Case T-370/06

Kuwait Petroleum Corp. and Others

v

European Commission

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Fines — Cooperation during the administrative procedure — Significant added value — Equal treatment — Rights of the defence’

Summary — Judgment of the General Court (Sixth Chamber), 27 September 2012

Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Refusal to communicate a document — Consequences — Need to make a distinction, at the level of the burden of proof on the undertaking concerned, between inculpatory and exculpatory documents — Document capable of influencing the amount of the fine

Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Communication of documents subsequent to the sending of the statement of objections and the hearing of the parties — Conditions — Document capable of affecting the amount of the fine

Competition — Fines — Amount — Determination — Reduction of the fine in return for the cooperation of the undertaking concerned — Account taken of the chronology of the cooperation provided — No specific time-limit for bringing an application for leniency

Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine in return for cooperation of the undertaking concerned — Need for conduct which facilitated the Commission’s finding of an infringement — Discretion of the Commission — Judicial review — Limits

It is necessary to adopt a restrictive interpretation of the last paragraph of point 23(b) of the Commission Notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (‘the 2002 Leniency Notice’), by limiting it to cases in which a company party to a cartel provides the Commission with new information relating to the gravity or the duration of the infringement, and by excluding cases in which a company has merely provided information which strengthens the evidence of the existence of the infringement. Since the leniency procedure constitutes an exception to the rule that an undertaking must be punished for any infringement of the rules of competition law, the relevant rules must for that reason be interpreted strictly. Moreover, the effectiveness of leniency programmes would be undermined if undertakings were to lose the incentive to be the first to submit information revealing the existence of a cartel to the Commission. A less restrictive interpretation of that provision would deprive of all effect the distinction made by the Commission in the Notice between the sole undertaking which may benefit from immunity from a fine (Section A of the Leniency Notice) and those undertakings which may qualify only for a reduction of a fine (Section B of the Leniency Notice), since that interpretation would amount to also granting those undertakings total immunity from a fine. The Leniency Notice thus draws a distinction between an undertaking which is the first to submit evidence which may enable the Commission to find an infringement or to adopt a decision to carry out an investigation, which is eligible for total immunity, and other undertakings, which do not meet those conditions and which are eligible only for a maximum reduction of the fine of 50%. The Commission does not therefore err in law in taking the view that, when setting an undertaking’s fine, it is entitled to take account of facts that the latter had merely contributed to corroborating by providing certain items of evidence, of the existence of which the Commission was aware. Such an interpretation is not contrary to the principle of legitimate expectations as the Commission did not at any point give precise assurances to the undertaking as to the possibility of its being granted immunity from a fine. In general, in leniency matters, applicants submit information to the Commission without knowing what information the Commission already has in its possession and they cannot therefore entertain any type of legitimate expectation as to the amount of the reduction from which they might benefit. (see paras 33-38)

Cooperation in an investigation which does not go beyond that which undertakings are already obliged to provide under Article 11(4) and (5) of Council Regulation No 17 does not warrant a reduction in the fine pursuant to the Commission Notice on the non-imposition or reduction of fines in cartel cases (‘the 1996 Leniency Notice’). On the other hand, such a reduction is justified where an undertaking has provided information well in excess of that which the Commission may require under Article 11 of Regulation No 17. In order to justify reduction of a fine on grounds of cooperation, the conduct of an undertaking must facilitate the Commission’s task of finding and bringing to an end infringements of the European Union competition rules and reveal a true spirit of cooperation. Therefore, the Court must first consider whether the Commission disregarded the extent to which the cooperation of the undertakings in question exceeded what was required under Article 11 of Regulation No 17. In that connection, the Court undertakes a comprehensive review concerning, in particular, the extent to which the undertakings’ rights of defence limit their obligation to reply to requests for information. Second, the Court should verify, whether the Commission correctly appraised, in the light of the Leniency Notice, the extent to which the cooperation provided helped to establish the infringement. Within the limits laid down by that notice, the Commission has a discretion in assessing whether the information or documents voluntarily provided by the undertakings have facilitated its task and whether it is appropriate to grant a reduction to an undertaking under that notice. That assessment is the subject of limited review by the Court. Similarly, under the 2002 Leniency Notice, the Commission has a discretion in assessing whether the information or documents voluntarily provided by undertakings have facilitated its task and whether it is appropriate to grant a reduction to an undertaking under that notice, that assessment also being the subject of limited review by the Court. (see paras 49-50)

It is apparent from the terms of points 7, 21 and 22 of the 2002 Leniency Notice that the Commission must assess each undertaking’s actual contribution, in terms of quality and timing, to the establishment of the infringement and that the concept of ‘significant added value’ refers to the extent to which the evidence provided strengthens, by its nature and its level of detail, the Commission’s ability to prove the facts constituting the infringement. The Commission therefore ascribes particular value to evidence which might enable it, together with other evidence already in its possession, to establish the existence of a cartel or to evidence that enables it to corroborate evidence that exists already, or to evidence that has direct consequences on the gravity or duration of the cartel. (see para. 53)

Under the terms of point 27 of the 2002 Leniency Notice, the Commission will evaluate the final position of each undertaking which filed an application for a reduction of a fine at the end of the administrative procedure in any decision adopted. The Commission must therefore assess the value of the information provided by an undertaking at the end of the administrative procedure, and it cannot therefore be criticised for taking the view that it could not reward an undertaking for statements which had appeared to be decisive at one point in the procedure, but which turned out to be unusable at a later stage in the administrative procedure, where the undertaking had gone back on such statements. (see para. 54)

See the text of the decision. (see paras 59, 61-62, 65)

See the text of the decision. (see paras 77-80)

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