Keywords

Summary



Keywords

1. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Obligation to make the entire file available – Limits

(Art. 81(1) EC)

2. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Refusal to communicate an inculpatory document – Consequences in terms of the burden of proof on the undertaking concerned

(Art. 81(1) EC)

3. Competition – Agreements, decisions and concerted practices – Proof – Proof adduced by a number of indicia and coincidences

(Art. 81(1) EC)

4. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Anti-competitive object – Sufficient finding

(Art. 81(1) EC)

5. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Agreement creating an information exchange system – Not permissible on an oligopolistic market – Rebuttable presumption

(Art. 81(1) EC)

6. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Parallel conduct – Presumption of concerted practice – Limits

(Art. 81(1) EC)

7. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Coordination and cooperation incompatible with the obligation for each undertaking to determine independently its conduct on the market – Receipt by an operator of information from a competitor relating to the competitor’s future conduct on the market

(Art. 81(1) EC)

8. Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement – Undertakings that may be held responsible for participating in an overall cartel – Criteria

(Art. 81(1) EC)

9. Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement – Evidence – Evidence adduced by a number of different manifestations of the infringement – Whether permissible

(Art. 81(1) EC)

10. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Horizontal cartel concerning prices – Very serious infringement

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1 A)

11. Competition – Fines – Amount – Determination – Criteria – Actual impact on the market

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1 A, first para.)

12. Competition – Fines – Decision imposing fines – Obligation to state the reasons on which the decision is based – Scope – Indication of the factors which led the Commission to assess the gravity and the duration of the infringement – Sufficient indication

(Art. 253 EC; Council Regulation No 17, Art. 15(2))

13. Competition – Fines – Amount – Determination – Need to take account of the turnover of the undertakings involved in the same infringement or in similar previous infringements and to ensure that fines are proportionate to those figures – No such requirement

(Council Regulation No 17, Art. 15(2))

14. Competition – Community rules – Infringements – Attribution – Legal person responsible for the operation of the undertaking at the time of the infringement

(Art. 81 EC)

15. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Taking into account of partial years – Whether permissible

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1 B)

16. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Infringements of long duration – Automatic increase of 10% of the starting amount per year – Discretion of the Commission

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1 B, first para.)

17. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Increase of the starting amount of the fine – Taking into account of different levels of intensity of the infringement – Not included

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 1 B)

18. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Repeated infringement – Concept

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

19. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Repeated infringement – Rate of increase of the basic amount of the fine

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

20. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Attenuating circumstances – Setting up of a programme for compliance with Community competition rules – Taking into account not mandatory

(Art. 81(1) EC; Council Regulation No 17, Art. 15)

21. Competition – Fines – Amount – Determination – Criteria – Taking into account of the undertaking’s cooperation outside the framework of the Leniency Notice – Conditions

(Council Regulation No 17, Art. 17; Commission Notices 96/C 207/04 and 98/C 9/03, Section 3)

22. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Attenuating circumstances – Termination of the infringement after the Commission’s intervention – Conditions

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 3)

23. Competition – Fines – Imposition – Requirement that the undertaking benefited from the infringement – No such requirement

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, Section 2)

24. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation of the undertaking concerned – Need for conduct which facilitated the Commission’s finding of an infringement – Reply to a request for information – Not included

(Council Regulation No 17, Arts 11(1), (2), (4) and (5) and 15(2); Commission Notice 96/C 207/04)

25. Actions for annulment – Judgment annulling a measure – Effects – Obligation to adopt measures to comply with the judgment

(Art. 233 EC)

Summary

1. Even if the Commission has an obligation to make available to the undertakings involved in proceedings under Article 81(1) EC all documents, whether in their favour or otherwise, which it has obtained during the course of the investigation, that obligation does not extend to business secrets of other undertakings, the internal documents of the Commission or other confidential information. Thus, in the case of information supplied on a purely voluntary basis, accompanied by a request for confidentiality in order to protect the informant’s anonymity, an institution which accepts such information is bound to comply with such a condition. The Commission’s ability to guarantee the anonymity of certain of its sources of information is of crucial importance with a view to ensuring the effective prevention of prohibited anti‑competitive practices. Proceedings initiated on the basis of information from an undisclosed source are lawful, provided that this does not affect the opportunity for the undertaking concerned to make known its views on the truth or implication of the facts, on the documents communicated or on the conclusions drawn by the Commission from them.

(see paras 36-37)

2. If the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other undertakings involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances the passage in question from a reply to the statement of objections or the document annexed thereto constitutes evidence against the various parties alleged to have participated in the infringement.

Since documents that have not been communicated to the undertakings concerned during the administrative procedure are not admissible evidence, it will be necessary to exclude those documents as evidence if it should prove that the Commission relied in the Decision on documents that were not in the investigation file and were not communicated to the undertakings concerned.

