Keywords

Summary



Keywords

1. Community law — Principles — Protection of legitimate expectations — Conditions — Protection against exercise by the Commission of its power to raise the level of fines penalising infringements of the competition rules — None — (Council Regulation No 17)

2. Competition — Fines — Amount — Determination thereof — Guidelines adopted by the Commission — Obligation on the Commission to comply with them — (Council Regulation No 17, Art. 15(2))

3. Competition — Fines — Amount — Determination thereof — Criteria — Seriousness of the infringements — Taking into account of the total turnover of the undertaking concerned and the turnover achieved by sales of goods which were the subject-matter of the infringement — Limits — (Council Regulation No 17, Art. 15(2))

4. Competition — Fines — Amount — Determination thereof — Criteria — Seriousness of the infringements — Measure of the effective capacity to cause damage on the relevant market — Relevance of the market share held by the undertaking concerned — (Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

5. Competition — Fines — Amount — Determination thereof — Criteria — Seriousness of the infringements — Measure of the actual impact on competition of the infringing conduct of each undertaking — Relevance of the turnover achieved with the products forming the subject-matter of a restrictive practice — (Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

6. Competition — Fines — Amount — Community penalties and penalties imposed by the authorities of a Member State or a non-member State for infringement of national competition law — Infringement of thenon bis in idemprinciple — None — Concurrent sanctions — Permissible — Obligation on the Commission to take account, when determining the amount of the fine, of the penalty imposed by a Member State on the basis of the same facts — Obligation not transposable to the hypothesis of a penalty imposed in a non-member State — (Protocol No 7 to the European Convention on Human Rights, Art. 4; Council Regulation No 17, Art. 15)

Summary

1. The right to rely on the principle of the protection of legitimate expectations extends to any individual in a situation where the Community authorities have caused him to entertain legitimate expectations. However, a person may not plead infringement of the principle unless he has been given precise assurances by the administration, since the concept " assurances" presupposes some positive act by the administration and not the mere absence of express opposition.

As regards economic operators, they cannot have a legitimate expectation that an existing situation which is capable of being altered by the Community institutions in the exercise of their discretionary power will be maintained. In the field of Community competition rules, the effective application of those rules requires that the Commission may at any time adjust the level of fines to match the needs of competition policy. Consequently, the fact that, in the past, the Commission imposed fines at a certain level for certain types of infringements does not preclude it from raising that level, subject to the limits indicated in Regulation No 17.

see paras 38-40, 51

2. The Commission may not depart from rules which it has imposed on itself. In particular, whenever the Commission adopts guidelines for the purpose of specifying, in accordance with the Treaty, the criteria which it proposes to apply in the exercise of its discretion for the gravity of an infringement, there arises a self-imposed limitation of that discretion inasmuch as it must then follow those guidelines.

see para. 62

3. The criteria for assessing the gravity of an infringement of Community competition rules may include the volume and value of the goods in respect of which the infringement was committed, the size and economic power of the undertaking and, consequently, the influence which it was able to exert on the market. It follows that, on the one hand, it is permissible, for the purpose of fixing a fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. On the other hand, it follows that it is important not to confer on one or other of those figures an importance which is disproportionate in relation to other factors and that the fixing of the fine cannot be the result of a simple calculation based on total turnover.

see para. 68

4. For the assessment of the amount of the fines imposed for infringement of Community competition rules, the analysis of the " effective capacity of the undertakings sanctioned to cause significant damage to a specific market" implies an assessment of the real importance of the undertakings in the market affected, that is to say their influence on that market. For that purpose an undertaking ' s market shares are relevant while its total turnover is not.

see para. 73

5. In the context of the determination of the amount of the fines imposed for infringement of Community competition rules the assessment of the " specific weight, that is the real impact on competition of the offending conduct of each undertaking" , which, under the Guidelines, the Commission must now undertake in accordance with Article 15(2) of Regulation 17 and Article 45(s) of the ECSC Treaty, where it considers that the starting amounts of the fines must be weighted because the infringement is one that involves several undertakings (a cartel) among which there is considerable disparity in size, involves establishing the scale of the infringement committed by each of them rather than the importance of the undertaking in question in terms of its size or economic power. In that connection, the proportion of turnover derived from the sale of goods in respect of which the infringement was committed is likely to give a fair indication of the scale of the infringement on the relevant market. In particular, the turnover in products which have been the subject of a restrictive practice constitutes an objective criterion which gives a proper measure of the harm which that practice causes to normal competition.

see paras 74, 76

6. The principle of non bis in idem , enshrined also in Article 4 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms ( " ECHR" ) is a general principle of Community law upheld by the Community judicature. In the field of Community competition law, the principle precludes an undertaking from being sanctioned by the Commission or made the defendant to proceedings brought by the Commission a second time in respect of anti-competitive conduct for which it has already been penalised or of which it has been exonerated by a previous decision of the Commission that is not amenable to appeal.

The possibility of concurrent sanctions, one a Community sanction the other a national one, resulting from two sets of parallel proceedings each pursuing distinct ends, is acceptable because of the special system of sharing jurisdiction between the Community and the Member States with regard to cartels. However, a general requirement of natural justice demands that, in determining the amount of a fine, the Commission must take account of any penalties that have already been borne by the undertaking in question in respect of the same conduct, where these were imposed for infringement of the law relating to cartels of a Member State and where, consequently, the infringements were committed within the Community.

Since the possibility of concurrent sanctions is justified because the national and Community proceedings pursue different ends, the principle non bis in idem cannot, a fortiori , apply because the procedures conducted and penalties imposed by the Commission on the one hand and the authorities or courts of a third country on the other where the Commission has decided to impose a fine on an undertaking for its participation in a cartel already sanctioned by the authorities or courts of a third country, since the procedures conducted and the penalties imposed by the Commission, on one hand, and the authorities or courts of a third country, on the other, clearly do not pursue the same ends. Furthermore, if the Commission decided to impose a fine on an undertaking for its participation in a cartel already sanctioned by the authorities or courts of a third country, there is no principle of public international law that prevents the authorities or courts of different States from trying and convicting the same person on the basis of the same facts.

Furthermore, although the Commission must, in accordance with a requirement of natural justice take account, in determining the amount of a fine, of penalties that have already been borne by the same undertaking for infringements of the law relating to cartels of a Member State and, accordingly, committed on Community territory, it is on account of the particular situation which arises from the close interdependence of the national markets of the Member States and of the common market and from the special system for the sharing of jurisdiction between the Community and the Member States with regard to cartels on the same territory, namely the common market. That justification is obviously lacking where the first decisions imposing a penalty were made against an undertaking by the authorities or courts of a third country for infringement of their competition rules and the Commission has, therefore, no obligation, when determining the amount of a fine, imposed on that undertaking for infringement of Community competition law, to take account of the abovementioned decisions.

see paras 96-98, 100-101, 103, 110-111