According to the third indent of section 29 of the 2006 Guidelines for the calculation of fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, the basic amount of the fine may be reduced where the Commission finds that mitigating circumstances exist, in particular where the undertaking concerned provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreements, it actually avoided applying them by adopting competitive conduct on the market. Those two elements constitute cumulative conditions. According to the same provision, the mere fact that an undertaking participated in an infringement for a shorter duration than others will not be regarded as a mitigating circumstance since that will already be reflected in the basic amount.

According to the third indent of point 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, an ‘exclusively passive or “follow-my-leader” role’ played by an undertaking in the infringement may constitute an attenuating circumstance. The concept of ‘substantially limited involvement’ in the 2006 Guidelines must be interpreted in a manner analogous to that of the ‘exclusive passive role’ in the 1998 Guidelines.

Thus a passive role implied that the undertaking concerned had adopted a ‘low profile’, that is to say, that it did not actively participate in the creation of an anti-competitive agreement or agreements. Similarly, the factors which may indicate that an undertaking has played a passive role in a cartel include where its participation in cartel meetings is significantly more sporadic than that of the ordinary members of the cartel, where it enters the market affected by the infringement at a late stage, regardless of the length of its involvement in the infringement, or where a representative of another undertaking which has participated in the infringement makes an express declaration to that effect. among the factors likely to demonstrate an undertaking’s passive role in a cartel, significantly more sporadic participation at meetings than that of the other ordinary members of the cartel can be taken into account, as well as the undertaking’s late entry on the market which was subject of the infringement, independently of the duration of its participation in the infringement, and also the existence of express statements to that effect made by representatives of other undertakings which participated in the infringement. The fact that other undertakings participating in a single cartel may have been more active than a given participant does not, however, necessarily imply that the latter had an exclusively passive or follow-my-leader role. Only complete passivity could be taken into account as a factor, and it must be proved by the party alleging it. Such complete passivity cannot be inferred from the fact that the impugned undertaking did not itself organise secret anti-competitive meetings.

Likewise, the fact that an undertaking which has been proved to have participated in collusion on prices with its competitors did not behave on the market in the manner agreed with its competitors is not necessarily a matter which must be taken into account as a mitigating circumstance when determining the amount of the fine to be imposed. An undertaking which despite colluding with its competitors follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit. In that context, it is necessary to determine whether such circumstances are capable of showing that, during the period in which the applicant was party to the offending agreements, it actually avoided implementing them by adopting competitive conduct on the market or, at the very least, whether it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation.

(see paras 189-191, 195, 196, 215, 216, 245, 246)