If there is other documentary evidence of which the undertakings concerned were aware during the administrative procedure that specifically supports the Commission’s findings, the fact that an incriminating document not communicated to the person concerned is inadmissible as evidence does not affect the validity of the objections upheld in the contested decision.

It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence.

(see paras 41, 43-45)

3. Where there is a dispute as to the existence of an infringement of the competition rules, it is incumbent on the Commission to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. The Commission must establish in particular all the facts enabling the conclusion to be drawn that an undertaking participated in such an infringement and that it was responsible for the various aspects of it.

When the infringement involves anti-competitive agreements and concerted practices, the Commission must, in particular, show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk. It is normal, in the context of anti‑competitive practices and agreements, for the activities to take place in a clandestine fashion, for meetings to be held in secret, and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between operators, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement but also, as the case may be, the single and continuous nature of the infringement, must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules. Furthermore, although the content of an isolated document found by the Commission may not unequivocally disclose the existence of anti-competitive conduct and so might possibly be explained otherwise than by a wish to restrict competition, that fact cannot preclude that document from being interpreted as corroborating the existence of such a wish when it is one of a series of other documents which provide reliable indicia of the existence of contemporaneous and similar anti-competitive conduct.

The Commission cannot therefore be required to adduce proof of the existence of the infringement ‘beyond reasonable doubt’.

(see paras 61-64, 210, 227, 249)

4. For the purposes of applying Article 81(1) EC, it is sufficient that the object of an agreement should be to restrict, prevent or distort competition irrespective of the actual effects of that agreement. Consequently, in the case of agreements reached at meetings of competing undertakings, that provision is infringed where those meetings have such an object and are thus intended to organise artificially the operation of the market. That is the case, for example, where two undertakings express their common intention to put an end to a price war and to stabilise the markets in question.

In such a case, the liability of a particular undertaking in the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings. The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty. Undertakings which conclude an agreement whose purpose is to restrict competition cannot, in principle, avoid the application of Article 81(1) EC by claiming that their agreement was not intended to have an appreciable effect on competition.

(see paras 83-84, 87, 90)

5. Agreements on the exchange of information are incompatible with the rules on competition if they reduce or remove the degree of uncertainty as to the operation of the market in question with the result that competition between undertakings is restricted.

It is inherent in the Treaty provisions on competition that every economic operator must determine autonomously the policy which it intends to pursue on the common market. Thus, such a requirement of autonomy precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which an operator has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to give rise to conditions of competition which do not correspond to the normal conditions of the market in question, taking into account the nature of the products or the services provided, the size and number of the undertakings and also the volume of the market.

On a truly competitive market, the fact that an economic operator takes into account information on the operation of the market, made available to it under an information exchange system, in order to adjust its conduct on the market, is not likely, having regard to the atomised nature of the supply, to reduce or remove for the other operators all uncertainty about the foreseeable nature of its competitors’ conduct. However, 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.

Subject to proof to the contrary, which the operators concerned must adduce, the presumption must be that the undertakings taking part in the concerted arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market. That is all the more the case where the undertakings concert together on a regular basis over a long period.

(see paras 106-109, 180-184, 313)

6. Parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct. Although Article 81 EC prohibits any form of collusion which distorts competition, it does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors.

Where the Commission finds that several undertakings agreed to put an end to a price war on several European markets, the near-simultaneity of the price rise announcements and the parallelism of the prices announced amount to strong evidence of prior concertation designed to inform the competing undertakings of the price rises, even if the intervals between the various price rise announcements may have enabled the undertakings to ascertain those price rises by information from the market and even if those rises were not always exactly of the same level.

(see paras 143-144)

7. The receipt of information by an undertaking from a competitor concerning the latter’s future conduct on the market constitutes a concerted practice which is prohibited by Article 81(1) EC, even if it is purely unilateral conduct. Whilst it is true that the concept of concerted practice does in fact imply the existence of reciprocal contacts between competitors, that condition is however met where the disclosure by one competitor to another of its future intentions or conduct on the market is requested or, at the very least, accepted by the latter. The latter, through the receipt of such information, which he cannot fail to take into account, directly or indirectly, eliminates in advance uncertainty about the future conduct of the former, whereas each economic operator must determine independently the commercial policy which he intends to adopt on the market.

That is also the case when the information in question is already known by customers before it is transmitted to the competitor and, therefore, can be collected on the market. The fact that that price information is sent directly allows the competitor to become aware of that information more simply, rapidly and directly than it would via the market and makes it possible to create a climate of mutual certainty as to its future conduct.

