Keywords

Summary



Keywords

1. Competition – Fines – Guidelines on the method of setting fines – Method of calculation displaying flexibility in a number of ways

(Art. 229 EC; Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 98/C 9/03)

2. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Participation allegedly under pressure

(Art. 81(1) EC)

3. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

(Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 1A)

4. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Burden of proving the infringement borne by the Commission

(Art. 81(1) EC)

5. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Infringements of long duration – 10 % increase in the starting amount per year

(Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 1B)

6. Competition – Fines – Amount – Determination – Criteria – Attenuating circumstances – Termination of the infringement before the Commission's intervention

(Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 98/C 9/03)

7. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Conditions

(Council Regulations No 17, Art. 11, and No 1/2003, Art. 18; Commission Communication 96/C 207/04)

8. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Infringements of long duration – 10 % increase in the starting amount per year – Consequences

(Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 98/C 9/03)

Summary

1. Whilst 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 may not be regarded as rules of law, they nevertheless form rules of practice from which the Commission may not depart in an individual case without giving reasons which are compatible with the principle of equal treatment. It is therefore for the Court to verify, when reviewing the legality of the fines imposed by a Commission decision, whether the Commission exercised its discretion in accordance with the method set out in those guidelines and, should it be found to have departed from that method, to verify whether that departure is justified and supported by sufficient legal reasoning.

The self-limitation on the Commission’s discretion arising from the adoption of the guidelines is not incompatible with the Commission’s maintaining a substantial margin of discretion. The guidelines display flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with the provisions of Regulations No 17 and No 1/2003, as interpreted by the Court of Justice. Therefore, in areas where the Commission has maintained a discretion, review of the legality of those assessments is limited to determining the absence of manifest error of assessment. Nor, in principle, does the discretion enjoyed by the Commission and the limits which it has imposed in that regard prejudge the exercise by the Court of its unlimited jurisdiction, which empowers it to annul, increase or reduce the fine imposed by the Commission.

(see paras 60-64)

2. Pressure which is brought to bear by undertakings and which is intended to lead other undertakings to participate in an infringement of competition law does not, however great, absolve the undertaking concerned from its responsibility for the infringement committed or in any way alter the gravity of the infringement and cannot constitute an attenuating circumstance for the purposes of calculating fines, since the undertaking concerned could have reported any pressure to the competent authorities and made a complaint to them.

(see para. 72)

3. An undertaking whose liability is established in relation to several branches of a cartel contributes more to the effectiveness and the seriousness of the cartel than an offender involved in only one branch of it. Thus, the first undertaking commits a more serious infringement than the second.

In accordance with the principle of individual liability and that penalties should fit the individual offender, the Commission is required to take into account, when assessing the relative seriousness of the participation of each offender in a cartel, the fact that certain offenders may not be held liable for all the branches of that cartel.

With regard to the application 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, that assessment necessarily has to be made at the stage when a specific starting amount is set, since the taking into account of attenuating circumstances only allows the basic amount of the fine to be adjusted by reference to the arrangements for the offender’s implementation of the cartel. An offender who is not held responsible for certain branches of that cartel cannot have been involved in the implementation of those aspects. The infringement of the rules of competition law is, owing to the limited scope of the infringement established in respect of that offender, less serious than that attributed to offenders who participated in all aspects of the infringement.

The Commission thus infringes the principle of equal treatment by failing to take into consideration, when calculating the amount of the fines, the fact that an undertaking has participated in only one branch of a cartel, unlike other members of that cartel, and by therefore treating different situations in an identical manner, without such treatment being objectively justified.

(see paras 99-101, 104)

4. It is sufficient for the Commission to establish that the undertaking concerned participated in obviously anti-competitive meetings between competitors in order to prove to the requisite legal standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for the undertaking concerned to put forward indicia to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs.

(see para. 130)

5. It is clear from 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 that the Commission has not established any overlap or interdependence between assessment of the gravity and that of the duration of the infringement. The fact that the Commission reserved for itself the possibility of increasing the fine per year of infringement, going in the case of infringements lasting 12 months or more up to 10% of the amount adopted for the gravity of the infringement, does not in any way oblige it to fix that uplift by reference to the intensity of the activities of the cartel or its effects, or to the gravity of the infringement. It is for the Commission to choose, in the context of its wide discretion, the uplift which it intends to apply in respect of the duration of the infringement.

(see paras 141, 143)

6. The Commission is under no obligation, in the exercise of its discretion, to reduce a fine for the termination of an infringement of the rules on competition which had already come to an end before the Commission intervened.

(see para. 151)

7. In assessing the cooperation provided by members of a cartel, the Commission enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings. Only an obvious error of assessment by the Commission is thus capable of being censured. None the less, in making that assessment, the Commission cannot ignore the equal treatment principle.

By contrast, the Court has a comprehensive power of review as to whether the cooperation provided by an undertaking goes beyond its obligation under Article 11 of Regulation No 17 and Article 18 of Regulation No 1/2003 to reply to the Commission’s requests for information.

(see paras 162, 168)

8. It is clear from the general system 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 that those undertakings which participate in a cartel for the longest period of time will have the smallest fines imposed on them if the amounts are divided by the number of months of participation in the cartel or by the number of meetings which those undertakings attended, since the Commission is restricted, in those guidelines, to prescribing increases in the starting amounts of fines of up to a maximum of 10% per year of infringement. An undertaking cannot rely on that self-limitation in order to obtain a reduction of the fine imposed in its case.

(see paras 179-180)