Case T‑655/11

FSL Holdings and Others

v

European Commission

‛Competition — Agreements, decisions and concerted practices — European banana market in Italy, Greece and Portugal — Coordination in the fixing of prices — Admissibility of evidence — Rights of defence — Misuse of powers — Evidence of the infringement — Calculation of the fine’

Summary — Judgment of the General Court (Second Chamber), 16 June 2015

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 — Criteria — Gravity of the infringement — Assessment according to the nature of the infringement — Effect of an anti-competitive practice — Criterion not conclusive

Competition — Fines — Guidelines on the method of setting fines — Calculation method taking various elements of flexibility into account — Discretion of the Commission — Limits — Respect for the principle of equal treatment — Calculation of the basic amount of the fine — Judicial review — Scope

Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Single and continuous infringement — Lack of evidence relating to certain specific periods of the overall period considered — Interruption of the participation of the undertaking in the infringement — Repeated infringement — Consequences for the determination of the fine

Agreements, decisions and concerted practices — Concerted practice — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient — Distinction between infringements by subject-matter and infringements by effect — Criteria enabling an agreement to be regarded as a restriction by subject-matter

Agreements, decisions and concerted practices — Concerted practice — Concept — Exchange of information between competitors — Adverse effect on competition — Assessment having regard to the nature of the infringement — Discussion between competitors of factors important for the development of prices — Infringement by subject-matter — No direct link between the concerted practice and consumer prices — Irrelevant

Competition — Union rules — Infringements — Attribution — Imputability to an undertaking of the conduct of its organs — Conditions — Action of a person authorised to act on behalf of the undertaking

Agreements, decisions and concerted practices — Agreements between undertakings — Undertaking having participated in an anti-competitive agreement — Conduct deviating from that agreed within the cartel — Fact not necessarily enabling its participation in the agreement to be excluded

Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Disclosure of sensitive information eliminating uncertainty as to the future conduct of a competitor — Information publicly known — Inclusion — Conditions

Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Documentary proof — Assessment of the probative value of a document — Criteria — Document established in close connection with the events or by a direct witness of those events — High probative value

Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision relying on documentary evidence — Evidential obligations of undertakings disputing the reality of the infringement

Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Reliance on a body of evidence — Account taken of evidence established outside the infringement period — Lawfulness — Degree of evidential value necessary as regards items of evidence viewed in isolation

Competition — Administrative procedure — Commission decision finding an infringement — Use as evidence of statements of other undertakings which participated in the infringement — Lawfulness — Probative value of voluntary depositions made by the main participants in a cartel with a view to benefiting from the Leniency Notice

Competition — Administrative procedure — Commission’s powers of investigation — Use of information gathered during a check carried out in the context of another procedure — Lawfulness — Obligation of full, continuous and expeditious cooperation of the undertaking seeking total immunity from fines — Scope

Competition — Fines — Amount — Determination — Legal context — Guidelines adopted by the Commission — Communication of the Commission on immunity from fines and reduction in their amount for cooperation of the undertakings concerned — Self-limitation of its discretion — Scope

Competition — Fines — Amount — Determination — Criteria — Reduction of the amount of the fine for cooperation of the undertaking concerned — Granting of conditional immunity from fines before adoption of the Commission’s final decision — Scope — Commission issuing reminder of the provisional nature of the procedural status created by the grant of conditional immunity — No exercise of unlawful pressure

Competition — Administrative procedure — Observance of the rights of the defence — Possibility of the undertaking concerned fully relying on those rights only after the sending of the statement of objections — Possession by the Commission of handwritten notes obtained in the context of national investigations — No obligation to inform the undertaking in question thereof during the preliminary investigation phase prior to the sending of the statement of objections

Competition — Administrative procedure — Commission’s powers of investigation — Use of information gathered during a check — Limits — Opening of an investigation in order to verify the accuracy of information revealed incidentally on the occasion of a check — Lawfulness

Competition — Administrative procedure — Commission decision finding an infringement — Admissible evidence — Lawfulness of the transmission to the Commission of information obtained by national authorities — Assessment by national courts having regard to national law — Transmission not declared unlawful by a national court — Commission taking account of information thus transmitted as evidence — Lawfulness

