However, it cannot be presumed that an agreement or a concerted practice whereby undertakings exchange information which is commercially sensitive but which relates to a product sold on a market on which they are not competitors has an anti-competitive object or effect on that market. A practice whereby an undertaking which is active on two distinct product markets provides to its competitors — which are present on one market — commercially sensitive information which relates to a second market — on which those competitors are not present — is not capable, in principle, of having an impact on competition on the second market.

In competition matters, the provision of sensitive business information, such as an exchange of future price increases, has — where that information is given to one or more competitors — an anti-competitive effect inasmuch as the independence of the undertakings concerned in their conduct on the market is modified as a result. Where such practices occur, the Commission is not obliged to prove their anti-competitive effects on the relevant market if they are capable in an individual case, having regard to the specific legal and economic context, of resulting in the prevention, restriction or distortion of competition within the internal market.

In competition matters, there is a single infringement in the case of agreements or concerted practices which, whilst they relate to distinct goods, services or territories, form part of an overall plan knowingly implemented by undertakings with a view to achieving a single anti-competitive objective. However, a finding that there is such an infringement does not remove the precondition that there be a distortion of competition affecting each of the product markets covered by the said single infringement.

In competition matters, the Commission sets out the conditions under which undertakings cooperating with it during its investigation into a cartel may be exempted from fines, or may be granted a reduction of the fine which would otherwise have been imposed upon them.

It is apparent from the logic of the 2002 Leniency Notice that the effect sought is to create a climate of uncertainty within cartels by encouraging those participating in them to denounce the cartels to the Commission. That uncertainty results precisely from the fact that the cartel participants know that only one of them can benefit from immunity from fines by denouncing the other participants in the infringement, thereby exposing them to the risk that they face being fined. In the context of that system, and according to the same logic, the undertakings that are quickest to provide their cooperation are supposed to benefit from greater reductions of the fines that would otherwise be imposed on them than those granted to the undertakings that are less quick to cooperate. The chronological order and the speed of the cooperation provided by the members of the cartel therefore constitute fundamental elements of the system put in place by the 2002 Leniency Notice.

In that regard, whilst the Commission is required to state the reasons for which it considers that information provided by undertakings under the Leniency Notice constitutes a contribution which may or may not justify a reduction of the fine, it is incumbent on undertakings wishing to contest the Commission’s decision in that regard to show that, in the absence of such information provided voluntarily by the undertakings, the Commission would not have been in a position to prove the essential elements of the infringement and therefore adopt a decision imposing fines. In view of the rationale for the reduction, the Commission cannot disregard the usefulness of the information provided, which inevitably depends on the evidence already in its possession.

Where an undertaking providing cooperation does no more than confirm, in a less precise and explicit manner, certain information that has already been provided by another undertaking by way of cooperation, the extent of the cooperation provided by the former undertaking, while possibly of some benefit to the Commission, cannot be treated as comparable with that provided by the undertaking which was the first to supply that information. A statement which merely corroborates to a certain degree a statement which the Commission already had at its disposal does not facilitate the Commission’s task significantly. Accordingly, it cannot be sufficient to justify a reduction of the fine for cooperation. Moreover, the cooperation of an undertaking in the investigation does not entitle it to a reduction of its fine where that cooperation went no further than the cooperation incumbent upon it under Article 18 of Regulation No 1/2003.

Last, even though the Commission must be held to have a margin of discretion when it considers whether information provided to it under the 2002 Leniency Notice represents significant added value, the fact remains that the Court cannot use that margin of discretion as a basis for dispensing with a thorough review as to matters of law and of fact of the Commission’s assessment in that regard.

(see paras 142, 147-153)