Case T‑406/09

Donau Chemie AG

v

European Commission

‛Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Fines — Article 23 of Regulation (EC) No 1/2003 — 2006 Guidelines on the method of setting fines — Mitigating circumstances — Cooperation during the administrative procedure — Obligation to state reasons — Equal treatment — Proportionality — Ability to pay’

Summary — Judgment of the General Court (Third Chamber), 14 May 2014

Competition — Fines — Guidelines on the method of setting fines — Legal nature — Indicative rule of conduct implying a self-limitation on the discretion of the Commission — Possibility of the Commission departing therefrom — Conditions

Competition — Fines — Amount — Determination — Criteria — No obligation to take account of the deficit situation of the undertaking concerned — Actual capacity of the undertaking to pay in a particular social and economic context — To be taken into consideration — Conditions

Competition — Fines — Amount — Determination — Maximum amount — Turnover to be taken into consideration — Compliance with the principles of equal treatment and proportionality — Reduction in fine granted to take account of the particular characteristics of an undertaking having regard in particular to the risk of a disproportionate fine — Guidelines adopted by the Commission — Possibility of the Commission departing therefrom — Judicial review — Unlimited jurisdiction of the EU judicature

Competition — Fines — Amount — Determination — Maximum amount — Fine imposed on a small or medium-sized undertaking — Fine representing a percentage very close to the maximum ceiling of 10% of its worldwide turnover — Higher percentage than that applied in respect of other cartel participants — Breach, for that reason alone, of the principle of equal treatment — None

Competition — Fines — Amount — Determination — Observance of the principle of proportionality — No obligation to impose a fine strictly proportionate to the profits made by the undertaking on the markets concerned

Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned — Conditions — Undertaking participating in several aspects of an infringement and providing evidence in respect of only one of them — Account taken of the participation of that undertaking in other aspects of the infringement — Not permissible

Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Establishment of an alignment programme to comply with the competition rules — Not imperative to take into account

Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Cooperation of the undertaking concerned outside the scope of the Leniency Notice — Criteria for assessment — Account taken of the fact that the undertaking concerned did not challenge the facts — Limits

Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Account to be taken of the reduced contributory capacity of an undertaking — Concept — Undertaking smaller than others participating in the cartel — Not included

Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Assessment — Assessment on a case-by-case basis — Taking into account of criteria not expressly mentioned by the Guidelines issued by the Commission

Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Modification of the Guidelines for the calculation of fines — Commission not obliged to abide by its previous decision-making practice

Competition — Fines — Amount — Discretion of the Commission — Judicial review — Unlimited jurisdiction — Effect — Not subject to the Guidelines for the calculation of fines — Duty to comply with the principle of equal treatment

See the text of the decision. (see para. 28)

See the text of the decision. (see paras 29, 30, 120)

See the text of the decision. (see paras 58-60, 222, 306-310)

In the context of a procedure for applying Article 81 EC, when the Commission assesses the amount of the fine to be imposed on an undertaking, there is a difference between the criterion of whether or not an infringement has been implemented and the criterion of its actual impact on the market. In the case of an infringement such as market-sharing, quota-fixing, customer allocation, price-fixing and the exchange of sensitive commercial information, the first of the two abovementioned criteria must be regarded as having been satisfied if it is demonstrated that what was agreed among the participants in the cartel was in fact implemented in their commercial practices, that is to say, that the cartel members took measures to apply the agreed prices, for example, announcing them to customers, instructing their employees to use them as the basis for negotiation and monitoring their application by their competitors and their own sales departments. In so far as concerns the criterion of the actual impact of the infringement on the market, that raises the question of the real effect of the implemented infringement on competition in the market in question. Whilst, admittedly, the implementation of an infringement is a relevant factor that, depending on the particular circumstances of the case, may be sufficient to found the conclusion that the infringement at issue has had a real impact on the market, the fact remains that the implementation of an agreement does not necessarily mean that it has an actual impact. The criteria of whether or not the infringement has been implemented and of its actual impact on the market as thus quite distinct and it cannot be presumed that, where the former is satisfied, the latter will automatically be satisfied also. (see paras 69, 70)

While the Commission may not depart from rules which it has imposed on itself, without giving reasons for so doing which are consistent with the principle of equal treatment, it is nevertheless free to modify those rules or to replace them. In a case that falls within the scope of the new rules, the Commission cannot be criticised for having failed to take into account a mitigating circumstance that is not provided for by those new rules solely on the ground that it was provided for under the earlier rules. (see paras 74, 87, 150-152, 175)

