Keywords

Summary



Keywords

1 Competition - Administrative procedure - Language rules - Statement of objections and final decision - Choice of the language used by an undertaking established in a non-Member country in its correspondence with its own sales subsidiaries in the Member States - Appendices to the statement of objections - Made available in their original language

(Council Regulation No 1; Council Regulation No 17, Art. 19; Commission Regulation No 99/63, Art. 2)

2 Acts of the institutions - Individual decision - Notification - Meaning - Certified true copy - Whether permissible

(EC Treaty, Art. 191)

3 Competition - Administrative procedure - Statement of objections - Sent in the form of an unsigned document, annexed to a letter signed by the Director-General for Competition - Whether permissible

(Commission Regulation No 99/63, Art. 2)

4 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision applying the competition rules

(EC Treaty, Art. 190)

5 Competition - Administrative procedure - Cessation of infringements - Obligations imposed on undertakings - Proportionality - Criteria

(Council Regulation No 17, Art. 3(1))

6 Competition - Fines - Amount - Determination thereof - Turnover figure taken into account - Turnover figure of all the undertakings constituting an association of undertakings - Whether permissible

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

7 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision imposing fines on several undertakings for an infringement of the competition rules

(EC Treaty, Art. 190; Council Regulation No 17, Art. 15)

8 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Aggravating circumstances - Concealment of a cartel - Proof inferred from the absence of notes on meetings of cartel members

(Council Regulation No 17, Art. 15)

9 Competition - Fines - Amount - Determination thereof - Criteria - Gravity and duration of the infringements - Criteria to be applied - Possibility of increasing the fines in order to strengthen their deterrent effect

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

10 Competition - Fines - Amount - Determination thereof - Criteria - Conduct of the undertaking during the administrative procedure

(Council Regulation No 17, Art. 15)

Summary

1 Under the Community rules, where there is no express provision for an official language of the Community to be used in relations between the Commission and an undertaking established in a third country, the Commission is entitled to choose, as the language for the statement of objections and for the decision, that used by the undertaking in its correspondence with its own sales subsidiaries in the Member States of the Community and not the language of the Member State in which its agent lives.

First, Regulation No 1 lays down rules regarding the use of languages only in the case of relations between the Community and a Member State or a person subject to the jurisdiction of one of the Member States. Secondly, neither Article 2 of Regulation No 99/63 nor Article 6 of the European Convention on Human Rights - even assuming that the latter provision could be relied on by an undertaking subject to an investigation pursuant to competition law - require documents to be sent in the language of the Member State in which the agent lives. Lastly, the language of the statement of objections and of the decision must be chosen in the light of the relationship established by the undertaking concerned, within the Community, with a Member State.

Furthermore, appendices to the statement of objections which do not emanate from the Commission must be regarded as supporting documentation on which the Commission relies and must therefore be brought to the attention of the addressee as they are.

2 A decision is properly notified within the meaning of the Treaty if it reaches the addressee and he is in a position to take cognisance of it.

As regards the validity of the notification, there is no provision of Community law which precludes the notification of a decision in the form of a certified true copy or the separate notification of an amending decision. A copy of a decision applying the Community competition rules, bearing the name of a Commissioner responsible for competition policy and the words `certified copy', which is also signed by the Secretary-General of the Commission, is lawful and has the same legal force as the original instrument adopted by the College of Commissioners and authenticated in accordance with the procedures laid down by the Commission's rules of procedure.

3 In the context of the administrative procedure concerning competition law, the statement of objections may validly be sent to the undertaking concerned in the form of an unsigned document annexed to a letter signed by the Commission's Director-General for Competition.

In signing that letter the Director-General does not act pursuant to a delegation of powers but pursuant to a simple delegation of authority to sign which he has received from the Commissioner responsible. Such delegation is the normal method by which the Commission exercises its powers. Furthermore, Article 2(1) of Regulation No 99/63 does not require that the statement of objections bear an original signature nor that the statement consist of a single document.

4 The purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted.

Although pursuant to Article 190 of the Treaty the Commission is bound to state the reasons on which its decisions are based, mentioning the facts, law and considerations which have led it to adopt them, it is not required to discuss all the issues of fact and law which have been raised during the administrative procedure.

Where a decision applying the Community competition rules gives sufficient reasons to show why the conduct in question was characterised as an agreement and concerted practice, the Commission is not required to characterise each of the actions concerned separately as either an agreement or a concerted practice.

