Judgment of the General Court (Sixth Chamber) of 27 September 2012 — Heijmans Infrastructuur v Commission

(Case T-359/06)

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Burden of proof — Fines — Gravity of the infringement — Imputability of the unlawful conduct — Duty to state reasons — Rights of the defence’

1. Agreements, decisions and concerted practices — Prohibition — Exemption — Duty of the undertaking concerned to show that its request is well founded — Commission decision refusing a request for exemption — Duty to state reasons — Scope (Art. 81(3) EC) (see para. 30)

2. Agreements, decisions and concerted practices — Prohibition — Exemption — Scope — Horizontal cooperation agreements — Purchasing agreements — Restrictions not indispensable to the economic benefits brought by the agreements — Exclusion (Art. 81(1) and (3) EC; Commission Notice 2001/C 3/02, Sections 124 and 133) (see para. 31)

3. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient — No obligation to make an in-depth analysis of the market power of the members of a cartel (Art. 81(1) EC; Commission Notice 2001/C 3/02, Section 18) (see para. 33)

4. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient — Finding not subject to the obligation to prove the existence of inconvenience for end consumers — Assessment by reference to the content of the agreement and the economic context (Art. 81(1) EC) (see paras 43-44)

5. Agreements, decisions and concerted practices — Agreements between undertakings — Participation allegedly under pressure — Matter not providing a justification for an undertaking which did not make use of the possibility of lodging a complaint with the competent authorities (Art. 81(1) EC; Council Regulations No 17, Art. 3 and No 1/2003, Art. 7) (see paras 50, 95)

6. Agreements, decisions and concerted practices — Definition of the market — Purpose — Determination of the effect on trade between Member States — Obligation to define the market in question — Limits (Art. 81(1) and (3) EC) (see paras 53-55, 134)

7. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Scope of the burden of proof — Degree of precision required of the evidence used by the Commission — Judicial review — Scope (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 66-67)

8. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Refusal to communicate a document — Consequences — Need to distinguish, as regards the burden of proof borne by the undertaking concerned, between inculpatory and exculpatory documents (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2)) (see paras 107-108)

9. Competition — Administrative procedure — Commission decision finding an infringement — Decision not identical to the statement of objections — Infringement of the rights of the defence — Condition — Impossibility for the undertaking to defend itself against an objection finally upheld (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(1)) (see paras 118-121)

10. Competition — Administrative procedure — Commission decision finding an infringement — Commissioner abstaining by reason of a conflict of interests — No infringement of the principle of collegiality (Arts 81(1) EC and 219 EC) (see paras 126-128)

11. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — No obligation to discuss all the points of fact and law raised during the administrative procedure (Arts 81 EC, 82 EC and 253 EC) (see paras 133, 138)

12. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — Horizontal price cartel and application, towards commercial partners, of unequal conditions to equivalent services — Global assessment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1) (see paras 147-149, 151-152)

Re:

APPLICATION, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), in so far as it concerns the applicant, and, in the alternative, for reduction of the fine imposed on the applicant by that decision.

Operative part

The Court:

1. Dismisses the action;

2. Orders Heijmans Infrastructuur BV to pay the costs.

Judgment of the General Court (Sixth Chamber) of 27 September 2012 — Heijmans Infrastructuur v Commission

(Case T-359/06)

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Burden of proof — Fines — Gravity of the infringement — Imputability of the unlawful conduct — Duty to state reasons — Rights of the defence’

1. Agreements, decisions and concerted practices — Prohibition — Exemption — Duty of the undertaking concerned to show that its request is well founded — Commission decision refusing a request for exemption — Duty to state reasons — Scope (Art. 81(3) EC) (see para. 30)

2. Agreements, decisions and concerted practices — Prohibition — Exemption — Scope — Horizontal cooperation agreements — Purchasing agreements — Restrictions not indispensable to the economic benefits brought by the agreements — Exclusion (Art. 81(1) and (3) EC; Commission Notice 2001/C 3/02, Sections 124 and 133) (see para. 31)

3. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient — No obligation to make an in-depth analysis of the market power of the members of a cartel (Art. 81(1) EC; Commission Notice 2001/C 3/02, Section 18) (see para. 33)

4. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient — Finding not subject to the obligation to prove the existence of inconvenience for end consumers — Assessment by reference to the content of the agreement and the economic context (Art. 81(1) EC) (see paras 43-44)

5. Agreements, decisions and concerted practices — Agreements between undertakings — Participation allegedly under pressure — Matter not providing a justification for an undertaking which did not make use of the possibility of lodging a complaint with the competent authorities (Art. 81(1) EC; Council Regulations No 17, Art. 3 and No 1/2003, Art. 7) (see paras 50, 95)

6. Agreements, decisions and concerted practices — Definition of the market — Purpose — Determination of the effect on trade between Member States — Obligation to define the market in question — Limits (Art. 81(1) and (3) EC) (see paras 53-55, 134)

7. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Scope of the burden of proof — Degree of precision required of the evidence used by the Commission — Judicial review — Scope (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 66-67)

8. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Refusal to communicate a document — Consequences — Need to distinguish, as regards the burden of proof borne by the undertaking concerned, between inculpatory and exculpatory documents (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2)) (see paras 107-108)

9. Competition — Administrative procedure — Commission decision finding an infringement — Decision not identical to the statement of objections — Infringement of the rights of the defence — Condition — Impossibility for the undertaking to defend itself against an objection finally upheld (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(1)) (see paras 118-121)

10. Competition — Administrative procedure — Commission decision finding an infringement — Commissioner abstaining by reason of a conflict of interests — No infringement of the principle of collegiality (Arts 81(1) EC and 219 EC) (see paras 126-128)

11. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — No obligation to discuss all the points of fact and law raised during the administrative procedure (Arts 81 EC, 82 EC and 253 EC) (see paras 133, 138)

12. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — Horizontal price cartel and application, towards commercial partners, of unequal conditions to equivalent services — Global assessment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1) (see paras 147-149, 151-152)

Re:

APPLICATION, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), in so far as it concerns the applicant, and, in the alternative, for reduction of the fine imposed on the applicant by that decision.

Operative part

The Court:

1. Dismisses the action;