Keywords

Summary



Keywords

1. Procedure — Application originating proceedings — Formal requirements — Summary of the pleas on which the application is based — (EC Statute of the Court of Justice, Art. 19, first para.; Rules of Procedure of the Court of First Instance, Art. 44(1))

2. Community law — General principles of law — Non-retroactivity of criminal provisions — Scope — Fines imposed for infringements of the competition rules — Included — Infringement by reason of the application of the Guidelines for the calculation of fines to an infringement prior to their introduction — None — (European Convention on Human Rights, Art. 7; Council Regulation No 17, Art. 15)

3. Competition — Fines — Amount — Commission ' s margin of discretion — Possibility of increasing the fines in order to strengthen their deterrent effect — (Council Regulation No 17, Art. 15)

4. Community law — Principles — Protection of legitimate expectations — Conditions — Protection against exercise by the Commission of its power to raise the level of fines penalising infringements of the competition rules — None — (Council Regulation No 17)

5. Competition — Fines — Amount — Community penalties and penalties imposed by the authorities of a Member State or a non-member State for infringement of national competition law — Infringement of thenon bis in idemprinciple — None — Concurrent sanctions — Permissible — Obligation on the Commission to take account, when determining the amount of the fine, of the penalty imposed by a Member State on the basis of the same facts — Obligation not transposable to the hypothesis of a penalty imposed in a non-member State — (Protocol No 7 to the European Convention on Human Rights, Art. 4; Council Regulation No 17, Art. 15)

6. Competition — Fines — Amount — Determination thereof — Criteria — Seriousness and duration of the infringements — Possibility of increasing the fines in order to strengthen their deterrent effect — (Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2))

7. Competition — Cartels — Price-fixing — Infringement capable of classification as very serious, even if the fixed prices merely indicative — (Art. 81 EC)

8. Competition — Fines — Amount — Determination thereof — Criteria — Seriousness of the infringements — Price-fixing — Obligation of the Commission to refer, when assessing the impact of an infringement, to the state of competition in the absence of the infringement — (Council Regulation No 17, Art. 15(2))

9. Competition — Fines — Amount — Determination thereof — Criteria — Seriousness of the infringements — Account to be taken of the effects of the whole of the infringement, whatever the actual conduct allegedly adopted by an undertaking — (Council Regulation No 17, Art. 15)

10. Competition — Fines — Amount — Determination thereof — Guidelines adopted by the Commission — Obligation on the Commission to comply with them — (Council Regulation No 17, Art. 15(2))

11. Competition — Fines — Amount — Determination thereof — Criteria — Seriousness of the infringements — Taking into account of the total turnover of the undertaking concerned and the turnover achieved by sales of goods which were the subject-matter of the infringement — Limits — (Council Regulation No 17, Art. 15(2))

12. Competition — Fines — Amount — Determination thereof — Criteria — Seriousness of the infringements — Measure of the effective capacity to cause damage on the relevant market — Relevance of the market share held by the undertaking concerned — (Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

13. Competition — Fines — Amount — Determination thereof — Criteria — Seriousness of the infringements — Measure of the actual impact on competition of the infringing conduct of each undertaking — Relevance of the turnover achieved with the products forming the subject-matter of a restrictive practice — (Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

14. Actions for annulment — Pleas in law — Challenge to the facts held by a decision penalising infringement of the competition rules — Admissibility — Condition — No admission of those facts during the administrative procedure — (Art. 230 EC)

15. Competition — Cartels — Agreements between undertakings — Meaning — Common intention as to future market policy — (Art. 81(1) EC)

16. Competition — Fines — Amount — Determination thereof — Criteria — Seriousness of the infringements — Respective roles of the undertakings involved — (Council Regulation No 17, Art. 15)

17. Competition — Fines — Amount — Determination thereof — Criteria — Seriousness of the infringements — Mitigating circumstances — Agreement not implemented in practice — Assessment at the level of the individual conduct of each undertaking — (Council Regulation No 17, Art. 15)

18. Competition — Fines — Amount — Determination thereof — Criteria — Seriousness of the infringements — Mitigating circumstances — Setting up of a programme for compliance with Community competition rules — Taking into account not mandatory — (Art. 81(1)(a) and (b) EC; Council Regulation No 17, Art. 15)

19. Competition — Fines — Amount — Determination thereof — Criteria — Reduction of the fine in return for cooperation — Conditions — Provision by an undertaking of information on facts capable of being used to penalise it — (Council Regulation No 17, Art. 15)

