It follows that, even where a cartel does not relate to the sales of the product in question to undertakings linked to the members of that cartel, competition on the relevant market is distorted, and consequently those sales may be taken into account for the calculation of the fine.

Moreover, the very fact that an undertaking achieves sales on the relevant market to independent third parties at such increased prices entails a distortion of competition affecting the entire relevant market, to the disadvantage, in particular, of consumers.

That is because, in addition to the profit which can be expected from a cartel which provides for horizontal price-fixing in sales to independent third parties, an undertaking may also benefit from such a cartel through growth in its sales to undertakings with which there are certain structural links, where such undertakings are not subject to the increased prices fixed within the cartel, since, as a result, that undertaking acquires a competitive advantage over its competitors who offer those increased prices on the relevant market.

To ignore, when determining the basic amount of fines to be imposed for infringements of competition law, the value of sales made to independent third parties on the ground that the undertaking participating in the infringement has particular structural links with those third parties would give an unjustified advantage to such an undertaking by allowing it to avoid the imposition of a fine proportionate to its importance on the product market to which the infringement relates.

In matters of competition, it follows from the final paragraph of Point 23(b) of the Notice on immunity from fines and reduction of fines in cartel cases (‘the Leniency Notice’) that the partial immunity provided for therein requires two conditions to be satisfied: first, the undertaking in question should be the first to prove facts previously unknown to the Commission; and, second, those facts, which have a direct bearing on the gravity or the duration of the suspected cartel, should enable the Commission to make new findings concerning the infringement.

The wording ‘facts previously unknown to the Commission’, in relation to the first of those conditions, is unambiguous and allows the adoption of a restrictive interpretation of the final paragraph of point 23(b) of the Leniency Notice, by limiting that provision to cases in which a company party to a cartel provides the Commission with new information relating to the gravity or the duration of the infringement, and by excluding from it cases in which a company has merely provided information which strengthens the evidence of the existence of the infringement.

Further, that interpretation of the final paragraph of point 23(b) of the Leniency Notice is in no way at odds with the objective pursued by that notice, since the effectiveness of leniency programmes would be undermined if undertakings no longer had an incentive to be the first to submit information revealing the existence of a cartel to the Commission

Accordingly, where the undertaking which is the first to submit to the Commission, in order to obtain total immunity from a fine under the Leniency Notice, evidence to enable the Commission to find an infringement of Article 101 TFEU has chosen not to disclose information which demonstrates that the duration of the infringement at issue was longer than disclosed by that evidence, any other undertaking participating in that infringement has an incentive to be the first to disclose such information, since such disclosure may justify the granting of partial immunity from a fine under the final paragraph of point 23(b) of the Leniency Notice.

Admittedly, an undertaking which provides information to the Commission under the Leniency Notice, since it is normally unaware of the evidence already in the possession of the Commission, cannot be certain that it meets the conditions to be granted the partial immunity provided for in the final paragraph of point 23(b) of the Leniency Notice.

However, the Leniency Notice is not designed to remove such uncertainty; on the contrary, the effect sought by that notice is the creation of a climate of uncertainty within cartels in order to encourage the reporting of them to the Commission.

(see paras 77-79, 84-87)