OPINION OF ADVOCATE GENERAL

Mazák

delivered on 11 February 2010( )

Case C‑413/08 P

Lafarge SA

v

European Commission

(Appeal – Competition – Cartel – Plasterboard market – Infringement of Article 81 EC – Distortion of facts – Burden of proof – Obligation to state reasons – Principle of equal treatment – Principle of proportionality – Calculation of starting amount of fine – Repeated infringement – Increase of fine – Deterrent effect)

I – Introduction

1. By its appeal, Lafarge SA (hereinafter referred also to as ‘the appellant’ and ‘Lafarge’) requests the Court, inter alia, to set aside the judgment of the Court of First Instance of the European Communities (Third Chamber) of 8 July 2008 in Case T‑54/03 Lafarge v Commission (‘the contested judgment’) and annul Commission Decision 2005/471/EC of 27 November 2002 ( ) (‘the contested decision’) in so far as it imposed a fine on the appellant or, in the alternative, set aside in part the contested judgment and reduce the amount of the fine imposed by the Commission on the appellant in the contested decision.

II – Background to the appeal

A – Legal framework

2. Article 15 of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81] and [82] of the Treaty ( ) provides:

‘…

2. The Commission may by decision impose on undertakings or associations of undertakings fines of from 1 000 to 1 000 000 units of account, or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement where, either intentionally or negligently:

(a) they infringe Article [81](1) or Article [82] of the Treaty, …

…

In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.

…’

B – Contested decision

3. On 27 November 2002, the Commission adopted the contested decision in which it found that BPB plc (‘BPB’), the Knauf Group (‘Knauf’), Lafarge and Gyproc Benelux NV (‘Gyproc’) had infringed Article 81(1) EC by participating in a set of agreements and concerted practices in the plasterboard business. ( ) The Commission considered that BPB, Knauf, Lafarge and Gyproc had entered into and participated without interruption in a complex and continuing agreement contrary to Article 81(1) EC which was manifested in the following conduct constituting agreements or concerted practices:

– the representatives of BPB and Knauf met in London in 1992 and expressed the common desire to stabilise the markets in Germany (‘the German market’), the United Kingdom (‘the UK market’), France (‘the French market’) and the Netherlands, Belgium and Luxembourg (‘the Benelux market’);

– the representatives of BPB and Knauf established, as from 1992, information exchange arrangements, to which Lafarge and subsequently Gyproc acceded, relating to their sales volumes on the German, French, UK and Benelux plasterboard markets;

– the representatives of BPB, Knauf and Lafarge exchanged information, on various occasions, prior to price increases on the UK market;

– in view of particular developments on the German market, the representatives of BPB, Knauf, Lafarge and Gyproc met at Versailles in 1996, Brussels in 1997 and The Hague in 1998 with a view to sharing out or at least stabilising the German market;

– the representatives of BPB, Knauf, Lafarge and Gyproc exchanged information on various occasions and concerted their action on the application of price increases on the German market between 1996 and 1998.

4. The duration of the infringement was as follows:

– ‘BPB PLC: from 31 March 1992, at the latest, to 25 November 1998;

– Knauf: from 31 March 1992, at the latest, to 25 November 1998;

– Société Lafarge SA: from 31 August 1992, at the latest, to 25 November 1998;

– Gyproc Benelux NV: from 6 June 1996, at the latest, to 25 November 1998.’ ( )

5. The Commission considered, having regard to the nature of the conduct in question, its practical impact on the plasterboard market which was highly concentrated and oligopolistic in nature and the fact that it covered the four principal markets at the heart of the European Community, that the addressees of the contested decision had committed a very serious infringement of Article 81(1) EC. The Commission applied differential treatment to the undertakings concerned in order to take account of their effective economic capacity to cause significant damage to competition and in order to set the fine at a level which ensures it has sufficient deterrent effect. In view in particular of the considerable disparity between the sizes of the undertakings which participated in the infringement, the Commission fixed the basic amounts of the fines as follows on the basis of gravity:

– ‘BPB: EUR 80 million,

– Knauf Westdeutsche Gipswerke: EUR 52 million,

– Lafarge: EUR 52 million,

– Gyproc: EUR 8 million.’ ( )

6. In order to ensure that the fines imposed had a sufficient deterrent effect, and in view of its large size and world-wide resources, a 100% multiplier was applied to the starting amount of the fine set for Lafarge, bringing it to EUR 104 million. The Commission considered that the infringement was of lengthy duration (more than five years) for Knauf, BPB and Lafarge and of average duration (from one to five years) for Gyproc and accordingly increased by 65% the basic amount of the fine imposed on BPB and Knauf Westdeutsche Gipswerke, by 60% the basic amount of the fine imposed on Lafarge and by 20% the basic amount of the fine imposed on Gyproc. As regards aggravating circumstances, the Commission stated that BPB and Lafarge had already been subject to previous Commission measures in cartel cases in, respectively, Commission Decision 94/601/EC ( ) and Commission Decision 94/815/EC. ( )

7. The Commission noted, inter alia, that it had previously adopted a decision imposing fines on Lafarge (then known as Lafarge Coppée SA) for having taken part in an illegal agreement in the cement sector. Lafarge actively continued to participate in a cartel in the plasterboard sector after the abovementioned decision was notified to it. The fact that Lafarge repeated the same kind of behaviour in a different sector from the one concerned by the first decision, demonstrated according to the Commission that sanctions imposed in the first case did not lead the undertaking to modify its conduct and thus constituted an aggravating circumstance.

8. The Commission accordingly increased by 50% the basic amount of the fine imposed on BPB and Lafarge.

9. Gyproc was granted a 25% reduction of the basic amount of the fine on the grounds of attenuating circumstances. The Commission granted a 30% reduction in the amount of the fine for BPB and a 40% reduction in the amount of the fine for Gyproc pursuant to the Commission Notice on the non-imposition or reduction of fines in cartel cases (the ‘leniency notice’). ( ) The following fines were thus imposed on the following undertakings:

– ‘BPB PLC: EUR 138.6 million,

– Gebrüder Knauf Westdeutsche Gipswerke KG: EUR 85.8 million,

– Société Lafarge SA: EUR 249.6 million,

– Gyproc Benelux NV: EUR 4.32 million.’ ( )

C – Proceedings before the Court of First Instance

10. By application lodged at the registry of the Court of First Instance on 14 February 2003, Lafarge sought, inter alia, the annulment of the contested decision and in the alternative, the annulment or reduction of the amount of the fine imposed on it by that decision. In support of its action Lafarge raised six pleas. Firstly, breach of the rights of defence. Secondly, Lafarge claims on the one hand infringement of Article 81(1) EC and on the other hand manifest errors of assessment. Thirdly, breach of Article 81(1) EC inasmuch as the contested decision established a single and continuous infringement and found that Lafarge had participated in it. Fourthly, infringement of Article 15(2) of Regulation No 17 due to turnover used to calculate the amount of the fine. Fifthly, illegality of the contested decision due to imposition on Lafarge of a global fine for distinct infringements. Sixthly, infringement of Article 15(2) of Regulation No 17 and general principles in calculation of the fine.

11. The Court of First Instance delivered its judgment on 8 July 2008 in which it dismissed the action brought by Lafarge. Lafarge was ordered to bear its own costs and to pay those incurred by the Commission. In this appeal, Lafarge challenges the parts of the contested judgment which deal with its second, third and sixth pleas before the Court of First Instance.