EU law cannot accept evidence obtained in complete disregard of the procedure laid down for gathering it and designed to protect the fundamental rights of interested persons. The use of that procedure must, therefore, be regarded as an essential procedural requirement within the meaning of Article 263(2) TFEU. Infringement of an essential procedural requirement has consequences, regardless of whether that infringement resulted in harm to the person relying on it. Concerning, more specifically, the administrative procedure in competition matters, the prohibition on using information collected by the Commission and the competition authorities of the Member States in the exercise of their investigative powers as evidence, for purposes other than that for which it was obtained, laid down in Article 12(2) of Regulation No 1/2003, meets a specific need, namely the need to ensure that the procedural safeguards inherent to the collection of information by the Commission and by the national competition authorities in the context of their tasks are respected, while allowing an exchange of information between those authorities. However, it cannot be inferred from that prohibition that there is a general prohibition on the use as evidence, by the Commission, of information obtained by another national authority in exercise of its tasks. In that context, the lawfulness of the transmission to the Commission by a national prosecutor or the authorities competent in competition matters of information obtained in application of national criminal law is a question governed by national law. Furthermore, the EU judicature has no jurisdiction to rule on the lawfulness, as a matter of national law, of a measure adopted by a national authority. Accordingly, if the transmission of the documents at issue has not been declared unlawful by a national court, those documents cannot be considered to be inadmissible evidence which must be removed from the file. (see paras 44-46, 78, 80)

See the text of the decision. (see paras 48-53)

In the context of an administrative procedure in competition matters, whilst the information obtained by the Commission during inspections must not be used for purposes other than those specified in the order or decision under which the inspection is carried out, it cannot be concluded that the Commission is barred from initiating an investigation in order to verify or supplement information which it happened to obtain during a previous inspection if that information indicates the existence of conduct contrary to the competition rules. In a new investigation, the Commission is entitled to request fresh copies of the documents obtained during the first investigation and then to use them as evidence in the case to which the second investigation relates, without the rights of defence of the undertakings concerned being affected as a result. Accordingly, asking an undertaking to resubmit documents which it has already submitted in an earlier investigation is not unlawful, but rather is a prerequisite for the use of those documents in a second investigation. (see paras 54, 55, 69, 104, 157)

See the text of the decision. (see paras 56, 57, 148)

In the context of an administrative procedure in competition matters, it is precisely the notification of the statement of objections, on the one hand, and access to the file enabling the addressee of the statement of objections to peruse the evidence in the Commission’s file, on the other, that ensure the rights of the defence. It is by the statement of objections that the undertaking concerned is informed of all the essential elements on which the Commission is relying at that stage of the procedure. Consequently, it is only after the notification of the statement of objections that the undertaking concerned is able to rely in full on its rights of defence. If the abovementioned rights were extended to the period preceding the notification of the statement of objections, the effectiveness of the Commission’s investigation would be undermined, since the undertaking would already be able, at the first stage of the Commission’s investigation, to identify the information known to the Commission and hence the information that could still be concealed from it. Therefore, the Commission is not required to inform the undertaking concerned of the transmission of documents by a national authority before the notification of the statement of objections. (see paras 94-97)

In the context of an administrative procedure in competition matters, the grant of conditional immunity means the creation of a special procedural status, during the administrative procedure, for the undertaking that satisfies the conditions set out at point 8 of the 2002 Leniency Notice which produces certain legal effects. However, that conditional immunity cannot in any way be treated as final immunity from fines, which is granted only at the end of the administrative procedure. It is only at the end of the administrative procedure, when the Commission adopts the final decision, that it does or does not grant, in that decision, immunity from fines in the strict sense to the undertaking that was granted conditional immunity. It is at that precise time that the procedural status resulting from conditional immunity ceases to produce its effects. It thus follows from the system as provided for in the 2002 Leniency Notice that before the final decision is taken the undertaking seeking immunity does not obtain immunity from fines in the strict sense but benefits only from a procedural status that may be transformed into immunity from fines at the end of the administrative procedure if the requisite conditions are met. The Commission is therefore not required to adopt a definitive position on a leniency application at the stage of the statement of objections. In view of an undertaking’s obligations arising from its procedural status as an immunity applicant, it cannot be considered that merely reminding it of that status constitutes the exercise of undue pressure. (see paras 116, 119, 120, 146, 154)