20. Competition — Fines — Amount — Determination thereof — Criteria — Seriousness of the infringements — Mitigating circumstances — Reduction of the fine in return for cooperation allowing the degree of participation by another undertaking to be determined — (Council Regulation No 17, Art. 15)

21. Competition — Administrative proceedings — Powers of the Commission in investigations — Compliance with the general principle ensuring protection against arbitrary or disproportionate intervention by the public authorities — No possibility of making or using clandestine audio and video recordings — (European Convention on Human Rights, Art. 8; Council Regulation No 17)

22. Competition — Fines — Amount — Determination thereof — Method of calculation defined by guidelines laid down by the Commission — Application of percentages to the basic amount of the fine — (Council Regulation No 17, Art. 15(2))

Summary

1. In accordance with Article 44(1) of the Rules of Procedure of the Court of First Instance, an originating application must contain a summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must, accordingly, specify the nature of the grounds on which it is based, and a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure.

see para. 36

2. The principle that penal provisions may not have retroactive effect is one which is common to all the legal orders of the Member States and is enshrined in Article 7 of the European Convention on Human Rights, and is an integral part of the general principles of law whose observance is ensured by the Community judicature.

Although Article 15(4) of Regulation No 17 provides that Commission decisions imposing fines for infringement of competition law are not of a criminal nature, the Commission is none the less required to observe the general principles of Community law, and in particular the principle of non-retroactivity, in any administrative procedure capable of leading to fines under the Treaty rules on competition. Such observance requires that the fines imposed on an undertaking for infringing the competition rules correspond with those laid down at the time when the infringement was committed.

The change to the Commission ' s administrative practice brought about by the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty does not constitute an alteration of the legal framework determining the level of fines which can be imposed that is contrary to the principles of non-retroactivity of penalties and legal certainty.

The Commission ' s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters, since that framework is defined solely in Regulation No 17, from which the Guidelines do not diverge. Moreover, having regard to the wide discretion which Regulation No 17 leaves the Commission, the fact that the latter introduces a new method of calculating fines, which may, in certain cases, lead to an increase in the general level of fines but does not exceed the maximum level established by that regulation, cannot be regarded as an aggravation, with retroactive effect, of the fines as legally provided for by Article 15(2) of Regulation No 17.

see paras 39-41, 51-55

3. Under Regulation No 17, the Commission has a margin of discretion when fixing fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules. The fact that it may in the past have imposed fines of a certain level for certain types of infringement does not deprive it of the possibility of raising that level within the limits indicated in Regulation No 17 if that is necessary to ensure the implementation of Community competition policy. On the contrary, the proper application of the Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy.

see paras 56, 181

4. The right to rely on the principle of the protection of legitimate expectations extends to any individual in a situation where the Community authorities have caused him to entertain legitimate expectations. However, a person may not plead infringement of the principle unless he has been given precise assurances by the administration.

Traders cannot have a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretionary power will be maintained. In the field of Community competition rules, effective application of those rules requires that the Commission may at any time adjust the level of fines to match the needs of competition policy. Consequently, the fact that, in the past, the Commission imposed fines at a certain level for certain types of infringements does not preclude it from raising that level, subject to the limits indicated in Regulation No 17.

see paras 62, 64-65

5. The principle of non bis in idem , enshrined also in Article 4 of Protocol No 7 to the European Convention on Human Rights, is a general principle of Community law upheld by the Community judicature. In the field of Community competition law, the principle precludes an undertaking from being sanctioned by the Commission or made the defendant to proceedings brought by the Commission a second time in respect of anti-competitive conduct for which it has already been penalised or of which it has been exonerated by a previous decision of the Commission that is not amenable to challenge.

There may, however, be concurrent sanctions, one a Community sanction, the other a national one, resulting from two sets of parallel proceedings, each pursuing distinct ends, because of the special system of sharing jurisdiction between the Community and the Member States with regard to cartels. However, a general requirement of natural justice demands that, in determining the amount of a fine, the Commission must take account of any penalties that have already been borne by the undertaking in question in respect of the same conduct where these were imposed for infringement of the law relating to cartels of a Member State and where, consequently, the infringement was committed within the Community.

That possibility of concurrent sanctions being justified by the fact that national and Community procedures pursue distinct ends, the principle non bis in idem cannot, a fortiori , apply where the Commission has decided to fine an undertaking for participation in a cartel that has already been penalised by the authorities or courts of a non-member State, because the procedures conducted and penalties imposed by the Commission on the one hand and the authorities or courts of a non-member State on the other clearly pursue different ends. At present, moreover, there is no principle of public international law that prevents the authorities or courts of different States from trying and convicting the same person on the basis of the same facts.