III – Appeal procedure

12. On 22 September 2008, Lafarge lodged an appeal against the contested judgment. Lafarge requests the Court to:

– set aside the contested judgment, and

– grant the form of order sought by Lafarge at first instance, and consequently annul the contested decision, in so far as it imposed a fine on Lafarge;

– in the alternative, set aside in part the contested judgment, and

– grant the form of order sought by Lafarge at first instance, and consequently reduce the amount of the fine imposed by the Commission on Lafarge in the contested decision;

– order the Commission to pay the costs.

13. The Commission requests the Court to:

– dismiss the appeal;

– order the appellant to pay the costs.

14. A hearing was held on 22 October 2009.

15. The appellant relies on six grounds of appeal. By its first and primary ground of appeal, the appellant submits that the Court of First Instance distorted the facts in that it systematically referred to a global context characterised by a series of infringements in holding that the Commission had been able validly to establish the very existence of those infringements. By its second ancillary ground of appeal, the appellant pleads infringement of the rules governing the burden of proof, the principle of presumption of innocence and its corollary, the in dubio pro reo principle, in that the Court of First Instance considered that the Commission had established that the appellant had participated in a single, complex and continuous infringement from 31 August 1992. By its third ancillary ground of appeal, the appellant contends that the Court of First Instance infringed the obligation to state adequate grounds and the principle of equal treatment, in so far as it found that the Commission has validity established that the appellant had committed a single, complex and continuous infringement from 31 August 1992. By its fourth ancillary ground of appeal, the appellant submits that the Court of First Instance infringed the principles of proportionality and equal treatment in fixing the starting amount of the fine imposed. By its fifth ancillary ground of appeal, the appellant contends that the Court of First Instance committed a number of errors of law and infringed its duty to state adequate grounds, in so far as it held that the Commission was justified in increasing the fine imposed on the appellant on the ground of repeated infringement. Lastly, by its sixth ancillary ground of appeal, the appellant submits that the Court of First Instance erred in law by finding that the Commission was justified in increasing the starting amount of the fine by way of a deterrent.

IV – First ground of appeal: Distortion of the facts by the Court of First Instance

A – Contested judgment

16. By its second plea before the Court of First Instance entitled ‘infringement of Article 81(1) EC and manifest errors of assessment’, Lafarge claimed that the London meeting in 1992, the exchange of information, the exchange of information specific to the United Kingdom, the price increases in the United Kingdom, the stabilisation of the German market and the price increases in Germany do not constitute an infringement for the purposes of Article 81(1) EC. In the present appeal, the appellant does not challenge the findings of the Court of First Instance regarding the London meeting. It is sufficient to note in this respect, as is apparent from paragraph 212 of the contested judgment, that the Court of First Instance found that Lafarge had not participated in that meeting.

17. As regards the exchange of information, the Court of First Instance found that the fact that Lafarge knew or ought to have known that the purpose of the exchange of information on sales volumes was to monitor the market in order to be informed whether the price war had come to an end and whether market shares were remaining relatively stable was demonstrated to the requisite legal standard on the basis of a body of objective and consistent evidence. ( )

18. As regards the exchange of information specific to the United Kingdom, the Court of First Instance found that the Commission had demonstrated to the requisite legal standard Lafarge’s participation in an exchange of information on sales volumes on the United Kingdom market. ( ) Moreover, as regards the price increases in the United Kingdom, for the period prior to 7 September 1996, the Court of First Instance found, at paragraph 316 of the contested judgment, that the Commission had not found any documentary evidence of contacts between the undertakings in question. Next, the Court found, at paragraphs 319 to 323 of the contested judgment, that, as regards that period, the price rise announcements were virtually simultaneous in four cases. The Court of First Instance thus held, inter alia, that ‘[i]n the present case, even if the intervals between the various price increase announcements may have enabled the undertakings to ascertain those price increases by information from the market and even if those increases were not always exactly of the same level, the near-simultaneity of the price rise announcements and the parallelism of the prices announced amount to strong evidence of concerted action prior to those announcements, since those increases were made in a context characterised by the fact that, as the Commission found in the contested decision, Knauf and BPB agreed at the London meeting at the beginning of 1992 to put an end to the price war on the four European markets and that Lafarge acceded to that system at the latest by the end of August 1992.’ ( ) The Court of First Instance held as regards the period subsequent to 7 September 1996 that the existence of contacts between competitors concerning price increases in the United Kingdom was demonstrated by documentary evidence. ( )

19. As regards the stabilisation of the German market, the Court of First Instance found, at paragraph 402 of the contested judgment, that, ‘in the light of the overall context of the case’, and on the basis of the undisputed facts, the Commission has demonstrated to the requisite legal standard that even if the undertakings in question did not succeed in concluding a specific agreement on sharing the German market between them, they did express their common intention to conduct themselves on that market in a specific manner, namely to restrict competition by stabilising that market.

20. As regards the price increases in Germany, the Court of First Instance examined the evidence concerning the existence of contacts and concerted action between competitors. That court stated, at paragraph 426 of the contested judgment, that the contacts between the undertakings in question must be viewed in the context of a period characterised by a series of anti-competitive manifestations demonstrating a common wish of the competitors to stabilise the plasterboard market in the four major European markets, including the German market. The Court of First Instance also observed that, although the content of an isolated document found by the Commission may not unequivocally disclose the existence of anti-competitive conduct, that fact cannot preclude that document from being interpreted as corroborating the existence of such a wish when it is one of a series of other documents which provide reliable indicia of the existence of contemporaneous and similar anti-competitive conduct. In this respect, the Court of First Instance took account of a number of documents in finding that Lafarge had direct contacts with its competitors concerning price increases on the German market and the existence of concerted action on the application of the price increases.

B – Argument and assessment

21. The appellant submits that the Court of First Instance distorted the facts in that it systematically referred to a global context characterised by a series of infringements in holding that the Commission had validly established the very existence of those infringements. The appellant thus considers that the Court of First Instance in the contested judgment adopted circular reasoning by referring to a global infringing context in order to establish the very existence of the infringements which are the basis of the alleged global infringing context. In addition, the Court of First Instance systematically considered that an anti-competitive interpretation of the facts was more plausible than the alternative explanations raised by Lafarge. Thus the Court of First Instance considered that the anti-competitive object of the exchange of information (paragraphs 270 and 271 of the contested judgment), together with the exchange of information specific to the United Kingdom (paragraph 303 of the contested judgment), the existence of concerted action in relation on price increases in the United Kingdom (paragraph 324 of the contested judgment) and Germany (paragraph 402 of the contested judgment) and the existence of an agreement to stabilise the German market (paragraph 430 of the contested judgment) were established having regard to the global infringing context when the existence of that context was established not on the basis of evidence but on the basis of infringing behaviour which was only qualified as such on the basis of that global context. In that manner, the Court of First Instance distorted the facts submitted to it.

22. It must be recalled that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. 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. ( )

23. A distortion of the facts and evidence before the General Court must be obvious from the documents on the Court’s file without there being any need to carry out a new assessment of those elements. ( ) Moreover, where the appellant alleges distortion of the evidence by the General Court, he must indicate precisely the evidence alleged to have been distorted by that court and show the errors of appraisal which, in his view, led to that distortion. ( )

24. In my view, the appellant in the present ground of appeal has alleged in general terms that the Court of First Instance distorted the facts and has indicated in detail the evidence alleged to have been distorted.

25. However, the appellant has failed to indicate precisely, save in respect of the internal memorandum of October 1994 discovered at Rigips’ premises and referred to at paragraph 430 of the contested judgment in the context of the Court of First Instance’s finding in relation to the price increases in Germany, the errors of appraisal which, in its view, led to the distortion of evidence. Thus the appellant failed to identify, aside from certain of the contents of paragraph 430 of the contested judgment, any material inexactitude in the Court of First Instance’s reading of the documents before it. Thus, in my view, while the appellant has alleged distortion of the facts it is in fact seeking a new assessment of the evidence before the Court of First Instance. This is clearly beyond the scope of the appeal procedure before the Court of Justice.