The grant of total immunity from fines constitutes an exception to the principle of the personal liability of the undertaking for the infringement of the competition rules which is justified by the aim of favouring the discovery, investigation and suppression and also the deterrence of the practices which form part of the most serious restrictions of competition. In those circumstances, it is therefore logical that, in exchange for the grant of total immunity from fines for its unlawful behaviour, the undertaking requesting immunity should be required to cooperate in the Commission’s investigation, in the words of the 2002 Leniency Notice, ‘fully, on a continuous basis and expeditiously’. It follows from the qualification ‘fully’ that the cooperation that an applicant for immunity must provide to the Commission in order to be granted immunity must be complete, absolute and unreserved. ‘On a continuous basis’ and ‘expeditiously’ mean that that cooperation must last throughout the administrative procedure and that it must, as a matter of principle, be immediate. Moreover, a reduction of the fine under the Leniency Notice can be justified only where the information provided and, more generally, the conduct of the undertaking concerned might be considered to demonstrate genuine cooperation on its part. It is clear from the very concept of cooperation, as described in the 2002 Leniency Notice, that it is only where the conduct of the undertaking concerned reveals such a spirit of cooperation that a reduction may be granted on the basis of that notice. That consideration applies a fortiori to the cooperation necessary to justify the grant of total immunity from fines, since immunity constitutes treatment even more favourable than a mere reduction of the fine. Accordingly, the concept of cooperation that is provided ‘fully, on a continuous basis and expeditiously’ and is capable of justifying the grant of total immunity from fines means genuine and full cooperation characterised by a real spirit of cooperation. (see paras 122-126)

See the text of the decision. (see para. 139)

The 2002 Leniency Notice determines, generally and abstractly, the method which the Commission has bound itself to use in applying its leniency programme and, consequently, ensures legal certainty on the part of the undertakings. Although that Leniency Notice may not be regarded as a rule of law which the Commission is always bound to observe, it nevertheless forms a rule of practice from which the Commission may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment. In adopting such rules of conduct and announcing through their publication that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules without running the risk of suffering the consequences of being in breach of general principles of law, such as equal treatment or the protection of legitimate expectations. (see paras 141-143)

In the context of an administrative procedure in competition matters, the fact that the Commission does not rely on the initial leniency application of an undertaking in a given case as evidence of the infringement is not capable of demonstrating that the Commission, during the subsequent procedure, misused its powers in order to pressure the said undertaking to confirm facts relating to a different case. The duty of cooperation of an undertaking seeking total immunity from fines includes the obligation to cooperate fully, on a continuous basis and expeditiously throughout the procedure, which may also involve research and declarations concerning facts not covered by the initial declaration in response to questions put to it by the Commission, since replying to questions is an important part of the immunity applicant’s duty to cooperate. Moreover, since the Commission is entitled both to disjoin and to join proceedings for objective reasons, where no evidence has been invoked to call into question the reasons stated by the Commission for its decision that the facts of two distinct procedures must be regarded as two clearly distinct infringements, the Commission is entitled to consider that, in such a situation, an immunity applicant has the duty to cooperate with both separate investigations which may originate from the same immunity application, and to continue doing so even after obtaining final immunity with regard to the infringement(s) covered by one of the investigations. Moreover, since the Commission may use evidence in one case as a starting point for investigations in another case, and the immunity applicant’s obligation to cooperate extends throughout the procedure and includes the duty to react to new circumstances, using a document in the file of another case in order to put a question to the immunity applicant does not appear unlawful. (see paras 147-149, 165)

See the text of the decision. (see paras 151-153, 182, 338-343, 356, 380, 381, 386, 495)

See the text of the decision. (see paras 175-179, 203, 217, 375)

See the text of the decision. (see paras 180, 181, 261-263)

