Keywords

Summary



Keywords

1 Competition - Administrative procedure - Statement of objections - Matters to be stated

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

2 Acts of the institutions - Statement of reasons - Obligation - Scope - Plea in law alleging that there is no, or only an inadequate, statement of reasons - Plea in law alleging that the grounds of the decision are inaccurate - Difference

(EC Treaty, Art. 190)

3 Competition - Agreements, decisions and concerted practices - Proof - Evidence adduced by the Commission - Assessment

(EC Treaty, Art. 85(1))

4 Competition - Agreements, decisions and concerted practices - Participation in meetings of undertakings with an anti-competitive object - Ground for concluding that the undertaking participated in the subsequent cartel, if it has not distanced itself from the decisions taken

(EC Treaty, Art. 85(1))

5 Competition - Agreements, decisions and concerted practices - Agreements and concerted practices constituting a single infringement - Undertakings to which an infringement in the form of participation in an overall cartel may be imputed - Criteria

(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 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))

8 Competition - Fines - Principle of equal treatment - Reduction of fines - Scale of reduction dependent on the undertaking's conduct during the administrative procedure - Whether permissible

(Council Regulation No 17, Art. 15)

9 Competition - Fines - Amount - Determination thereof - Criteria - Conduct of the undertaking during the administrative procedure

(Council Regulation No 17, Art. 15)

Summary

1 The statement of objections, the purpose of which is to give the undertakings under investigation in application of the competition rules all the information necessary to enable them properly to defend themselves before the Commission adopts a final decision, must be framed in terms that are sufficiently clear, albeit concise, to enable the persons concerned properly to identify the conduct to which the Commission objects.

2 The statement of the reasons on which a decision adversely affecting a person is based must be such as to enable the Community judicature to exercise its power of review as to the legality of the decision and to enable the person concerned to ascertain the matters justifying the measure adopted, so that he can defend his rights and verify whether the decision is well founded.

It follows that a claim that there is no, or only an inadequate, statement of reasons constitutes a plea of infringement of an essential procedural requirement, which, as such, is different from a plea that the grounds of the decision are inaccurate, the latter plea being a matter to be reviewed by the Court when it examines the substance of that decision.

3 The items of evidence on which the Commission relies in a decision in order to prove the existence of an infringement of Article 85(1) of the Treaty by an undertaking must not be assessed separately, but as a whole.

4 The fact that an undertaking does not abide by the outcome of meetings which have a manifestly anti-competitive purpose does not relieve it of full responsibility for its participation in the cartel, if it has not publicly distanced itself from what was agreed in the meetings.

5 For the Commission to be entitled to hold that each undertaking addressed in a decision applying the competition rules is responsible for an overall cartel covering various anti-competitive actions during a given period, it must demonstrate that they each either consented to the adoption of an overall plan comprising the constituent elements of the cartel or participated directly in all those elements during that period. An undertaking may also be held responsible for an overall cartel even though it is shown that it participated directly only in one or some of the constituent elements of that cartel, if it is shown that it knew, or must have known, that the collusion in which it participated was part of an overall plan and that the overall plan included all the constituent elements of the cartel. Where that is the case, the fact that the undertaking concerned did not participate directly in all the constituent elements of the overall cartel cannot relieve it of responsibility for the infringement of Article 85(1) of the Treaty. Such a circumstance may nevertheless be taken into account when assessing the seriousness of the infringement which it is found to have committed.

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. 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 the undertakings may not, however, exceed what is appropriate and necessary to attain the objective sought, namely to restore compliance with the 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 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.

Moreover, in 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.

8 The principle of equal treatment is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified. The Commission does not contravene that principle if it reduces, or does not reduce, fines according to the level of cooperation that it has received from the undertaking concerned during the administrative proceeding.

9 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.

In those circumstances, 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.

However, 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.