26. As regards the memorandum from October 1994, the appellant claims that nothing in the memorandum in question supports a finding that the competitors had contacts with each other. At first instance Lafarge contested that the memorandum highlighted the existence of exchanges between producers concerning the February 1995 price increase. According to Lafarge, the author of the memorandum was informed by the market of the proposed announcement of price increases by Knauf. ( )

27. The Court of First Instance at paragraph 430 of the contested judgment found that, despite Lafarge’s claim that the author of the memorandum was informed by the market of Knauf’s planned price increase, ‘the Commission’s interpretation of that memorandum is more convincing, having regard to the other elements in the dossier which demonstrate the existence at that time of concerted action between the undertakings in question. The Commission correctly considers that the memorandum reveals knowledge of the strategy of the competitors and is evidence of contacts between them. Indeed, the author of the memorandum, having first summarised the situation on the market stated that Gyproc’s sales manager had complained that his firm had lost market share and had to win it back. In addition, it was foreseen in the memorandum to freeze prices at the level referred to therein and that a price increase would take place from 1 February 1995. That last remark is particularly revealing. Indeed, if the sending of price increase announcements were unilateral and if the other producers merely followed that price increase, BPB would not have known in October 1994 that a price increase was forecast for 1 February 1995 given that Knauf only announced that increase in November 1994.’

28. It is clear from the contested judgment that the memorandum in question was not examined in isolation by the Court of First Instance. Rather, the memorandum was examined in conjunction with the other elements in the dossier. Thus it is clear from the contested judgment that the true import of the memorandum of October 1994 was elucidated by other elements in the dossier. In that regard, the other elements which were taken into account to demonstrate the existence at the relevant time of concerted action between the undertakings in question were, firstly, a statement by Knauf according to which a practice had long since been established of sending price increase announcements with price lists directly to competitors at the same time as to customers (paragraph 430 of the contested judgment), secondly, numerous copies of announcements of competitors’ price increases discovered during the Commission’s investigation at BPB’s and Lafarge’s premises (paragraph 430 of the contested judgment) and, thirdly, the fact that a price increase took place on 1 February 1995 (paragraph 430 of the contested judgment).

29. These additional elements have not been contested by the appellant.

30. I consider that in the light of the additional uncontested elements in question and the ruling of the Court in Aalborg Portland and Others v Commission ( ) the appellant has failed to demonstrate that the Court of First Instance clearly misconstrued the memorandum of October 1994.

31. I therefore consider that the first ground of appeal should be dismissed as partly inadmissible and partly unfounded.

V – Second ground of appeal: Infringement of the rules governing the burden of proof, the principle of presumption of innocence and its corollary, the in dubio pro reo principle, in that the Court of First Instance considered that the Commission had established that the appellant had participated in a single, complex and continuous infringement from 31 August 1992

A – Contested judgment

32. In the contested decision, the Commission found that Lafarge participated in the infringement in question from 31 August 1992 until 25 November 1998. At first instance Lafarge claimed that its participation in the information exchange arrangements was necessarily after June 1993, and probably even from the beginning of 1994. ( ) In upholding the duration of Lafarge’s participation in the infringement, as determined in the contested decision, the Court of First Instance took account of a number of statements by BPB. In that regard, BPB stated that, after the meeting, the information exchange process was extended to Lafarge. ( ) The Court of First Instance considered that the terms ‘after that meeting’ used by BPB meant that the commencement of Lafarge’s participation could not have taken place long after the London meeting. ( ) In addition, in its reply to the statement of objections BPB stated that it arranged to exchange data with Lafarge in the middle of 1992. ( ) The Court of First Instance considered that BPB’s statements were more precise than those of Lafarge. Lafarge relied on a statement by Mr N of Lafarge to the effect that, in view of the serious lack of data on the relevant markets in Europe, Lafarge’s competitors had suggested to him to exchange some general information on sales volumes. ( ) The Court of First Instance noted, at paragraph 508 of the contested judgment, that Lafarge had not provided either the exact date or details of the circumstances which led it to take part in that exchange and, in particular, of the contacts which must have taken place before the exchange with a view to determining the basic conditions thereof, namely its purpose, the parties involved and the frequency of exchanges. ( ) The Court of First Instance also found that the veracity of BPB’s statements is supported by the fact that Lafarge’s market share on the main European markets is indicated in Mr D of BPB’s tables in absolute terms and percentages from 1991 onwards. ( )

B – Argument

33. The appellant claims that the Court of First Instance infringed the rules governing the burden of proof, the principle of presumption of innocence and its corollary, the in dubio pro reo principle, in that the Court of First Instance considered that the Commission had established that the appellant had participated in a single, complex and continuous infringement from 31 August 1992. The appellant recalls that it is settled case-law that the Court of Justice has jurisdiction to verify whether a breach of procedure adversely affecting the appellant’s interests was committed before the Court of First Instance and must satisfy itself that the general principles of Community law and the Rules of Procedure applicable to the burden of proof and the taking of evidence have been complied with. ( ) The appellant also stated that in accordance with the settled case-law it is incumbent on the Commission to prove an infringement of the competition rules and the duration of the infringement. ( ) According to the appellant the Court of First Instance considered that the Commission had validly established the appellant’s participation in the infringement from 31 August 1992, despite the contradictory and imprecise statements of BPB, as the appellant has not indicated the exact date its participation commenced or the circumstances which led it to take part in that anti-competitive exchange of information.

34. The Commission considers that the present plea should be rejected.

C – Assessment

35. According to the Court in Aalborg Portland and Others v Commission, it should be for the party or the authority alleging an infringement of the competition rules to prove the existence thereof and it should be for the undertaking or association of undertakings invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for applying such defence are satisfied, so that the authority will then have to resort to other evidence. Although according to those principles the legal burden of proof is borne either by the Commission or by the undertaking or association concerned, the factual evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged. ( )

36. It is clear from the contested judgment that the Court of First Instance considered that the Commission had validly established that BPB had informed Lafarge at the latest at the end of August 1992 of the agreement between BPB and Knauf on the exchange of information and that on that occasion, Lafarge adhered to that exchange. ( ) In coming to that finding the Court of First Instance relied, in particular, on a number of statements by BPB and the fact that Lafarge’s market share on the main European markets was contained in tables held by BPB. That court also considered that Lafarge’s explanations on the matter were unconvincing.

37. In stating that Lafarge had not provided, inter alia, the exact date when the latter’s participation commenced and that it was effectively the best placed to do so, ( ) the Court of First Instance did not breach of the burden of proof, the principle of presumption of innocence and its corollary, the in dubio pro reo principle. The Court of First Instance merely indicated that, despite Lafarge’s claim at paragraph 494 of the contested judgment that its adherence to the exchange was necessarily after June 1993 and probably at the beginning of 1994, it had failed to adduce any evidence in support of that claim.

38. It follows, in my view, that the second ground of appeal is unfounded and should be dismissed.

VI – Third ground of appeal: Infringement by the Court of First Instance of obligation to state adequate grounds and the principle of equal treatment, in so far as it found that the Commission has validly established that the appellant had committed a single, complex and continuous infringement from 31 August 1992

A – Argument

39. The appellant claims that the Court of First Instance did not address, even implicitly, the argument raised by it at first instance relating to the unequal treatment of Lafarge as compared with Gyproc. The appellant therefore considers that the contested judgment is inadequately reasoned. The appellant considers that the claim in question was raised in order to demonstrate that it had not participated in a single, complex and continuous infringement from 31 August 1992.