Moreover, if the Commission is obliged, in accordance with a requirement of fairness, to take account when fixing the amount of a fine of penalties already imposed on the same undertaking for infringements of the competition law of a Member State and, therefore, committed in Community territory, it is in view of the particular situation which arises from the close interdependence between the national markets of the Member States and the common market and from the special system for the division of jurisdiction between the Community and the Member States with regard to cartels on the same territory, namely the common market. That justification is clearly absent where the first punitive decisions were adopted against an undertaking by the authorities or courts of a non-member State for infringement of their competition rules and the Commission has, therefore, no obligation, when fixing the amount of a fine imposed on that undertaking for infringement of Community competition law, to take account of the decisions referred to above.

see paras 85-87, 89-90, 92, 99-100

6. The Commission ' s power to impose fines on undertakings which, intentionally or negligently, infringe the provisions of Article 81(1) EC or Article 82 EC is one of the means conferred on the Commission to enable it to carry out the task of supervision entrusted to it by Community law. That task includes the duty to investigate and punish individual infringements, but also encompasses the 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.

It follows that the Commission has power to decide the level of fines so as to reinforce their deterrent effect where infringements of a given type, although established as being unlawful at the outset of Community competition policy, are still relatively frequent on account of the profit that certain of the undertakings concerned are able to derive from them.

see paras 105-106

7. In the context of a cartel, the fixing of a price, even one which merely constitutes a target, affects competition because it enables all the participants in a cartel to predict with a reasonable degree of certainty what the pricing policy pursued by their competitors will be. Such cartels involve direct interference with the essential parameters of competition on the market in question and may be classified as very serious infringements. By expressing a common intention to apply a given price level for their products, the producers concerned cease independently determining their policy in the market and thus undermine the concept inherent in the provisions of the Treaty relating to competition.

see paras 119-120

8. When determining the seriousness of an infringement in competition matters, particular account should be taken of the legislative background and economic context of the conduct complained of. In order to assess the actual effect of an infringement on the market, the Commission must take as a reference the competition that would normally exist if there were no infringement.

It follows, first, that in the case of price agreements, there must be a finding that such agreements have in fact enabled the undertakings concerned to achieve a higher level of transaction price than that which would have prevailed had there been no cartel.

It also follows that, in making its assessment, the Commission must take into account all the objective conditions in the relevant market and have regard to the economic context and, if appropriate, also the legislative background.

see paras 150-152

9. In curbing prohibited cartels, the actual conduct which an undertaking claims to have adopted is irrelevant for the purposes of evaluating a cartel ' s effect on the market, account having to be taken only of effects resulting from the infringement taken as a whole.

see paras 160, 167

10. The Commission may not depart from rules which it has imposed on itself. In particular, whenever it adopts guidelines for the purpose of specifying, in accordance with the Treaty, the criteria which it proposes to apply in the exercise of its power to assess the seriousness of an infringement, there arises a self-imposed limitation of that discretion inasmuch as it must then follow those guidelines.

see para. 182

11. The criteria for assessing the seriousness of an infringement of Community competition rules may include the volume and value of the goods in respect of which the infringement was committed, the size and economic power of the undertaking and, consequently, the influence which it was able to exert on the market. It follows that, on the one hand, it is permissible, for the purpose of fixing a fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. On the other hand, it follows that it is important not to confer on one or other of those figures an importance which is disproportionate in relation to other factors and that the fixing of an appropriate fine cannot be the result of a simple calculation based on total turnover.

see paras 58, 188

12. When determining the amount of fines imposed for infringement of Community competition rules, assessment of the effective capacity of the undertakings concerned to cause significant damage to a given market implies an assessment of the real importance of the undertakings on the market affected, that is to say their influence on it. For that purpose, an undertaking ' s share of the affected market is relevant, whereas its total turnover is not.

see para. 193

13. When determining the amount of fines imposed for infringement of Community competition rules, an assessment of the specific weight, that is to say of the real impact of the infringement committed by each of the undertakings, which the Commission must now carry out by virtue of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty where it considers that the starting amounts of the fines must be weighted because the infringement is one that involves several undertakings (a cartel) among which there is considerable disparity in size, involves establishing the scale of the infringement committed by each of them, rather than the importance of the undertaking in question in terms of its size or economic power. In that regard, the proportion of turnover derived from the goods in respect of which the infringement was committed is likely to give a fair indication of the scale of the infringement on the relevant market. In particular, the turnover in products which have been the subject of a restrictive practice constitutes an objective criterion which gives a proper measure of the harm which that practice causes to normal competition.

