Case T-370/09

GDF Suez SA

v

European Commission

‛Competition — Agreements, decisions and concerted practices — German and French markets for natural gas — Decision finding an infringement of Article 81 EC — Market sharing — Duration of the infringement — Fines’

Summary of the Judgment

Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Anti competitive conduct authorised or encouraged by public authorities — National market characterised by a legal monopoly, and which is in the process of liberalisation — Criteria for assessment

Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Calculation of the basic amount of the fine — Determination of the percentage of the value of the undertaking’s sales — Criteria

Competition — Fines — Amount — Determination — Criteria — Observance of the principle of proportionality — Penalty not imposed on an economic operator — Circumstance which, in itself, cannot prevent a fine from being imposed on the perpetrator of a similar infringement

Competition — Fines — Amount — Determination — Criteria — Commission’s margin of discretion — Raising of the general level of fines — Lawfulness — Infringement of the principle of the non-retroactivity of penalties — None

Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Single and continuous infringement on two national markets — Separate durations of the infringement on each of those markets — Extent of the burden of proof

Agreements, decisions and concerted practices — Concerted practice — Meaning — Exchange of information under a cartel agreement — Operator taking into account the complaints of another operator relating to its competitive practices — Included

Agreements, decisions and concerted practices — Agreements between undertakings — Undertaking having participated in an anti-competitive agreement — Conduct deviating from that agreed within the cartel — Complaints relating to competition from the undertaking — Circumstances not necessarily making it possible to exclude the undertaking’s participation in the agreement

Agreements, decisions and concerted practices — Prohibition — Agreements which continue to produce their effects after they have formally ceased to be in force — Application of Article 81 EC

Competition — European Union rules — Substantive scope — Conduct imposed by national measures — Not included — National market characterised by a legal monopoly contrary to European Union law — Absence of a legal framework eliminating any possibility of competitive conduct — Finding of an infringement of the competition rules committed by an undertaking controlled by the State — Lawfulness

Competition — Administrative procedure — Limitation period for fines — Point from which time starts to run — Single and continuous infringement — No manifestation of the infringement during certain periods of the overall period considered — Irrelevant

Agreements, decisions and concerted practices — Participation in meetings having an anti-competitive object — Ground for concluding that the undertaking participated in the subsequent cartel — Evidential obligations on the undertaking disputing its anti-competitive intention

Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the 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

Agreements, decisions and concerted practices — Complex infringement comprising elements both of an agreement and of a concerted practice — Classified singly as ‘an agreement and/or concerted practice’ — Lawfulness — Consequences as to the evidence required

Agreements, decisions and concerted practices — Effect on trade between Member States — Criteria for assessment — Agreements or practices concerning a market characterised by the absence of any potential competition

Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — Obligation to examine all the points of fact and law raised by the persons concerned — None

Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Categorisation of an undertaking as a potential competitor — Criteria — Essential evidence — Ability of the undertaking to enter the relevant market — Market characterised by a legal or de facto monopoly — Effect

Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive purpose — Taking into account of the legal and economic context — Market characterised by a legal or de facto monopoly — Prospect of liberalisation — Assessment

Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Intention of the parties to an agreement to restrict competition — Non-essential evidence — Taking into account of such an intention by the Commission or the Courts of the European Union — Lawfulness

See the text of the decision. (see paras 62, 63)

See the text of the decision. (see para. 64)

See the text of the decision. (see paras 65, 74)

See the text of the decision. (see para. 70)

See the text of the decision. (see paras 77-80)

Having regard to the requirements set out in Article 81(1) EC regarding effect on trade between Member States and repercussions on competition, that provision applies only to sectors open to competition. The examination of conditions of competition must be based not only on existing competition between undertakings already present on the relevant market but also on potential competition. In that regard, while the intention of an undertaking to enter a market may be of relevance in order to determine whether it can be considered to be a potential competitor in that market, none the less the essential factor on which such a description must be based is whether it has the ability to enter that market. As regards a national market characterised by the existence of de facto territorial monopolies, the fact that there is, on that market, no legal monopoly is irrelevant. In order to ascertain whether there is potential competition on a market, the Commission must examine the real, concrete possibilities for the undertakings concerned to compete among themselves or for a new competitor to enter that market and compete with established undertakings. That examination on the part of the Commission must be made on the objective basis of those possibilities, with the result that the fact that they are precluded on account of a monopoly which derives directly from national legislation or, indirectly, from the factual situation arising from the implementation of that legislation is irrelevant. Moreover, the purely theoretical possibility of a company’s entry into the market is not sufficient to establish the existence of such competition. (see paras 81, 82, 84, 95, 98, 99)