40. At paragraphs 500 to 518 of the contested judgment, the Court of First Instance found that the evidence invoked by the Commission namely the reference to Lafarge’s market share in Mr D’s tables and certain statements by BPB validly demonstrated the participation of Lafarge in a single, complex and continuous infringement from 31 August 1992. According to the appellant, the Commission itself considered that those elements of proof were insufficient with respect to Gyproc. The appellant thus considers that the Court of First Instance breached the principle of equal treatment in finding that the elements of proof invoked by the Commission validly demonstrated Lafarge’s participation in a single, complex and continuous infringement from 31 August 1992 whilst those same elements were considered insufficient in the case of Gyproc.

41. The appellant, in its reply, considers that the present plea is admissible as, in its application at first instance, the appellant mentioned on a number of occasions the breach of the principle of equal treatment by the Commission.

42. The Commission considers that Lafarge did not raise a plea in law claiming breach of the principle of equal treatment before the Court of First Instance. In the relevant section of its application at first instance, Lafarge merely argued, inter alia, that ‘the Commission considered that Gyproc’s participation in those same “manifestations” was insufficient to establish adhesion to a single, complex and continuous infringement’. The Commission therefore considers that the contested judgment is adequately reasoned. Moreover, according to the Commission, Gyproc is not in the same situation as Lafarge.

43. In addition, the Commission claims that the appellant cannot at the appeal stage raise a plea based on infringement of the principle of non-discrimination which was not raised at first instance. That plea is thus inadmissible.

44. As regards the appellant’s claim in its reply that it referred on a number of occasions in its application at first instance to breach of the principle of equal treatment, the Commission considers that those references were contained in very different sections of the application in support of other pleas which the appellant has not claimed were left unanswered in the contested judgment. The claims by the appellant in its reply thus constitute a new plea which is inadmissible as the appellant did not claim in its application on appeal that other sections of its application at first instance were left unanswered.

B – Assessment

45. In its application, the appellant indicated that the section of the contested judgment ( ) in question in the present ground of appeal relates to the third plea examined at first instance in which the appellant claimed breach of Article 81(1) EC inasmuch as the contested decision established a single, complex and continuous infringement and found that Lafarge had participated in it. The section of the plea relates specifically to the duration of Lafarge’s participation in the infringement.

46. In my view, this ground of appeal may be divided into two parts. Firstly, the appellant claims infringement by the Court of First Instance of the obligation to state adequate grounds. Secondly, the appellant claims that the Court of First Instance infringed the principle of equal treatment, in so far as it found that the Commission has validly established that the appellant participated in a single, complex and continuous infringement from 31 August 1992.

47. As regards the claim that the Court of First Instance breached its obligation to state adequate grounds, the question whether the grounds of a judgment are insufficient or contradictory is a question of law which may, as such, be raised on appeal. ( )

48. Moreover, it is settled case-law that the requirement that the Court of First Instance give reasons for its decisions cannot be interpreted as meaning that it is obliged to respond in detail to every single argument advanced by the appellant, particularly if the argument was not sufficiently clear and precise. ( )

49. It should also be recalled that the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and that the reasoning may therefore be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review. ( )

50. In my view, the appellant, by claiming in its application at first instance that ‘the Commission considered that Gyproc’s participation in those same “manifestations” [( )] was insufficient to establish adhesion to a single, complex and continuous infringement’, ( ) made a clear reference to discrimination to which the Court of First Instance was required to respond. While the words ‘discrimination’ or ‘unequal treatment’ were not used by Lafarge at first instance in the context of the third plea, I consider that the wording of Lafarge’s application concerning that plea was sufficiently clear and precise for the Court of First Instance to comprehend the import of that plea.

51. I consider that there can be no doubt that a plea of discrimination was raised in the context the third plea examined at first instance. I therefore consider that the Commission’s claim that Lafarge did not raise a plea in law claiming breach of the principle of equal treatment before the Court of First Instance cannot be accepted.

52. In my view, the Court of First Instance did not address even implicitly the question of discrimination in the context of the third plea at first instance, despite the fact that it is clear from paragraph 496 of the contested judgment that the Court of First Instance itself considered that the question of discrimination constituted an integral part of Lafarge’s submissions at first instance. The question of discrimination was invoked, in my view, by Lafarge in order to call into question the probative value of the evidence relied upon by the Commission in the contested decision to find that Lafarge had participated in a single, complex and continuous infringement from 31 August 1992 as allegedly that same evidence was considered by the Commission as inadequate for such a finding in respect of Gyproc. Moreover, the principle of non-discrimination is a general principle of Community law and thus the plea raised by Lafarge in that regard in connection with the evidence invoked by the Commission in the contested decision to establish that Lafarge had participated in a single, complex and continuous infringement from 31 August 1992 was, in my view, required to be addressed by the Court of First Instance. ( )

53. It follows from the foregoing that the contested judgment does not deal adequately with the argument set out by the applicant at first instance concerning discrimination and the duration of the infringement. In particular, the contested judgment does not enable the Court of Justice to exercise its power of judicial review, so that the first part of this ground of appeal should, in my view, be declared founded.

54. As regards the second part of this ground of appeal based on a breach of the principle of equal treatment, I consider that in order for the Court to be able to review the judgment of the Court of First Instance, that judgment must be sufficiently reasoned. In this case the total absence of reasoning of the Court of First Instance with respect to question of discrimination in respect of the third plea examined by that court precludes the Court of Justice from deciding whether the contested judgment is in breach of the principle of equal treatment on that point.

55. I therefore consider that in the light of the above circumstances, the contested judgment must be set aside as regards its findings concerning the duration of the appellant’s participation in a single, complex and continuous infringement from 31 August 1992. In the absence of a ruling at first instance on the complaint raised concerning discrimination and the duration of Lafarge’s participation in a single, complex and continuous infringement, I consider that the Court may not give final judgment on the matter pursuant to Article 61 of the Statute of the Court and the Court should refer that question back to the General Court. ( )

VII – Fourth ground of appeal: Infringement by the Court of First Instance of the principles of proportionality and equal treatment in fixing the starting amount of the fine imposed

A – Argument

56. The appellant considers that the contested judgment infringes the principles of proportionality and equal treatment as it upheld the starting amount of the fine fixed by the Commission which is disproportionate with regard to the starting amount fixed with respect to the other addressees of the contested decision. The appellant contests the statement made by the Court of First Instance at paragraph 634 of the contested judgment pursuant to which the amount of the fine may be calculated independently of the turnover of the undertakings. Even if that statement is correct, the Commission itself in the contested decision chose to divide the undertakings concerned into categories based on their market share. Thus in accordance with the case Tokai Carbon and Others v Commission ( ) once the Commission decided to establish categories based on market shares, the Commission and thus the Court of First Instance on judicial review must assure a proportional relationship between, on the one hand the thresholds of the different categories and on the other hand, the market share of an undertaking and its classification in one or other category.

57. Thus the starting point fixed for Lafarge was 6.5 times higher than that of Gyproc even though the market share of Lafarge (24% – placed in the second category), was only 3.4 times higher than that of Gyproc (7% – placed in the third category). Moreover, while Lafarge’s market share in 1997 was less that 81% of that held by Knauf, those undertakings were placed in the same category and the staring amount of the fine was fixed at EUR 52 million.

58. In its reply, the appellant claims that the present ground of appeal is admissible as the arguments in question were raised at first instance.

