Keywords

Summary



Keywords

1. Competition – Fines – Amount – Determination

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

2. Competition – Fines – Amount – Determination – Criteria

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

3. Appeals – Jurisdiction of the Court – Review of the Commission’s appraisal of the gravity of the infringement in order to set the amount of a fine – Not possible

(Art. 81 EC; Council Regulation No 17, Art. 15)

4. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Taking account of the impact of the infringement

(Art. 81(1) EC; Commission Notice 98/C 9/03)

5. Appeals – Grounds – Mistaken assessment of the facts – Inadmissibility – Review by the Court of Justice of the assessment of the evidence – Possible only where the clear sense of the evidence has been distorted

(Art. 225 EC; Statue of the Court of Justice, Art. 58, first para.)

6. Competition – Agreements, decisions and concerted practices – Participation of an undertaking in anti‑competitive initiatives

(Art. 81(1) EC)

7. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Attenuating circumstances

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 3)

Summary

1. Undertakings involved in an administrative procedure in which fines may be imposed must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past. That is true not only where the Commission raises the level of the amount of fines by imposing fines in individual decisions but also where that increase takes effect by the application, in particular cases, of rules of conduct of general application, such as the guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty.

The application of those guidelines to infringements committed before their adoption is not a breach of either the principle of non‑retroactivity or of the principle of legal certainty and does not require the Commission to submit specific justification beyond what is required under those guidelines. In assessing the gravity of an infringement, the Commission must take into consideration not only the particular circumstances of the case but also the context in which the infringement occurs and must ensure that its action has the necessary deterrent effect, particularly by taking account of considerations linked to the need to raise the level of fines.

(see paras 59, 62-63, 66)

2. It is permissible, for the determination of the fine imposed in respect of an infringement of competition rules, to take into account both the undertaking’s overall turnover, which is an indication, however approximate and imperfect, of the size of the undertaking and its economic strength, and that part of the turnover which derives from the goods which are the subject of the infringement and which therefore is capable of giving an indication of the scale of the infringement. It is important not to confer on one or the other of those figures an importance which is disproportionate in relation to other factors to be assessed and, consequently, the fixing of an appropriate fine cannot be the result of a simple calculation based on the turnover from sales of the product concerned.

Community law contains no general principle that the penalty must be proportionate to the undertaking’s turnover from sales of the product in respect of which the infringement was committed.

The turnover from sales of the product in respect of which the infringement was committed is therefore not necessarily the starting point for the setting of fines and a fortiori , not the only criterion on which the Commission has to assess the gravity of the infringement.

To require the Commission to take account of such turnover would lead to a breach of the rules laid down by the guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty.

(see paras 74-77)

3. It is not for the Court of Justice, in the context of an appeal, to call in question the assessment of the facts by the Court of First Instance, which alone has jurisdiction to review how in each particular case the Commission has appraised the gravity of unlawful conduct in relation to Community competition law.

(see para. 80)

4. When the fine is set in accordance with the guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, the actual impact of the cartel on the relevant market is one factor which may be taken into account in order to assess the gravity of the infringement committed. The finding that an undertaking has failed to demonstrate that the impact of the cartel at issue on the wider market advocated by it was non‑existent or at least negligible is not a reversal of the burden of proving the definition of the relevant market. Accordingly, the undertaking concerned may be required to provide evidence sufficient to refute the analysis which serves to demonstrate the correlation between the movement of prices on the market of the product affected by the cartel and the commencement of the cartel.

(see paras 95, 101-102)

5. It is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice.

The Court of First Instance distorts an item of evidence by finding that a document was written during a meeting by one undertaking which was a member of the illegal cartel, whereas that document was merely supplied by it, and the document was written after the meeting. Where the Court of First Instance has relied on a number of items of evidence in addition to that document, such a distortion does not invalidate the judgment.

(see paras 105, 117, 132-138)

6. To prove to the requisite standard that an undertaking participated in a cartel, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti‑competitive nature were concluded, without manifestly opposing them. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs.

It is indeed the understanding which the other participants in a cartel have of the intention of the undertaking concerned which is of critical importance when assessing whether that undertaking sought to distance itself from the unlawful agreement. Accordingly, merely leaving a meeting cannot, in itself, be regarded as a public distancing from the cartel at issue and it is for the undertaking concerned to provide evidence that the members of the cartel considered that it was ending its participation.

(see paras 119-120)

7. Recognition of entitlement to a reduction of the basic amount of the fine under Section 3 of the guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty is necessarily linked to the circumstances of the particular case, and termination of the infringement at issue does not automatically imply a reduction of the basic amount of the fine.

To recognise an attenuating circumstance in situations where an undertaking is party to a manifestly unlawful agreement which it knew or could not be unaware constituted an infringement could encourage undertakings to continue a secret agreement as long as possible, in the hope that their conduct would never be discovered, while knowing that if their conduct were discovered they could expect, by then curtailing the infringement, their fine to be reduced. Such a recognition would deprive the fine imposed of any deterrent effect and would undermine the effectiveness of Article 81(1) EC.

An undertaking which has participated in a secret cartel cannot expect to be entitled to a reduction of the basic amount of the fine imposed on it on the ground that it ended its unlawful conduct as soon as the competition authorities of a non-member State intervened.

(see paras 146-150)