See the text of the decision. (see paras 117, 195)

Article 81(1) EC applies only to agreements which may affect trade between Member States. The effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive. In order to assess whether a cartel has an appreciable effect on trade between Member States, it is necessary to examine it in its economic and legal context. It is of little importance in that regard that the influence of a cartel on trade is unfavourable, neutral or favourable. A restriction of competition is liable to affect trade between Member States when it is likely to divert trade patterns from the course which they would otherwise have followed. Furthermore, the capability of a cartel to affect trade between Member States, that is to say, its potential effect, is sufficient for it to fall within the scope of Article 81 EC, and it is not necessary to demonstrate an actual effect on trade. It is nevertheless necessary for the potential effect of the cartel on inter-State trade to be appreciable, or, in other words, that it be not insignificant. A cartel extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thus impeding the economic interpenetration which the Treaty is designed to bring about. As regards markets characterised by a legal or de facto monopoly, since the Commission did not establish that there was potential competition on those markets, it could not find that the agreements and practices relating to those markets are capable of having an appreciable effect on trade between Member States. (see paras 122-126)

See the text of the decision. (see paras 133-135)

See the text of the decision. (see paras 136-138, 141, 151, 155, 156, 220, 221, 223, 228)

See the text of the decision. (see paras 161, 172, 224-226)

See the text of the decision. (see paras 178, 264)

See the text of the decision. (see paras 202, 203)

The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them. The criteria of coordination and cooperation constituting a concerted practice must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition that each economic operator must determine independently the policy which he intends to adopt on the common market. While it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, none the less, strictly preclude any direct or indirect contact between such operators by which an undertaking may influence the conduct on the market of its actual or potential competitors or disclose to them its decisions or intentions concerning its own conduct on the market where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings involved and the volume of that market. On a highly concentrated oligopolistic market, the exchange of information on the market is such as to enable operators to know the market positions and strategies of their competitors and thus to impair appreciably the competition which exists between the operators. The information exchanged need not necessarily be detailed information. In the context of an oligopolistic market, the exchange of even general information relating in particular to the commercial strategy of an undertaking is capable of affecting competition. Furthermore, in so far as the undertaking participating in the concerted action remains active on the market in question, there is a presumption of a causal connection between the concerted practice and the conduct of the undertaking on that market, even if the concerted action is the result of a meeting held by the participating undertakings on a single occasion. Therefore in that context, the fact that undertakings in question did not exchange information on costs, prices, margins, volumes sold or customers is irrelevant since, in the context of a highly concentrated oligopolistic market, it suffices that there was an exchange of information. (see paras 211-213, 247, 249)

See the text of the decision. (see para. 215)

In the course of competition proceedings, a decision finding an infringement is not a penalty within the meaning of Article 25 of Regulation No 1/2003 and is not therefore covered by the limitation period provided for in that article. Chapter VI of Regulation No 1/2003, which is concerned with penalties, covers only fines and periodic penalty payments, and the view cannot be taken on the basis of any of the provisions of that regulation that the Commission decisions referred to in Article 7 of the regulation, by which the Commission finds that there is an infringement of Article 81 EC or of Article 82 EC, come under the penalties mentioned in that chapter. Accordingly, the expiry of the limitation period for the power to impose fines and periodic penalty payments cannot imply the extinction of the implied power to find the infringement. (see para. 272)

See the text of the decision. (see para. 275)