59. The Commission claims that the Court of First Instance at paragraph 634 of the contested judgment did not state that the amount of the fine may be calculated independently of the turnover of the undertakings. The Commission considers that the claim by the appellant contesting the possibility or at least the method followed by the Commission in order to classify undertakings is inadmissible as it was not raised at first instance.

60. The Commission considers that in any event that claim is manifestly unfounded. In SGL Carbon v Commission, ( ) the Court confirmed that the members of a cartel may be divided into different categories when fixing the starting point of the fine. Contrary to what is claimed by Lafarge, when the Commission decides to divide undertakings into categories on the basis of their market shares it is not required to ensure that the starting amount of the fine of each undertaking is strictly proportional to its market share. As the undertakings’ market shares are necessarily different that would oblige the Commission to create the same number of categories as undertakings subject to a fine, and thus defeat the purpose of the division into categories. The Commission also notes that it chose to divide the undertakings in question into three categories on the basis of their relevant market shares for 1997. Thus BPB as a result of its market share of 42% and its position as a large producer was placed in the first category. Knauf and Lafarge who respectively had market shares of 28% and 24% were placed in the second category. Gyproc, with a market share of 7% and as a very small actor was placed in the third category.

B – Assessment

61. In my view, the present ground of appeal is inadmissible and should be dismissed. While it is true that the appellant at first instance called into question the fact that the starting amount of the fine imposed on it was fixed at EUR 52 million, Lafarge alleged that it did not have the economic capacity to influence the United Kingdom and German markets. Lafarge did not challenge at first instance, as it has in the present ground of appeal, the possibility or at least the method followed by the Commission in order to classify undertakings. Moreover, at first instance, the appellant did not claim that once the Commission decided to divide the undertakings into categories based on their market share in order to fix the starting point of the fine, the Commission was obliged to ensure that the starting point of the fine for each undertaking was strictly proportional to its market share.

62. In any event, I consider in the light of the ruling of the Court in SGL Carbon v Commission ( ) that the present ground of appeal should be rejected. It is clear from the aforementioned case that each difference between the undertakings in terms of turnover or market share does not have to be taken into account when dividing undertakings participating in a cartel into categories for the purposes of fixing the basic amount.

63. In addition, it has been consistently held that the Commission enjoys a wide discretion as regards the method used for calculating fines and that it can, in this respect, take account of numerous factors, whilst complying with the ceiling on turnover laid down in Article 15(2) of Regulation No 17. The Court of Justice has also stated that the calculation method set out in the 1998 Guidelines ( ) contains various flexible elements, enabling the Commission to exercise its discretion in accordance with Article 15 of Regulation No 17, as interpreted by the Court of Justice. ( )

64. In my view, while it is clear that there is no strict proportionality between the market shares of Lafarge and the other undertakings participating in the infringement and the starting point of the fine fixed in relation to them, in the light of the Commission’s arguments outlined at point 60 above, I do not consider that the appellant has established that the classification method established by the Commission for the purposes of fixing the basic amount of the fine infringes the principles of proportionality and equal treatment.

VIII – Fifth ground of appeal: Errors in law and infringement of duty to state adequate grounds with respect to increase of fine on the ground of repeated infringement

65. This ground of appeal was divided into two parts.

A – First part

1. Contested judgment

66. At first instance, Lafarge claimed, inter alia, that as there is no legal basis laying down the conditions for increasing the fine due to repeated infringement and given that no limitation period has been fixed with regard to the time between two infringements, increasing the fine in those circumstances infringed the principle of legality of penalties and the principle of legal certainty. ( )

67. The Court of First Instance stated that in the light of Aalborg Portland and Others v Commission, ( ) repeated infringement is one of the factors which may be taken into account when assessing the gravity of an infringement. ( ) As regards the question of a limitation period, the Court of First Instance recalled, at paragraph 724 of the contested judgment, that the Commission has a discretion as regards the choice of factors to be taken into account for the purposes of determining the amount of the fine, such as the particular circumstances of the case, its context and the dissuasive effect of fines, there being no need to refer to a binding or exhaustive list of the criteria which must be taken into account. It was then stated, at paragraph 725 of the contested judgment, that the Commission cannot be bound by any limitation period when taking repeated infringement into account. The Court of First Instance stated that repeated infringement is an important factor which the Commission must appraise, and that it may, in each individual case, take into consideration the indicia which confirm a tendency towards infringing the competition rules, including the time that has elapsed between the infringements in question. The Court of First Instance considered that if a period of less than 10 years has elapsed between the two findings of infringement this shows a propensity on the part of the undertaking concerned not to draw the appropriate consequences from a finding that it has infringed the Community competition rules. ( ) The Court of First Instance stated that Lafarge showed such a propensity as, having been the addressee of Decision 94/815, a subsidiary of Lafarge continued for a period of four years after that decision had been notified to it to actively participate in the cartel in question. ( )

2. Argument

68. The appellant considers that the contested judgment infringes the general principle of law nulla poena sine lege and the general principles of law common to Member States in that the Court of First Instance considered that the Commission had a legal basis in order to increase the amount of the fine due to repeated infringement. Regulation No 17 does not authorise the Commission to increase the fine due to repeated infringement.

69. The appellant also considers that the contested judgment infringes the general principle of legal certainty common to Member States in that it held that the Commission could find that there was a repeated infringement without any limitation period. Persons may not be punished indefinitely for acts they committed in the past. In most Member States the law fixes in relation to repeated infringements a maximum time period between the infringement under examination and a possible previous finding of infringement beyond which time the latter may not be taken into account. The appellant thus invites the Court to re-examine its position in the Groupe Danone v Commission case. ( )

70. The Commission considers that similar arguments were rejected by the Court in the Groupe Danone v Commission case. A fine may be increased due to repeated infringement on the basis of Regulation No 17. As regards the limitation period, in the present case, it is not necessary to assess whether the findings of the Court of First Instance would lead to the possibility of perpetually imposing a sanction for repeated infringement as the Court of First Instance held that a subsidiary of the appellant had continued to participate actively in the cartel for four years after Decision 94/815 had been notified, while a period of less than 10 years between infringements was considered by the Court in the Groupe Danone v Commission case to show a propensity not to draw the appropriate consequences from a finding that it had infringed the competition rules.

3. Assessment

71. It is clear that Article 15(2) of Regulation No 17 makes no specific reference to repeated infringement. ( ) However, the Court in Groupe Danone v Commission confirmed that that provision is the legal basis on which the Commission may impose fines on undertakings and associations of undertakings for infringements of Articles 81 EC and 82 EC. Under Article 15(2) of Regulation No 17, in determining the amount of the fine, the duration and the gravity of the infringement in question must be taken into consideration. ( ) The Court then restated its case-law that, whereas the basic amount of the fine is set according to the infringement, its gravity is determined by reference to numerous other factors, in respect of which the Commission has a wide discretion. According to the Court, to take into account aggravating circumstances when setting the fine is consistent with the Commission’s task of ensuring compliance with the competition rules. Any repeated infringement is among the factors to be taken into consideration in the analysis of the gravity of the infringement in question. Thus according to the Court in Groupe Danone v Commission the characterisation of a repeated infringement as an aggravating circumstance does not breach the principle nulla poena sine lege. ( )

72. In addition, in Aalborg Portland and Others v Commission the Court stated that repeated infringement is one of the factors which may be taken into account when assessing the gravity of an infringement. ( )

73. Aside from the findings of the Court in Groupe Danone v Commission and Aalborg Portland and Others v Commission, I would note in addition that it is settled case-law that the Commission has a duty to investigate and punish individual infringements and a duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles. In assessing the gravity of an infringement for the purpose of fixing the amount of the fine, 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. ( )

74. In my view, if the Commission were limited in its assessment of the gravity of a particular infringement to the circumstances of that infringement to the exclusion of all other relevant surrounding circumstances including most notably repeated infringement, the true gravity of the infringement in question could not be correctly appreciated and the Commission’s task of ensuring compliance with the competition rules would be undermined. I consider that such an approach would run counter to the need to ensure the deterrent effect of sanctions imposed in respect of infringements of the Community competition rules. ( )

75. I therefore consider that the appellant has shown no cogent reason why the Court should depart from its finding in Groupe Danone v Commission that the question of repeated infringement is a matter which falls to be assessed as an aggravating circumstance with regard to the gravity of an infringement pursuant to Article 15(2) of Regulation No 17. Thus the contested judgment did not, in my view, infringe the general principle of law nulla poena sine lege and the general principles of law common to Member States in that the Court of First Instance considered that the Commission had a legal basis in order to increase the amount of the fine due to repeated infringement.