see paras 194, 196

14. Where the undertaking involved does not expressly acknowledge its anti-competitive conduct, the Commission will have to prove those facts and the undertaking is free to put forward, at the appropriate time and in particular in the procedure before the Court, any plea in its defence which it deems appropriate. That is not the case, however, where the undertaking in question acknowledges the facts. Thus, where the undertaking expressly admits, during the administrative procedure, the substantive truth of the facts which the Commission alleges against it in its statement of objections, those facts must thereafter be regarded as established and the undertaking barred from disputing them during the procedure before the Court.

see para. 227

15. In order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings concerned express their common intention to behave in the market in a specific way, whatever the effects on the market. The Commission is therefore entitled to classify a common intention on the part of the undertakings regarding, at very least, price initiatives, as an agreement within the meaning of that provision.

see para. 228

16. Where an infringement has been committed by several undertakings, it is necessary, when fixing the amount of the fines, to examine the relative seriousness of the participation of each of them, which implies establishing their respective roles in the infringement during the period of their participation in it.

It follows, in particular, that where one or more undertakings acts as " ringleader" of a cartel, that should be taken into account in determining the amount of the fine, because undertakings which play that role must accordingly bear special responsibility in comparison with the other undertakings.

see paras 238-239

17. The second indent of section 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, which speaks of " non-implementation in practice of the offending agreements" , must therefore be understood not as referring only to cases where a cartel as a whole is not implemented, irrespective of the conduct of each undertaking, but must be understood as a fact based on the individual conduct of each undertaking.

see paras 263-265

18. Whilst it is important that an undertaking should take steps to prevent fresh infringements of Community competition law from being committed in the future by members of its staff, that does not alter the fact that an infringement has been committed. Thus, the mere fact that in certain of its previous decisions the Commission took the establishment of a programme for aligning the undertaking ' s conduct with Community competition rules into consideration as a mitigating factor does not mean that it is obliged to act in the same manner in any given case.

The Commission is therefore not required to take a circumstance such as that into account as a mitigating factor, provided that it adheres to the principle of equality of treatment, which requires that it should not assess the matter differently for any other undertaking addressed by the same decision.

see paras 280-281

19. An undertaking ' s making available to the Commission, in the course of its investigation of a cartel, information concerning actions for which it could not in any event have been required to pay a fine under Regulation No 17 does not amount to cooperation falling within the scope of the Commission ' s Leniency Notice or, a fortiori , of Section D thereof, which concerns such matters as the provision of information, documents or other evidence which contribute to establishing the existence of the infringement.

see para. 297

20. The provision by an undertaking of information which did not, as such, assist the Commission in establishing the existence of an infringement, but did enable it to evaluate more precisely the degree of cooperation by another undertaking during the administrative procedure for the purposes of determining the amount of its fine, and thus assisted the Commission in its investigation, cannot be regarded as cooperation falling within the scope of the Leniency Notice, but does, on the other hand, constitute effective cooperation outside the scope of that notice, within the meaning of the sixth indent of section 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty.

Therefore, in order to comply with that provision, a reduction in the amount of the fine should be given by reason of mitigating circumstances.

That conclusion is all the more necessary because, when appraising the cooperation offered by undertakings, the Commission is not entitled to disregard the principle of equal treatment. An undertaking which, in addition to having expressly admitted the substantive truth of the facts in its reply to a statement of objections, has assisted the Commission on other points, offering " effective cooperation" within the meaning of the sixth indent of Section 3 of the Guidelines, cannot be compared to an undertaking which has admitted the substantive truth of the facts but has provided no other information.

see paras 305-309

21. Concerning the right to respect for private life laid down by Article 8 of the European Convention on Human Rights, the Community judicature has acknowledged the existence of a general principle of Community law ensuring protection against intervention by the public authorities in the sphere of the private activities of any person, whether natural or legal, which is disproportionate or arbitrary. It is in light of that principle that the Court of Justice and the Court of First Instance must review the exercise of the Commission ' s investigatory powers under Regulation No 17.

Compliance with that general principle implies, amongst other things, that any intervention by the public authorities must have a legal basis and be justified on grounds laid down by law. However, there is no provision in Regulation No 17 that addresses the question whether clandestine audio and video recordings may be made and used.

see paras 340-341

22. Given the wording of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, any percentage increases or reductions decided upon to reflect aggravating or mitigating circumstances must be applied to the basic amount of the fine set by reference to the seriousness and duration of the infringement, not to any increase already applied for the duration of the infringement or to the figure resulting from any initial increase or reduction to reflect aggravating or mitigating circumstances. That method for calculating fines ensures equal treatment between the various undertakings involved in a cartel.

see para. 378