Articles 81 EC and 82 EC apply only to anti-competitive conduct engaged in by undertakings on their own initiative. If anti-competitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Articles 81 EC and 82 EC do not apply. In such a situation, the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the undertakings. Articles 81 EC and 82 EC may apply, however, if it is found that the national legislation leaves open the possibility of competition which may be prevented, restricted or distorted by the autonomous conduct of the undertakings. Thus as regards a national market characterised by the existence of a legal monopoly, the Commission is able to find the existence of an infringement of Article 81 EC where the Member State in question did not transpose within the prescribed period a directive aimed at creating a competitive market and where national legislation, although it is still formally in force, can no longer be regarded, in practice, as requiring anti-competitive conduct or creating a legal framework which itself eliminates any possibility of competitive conduct on the part of the undertakings. With effect from the expiry of the period allowed for the transposition of a directive, the objective of which is to create a competitive market, national authorities are required to disapply any provision contrary to that directive. They cannot, in particular, enforce such provisions against competitors of an undertaking wishing to enter the national market. Indeed, the primacy of European Union law requires any provision of national law which contravenes a rule of the European Union to be disapplied, regardless of whether it was adopted before or after that rule. In addition, a body, irrespective of its legal form, which has been entrusted by a measure adopted by a public authority with providing, subject to the control of that public authority, a service in the public interest and which enjoys, to that end, exceptional powers as compared with the rules applicable to relations between individuals, is an entity against which the provisions of a directive capable of having direct effects may be enforced. (see paras 312-314, 317, 323)

See the text of the decision. (see para. 326)

See the text of the decision. (see paras 354, 355)

In competition matters, if an economic operator accepts another operator’s complaints in connection with the competition to which the first operator’s products expose the complainant, their conduct amounts to a concerted practice. (see para. 357)

See the text of the decision. (see para. 363)

Since a decision of the Commission imposing a fine for infringement of the competition rules makes a distinction between the duration of the infringement on the national market and that on a neighbouring market, the Commission has to provide the necessary evidence capable of proving to the requisite legal standard that the infringement existed on both of those markets and for both of the periods put forward. The burden of proof concerning the existence of the infringement and, therefore, its duration, falls upon it. Those considerations are not called into question by the fact that the infringement constitutes a single and continuous infringement. That nature of the infraction found to exist has no bearing on the fact that, since the Commission deliberately referred, in the operative part of the decision, to separate durations of the infringement on each of the markets concerned by the infringement, it was obliged to prove the durations thus established to the requisite legal standard. (see paras 374-375)

The Commission’s previous decision-making practice does not in itself serve as a legal framework for the fines imposed in competition matters, since that framework is defined solely in Regulation No 1/2003 and in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003. Consequently, decisions in other cases can give only an indication for the purpose of determining whether there might be discrimination, since the facts of those cases, such as markets, products, the undertakings and periods concerned, are not likely to be the same. Nevertheless, observance of the principle of equal treatment, which prevents comparable situations from being treated differently and different situations from being treated in the same way, unless such difference in treatment is objectively justified, is incumbent on the Commission when it imposes a fine on an undertaking for infringement of the competition rules, as it is on any institution in carrying out all its activities. However, previous decisions by the Commission imposing fines can be relevant from the point of view of observance of the principle of equal treatment only where it is demonstrated that the facts of the cases in those other decisions, such as markets, products, the countries, the undertakings and periods concerned, are comparable to those of the present case. (see paras 385-387)

See the text of the decision. (see para. 397)

See the text of the decision. (see para. 398)

See the text of the decision. (see paras 414-416, 420, 421)

See the text of the decision. (see paras 427, 428, 430, 431)

It follows from paragraph 29 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, that, in proceedings brought for infringement of the competition rules, the basic amount of the fine may be reduced where the anti-competitive conduct has been authorised or encouraged by public authorities or by legislation, or 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. In order to benefit from the mitigating circumstance linked to limited participation in an infringement, an undertaking must demonstrate that, during the period in which it was party to the offending agreements, it actually avoided implementing them by adopting competitive conduct on the market or, at the very least, it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation. In other words, it must demonstrate that it did not apply the agreements in question by adopting conduct on the market which was liable to impede the anti-competitive effects of the infringement found to have occurred. In that regard, 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 those circumstances, the fact that an undertaking attempted to circumvent a restriction is incapable of demonstrating conduct on the market which is liable to impede the anti-competitive effects of the infringement found to have occurred. (see paras 436, 439, 441)

See the text of the decision. (see paras 447-451)