(see paras 153-154, 231-236)

8. An infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. The notion of a single infringement covers precisely 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). 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 common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole. It would then be artificial to split up such continuous conduct, characterised by a single purpose, by treating it as consisting of several separate infringements. The infringement constitutes a single infringement by virtue of the identical nature of the objective pursued by each participant in the cartel, not by virtue of the methods of implementing it.

Thus, the mere fact that each undertaking participates in the infringement in forms specific to it does not affect the categorisation of the infringement as a single and continuous infringement. Even if the agreements and concerted practices referred to in Article 81(1) EC necessarily result from collaboration by several undertakings who are all co‑perpetrators of the infringement, their participation can take different forms according, in particular, to the characteristics of the market concerned and the position of each undertaking on that market, the aims pursued and the means of implementation chosen or envisaged.

Similarly, in the context of an overall agreement extending over several years, a gap of several months between the manifestations of the cartel is immaterial. The fact that the various actions form part of an overall plan owing to their identical object, on the other hand, is decisive.

Lastly, the fact that the number and intensity of the collusive practices varies according to the market concerned does not mean that the infringement does not concern the markets on which the practices are less intense and less numerous.

All those factors must be taken into consideration only when the gravity of the infringement is assessed and if and when it comes to determining the amount of the fine.

(see paras 240, 252, 255-260)

9. Just as, in most cases, the existence of an anti‑competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules, where there is a complex, single and continuous infringement of those rules, each of the various manifestations of the infringement corroborates the actual occurrence of such an infringement. Thus, the various manifestations of the infringement must be assessed in the overall context explaining the reason for their existence. It is not a question then of circular reasoning but of evaluation of evidence, in which the evidential value of various facts is corroborated or weakened by other facts, which, taken as a whole, may show that there has been a single infringement.

(see paras 249-250)

10. In setting the amount of the fines for breach of the Community competition rules, the gravity of an infringement is to be assessed by taking into account, in particular, the nature of the restrictions on competition, which constitutes the essential criterion in this respect even if the size of the geographic market concerned and the impact on the market, when measurable, must also be taken into account. A horizontal price cartel can be correctly classified by the Commission as very serious, having regard to its nature.

That classification cannot be called in question either by the fact that the impact of the cartel on the market was limited or by the fact, assuming that this is correct, that the Commission reduced for that reason the amounts of fines in other decisions, since, first, factors relating to the object of a course of conduct may be more significant for the purposes of setting the amount of the fine than those relating to its effects, and, second, the Commission’s previous decision-making practice does not in itself serve as a legal framework for fines in competition matters.

(see paras 268, 271-275, 278)

11. In order that the Commission can rely on the actual impact of a cartel on the market for the purpose of calculating the fine on the basis of the gravity of the infringement, as provided for in the first paragraph of Section 1A of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, it is sufficient that it is able to provide specific and credible evidence indicating with reasonable probability that the cartel had such an impact, and there is no need to quantify it or provide any assessment in figures in this respect.

Consideration of the impact of a cartel on the market necessarily involves recourse to assumptions. In this respect, the Commission must in particular consider what the price of the relevant product would have been in the absence of a cartel. When examining the causes of actual price developments, it is hazardous to speculate on the part played by each of those causes. Account must be taken of the objective fact that, because of the price cartel, the parties specifically waived their freedom to compete with one another on prices. Thus, the assessment of the influence of factors other than that voluntary decision of the parties in the cartel not to compete with one another is necessarily based on reasonable probability, which is not precisely quantifiable.

Both the fact that the parties involved in the cartel held the majority (indeed even almost all) of the market concerned and that the arrangements brought to light were specifically intended to increase prices to a level higher than that which they would otherwise have reached are indications tending to show that the infringement was capable of producing significant anti‑competitive effects.

However, the Commission cannot be required, where the implementation of a cartel has been established, systematically to demonstrate that the agreements in fact enabled the undertakings concerned to achieve a higher level of transaction prices than that which would have prevailed in the absence of a cartel. It would be disproportionate to require such proof, which would absorb considerable resources, given that it would necessitate making hypothetical calculations based on economic models whose accuracy it would be difficult for the Court to verify and whose infallibility is in no way proved.

(see paras 297, 300-301, 303, 307)

12. As regards the calculation of the amount of fines imposed by the Commission for infringements of Community competition law, the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which it took into account in accordance with the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty and, where appropriate, the Notice on the non‑imposition or reduction of fines, and which enabled it to determine the gravity of the infringement and its duration for the purpose of calculating the amount of the fine. The scope of the duty to state reasons must be determined in the light of the fact that the gravity of infringements must be established by reference to a large number of factors and no binding or exhaustive list of the criteria which must be applied has been drawn up. Moreover, it is important to ensure that fines are not easily foreseeable by economic operators so as not to undermine the deterrent effect of those fines. If the amount of the fine were the result of a calculation which followed a simple arithmetical formula, undertakings would be able to predict the possible penalty and to compare it with the profit that they would derive from the infringement of the competition rules. The duty to state reasons does not therefore require the Commission to indicate in its decision the figures relating to the method of calculating the amount of fines.

