Judgment of the General Court (Sixth Chamber) of 27 September 2012 — Vermeer Infrastructuur v Commission

(Case T-353/06)

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Existence and classification of an agreement — Restriction of competition — Guidelines on the applicability of Article 81 EC to horizontal cooperation agreements — Calculation of the amount of the fines — Gravity and duration of the infringement — Duty to state reasons — Rights of the defence’

1. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Scope of the burden of proof — Degree of precision required of the evidence used by the Commission — Judicial review — Scope (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 33-35)

2. Competition — Administrative procedure — Statement of objections — Necessary content — Commission decision finding an infringement — Decision not identical to the statement of objections — Lawfulness — Limit — Obligation on the Commission to adopt additional objections — Condition (Arts 81 EC and 82 EC, Council Regulations No 17, Art. 19(1) and No 1/2003, Art. 27(1)) (see paras 64, 170)

3. Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision relying on documentary evidence — Penalised undertaking having no commercial interest in the agreement — Irrelevant (Art. 81(1) EC) (see paras 73, 75, 78)

4. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — Horizontal price cartel and application, towards commercial partners, of unequal conditions to equivalent services — Global assessment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1) (see paras 113-116, 118-119)

5. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — No requirement to determine their impact and their geographical extent — Commission taking market impact into account — Scope of the burden of proof (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A) (see paras 125-127, 129)

6. Agreements, decisions and concerted practices — Prohibition — Exemption — Duty of the undertaking concerned to show that its request is well founded — Commission decision rejecting a request for exemption — Duty to state reasons — Scope (Art. 81(3) EC) (see para. 134)

7. Agreements, decisions and concerted practices — Prohibition — Exemption — Scope — Horizontal cooperation agreements — Purchasing agreements designed to restrict price competition — Assessment in the light of principles set out in the Guidelines — No obligation to take account of actual market effects (Art. 81(1) and (3) EC; Commission Notice 2001/C 3/02, Sections 18, 124 and 133) (see paras 135, 137)

8. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — No obligation to examine all the points of fact and law raised by the persons concerned (Arts 81 EC, 82 EC and 253 EC) (see paras 169, 217)

9. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Purpose — Communication of responses to the statement of objections — Conditions — Limits (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2); Commission Notice 2005/C 325/07, Sections 8 and 27) (see paras 176-180, 182-184)

10. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Refusal to communicate a document — Consequences — Need to make a distinction, at the level of the burden of proof on the undertaking concerned, between inculpatory and exculpatory documents (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2)) (see para. 181)

11. Competition — Administrative procedure — Commission decision finding an infringement — Decision not identical to the statement of objections — Infringement of the rights of the defence — Condition — Demonstration by the undertaking concerned of the imputation of new objections (Arts 81 EC and 82 EC; Council Regulations No 17, Art. 19(1) and No 1/2003, Art. 27(1)) (see paras 193-195)

12. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Documents not included in the investigation file — Commission not intending to use them for inculpatory purposes — Documents capable of assisting the defence of the parties — Duty to communicate — Limits (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2); Commission Notice 2005/C 325/07, Sections 8 and 27) (see paras 205-208)

Re:

APPLICATION, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), in particular in so far as it concerns the applicant, and, in the alternative, for reduction of the fine imposed on the applicant.

Operative part

The Court:

1. Dismisses the action;

2. Orders Vermeer Infrastructuur BV to pay the costs.

Judgment of the General Court (Sixth Chamber) of 27 September 2012 — Vermeer Infrastructuur v Commission

(Case T-353/06)

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Existence and classification of an agreement — Restriction of competition — Guidelines on the applicability of Article 81 EC to horizontal cooperation agreements — Calculation of the amount of the fines — Gravity and duration of the infringement — Duty to state reasons — Rights of the defence’

1. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Scope of the burden of proof — Degree of precision required of the evidence used by the Commission — Judicial review — Scope (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2) (see paras 33-35)

2. Competition — Administrative procedure — Statement of objections — Necessary content — Commission decision finding an infringement — Decision not identical to the statement of objections — Lawfulness — Limit — Obligation on the Commission to adopt additional objections — Condition (Arts 81 EC and 82 EC, Council Regulations No 17, Art. 19(1) and No 1/2003, Art. 27(1)) (see paras 64, 170)

3. Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision relying on documentary evidence — Penalised undertaking having no commercial interest in the agreement — Irrelevant (Art. 81(1) EC) (see paras 73, 75, 78)

4. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — Horizontal price cartel and application, towards commercial partners, of unequal conditions to equivalent services — Global assessment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1) (see paras 113-116, 118-119)

5. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — No requirement to determine their impact and their geographical extent — Commission taking market impact into account — Scope of the burden of proof (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A) (see paras 125-127, 129)

6. Agreements, decisions and concerted practices — Prohibition — Exemption — Duty of the undertaking concerned to show that its request is well founded — Commission decision rejecting a request for exemption — Duty to state reasons — Scope (Art. 81(3) EC) (see para. 134)

7. Agreements, decisions and concerted practices — Prohibition — Exemption — Scope — Horizontal cooperation agreements — Purchasing agreements designed to restrict price competition — Assessment in the light of principles set out in the Guidelines — No obligation to take account of actual market effects (Art. 81(1) and (3) EC; Commission Notice 2001/C 3/02, Sections 18, 124 and 133) (see paras 135, 137)

8. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules — No obligation to examine all the points of fact and law raised by the persons concerned (Arts 81 EC, 82 EC and 253 EC) (see paras 169, 217)

9. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Purpose — Communication of responses to the statement of objections — Conditions — Limits (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2); Commission Notice 2005/C 325/07, Sections 8 and 27) (see paras 176-180, 182-184)

10. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Refusal to communicate a document — Consequences — Need to make a distinction, at the level of the burden of proof on the undertaking concerned, between inculpatory and exculpatory documents (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2)) (see para. 181)

11. Competition — Administrative procedure — Commission decision finding an infringement — Decision not identical to the statement of objections — Infringement of the rights of the defence — Condition — Demonstration by the undertaking concerned of the imputation of new objections (Arts 81 EC and 82 EC; Council Regulations No 17, Art. 19(1) and No 1/2003, Art. 27(1)) (see paras 193-195)

12. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Documents not included in the investigation file — Commission not intending to use them for inculpatory purposes — Documents capable of assisting the defence of the parties — Duty to communicate — Limits (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(2); Commission Notice 2005/C 325/07, Sections 8 and 27) (see paras 205-208)

Re:

APPLICATION, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), in particular in so far as it concerns the applicant, and, in the alternative, for reduction of the fine imposed on the applicant.

Operative part

The Court:

1. Dismisses the action;