Keywords

Summary



Keywords

1 Acts of the institutions - Statement of reasons - Obligation - Scope

(EC Treaty, Art. 190)

2 Competition - Administrative procedure - Statement of objections - Matters to be stated - Non-disclosure of certain information to undertakings - Commission's final decision based in part on that information - Infringement of the rights of the defence - Validity of the final decision as a whole - Review by the Court of the substance of the decision - Information in question taken into consideration - Not permissible

(Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Art. 4)

3 Competition - Administrative procedure - Commission decision finding an infringement - Infringement committed by a subsidiary of a group of undertakings - Decision addressed to the parent company - Parent company pleading error regarding the correct addressee of the decision - Whether admissible - Pecuniary position unaffected

(EC Treaty, Art. 173, fourth para.)

4 Competition - Agreements, decisions and concerted practices - Undertaking - Meaning - Economic unit - Attribution of the infringements

(EC Treaty, Art. 85(1))

5 Competition - Agreements, decisions and concerted practices - Where an undertaking agrees to set up and participate in meetings of a body whose anti-competitive object was known to and accepted by the undertakings which established it - Ground for concluding that an undertaking participated in the subsequent cartel

(EC Treaty, Art. 85(1))

6 Competition - Administrative procedure - Cessation of infringements - Obligations imposed on undertakings - Proportionality - Criteria

(Council Regulation No 17, Art. 3(1))

7 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision imposing fines on several undertakings for an infringement of the competition rules

(EC Treaty, Art. 190; Council Regulation No 17, Art. 15)

8 Procedure - Application initiating proceedings - Procedural requirements - Summary of the pleas in law relied upon - Similar requirements for submissions in support of a plea in law

(Rules of Procedure of the Court of First Instance, Art. 44(1))

9 Competition - Fines - Amount - Determination thereof - Criteria - Gravity and duration of the infringements - Criteria to be applied - Possibility of increasing the fines in order to strengthen their deterrent effect

(Council Regulation No 17, Art. 15(2))

10 Competition - Fines - Amount - Determination thereof - Criteria - Conduct of the undertaking during the administrative procedure - Illegality of reductions given to undertakings which have not expressly acknowledged the Commission's factual allegations - Undertakings precluded from relying on the principle of equal treatment in order to obtain an unlawful reduction

(Council Regulation No 17, Art. 15)

11 Competition - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Setting up of an effective programme for compliance with the Community competition rules

(Council Regulation No 17, Art. 15)

12 Competition - Fines - Amount - Determination thereof - Criteria - Past conduct of the undertaking

(Council Regulation No 17, Art. 15(2))

Summary

1 The purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted.

Although pursuant to Article 190 of the Treaty the Commission is bound to state the reasons on which its decisions are based, mentioning the facts, law and considerations which have led it to adopt them, it is not required to discuss all the issues of fact and law which have been raised during the administrative procedure.

2 The statement of objections must be couched in terms which, albeit succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of by the Commission. It is only on that basis that the statement of objections can fulfil its function under the Community regulations of giving undertakings all the information necessary to enable them properly to defend themselves, before the Commission adopts a final decision.

Where certain information has not been set out in the statement of objections or in the appendices thereto and the undertaking concerned has been unable therefore to make known its views properly on those matters of fact, the Commission is not entitled to base its decision on that information. However, that infringement of the undertaking's rights of defence is not in itself such as to affect the validity of the decision as a whole where the decision is not based solely on the information in question. The Court must disregard those matters when considering the validity of the decision.

3 An undertaking which is stated in the operative part of a Commission decision to have participated in an infringement of Article 85(1) of the Treaty has, on that basis, a legal interest in disputing that finding, irrespective of any question of fines, because that finding is at the very least likely to affect its reputation. It is therefore admissible for such an undertaking to submit that the decision should have been addressed to the associated company of which it subsequently obtained control, even if it acknowledges that it will answer for that company's liability if a fine is ultimately imposed on that company.

4 In prohibiting undertakings inter alia from entering into agreements or participating in concerted practices which may affect trade between Member States and have as their object or effect the prevention, restriction or distortion of competition within the common market, Article 85(1) of the Treaty is aimed at economic units which consist of a unitary organisation of personal, tangible and intangible elements, which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision.

The Commission is therefore entitled, where several companies in a group have participated in an infringement and the group constitutes one and the same undertaking, to address the decision finding an infringement to the group itself, as represented by the parent company.

5 The fact that an undertaking agreed to set up and participate in meetings of a body whose anti-competitive object - in particular the discussion of future price increases - was known to and accepted by the undertakings which originally established it constitutes a sufficient ground for considering that that undertaking is liable for collusion on prices.

6 Article 3(1) of Regulation No 17 may be applied so as to include an order directed at bringing an end to certain acts, practices or situations which have been found to be unlawful, and at prohibiting the adoption of similar conduct in the future. Moreover, since that provision is to be applied according to the nature of the infringement found, the Commission has the power to specify the extent of the obligations on the undertakings concerned in order to bring an infringement to an end. Such obligations on the part of undertakings may not, however, exceed what is appropriate and necessary to attain the objective sought, namely to restore compliance with the competition rules infringed.

