Keywords

Summary



Keywords

1. Competition — European Union 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 nature — Burden of proof

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2))

2. Competition — European Union rules — Infringements — Attribution — Infringement by an entity which did not cease to exist and continued by another entity which succeeded it in the economic activity of the market concerned — Imputation of the entire infringement to that other entity — Admissibility in the light of the fact that the two entities are subject to the control of the same public authority or of a private company

(Art. 101(1) TFEU)

3. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the findings of fact — Possible only where the clear sense of the evidence has been distorted

(Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.)

4. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — No binding or exhaustive list of criteria — Commission’s margin of discretion — Taking account of the actual impact of an infringement on the market — Scope

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3))

5. Competition — Fines — Amount — Determination — Criteria — Deterrent effect — Elements of assessment of the deterrent effect

(Council Regulation No 1/2003, Art. 23(2) and (3))

6. Competition — Fines — Amount — Determination — Deterrent effect — Taking account of the size and global resources of the penalised undertaking — Relevance –Application of a multiplier to the starting amount — Discretion of the Commission — Need to tailor the penalty according to the size and conduct of the undertakings in question

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1 A)

7. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Exercise by the General Court of its unlimited jurisdiction — Scope

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2))

8. Procedure — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Pleas in law not set out in the application — Reference to elements in an annex — Inadmissibility

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c))

9. Appeals — Cross-appeal — Interest in bringing proceedings — Annulment in part by the General Court of a Commission decision imposing a fine and consequent reduction in the amount of that fine — Intention of the Commission to reopen the inquiry — No effect — Maintenance of the Commission’s interest in having its cross-appeal declared well founded and maintaining the penalty imposed

10. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Repeated infringement — Need to set out the facts of the participation of the undertaking concerning in the earlier infringement — Inadequate statement of reasons

(Arts 101 TFEU and 296 TFEU)

Summary

1. See the text of the decision.

(see paras 51, 53)

2. In competition matters, where two entities constitute one economic entity, the fact that the entity that committed the infringement still exists does not as such preclude imposing a penalty on the entity to which its economic activities were transferred. In particular, applying penalties in this way is permissible where those entities have been subject to control by the same person and have therefore, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions. Although it is true that the situation also covers one where the entity that has committed the infringement has ceased to exist, either in law or economically, since a penalty imposed on an undertaking which is no longer economically active is likely to have no deterrent effect, the Commission is entitled to impute the infringement to a company which has not committed the infringement where the entity which has done so continues to exist as an economic operator on other markets, where the companies concerned are held by the same public entity or if control over them is exercised by a company under private law.

(see paras 52, 55, 56)

3. See the text of the decision.

(see paras 66-72)

4. The gravity of infringements of European Union competition law must be established by reference to numerous factors, even though no binding or exhaustive list of criteria to be taken into account has been drawn up. The actual impact of an infringement on the market is not a decisive factor for determining the level of fines. Furthermore, the Commission may classify horizontal price or market-sharing cartels as very serious infringements solely on account of their nature, without being required to demonstrate an actual impact of the infringement on the market. In that case, the actual impact of the infringement is only one among a number of factors which, if it can be measured, may allow the Commission to increase the starting amount of the fine beyond the minimum likely amount. Since the infringement in question is intrinsically very serious, taking its actual impact into account could read to an increase in the fine.

(see paras 82-84)

5. With regard to the deterrent effect of fines, the multiplier for deterrence can refer not only to general deterrence, in the sense of an action seeking to discourage all companies in general from committing the infringement in question, but also specific deterrence, to dissuade the specific defendant from infringing the rules again in the future. Thus, the Commission is not required to restrict its assessment to factors relating only to the specific situation of the undertaking

(see para. 94))

6. See the text of the decision.

(see paras 102, 104-107)

7. See the text of the decision.

(see para. 103)

8. See the text of the decision.

(see paras 115-117)

9. A loss of interest in bringing proceedings during the course of a case does not, in principle, affect admissibility, but may lead the Court to rule that there is no further need to adjudicate. However, where a Commission decision finding that there is an agreement and imposing a fine on the undertakings which participated therein has been partly annulled by the General Court, the Commission retains its interest in bringing proceedings given that the pecuniary penalty, together with interest, continues to exist in the event that the Court of Justice should uphold the Commission’s cross-appeal, which would not be the case if the Commission were to adopt a fresh decision.

(see paras 124, 125)

10. The Commission, when applying, in calculating the fine for infringement of the European Union competition rules, a multiplier to take account of the fact that that company had already been involved in an infringement of the competition rules, is required to provide, with the decision imposing the fine, a statement of reasons enabling the European Union Courts and that company to understand in what capacity and to what extent it was involved in the earlier infringement. In particular, if the Commission considers that that company was part of the addressee undertaking of the decision relating to the earlier infringement, it is for the Commission to state sufficient proper reasons for that assertion.

Where the statements contained in a decision imposing on the applicant an increase in the fine due to repeated infringement do not make it clear in what capacity and to what extent the applicant, which was not among the addressees of the earlier decisions, was involved in the earlier infringement, that decision must be regarded as stating insufficient reasons. In those circumstances, the Commission does not provide sufficient detailed and precise evidence in the contested decision to support a finding that the same undertaking within the meaning of Article 101 TFEU has repeated an infringement.

(see paras 142, 144, 146, 149)