The prevailing principle in EU law is that evidence may be freely adduced and the sole criterion relevant for evaluating freely adduced evidence is the reliability of that evidence, which depends on the person from whom it originates, the circumstances in which it came into being, the person to whom it was addressed and whether it appears sound and reliable. Great importance should therefore be attached to the fact that a documents has been drawn up in close connection with the events or by a direct witness of those events. (see paras 182, 183, 197, 222, 229, 344)

See the text of the decision. (see paras 184, 185)

In competition law, an agreement may be regarded as having a restrictive object even if it does not have the restriction of competition as its sole aim but also pursues other legitimate objectives, unless it is demonstrated that the contacts between undertakings served only the said legitimate objectives. (see paras 220, 230, 306)

In competition law, the exchange of information between competitors does not become legitimate because that information or certain parts of it is publicly known, since each economic operator must determine independently the policy which he intends to adopt on the internal market. Although this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it does, however, strictly preclude any direct or indirect contact between such operators the object or effect of which is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market. A competitor’s point of view on certain information which was significant for the conditions of supply and demand, which could be obtained other than by means of discussions with the undertakings concerned, and its impact on the development of the market, does not by definition constitute publicly available information. Furthermore, the regular sharing of information relating to prices may have the effect of artificially increasing transparency on a market where competition is already reduced as a result of the specific regulatory context and exchanges of information between competitors. Moreover, even if price information is known by customers before it was transmitted to competitors and, therefore, could be collected on the market, that fact does not mean that, at the time price lists were sent to competitors, those prices already constituted objective market data that were readily accessible. The fact that those price lists were sent directly allows competitors to become aware of that information more simply, rapidly and directly than they would via the market. Further, that prior notification allows them to create a climate of mutual certainty as to their future pricing policies. Lastly, the mere fact of receiving information concerning competitors, which an independent operator preserves as business secrets, is sufficient to demonstrate the existence of an anti-competitive intention. (see paras 282, 320-324)

See the text of the decision. (see para. 302)

See the text of the decision. (see paras 303, 304)

The exchange of information between competitors is liable to be incompatible with the competition rules if it reduces or removes the degree of uncertainty as to the operation of the market in question, with the result that competition between undertakings is restricted. Thus, the setting of a price, even one that is merely indicative, affects competition because it allows all the participants in the cartel to foresee with a reasonable degree of certainty what pricing policy will be pursued by their competitors. More generally, such cartels entail direct interference with the essential parameters of competition on the relevant market. Concerning, in particular, the banana market, reference during bilateral discussions between well-informed traders to very important factors in the determination of the level of supply in relation to demand, such as weather conditions, both in producer countries and in those to which the fruit is shipped for consumption, the size of stocks at ports and ripeners’ stocks, the sales situation at retail level and at ripener level, and the existence of promotional campaigns necessarily results in a sharing of understanding of the market and of its evolution in terms of prices. In that regard, even if the actual prices charged subsequently do not correspond to the price intentions exchanged by the parties, that does not diminish the anti-competitive nature of those exchanges. Article 101 TFEU, like the other competition rules of the Treaty, is designed to protect not only the immediate interests of individual competitors or consumers but also to protect the structure of the market and thus competition as such. In particular, the fact that a concerted practice has no direct effect on price levels does not preclude a finding that it limited competition between the undertakings concerned. Prices actually charged on a market are liable to be influenced by external factors outside the control of the members of the cartel, such as the evolution of the economy in general, changes in demand in that particular sector or the negotiating power of customers. (see paras 328-330, 388, 391, 456, 457, 536, 537)

See the text of the decision. (see paras 400-403)

In the context of an administrative procedure in competition matters, the rights guaranteed by the EU legal order include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case. In that regard, the guarantee of the rights of the defence does not require the Commission to hear witnesses put forward by the parties concerned, where it considers that the investigation of the case has been sufficient. Whilst Article 10(3) of Commission Regulation No 773/2004, relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] provides that undertakings and associations of undertakings forming the subject of a proceeding pursuant to Regulation No 1/2003 ‘may propose that the Commission hear persons who may corroborate the facts set out in their submission’, it appears from Article 13 of Regulation No 773/2004 that the Commission has a reasonable margin of discretion to decide how expedient it may be to hear persons whose evidence may be relevant to the inquiry. (see paras 405, 406)