76. As regards the question concerning the absence of a limitation period in relation to the finding of repeated infringement, the Court confirmed in Groupe Danone v Commission that no specific limitation period has been imposed by Article 15(2) of Regulation No 17 or indeed by the Guidelines ( ) in relation to the finding of repeated infringement. ( ) Moreover, the Court emphasised at paragraph 38 of the judgment that the finding and the appraisal of the specific characteristics of a repeated infringement come within the Commission’s discretion and that the Commission cannot be bound by any limitation period when making such a finding. The appellant has nonetheless invited the Court to reconsider its finding in Groupe Danone v Commission in that regard.

77. The Court in Groupe Danone v Commission considered that repeated infringement is an important factor which the Commission must appraise, since the purpose of taking repeated infringement into account is to induce undertakings which have demonstrated a tendency towards infringing the competition rules to change their conduct. The Commission may therefore, in each individual case, take into consideration the indicia which confirm such a tendency, including, for example, the time that has elapsed between the infringements in question. ( )

78. In my view, paragraph 38 of the Groupe Danone v Commission case tends to indicate that the Court considered that a static and inflexible maximum limitation period would undermine the discretion of the Commission in determining the amount of fines. In that regard, I consider that a very serious previous infringement may form part of the assessment of the gravity of a subsequent infringement, despite the elapse of a considerable period of time, whereas a previous minor infringement may not warrant such consideration after the lapse of a much shorter period of time.

79. However, I do not consider that the Groupe Danone v Commission case supports the proposition that persons may be punished indefinitely for infringements of competition law found in the past.

80. Rather, the Court in that case indicated, in my view correctly, that on the facts of the case at hand as a relatively short time, namely less that 10 years, had elapsed between infringements, the repetition of unlawful conduct by Groupe Danone showed a tendency on its part not to draw the appropriate conclusions from a finding that it had infringed the competition rules. ( )

81. It is thus clear that while no specific limitation period has been imposed in relation to the finding of repeated infringement, the Court may review, when called upon to do so, whether the Commission has exceeded its discretion by taking into account a previous infringement of competition rules. I therefore consider that the appellant has not demonstrated any reasons why the findings of the Court in the Groupe Danone v Commission case as regards the absence of a fixed limitation period with respect to repeated infringement should be reconsidered by the Court.

82. Moreover, for the sake of completeness, I would note that in the present case the appellant did not contest the finding of the Court of First Instance that, despite the notification of Decision 94/815, Lafarge’s subsidiary continued for four years to actively participate in the infringement in question. In my view, such a short period of time cannot be considered excessive and the Commission thus did not exceed its discretion in that regard.

83. In my view, the contested judgment did not infringe the general principle of legal certainty common to Member States in holding that the Commission could find that there was a repeated infringement without any fixed limitation period.

84. I therefore consider that the Court should dismiss the first part of the fifth plea as unfounded.

B – Second part

1. Contested judgment

85. Lafarge claimed at first instance that in the majority of Member States the question of repeated infringement could not be taken into account unless the second infringement is committed after the judgment finding the first infringement has become definitive. ( )

86. The Court of First Instance held, at paragraph 734 of the contested judgment, that it is sufficient that the undertaking has been found guilty of an infringement of the same type, even if the decision is still subject to review by the courts. The Court of First Instance stated that decisions of the Commission are presumed to be lawful until such time as they are annulled or withdrawn and actions do not have a suspensory effect. The Court of First Instance then held at paragraph 737 of the contested judgment ‘[a]dmittedly, there might be a problem if an earlier decision which served as the basis for an increased fine in a subsequent decision were to be annulled after the adoption of that subsequent decision had become final. In that case, the repeated infringement would not in fact exist. However, if the first decision punishing an infringement were to prove unfounded, that would constitute a new fact causing time for bringing an appeal to start running again.’

2. Argument

87. The appellant contends that the Court of First Instance erred in law and failed in its obligation to give adequate reasoning in that it considered that the Commission could increase the fine imposed on it due to repeated infringement even though the first infringement had not become definitive at the time of the facts in question in the contested decision.

88. Under the Member States criminal legal systems, a person is generally only considered a repeat infringer, if, after he has been condemned definitely for the first infringement, he commits another infringement. One of the essential elements of a repeated infringement is a definitive finding of infringement which requires the exhaustion of legal remedies at the time the second infringement is committed. In the present case, the Commission relied on Decision 94/815 in order to find that Lafarge was a repeat infringer. Lafarge however brought an action for annulment against that decision and the Court of First Instance handed down its judgment on 15 May 2000. ( ) That judgment only became definitive two months after its notification to Lafarge, as the latter did not bring an appeal. The practises in question in the contested decision ended, according to the Commission, in November 1998. However, at that date Lafarge had not been condemned definitively for any cartel as the Court of First Instance had not yet ruled in the Cimenteries CBR and Others v Commission case.

89. The Court of First Instance, by allowing the Commission to arbitrarily increase the amount of a fine, thus infringed the general principle of nulla poena sine lege.

90. The Court of First Instance erred in law by affirming that the time for bringing an appeal would start running again in the event that after the adoption of the second decision, the first decision was definitively annulled. The Treaty and other provisions of Community law do not provide for time to restart in an action for annulment against a Commission decision. By referring to an inexistent procedure in order to justify a finding of repeated infringement in the absence of a first definitive finding of infringement, the Court of First Instance also failed to give adequate reasons.

91. If a judgment annulling a Commission decision were considered a new fact restarting times-limits for an action for annulment against a second Commission decision which sanctioned incorrectly the undertaking for repeated infringement, that solution would impose an abnormal and unfair burden on the undertaking in question and would thus infringe the principle of sound administration of justice and procedural economy.

92. In its reply, the appellant claims that contrary to the assertions of the Commission, the nature and severity of competition sanctions requires that the same guarantees applicable to repeated infringement under criminal law should apply to repeated infringement in competition cases. The Court of Justice has stated that, given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, in particular the judgments of the European Court of Human Rights of 21 February 1984, Öztürk v. Germany, Series A No 73, and of 25 August 1987, Lutz v. Germany, Series A No 123‑A). ( ) Thus the Court of Justice implicitly accepted that given their nature and severity competition sanctions are criminal sanctions.

93. As regards the Commission’s arguments ( ) concerning Queenborough Rolling Mill Company v Commission, ( ) the appellant notes that the judgment of the Court relates to the specific application of Commission Decision No 1831/81/ECSC of 24 June 1981 establishing for undertakings in the iron and steel industry a monitoring system and a new system of production quotas in respect of certain products. ( ) Decision 1831/81, which expressly defined the conditions pursuant to which the amount of the fine for exceeding quotas can be increased for repeated infringement, cannot be invoked in the case of competition infringements.

