Judgment of the General Court (Eighth Chamber) of 16 September 2013 — Nynäs Petroleum and Nynas Petróleo v Commission

(Case T‑482/07)

‛Competition — Agreements, decisions and concerted practices — Spanish market for penetration bitumen — Decision finding an infringement of Article 81 EC — Annual market-sharing and price-fixing arrangements — Evidence of participation in the cartel — Calculation of the amount of the fine’

1. Judicial proceedings — Measures of organisation of procedure — Request for production of documents — Obligations of the claimant (Rules of Procedure of the General Court, Art. 64(3)(d), and (4)) (see paras 105, 110)

2. Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation — Judicial review — Scope (Art. 81(1) EC) (see paras 181-186)

3. Agreements, decisions and concerted practices — Prohibition — Infringements — Proof — Burden of proof on Commission — Proof adduced by a number of indicia and coincidences pointing to the existence and duration of continuous anti-competitive practices — Lack of evidence relating to certain specific periods of the overall period considered — No effect (Art. 81(1) EC) (see paras 187, 226, 308)

4. EU law — Principles — Fundamental rights — Presumption of innocence — Procedures in competition matters — Applicability (Art. 81(1) EC) (see para. 188)

5. Competition — Administrative procedure — Commission decision finding an infringement — Use as evidence of statements of other undertakings which participated in the infringement — Lawfulness — Probative value of voluntary depositions made by the main participants in a cartel with a view to benefiting from the Leniency Notice (Art. 81(1) EC; Commission Notice 2002/C 45/03) (see paras 189-191, 195-197)

6. Competition — Administrative procedure — Request for information — Powers of the Commission — Participation in a clemency programme — Non-coercive character (Art. 81 EC; Council Regulation No 1/2003, Arts 18 and 19; Commission Notice 2002/C 45/03) (see paras 192-194)

7. Agreements, decisions and concerted practices — Undertaking participating in anti-competitive initiatives — Whether sufficient, for an undertaking to be liable, that it tacitly approved without public distancing or denunciation to the competent authorities — Burden of proof on the undertaking (Art. 81(1) EC) (see paras 232, 233)

8. Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Exchange of information between competitors — Presumption (Art. 81(1) EC) (see para. 312)

9. Competition — Fines — Amount — Discretion of the Commission — Judicial review — Unlimited jurisdiction — Effect (Art. 81 EC; Council Regulation No 17, Arts 17 and 31; Commission Notice 98/C 9/03) (see paras 321, 327, 434, 437, 438, 443, 445)

10. Competition — Fines — Amount — Determination — Infringements classified as very serious on the basis of their nature alone — No requirement to determine their impact and their geographical extent (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) (see paras 335, 336)

11. Competition — Fines — Amount — Determination — No obligation on the Commission to adhere to its previous decision-making practice (Art. 81(1) EC; Council Regulation No 17, Art. 15(2)) (see para. 338)

12. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Effective capacity to cause significant damage to competition on the market concerned — Relevance of the market shares of the undertaking concerned (Art. 81(1) EC; Council Regulation No 17, Art. 15(2)) (see paras 374, 375, 386)

13. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Passive or ‘follow-my-leader’ role of the undertaking — Criteria for assessment (Council Regulation No 17, Art. 15; Commission Notice 98/C 9/03, point 3, first indent) (see paras 389-393)

14. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Conduct deviating from that agreed within the cartel — Assessment (Council Regulation No 17, Art. 15; Commission Notice 98/C 9/03, point 3, second indent) (see paras 406, 408-410)

Re:

APPLICATION, principally, for annulment in part of Commission Decision C(2007) 4441 final of 3 October 2007 relating to a proceeding under Article 81 [EC] (Case COMP/38.710 — Bitumen (Spain)) or, in the alternative, for reduction of the fine imposed on the applicants.

Operative part

The Court:

1. Sets the amount of the fine imposed on Nynas Petróleo, SA in Article 2 of Commission Decision C(2007) 4441 final of 3 October 2007 relating to a proceeding under Article 81 [EC] (Case COMP/38.710 — Bitumen (Spain)) at EUR 10 406 000, and the amount of the fine imposed on Nynäs Petroleum, AB in Article 2 of that decision at EUR 10 164 000;

2. Dismisses the remaining heads of claim in the application;