In competition law, a comparison between the concepts of agreement and concerted practice within the meaning of Article 85(1) of the Treaty shows that, from the subjective point of view, they are intended to catch forms of collusion having the same nature and are only distinguishable from each other by their intensity and the forms in which they manifest themselves. It follows that, whilst the concepts of an agreement and of a concerted practice have partially different elements, they are not mutually incompatible. The Commission is therefore not required to categorise either as an agreement or as a concerted practice each form of conduct found but is entitled to characterise some of those forms of conduct as principally ‘agreements’ and others as ‘concerted practices’. Thus the fact that the infringement in question involves only two undertakings, one of which is small, and that it lasted less than 9 months does not change the fact that the Commission is not required to categorise either as an agreement or as a concerted practice each form of conduct found, but may characterise some of those forms of conduct as ‘agreements’ and others as ‘concerted practices’. In that respect, where the Commission establishes to the requisite legal standard the occurrence of contacts between the parties, the Commission cannot be required to determine exactly each individual occasion that the parties concerted. (see paras 418, 419, 453)

See the text of the decision. (see paras 421-431, 469, 471, 472)

In competition law, the finding of an infringement against undertakings cannot be set aside on the ground that other undertakings were not prosecuted. The fact that a trader who was in a position similar to that of an incriminated undertaking was not found by the Commission to have committed any infringement cannot constitute a ground for setting aside the finding of an infringement by incriminated undertakings, provided it was properly established. (see para. 461)

An infringement of Article 101(1) TFEU may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision. When the different actions form part of an overall plan because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole. In that regard, the concept of a single infringement covers a situation in which several undertakings participated in an infringement in which continuous conduct in pursuit of a single economic aim was intended to distort competition, and also individual infringements linked to one another by the same object (all the elements sharing the same purpose) and the same subjects (the same undertakings, who are aware that they are participating in the common object). Furthermore, the concept of a single infringement can be applied to the legal characterisation of anti-competitive conduct consisting in agreements, in concerted practices and in decisions of associations of undertakings. (see paras 478-480, 491)

In cartel matters, the concept of an overall plan means that the Commission may assume that an infringement has not been interrupted even if, in relation to a specific period, it has no evidence of the participation of the undertaking concerned in that infringement, provided that that undertaking participated in the infringement prior to and after that period and provided that there is no proof or indication that the infringement was interrupted so far as concerns that undertaking. In that case, it will be able to impose a fine in respect of the whole of the period of infringement, including the period in respect of which it does not have evidence of the participation of the undertaking concerned. Although the evidence must be assessed in its entirety in order to assess whether the Commission discharged the burden of proof so as to establish to the requisite legal standard the existence of the infringement, the examination carried out in order to establish the continuous nature of that infringement is not intended to analyse whether the body of evidence as a whole is such that it is reasonable to accept that the infringement continued uninterruptedly during the entire period concerned by that evidence, but rather whether the Commission has adduced evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates. However, where, by virtue of an assessment, in the context of the functioning of the cartel in question, of the period separating two manifestations of infringing conduct, participation of an undertaking in the infringement may be regarded as having been interrupted and the undertaking may be regarded as having participated in the infringement prior to and after that interruption, that infringement may be categorised as repeated if — as in the case of a continuing infringement — there is a single objective which it pursued both before and after the interruption. Such a single objective may be deduced from the identical nature of the objectives of the practices at issue, of the goods concerned, of the undertakings which participated in the collusion, of the main rules for its implementation, of the natural persons involved on behalf of the undertakings and, lastly, of the geographical scope of those practices. The infringement is then single and repeated and, although the Commission may impose a fine in respect of the whole of the period of the infringement, it may not do so for the period during which the infringement was interrupted. (see paras 481-484, 494, 496)

See the text of the decision. (see paras 502-511)

See the text of the decision. (see paras 508, 525, 528-532, 538, 539)

See the text of the decision. (see paras 548, 549, 552, 553)