94. The Commission notes that its decisions are presumed to be lawful until such time as they are annulled or withdrawn and that actions before the Courts do not have a suspensory effect. The Commission considers that in the present case any analogy with criminal law should be avoided. The Court has confirmed the administrative nature of the procedure in competition matters. ( ) Moreover, as Lafarge itself recognises, Decision 94/815 was definitive when the contested decision was adopted.

95. The Commission considers that the fact that the Community Courts apply certain general principles of criminal law common to Member States does not mean that all such principles applicable in each Member State are applicable or transposable. The Member States have decided pursuant to Article 15(4) of Regulation No 17 that ‘[d]ecisions taken pursuant to paragraphs 1 and 2 shall not be of a criminal law nature’. This legislative choice was confirmed by the Council pursuant to Article 23(5) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty. ( ) The Commission notes that the only jurisdiction of a Member State that has ruled on a similar question, namely the Spanish Supreme Court in 2005, adopted the same position as the Commission on the matter.

96. The Commission claims that the definitive nature of the earlier decision is not inherent to the raison d’être of repeated infringement. The judgment of the Court in the Queenborough Rolling Mill Company v Commission ( ) case confirms that an increase in a fine due to repeated infringement does not require the exhaustion of all judicial remedies. The Commission considers that competition policy and the objectives pursued by the Commission would be undermined if an action brought against the first decision of the Commission prevented the taking into consideration in a second decision of repeated infringement.

97. The Commission however agrees with the appellant that contrary to the statement of the Court of First Instance at paragraph 737 of the contested judgment, no provision of Community law provides for the possibility to reopen the time-limits for bringing an action for annulment against a decision of the Commission. Given the importance of the issue at hand, the Commission considers that the Court should substitute its own reasoning for that of the Court of First Instance. The Commission considers that where the first decision finding a breach of competition law is annulled, the undertaking in question can ask the Commission to re-examine the second decision. A refusal by the Commission to carry out such a re-examination could be subject to annulment proceedings before the General Court. This solution is in conformity with the logic of the system created by the Treaty and validated by the case-law. It is also in conformity with the principles of good administration and legal certainty in that it avoids the risk of purely time-wasting actions. Article 233 EC provides that the institution which adopted the annulled act is required to take the necessary measures to comply with the judgment of the Court. Moreover, it is settled case-law that the existence of substantial new facts may justify the submission of a request for reconsideration of a previous judgment which has become definitive. The General Court exercising its unlimited jurisdiction could adjust the fine. That solution was adopted in the Usinor v Commission ( ) case. The Commission considers that the solution proposed by the appellant would undermine the principle that acts of Community institutions are presumed valid and the non-suspensory effect of actions.

C – Assessment

98. The appellant maintains that the Court of First Instance infringed the general principles of law common to Member States, the principle of nulla poena sine lege, the principle of sound administration of justice and erred in law by referring to an inexistent procedure and failed in its obligation to give sufficient reasons in ruling that the Commission could find a repeated infringement even though the finding relative to the first infringement had not become definitive.

99. The Court of First Instance, in my view, clearly erred in law by finding at paragraph 737 of the contested judgment that if the first decision punishing an infringement were to prove unfounded, that would constitute a new fact causing time for bringing an appeal to start running again. I wholly concur with the arguments of both the appellant and the Commission that the time for bringing an action for annulment against a decision of the Commission which is fixed by the Article 230 EC cannot start running again. ( )

100. As that erroneous reasoning forms an integral part of the reasoning of the Court of First Instance, it follows in my view that the contested judgment must be set aside in so far as it rejected Lafarge’s claim that the Commission erred in finding that there was a repeated infringement even though the finding relative to the first infringement had not become definitive. ( )

101. Under Article 61 of the Statute of the Court of Justice, if the appeal is well founded, the Court is to quash the decision of the General Court. It may then itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.

102. In the present case, I consider that the state of the proceedings is such as to permit final judgment in the matter.

103. It is undisputed in the case at hand that at the time the contested decision was adopted on 27 November 2002, the validity of Decision 94/815, on which the Commission based its findings in the contested decision of repeated infringement, could no longer be challenged by Lafarge in an action for annulment pursuant to Article 230 EC due to the notification of the Cimenteries CBR and Others v Commission ( ) case in 2000 and the absence of an appeal within the necessary time-limits.

104. The appellant however maintains that the Commission should not increase the fine due to repeated infringement where the first infringement had not become definitive ( ) at the time of the facts in question in the contested decision.

105. It will be recalled that the infringement by Lafarge identified by the contested decision continued to 25 November 1998. In its pleadings at first instance and before the Court, Lafarge claimed that it could thus not be considered a repeat infringer for acts committed before the month of July 2000. ( )

106. Lafarge in its pleadings before the Court of First Instance and the Court made considerable reference to the criminal codes and case-law of a number of Member States in accordance with which the notion of repeated infringement cannot be applied until the first conviction has become definitive. In my view, the appellant’s claim that the nature and severity of competition sanctions requires that the same guarantees applicable to repeated infringement under criminal law should apply to repeated infringement in competition cases cannot be accepted.

107. It is clear from the terms of Article 15(4) of Regulation No 17 that a decision of the Commission imposing fines for anti-competitive practises is not of a criminal law nature. ( ) I consider therefore, in the light of the clear, express will of the Community legislator, that any strict analogy between criminal sanctions and sanctions imposed by the Commission for infringement of the rules of competition law should be avoided.

108. However, it is the settled case-law of the Court that during the administrative procedure before the Commission in competition cases, the Commission is bound to observe the fundamental principles of Community law. ( ) It is therefore necessary to examine the question of repeated infringement from that perspective.

109. While the appellant has made considerable reference to the principle of sound administration of justice, procedural economy and the principle of legal certainty in its submissions, I consider that it has wholly failed to demonstrate how those principles, which in my view form part of the fundamental principles of Community law, were breached with regard to the appellant’s particular circumstances.

110. It is undisputed that the appellant was never in fact in a position where an increased fine was imposed on it for repeated infringement by a second decision when the decision concerning the first infringement, that is Decision 94/815, was still subject to the possibility of annulment proceedings and subsequent appeal. The appellant was therefore never in fact faced with, in its words, any ‘abnormal’ or ‘unfair burden’. ( ) The appellant was never in a position whereby it would, for example, have to request the Commission to amend the contested decision due to an excessive fine or bring an action before the Courts of the Union against an eventual refusal by the Commission to do so. The claims by the appellant in that regard are thus abstract and hypothetical as they do not impinge on its particular circumstances.

111. I consider therefore that issue which is before the Court is rather narrow in nature and that the Court should limit its assessment in the light of the undisputed facts at hand.

112. In my view, the restrictive approach to the question of repeated infringement advocated by the appellant, namely that a fine may not be increased due to repeated infringement unless the first infringement was definitive at the time of the facts in question in the contested decision, is excessively restrictive in the context of competition sanctions which are not criminal in nature.

113. That approach would restrict unnecessarily and artificially the possibility for the Commission to invoke repeated infringement as a means to suppress illegal activities and prevent their recurrence. It would result in the true gravity of certain infringements being under-estimated and under-sanctioned. Moreover, I consider that the presumption that acts of institutions of the Union are lawful and produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following, inter alia, a reference for a preliminary ruling or a plea of illegally, cannot be overstressed. In my view, it is a cornerstone of European Union law and exists in order to assure legal certainty. While the presumption in question can be overturned in proceedings before the General Court and the Court of Justice, I consider that there is no apparent reason in the context of the present proceedings to qualify any further that presumption.

