Judgment of the General Court (Fourth Chamber) of 16 November 2011 – ASPLA v Commission

(Case T-76/06)

Competition – Agreements, decisions and concerted practices – Plastic industrial bags sector – Decision finding an infringement of Article 81(1) EC – Exchange of individualised information – Fixing of prices and sales quotas by geographic area – Allocation of customers – Concerted bidding in response to invitations to tender – Single and continuous infringement – Extent of the infringement – Definition of the product market and the geographic market – Guidelines for the calculation of fines – Principles of equal treatment and proportionality – Aggravating and attenuating circumstances – Ceiling of 10% of turnover

1. Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement – Undertakings that may be held responsible for participating in an overall cartel – Criteria – No need for a presence in all the territories covered by the cartel (Art. 81(1) EC) (see paras 22-23, 30, 32, 66, 109)

2. Competition – Agreements, decisions and concerted practices – Participation in meetings of undertakings having an anti-competitive object – Circumstances from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel (Art. 81(1) EC) (see para. 24)

3. Competition – Agreements, decisions and concerted practices – Definition of the market – Purpose – Obligation to define the market in question – Limits (Art. 81(1) EC) (see paras 80-84)

4. Competition – Fines – Amount – Determination – Division of the undertakings concerned into different categories – Classification by order of size – Margin of discretion of the Commission (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03) (see paras 92-93)

5. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Assessment – Economic reality at the time the infringement was committed to be taken into account – Commission’s use of the same reference year for all the undertakings which participated in the infringement – Lawfulness (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(3); Commission Notice 98/C 9/03, Section 1A) (see paras 111-112)

6. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking – Criteria for assessment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3, first indent) (see paras 124-126)

7. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Absence of benefit – Not included (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)) (see para. 128)

8. Competition – Fines – Amount – Determination – Principle of equal treatment – Differences between undertakings arising from application of the maximum amount – Lawfulness (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 143-144)

Re:

APPLICATION for annulment in part of Commission Decision C (2005) 4634 final of 30 November 2005 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.354 – Industrial bags), concerning a cartel on the market for plastic industrial bags, and, in the alternative, for reduction of the fine imposed on the applicant.

Operative part

The Court:

1. Dismisses the action;