A prohibition fails to satisfy the conditions required for application of Article 3(1) of Regulation No 17 if it seeks to prevent the exchange of purely statistical information which is not in, or capable of being put into, the form of individual information where it is not apparent from the decision that the Commission considered the exchange of statistical data to be in itself an infringement of Article 85(1) of the Treaty; furthermore, the mere fact that a system for the exchange of statistical information might be used for anti-competitive purposes does not make it contrary to Article 85(1) of the Treaty, since in such circumstances it is necessary to establish its actual anti-competitive effect.

7 The purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged; the scope of that obligation depends on the nature of the act in question and on the context in which it was adopted.

As regards a decision imposing fines on several undertakings for infringement of the Community competition rules, the scope of the obligation to state reasons must be assessed in the light of the fact that the gravity of infringements falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines; moreover, no binding or exhaustive list of criteria to be applied has been drawn up.

Furthermore, when fixing the amount of each fine, the Commission has a margin of discretion and cannot be considered obliged to apply a precise mathematical formula for that purpose.

Moreover, since the deterrent character of the Commission's action is inherent in the exercise of its power to impose fines, it is not obliged to refer specifically to that objective in a decision.

Lastly, the reasons for a decision must appear in the actual body of the decision and, save in exceptional circumstances, explanations given ex post facto cannot be taken into account.

When the Commission finds in a decision that there has been an infringement of the competition rules and imposes fines on the undertakings participating in it, it must, if it has systematically taken into account certain basic factors in order to fix the amount of fines, set out those factors in the body of the decision in order to enable the addressees of the decision to verify that the level of the fine is correct and to assess whether there has been any discrimination.

8 Under Article 44(1) of the Rules of Procedure the 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 therefore specify the nature of the grounds on which it is based and, accordingly, a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. Similar requirements are called for where a submission is made in support of a plea in law.

9 In determining the amount of the fine to be imposed for infringement of the Community competition rules, regard is to be had to both the gravity and the duration of the infringement. The gravity of infringements falls to be determined by reference to numerous factors including the specific circumstances and context of the case and the deterrent character of the fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up.

When assessing the general level of fines, the Commission is entitled to take account of the fact that clear infringements of the Community competition rules are still relatively frequent and that, accordingly, it may raise the level of fines in order to strengthen their deterrent effect. Consequently, the fact that in the past the Commission has applied fines of a certain level to certain types of infringement does not mean that it is estopped from raising that level, within the limits set out in Regulation No 17, if that is necessary in order to ensure the implementation of Community competition policy.

Furthermore, the Commission is entitled, when assessing the gravity of the infringement, to take into account the measures adopted by the undertakings concerned to conceal the existence of the collusion.

Lastly, when fixing the general level of fines, the Commission is entitled to take into account inter alia the lengthy duration and obviousness of an infringement of Article 85(1) of the Treaty which has been committed despite the warning which the Commission's previous decisions should have provided.

10 In determining the amount of the fine to impose for infringement of the Community competition rules, a reduction on grounds of cooperation during the administrative procedure is justified only if the conduct of the undertaking under investigation made it easier for the Commission to establish an infringement and, as the case may be, to put an end to it.

An undertaking which expressly states that it is not contesting the factual allegations on which the Commission bases its objections may be regarded as having facilitated the Commission's task of finding and bringing to an end infringements of the Community competition rules. In its decisions finding infringements of those rules, the Commission is entitled to take the view that such conduct constitutes an acknowledgement of the factual allegations and thus proves that those allegations are correct. Such conduct may therefore justify a reduction in the fine.

The situation is different where the essential allegations made by the Commission in its statement of objections are contested by an undertaking in its reply to that statement, or where the undertaking does not reply or merely states that it is not expressing any view on the Commission's factual allegations. By adopting such an attitude during the administrative procedure the undertaking does not facilitate the Commission's task.

Since reductions in fines can be considered lawful only in so far as the undertakings concerned have expressly stated that they do not contest the factual allegations, an undertaking which has not adopted that attitude cannot lay claim to a reduction on grounds of its cooperation during the administrative procedure because, even if the Commission has applied an unlawful criterion by reducing the fines imposed on undertakings which have not expressly stated that they were not contesting the factual allegations, it is necessary that respect for the principle of equal treatment be reconciled with the principle of legality, according to which a person may not rely, to his benefit, on an unlawful act committed in favour of a third party.

11 Although, in the context of determining the amount of the fine to impose for infringement of the Community competition rules, the implementation of a programme for compliance with those rules demonstrates the intention of the undertaking in question to prevent future infringements and thus better enables the Commission to accomplish its task of applying the principles laid down by the Treaty in competition matters and of influencing undertakings in that direction, the mere fact that in certain of its previous decisions the Commission has taken the implementation of a compliance programme into consideration as a mitigating factor does not mean that it is obliged to act in the same manner in a particular case.

12 In determining the amount of the fine to be imposed for infringement of the Community competition rules, the fact that the Commission has already found an undertaking guilty of infringing the competition rules in the past and has penalised it for that infringement may be treated as an aggravating factor as against that undertaking, but the absence of any previous infringement is a normal circumstance which the Commission does not have to take into account as a mitigating factor.