114. I therefore consider, in the light of the facts of the case at hand, that the approach advocated by the appellant not only unreasonably undermines the power of the Commission to impose fines in order to combat anti-competitive behaviour but also undermines that presumption of legality of acts of the Community institutions in the absence of any demonstrated, cogent purpose.

115. In addition, I would note for the purpose of completeness that, approving the approach advocated by the appellant, even if it were relevant to the case at hand, could lead to a situation in which an infringer, due to the length of proceedings before the General Court and the Court of Justice, ( ) could avoid the consequences of repeated infringement, thereby hampering the role of the Commission in enforcing competition law. By contrast, an infringer may always request the Commission, in the event inter alia of annulment of the decision finding the first infringement, to re-examine its later decision finding repeated infringement and bring an action for annulment against an eventual refusal by the Commission to do so.

116. It follows from the foregoing that the plea put forward by Lafarge concerning infringement of the principle, recognised by the Member States, that a person may not be considered a repeat infringer unless the new infringement is subsequent to the first definitive infringement is, in my view, unfounded and should, therefore, be rejected.

IX – Sixth ground of appeal: Error in law with respect to increase of the starting amount of the fine by way of a deterrent

A – Contested judgment

117. Lafarge claimed at first instance that the need to ensure that the fine has a deterrent effect ought to have been examined at the end of the calculation of the fine, and, if the Commission had done so, it would necessarily have reached the conclusion that it was inappropriate to increase the fine to ensure it had a sufficient deterrent effect. The Court of First Instance held, at paragraph 683 of the contested judgment, ‘that the decision as to whether there is any need for a deterrent factor to be applied by virtue of size and overall resources, in that it does not concern the appropriateness of a particular amount, is not influenced by the stage in the calculation of the fine at which it occurs’. The Court of First Instance added, at paragraph 684, that ‘the increase of the fine for deterrent effect is not based on an assessment that the starting amount of a fine is appropriate to that fine’s deterrent objective, so that the amount of the fine is irrelevant in the present context’.

B – Argument

118. The appellant claims that the Court of First Instance infringed at paragraphs 680 to 684 of the contested judgment Article 81 EC and Regulation No 17 by finding that the Commission could assess the necessity to increase the amount of the fine for deterrent effect at the stage of the calculation of the basic amount of the fine and not at the end of the calculation of the fine. The appellant considers that deterrence consists of increasing the amount of the fine, calculated on the basis of the gravity and duration of the infringement and any aggravating or mitigating circumstances, in the event that the final amount appears insufficient to convince the undertaking in question and other economic operators of the seriousness of the infringement and the need not to repeat it. By definition, in order to assess whether the final amount of the fine is sufficient in order to have a deterrent effect, that amount must be known.

119. The appellant notes that in its 2006 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 ( ) (‘2006 Guidelines’) the decision to apply a specific increase of the fine for deterrence is assessed with regard to the final amount of the fine and thus after the assessment of the basic amount of the fine and following adjustment for aggravating and mitigating circumstances.

120. The Commission considers that contrary to the appellant’s claims the question of deterrence does not ensure increasing the amount of the fine solely in the event that the final amount appears insufficient to convince the undertaking in question and other economic operators not to repeat infringements. Deterrence is an integral part of competition policy and seeks to guide the behaviour of undertakings. The Commission also notes that the contested decision was adopted pursuant to the 1998 Guidelines and not the 2006 Guidelines. The 1998 Guidelines provide that the size and global resources of the undertaking may be taken into account in the assessment of the gravity of the infringement (point 1.A) before taking into account duration (point 1.B) and eventually any aggravating or mitigating circumstances. In that regard the Commission may modify its policy on fines in the competition field. The terms of the 1998 and 2006 Guidelines are similar as they both provide the Commission with the possibility to take into account the size and global resources of undertakings in the calculation of fines. Moreover, the stage at which the size of the undertaking is taken into account is not relevant as the increase in the fine on that basis is independent of the final amount of the fine. The Commission also considers that the Court, in an appeal case, may not substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines.

C – Assessment

121. The present ground of appeal concerns the Court of First Instance’s assessment of the application by the Commission of a deterrence multiplier in calculating the fine imposed on the appellant in the light of the size and global resources of that undertaking, and more particularly the stage in the calculation when that multiplier was applied.

122. In accordance with settled case-law, the Commission has a particularly wide discretion as regards the choice of factors to be taken into account for the purposes of determining the amount of fines, such as, inter alia, the particular circumstances of the case, its context and the dissuasive effect of fines, without the need to refer to a binding or exhaustive list of the criteria which must be taken into account. ( )

123. The Court noted in Showa Denko v Commission that ‘deterrence’ is one of the factors to be taken into account in calculating the amount of the fine. ( ) It is settled case-law that the fines imposed for infringements of Article 81 EC and laid down in Article 15(2) of Regulation No 17 are designed to punish the unlawful acts of the undertakings concerned and to deter both the undertakings in question and other operators from infringing the rules of Community competition law in future. Accordingly, when the Commission calculates the amount of the fine it may take into consideration, inter alia, the size and the economic power of the undertaking concerned. ( ) In that case, the Court held that the Court of First Instance was justified in taking the view that, owing to its ‘enormous’ worldwide turnover by comparison with the turnovers of the other members of the cartel, Showa Denko KK could more readily raise the necessary funds to pay its fine, which, if the fine was to have a sufficiently deterrent effect, justified the application of a multiplier. ( ) The Court referred to this as the ‘deterrence multiplier’.

124. It is clear from Showa Denko v Commission that the Court considered that a deterrence multiplier could be applied in order to take into consideration the relative impact which a fine may have on the members of a cartel.

125. Given that the deterrence multiplier in such circumstances relates to the different size and economic power of the undertakings concerned, I consider that the Commission may, in the light of the wide discretion accorded to it in the matter, set a deterrence multiplier by reference to that particular difference.

126. In that event, given that the deterrence multiplier is based on the relative size and economic power of the members of a cartel rather than on an assessment of the actual, concrete amount of a fine, I consider that the stage in the calculation of the fine at which such a deterrence multiplier is applied may be considered irrelevant. Moreover, the question whether the Commission, with the adoption of the 2006 Guidelines, ( ) altered the stage in the calculation of the fine at which such a deterrence multiplier is applied may thus also, in my view, be considered irrelevant where that multiplier is related to the relative size and the economic power of the undertakings concerned. ( )

127. I consider therefore that, in holding that the stage in the calculation of a fine by the Commission at which a deterrence multiplier is applied in order to take into account the size and the global resources of an undertaking and thus reflect the manner in which the members of a cartel are actually affected by the fine is not relevant, the Court of First Instance did not err in law.

128. The appellant’s sixth plea should thus in my view be dismissed as unfounded.

X – Costs

129. Since part of the case should, in my view, to be referred back to the General Court of the European Union, the costs relating to the present appeal should be reserved.

XI – Conclusion

130. I therefore consider that the Court should:

– set aside the judgment of the Court of First Instance of the European Communities (Third Chamber) of 8 July 2008 in Case T‑54/03 Lafarge v Commission in so far as that court dismissed Lafarge’s plea that the Commission breached the principle of equal treatment concerning the participation of Lafarge in a single, complex and continuous infringement from 31 August 1992;

– refer the case back to the General Court of the European Union in order to assess whether the Commission breached the principle of equal treatment concerning the participation of Lafarge in a single, complex and continuous infringement from 31 August 1992;

– for the rest, dismiss the appeal;

– reserve the costs.