of the Guidelines simply makes a vague reference to ‘the particularities of a given case’ and thus leaves the Commission a broad discretion where it decides to make an exceptional adjustment of basic amount of the fines to be imposed on the undertakings concerned. In such a case, the Commission’s respect for the rights guaranteed by the EU legal order in administrative procedures, including the obligation to state reasons, is of even more fundamental importance.

It follows that, where the Commission determines the fines imposed on the undertakings involved in a settlement procedure, in reliance on point 37 of the Guidelines, it is required to explain with sufficient clarity and precision the way in which it intends to use its discretion, including the various facts and points of law it takes into consideration for that purpose. In particular, in the light of the obligation it is under to have due regard for the principle of equal treatment when determining the amount of fines, that duty to state reasons encompasses all the relevant factors necessary for determining whether or not the undertakings concerned, for which the basic amount of the fine was adjusted, were in a comparable situation, whether the situations of those undertakings were treated in the same way or differently and whether any equal or different treatment of those situations was objectively justified.

Similarly, the Commission fails in its duty to give reasons if it does not explain why it applies different rates of reduction to the undertakings concerned, particularly where those rates are markedly different in relation to the total turnover figures of each of those undertakings and the variation cannot be explained by the simple fact that the Commission intended to reduce all the basic amounts to a percentage figure within the maximum of 10% of total turnover.

(see paras 48, 49, 52)