Case T-406/08

Industries chimiques du fluor (ICF)

v

European Commission

‛Competition — Agreements, decisions and concerted practices — World market in aluminium fluoride — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Price-fixing and market-sharing — Evidence of the infringement — Rights of defence — Consistency between the statement of objections and the contested decision — Fines — 2006 Guidelines on fines — Euro-Mediterranean Agreement’

Summary — Judgment of the General Court (First Chamber), 18 June 2013

Competition — Fines — Amount — Determination — Criteria — Guidelines adopted by the Commission — Basic amount of the fine — Calculation by reference to the value of sales by the undertakings participating in the infringement in the geographical area concerned — Global market-sharing agreements — Account taken of aggregate sales of the undertakings concerned on the world market and the best available data

Competition — Administrative procedure — Observance of the rights of the defence — Right of access to the file — Infringement — Refusal of access to documents likely to be useful for the defence of the undertaking

Competition — Administrative procedure — Commission decision finding an infringement — Decision not identical to the statement of objections — Observance of the rights of the defence — Reduction in the number of participants in the infringement and in its duration — No additional objections harming the interests of the undertaking concerned — Partial and admissible abandonment of an objection — Opportunity to submit observations on the matters taken into account in the statement of objections

The requirement of a handwritten signature for the purposes of the first subparagraph of Article 43(1) of the Rules of Procedure of the General Court is designed, for reasons of legal certainty, to ensure the authenticity of the application and to eliminate the risk that that document is not in fact the work of the author authorised for that purpose. That requirement must therefore be regarded as an essential procedural rule and be applied strictly, so that failure to comply with it leads to the inadmissibility of the action. However, an action must be declared admissible where an application not bearing an original signature of the representing lawyer is annexed to an accompanying letter which includes an original handwritten signature of the same representing lawyer, also corresponding to the signature on the letter accompanying the telefax. In such circumstances, there is no doubt as to the identity of the author of the application submitted as the original. In addition, a cover letter or a transmission sheet, signed by the applicant’s representative, and an unsigned written pleading must be regarded as constituting a single, duly signed pleading where they are part of the same postal mailing. (see paras 52, 55)

See the text of the decision. (see paras 66-69)

See the text of the decision. (see paras 88-91)

The concept of a single infringement covers a situation in which several undertakings have participated in an infringement in which continuous conduct in pursuit of a single economic aim was intended to distort competition, and also individual infringements linked to one another by the same object. That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute in themselves an infringement of Article 81 EC. In addition, the concept of a single infringement can be applied to the legal characterisation of anti-competitive conduct consisting in agreements, in concerted practices and in decisions of associations of undertakings. When the different actions form part of an overall plan because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole. The various manifestations of the infringement must be assessed in the overall context explaining the reason for their existence. In that regard, in the taking of evidence, the probative value of the different facts is increased or corroborated by the other existing facts which, together, give a coherent and full picture of a single infringement. Finally, the concept of a single objective cannot be determined by a general reference to the distortion of competition on the market concerned by the infringement. Thus, for the purposes of characterising various instances of conduct as a single and continuous infringement, it is necessary to establish whether they are complementary, in that each of them is intended to deal with one or more consequences of the normal pattern of competition, and whether, through interaction, they contribute to the attainment of the set of anti-competitive effects desired by those responsible, within the framework of a global plan having a single objective. (see paras 101-104)

See the text of the decision. (see para. 117)

The essential facts on which the Commission is relying in the statement of objections may be set out summarily and the final decision is not necessarily required to replicate the statement of objections, since the statement is a preparatory document containing assessments of fact and of law which are purely provisional in nature. Consequently, until a final decision has been adopted, the Commission may, in view, in particular, of the written or oral observations of the parties, abandon some or even all of the objections initially made against them and thus alter its position in their favour or decide to add new complaints, provided that it affords the undertakings concerned the opportunity of making known their views in that respect. As regards, more particularly, respect for defence rights, where, in the final decision, the duration of the infringement is reduced in comparison with that stated in the statement of objections, in the light of the probative value attributed to the evidence, that restriction does not constitute an additional objection and does not in any way harm the interests of the undertaking to which the said decision is addressed. On the contrary, such a reduction is favourable to it, as it amounts to a partial and admissible abandonment of an objection by the Commission in favour of the undertaking. Moreover, where the undertaking has had an opportunity to submit its observations on the statement of objections, including on the information relating to the duration of the infringement, its defence rights cannot be regarded as having been infringed. (see paras 118, 123-125)