The gravity of infringements must be determined by reference to numerous factors such as, in particular, the particular circumstances of the case, its context and the dissuasive element of fines without any binding or exhaustive list of the criteria which must be applied having been drawn up. The fact that, in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, the Commission set out its approach to assessment of the gravity of an infringement does not prevent it from assessing infringements as a whole by reference to all the relevant circumstances of the case, including factors that are not expressly mentioned in the Guidelines. The fact that those Guidelines do not expressly provide for the analysis of the actual impact of the infringement on the market for the purpose of determining the gravity of the infringement, with a view to setting the basic amount of the fine, does not mean that the Commission is not at liberty also to consider that factor. However, it is not sufficient for an applicant wishing to challenge the amount of the fine imposed on it for infringement of the competition rules merely to assert that the Commission ought to have included in its analysis, for the purpose of determining the gravity of the infringement, a factor the analysis of which is not provided for in the Guidelines. Such an applicant must also demonstrate in what way that additional analysis would have altered the Commission’s assessment of the gravity of the infringement and justified the imposition of a smaller fine. (see paras 76-78)

See the text of the decision. (see para. 81)

See the text of the decision. (see paras 92, 138)

See the text of the decision. (see paras 93, 95, 115, 117, 127)

See the text of the decision. (see paras 108, 143, 144)

See the text of the decision. (see para. 110)

See the text of the decision. (see para. 112)

See the text of the decision. (see para. 145)

See the text of the decision. (see para. 154)

See the text of the decision. (see paras 162, 166, 169)

For an infringement of EU competition rules to be regarded as having been committed deliberately rather than negligently, it is not necessary for an undertaking to have been aware that it was infringing the competition rules; it is sufficient that it could not have been unaware that its conduct had as its object the restriction of competition in the common market. It follows that knowledge, on the part of the directors of an undertaking, of the exact content of the competition rules, such as may be acquired through a training and compliance programme, is not a prerequisite for a finding of infringement of those rules. On the contrary, even in the absence of such knowledge, it is possible not only for a finding of negligent infringement of the competition rules to be reached, but also a finding of intentional infringement of those rules. (see para. 171)

See the text of the decision. (see para. 175)

The lodging of evidence offered after the rejoinder remains possible where the person offering the evidence was unable, before the end of the written procedure, to obtain possession of the evidence in question, or if evidence produced belatedly by the other party justifies completing the file so as to ensure observance of the rule that both parties should be heard. Since it is an exception to the rules governing the submission of offers of evidence, Article 48(1) of the Rules of Procedure requires parties to give reasons for the delay in offering their evidence. That obligation implies that the Court has jurisdiction to review the merits of the reasons given for the delay in producing the evidence offered and, where appropriate, the content thereof and, where the application is not substantiated to the requisite legal standard, the power to dismiss the evidence. The same applies, a fortiori, to offers of evidence made after the rejoinder is lodged. (see para. 212)

For the purpose of determining the appropriate rate of reduction to be applied to a fine to be imposed for breach of EU competition rules, in recognition of an undertaking’s cooperation in the procedure for finding that infringement, the fact that the fine was designed to sanction the applicant’s participation not only in the part of the cartel in relation to which it had provided evidence of significant added value but also its participation in another part of the same cartel in relation to which it had not provided such evidence is not to be taken into consideration. (see para. 229)

See the text of the decision. (see para. 233)

See the text of the decision. (see para. 250)

In the context of a procedure for applying Article 81 EC, when the Commission assesses the amount of the fine to be imposed on an undertaking, although the benefit which an undertaking has been able to derive from an infringement and, more generally, the profits which it has achieved on the markets to which the infringement relates are among the factors that may be taken into account in order to determine the amount of the fine, there is no obligation either on the Commission or on the Courts of the European Union when exercising their unlimited jurisdiction with regard to fines to ensure that the fine is directly proportional to the profits achieved by the undertaking in question on the markets concerned or that it does not exceed those profits. (see para. 258)

See the text of the decision. (see para. 259)

In the context of a procedure for applying Article 81 EC, when the Commission assesses the amount of the fine to be imposed on an undertaking, the ceiling of 10% of the latter’s turnover, laid down by Article 23(2) of Regulation No 1/2003, seeks to prevent fines imposed by the Commission from being disproportionate in relation to the size of the undertaking concerned. That ceiling is not however sufficient to prevent the fine imposed in the case of a trader trading in high value materials with a low margin from being possibly disproportionate. (see paras 266-269, 271, 309, 310)

See the text of the decision. (see paras 285-290, 299)