5 Article 3(1) of Regulation No 17 may be applied so as to include an order directed at bringing an end to certain acts, practices or situations which have been found to be unlawful and also at prohibiting the adoption of similar conduct in the future. Moreover, since that provision is to be applied according to the nature of the infringement found, the Commission has the power to specify the extent of the obligations on the undertakings concerned in order to bring an infringement to an end. Such obligations on the part of the undertakings may not, however, exceed what is appropriate and necessary to attain the objective sought, namely to restore compliance with the rules infringed.

A prohibition fails to satisfy the conditions required for application of Article 3(1) of Regulation No 17 if it seeks to prevent the exchange of purely statistical information which is not in, or capable of being put into, the form of individual information where it is not apparent from the decision that the Commission considered the exchange of statistical data to be in itself an infringement of Article 85(1) of the Treaty; furthermore, the mere fact that a system for the exchange of statistical information might be used for anti-competitive purposes does not make it contrary to Article 85(1) of the Treaty, since in such circumstances it is necessary to establish its actual anti-competitive effect.

6 The use of the general term `infringement' in Article 15(2) of Regulation No 17, inasmuch as it covers without distinction agreements, concerted practices and decisions of associations of undertakings, indicates that the upper limits for fines laid down in that provision apply in the same way to agreements and concerted practices as to decisions of associations of undertakings. It follows that the upper limit of 10% of turnover must be calculated by reference to the turnover of each of the undertakings which are parties to those agreements and concerted practices or of all of the undertakings which were members of the association of undertakings, at least where, by virtue of its internal rules, the association is able to bind its members. The correctness of this view is borne out by the fact that the influence which an association of undertakings has been able to exert on the market does not depend on its own `turnover', which discloses neither its size nor its economic power, but rather on the turnover of its members, which constitutes an indication of its size and economic power.

Where an association makes, in its own name and on behalf of its member companies, sales of the product in respect of which the infringement was committed, and where it is closely linked legally and factually to its member companies and has no financial interest in participating in price collusion, the value of those sales constitutes an indication of its real size and economic power and may therefore be used by the Commission as the basis for calculating the upper limit of the fine to be imposed.

7 The purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted.

As regards decisions imposing fines on several undertakings for infringement of the Community competition rules, the scope of the obligation to state reasons must be assessed in the light of the fact that the gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines; moreover, no binding or exhaustive list of criteria to be applied has been drawn up.

Furthermore, when fixing the amount of each fine, the Commission has a margin of discretion and cannot be considered obliged to apply a precise mathematical formula for that purpose.

Lastly, the reasons for a decision must appear in the actual body of the decision and, save in exceptional circumstances, explanations given ex post facto cannot be taken into account.

When the Commission finds in a decision that there has been an infringement of the competition rules and imposes fines on the undertakings participating in it, it must, if it has systematically taken into account certain basic factors in order to fix the amount of fines, set out those factors in the body of the decision in order to enable the addressees of the decision to verify that the level of the fine is correct and to assess whether there has been any discrimination.

8 The fact that the undertakings participating in the collusion on prices orchestrated the announcement of the concerted price increases and that they were discouraged from taking notes on meetings to discuss this proves that they were aware of the unlawfulness of their conduct and that they took steps to conceal the collusion. The Commission is entitled to hold those steps to be aggravating circumstances when assessing the gravity of the infringement.

The absence of official minutes and the almost total absence of internal notes relating to the meetings may constitute, having regard to the number of such meetings, to the length of time for which they continued and to the nature of the discussions in question, sufficient proof that the participants were discouraged from taking notes.

9 When the amount of the fine for infringement of the Community competition rules is determined, regard is to be had to both the gravity and the duration of the infringement. The gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case, and the deterrent character of the fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up.

When assessing the general level of fines the Commission is entitled to take account of the fact that clear infringements of the Community competition rules are still relatively frequent and that, accordingly, it may raise the level of fines in order to strengthen their deterrent effect. Consequently, the fact that in the past the Commission has applied fines of a certain level to certain types of infringement does not mean that it is estopped from raising that level, within the limits set out in Regulation No 17, if that is necessary in order to ensure the implementation of Community competition policy.

Furthermore, in fixing the general level of fines, the Commission is entitled to take into account the lengthy duration and obviousness of an infringement of Article 85(1) of the Treaty which has been committed despite the warning which the Commission's previous decisions should have provided.

10 When the amount of the fine to be imposed for infringement of the Community competition rules is determined, a reduction on the ground that the undertaking concerned cooperated during the administrative procedure is justified only if its conduct enabled the Commission to establish an infringement more easily and, where relevant, to bring it to an end.

Where, in its reply to the statement of objections, an undertaking contests the substance of the allegations made by the Commission, the latter is entitled to conclude that the undertaking's conduct does not justify a reduction in the fine on the ground of cooperation during the administrative procedure.