In the context of the administrative procedure for applying the competition rules, the rights of the defence are breached where it is possible that the outcome of the administrative procedure conducted by the Commission may have been different as a result of an error committed by it. An applicant undertaking establishes that there has been such a breach where it adequately demonstrates not that the Commission’s decision would have been different in content, but rather that it would have been better able to ensure its defence had there been no procedural error, for example because it would have been able to use for its defence documents to which it was denied access during the administrative procedure. As regards specifically the right of access to the file, it is sufficient for the undertaking to show that it would have been able to use the document in its defence. That undertaking does not have to show that that error did influence, to its disadvantage, the course of the proceedings and the content of the Commission’s decision, but only that it was able to influence the course of the proceedings and the content of the Commission’s decision. Where documents are not disclosed, the undertaking concerned does not have to show that disclosure of the documents would have altered the outcome of the administrative procedure, but only that there was even a small chance that the documents which were not disclosed in the administrative procedure could have been useful for its defence. Where, in a given case, first, the applicant has had access to documents relating to contacts in conjunction with the statement of objections, without deducing any exculpatory evidence from them, either in the administrative procedure or in the course of legal proceedings; second, at the stage of the administrative procedure, it has declined to take a position on the subsequent contacts; and, third, during the legal proceedings, it neither explains nor substantiates how failure to refer expressly to the said documents, in the statement of objections, compromised the effectiveness of its defence during the administrative procedure, and how it could have defended itself more effectively if it had been expressly informed that the Commission intended to use the documents as incriminating evidence, that applicant has not been able to establish that the fact that it was not informed, in the statement of objections, of the Commission’s intention to use the documents in question as incriminating evidence was capable of compromising the effectiveness of its defence and, thus, the conclusion reached by the Commission in its decision. (see paras 119, 120, 137, 141)

See the text of the decision. (see paras 148-152)

The guidelines adopted by the Commission for the calculation of fines for infringements of the competition rules set out a rule of conduct indicative of the practice to be followed, from which the administration cannot depart in an individual case without giving reasons compatible with the principle of equal treatment. They merely describe the method used by the Commission to examine infringements and the criteria that the Commission requires to be taken into account in setting the amount of a fine. The Guidelines are an instrument designed to clarify, in compliance with superior rules of law, the criteria that the Commission intends applying when exercising the discretion conferred on it by Article 23(2) of Regulation No 1/2003 for the purpose of setting fines. The Guidelines do not constitute the legal basis of a decision imposing fines — which is based on Regulation No 1/2003 — but determine, generally and abstractly, the method which the Commission has bound itself to use in setting the amount of fines imposed by the decision and, consequently, ensure legal certainty on the part of the undertakings. Thus, although the Guidelines may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons, at the risk of infringing the principles of legal certainty and equal treatment. (see paras 153-156)

See the text of the decision. (see paras 163-165, 218, 219)

Where a fine is imposed for an infringement whose geographic scope extends beyond the territory of the European Economic Area (EEA), the Commission may, in accordance with point 18 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, assess the total value of the sales to which the infringement relates in the relevant geographic area (wider than the EEA), may determine the share of the sales of each undertaking party to the infringement on that market and may apply that share to the aggregate sales within the EEA of the undertakings concerned. In that regard, it is apparent from the broad logic and the wording of point 18 of the 2006 Guidelines that the expression ‘the total value of the sales of goods or services to which the infringement relates’ must be understand to mean the total value of the sales of the undertakings participating in the infringement and not the total value of the sales of all undertakings active on the market in which the undertakings committed the infringement. The sales of undertakings not participating in the infringement are not sales ‘to which the infringement relates’. That textual interpretation is also consistent with the broad logic of point 18 of the 2006 Guidelines which seeks to reflect both the aggregate size of the relevant sales and the relative weight of each undertaking in the infringement. The latter objective implies that only the value of sales of the undertakings participating in the infringement is taken into account. (see paras 171, 172, 182-184)

With a view to calculating the basic amount of the fine for infringement of the EU competition rules, it is the turnover figure which reflects most fully the actual amount of the transaction that is relevant in determining the value of sales. Thus, it is the turnover according to the undertaking’s accounts that must be taken into account. Furthermore, the value of sales reflects the price as charged to the customer, without deductions for transportation costs or other charges. In respect of transportation costs, where a producer delivers, at the request of the customer, the quantities sold, the transportation service forms an integral part of the sale of the product. The price charged for such a service, even where it represents the reimbursement of the sums owed by the seller to the independent carrier to which it had recourse for that service, is therefore a component of the overall sales price. (see paras 175, 176)

See the text of the decision. (see paras 189-191)