(see paras 331, 333, 336, 343)

13. As the Commission is not obliged to calculate the fine by reference to amounts based on the turnover of the undertakings concerned, it is likewise not required to ensure, where fines are imposed on several undertakings involved in the same infringement, that the final amount of the fines produced by the calculation for the undertakings concerned reflects any distinction between them regarding their total turnover or their turnover in the relevant product market.

First, Community law contains no general principle that the penalty be proportionate to the undertaking’s size on the product market in respect of which the infringement was committed. Second, Article 15(2) of Regulation No 17 likewise does not require that, where fines are imposed on several undertakings involved in the same infringement, the fine imposed on a small or medium-sized undertaking must not be greater, as a percentage of turnover, than those imposed on the larger undertakings. It is clear from that provision that, both for small or medium-sized undertakings and for larger undertakings, account must be taken, in determining the amount of the fine, of the gravity and duration of the infringement. Where the Commission imposes on undertakings involved in a single infringement fines which are justified, for each of them, by reference to the gravity and duration of the infringement, it cannot be criticised on the ground that, for some of them, the amount of the fine is greater, by reference to turnover, than that imposed on other undertakings.

The Commission is likewise not compelled to set fines that are proportionate to turnover and also perfectly coherent with those imposed in earlier cases that are comparable as regards the gravity of the infringements. Its practice in earlier decisions does not in itself serve as a legal framework for fines in competition matters. The fact that in the past the Commission has applied fines of a particular level for certain types of infringements does not mean that it is estopped from raising that level within the limits indicated by Regulation No 17 if that is necessary to ensure implementation of Community competition policy. Furthermore, the gravity of infringements must be established by reference to numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up. The relevant data, such as the markets, the products, the countries, the undertakings and the periods concerned differ in each case.

In this respect, the Community judicature has power to assess, in the exercise of its unlimited jurisdiction under Article 229 EC and Article 17 of Regulation No 17, the appropriateness of the amount of the fines.

(see paras 338-344)

14. An undertaking – that is to say an economic unit comprising personal, tangible and intangible elements – is directed by the organs provided for in its articles of association and any decision imposing a fine on it may be addressed to the management as provided for in those articles of association (management board, management committee, chairman, manager, and so on). The rules of competition would be easily circumvented if the Commission, faced with unlawful conduct on the part of an undertaking, were required to ascertain and to prove who is the author of the various activities, which could have the effect of preventing it from penalising the undertaking which benefited from the cartel.

(see paras 360, 430)

15. For the purposes of calculating the duration of an infringement of the competition rules, the Commission is entitled to take into account partial years. Nothing in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty prevents the actual duration of the infringement from being taken into account. Such an approach is entirely logical and reasonable and falls, in any event, within the Commission’s discretion.

(see para. 361)

16. With respect to long-term infringements of the competition rules, the Commission may automatically apply the maximum rate of increase per year of 10% of the amount decided on to reflect the gravity of the infringement. Even if the third indent of the first paragraph of Section 1B of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty does not provide that there should be an automatic increase, it leaves the Commission a margin of assessment in that connection.

(see para. 362)

17. For the purpose of increasing the amount of the fine on the basis of the duration of the infringement, as provided for in Section 1B of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, it would not be logical to take into account a variation in the intensity of the infringement during the period concerned. That increase is calculated by the application of a certain percentage to the starting amount which is determined according to the gravity of the infringement as a whole, thus already reflecting the different levels of intensity of the infringement.

(see para. 364)

18. The concept of repeated infringement does not necessarily imply that a fine has been imposed in the past, but merely that a finding of infringement of Community competition law has been made in the past. The purpose of taking repeated infringement into account is to induce undertakings which have demonstrated a tendency towards infringing the competition rules to change their conduct when it transpires that a previous finding of infringement on their part has not been sufficient to prevent the repetition of unlawful conduct. Thus, it is not the previous imposition of a fine, and a fortiori not the amount thereof, which is determinative of repeated infringement, but the fact that a previous finding of a similar infringement of the same Treaty provision has been made.

In the case of two contemporaneous infringements, the increase of the amount of the fine penalising one of those infringements in consideration of the fact that the other infringement has already been the subject of a decision imposing sanctions is not justified if the greater part of the period of participation in the second infringement pre-dates the decision penalising the first infringement. However, the Commission does not infringe its discretion where it increases on account of repeated infringement the amount of the fine imposed in respect of the second infringement because that infringement continued several years after the first finding of an infringement.

(see paras 387-388, 390-391, 393-394, 396)

19. In the context of deterrence, repeated infringement justifies a significant increase in the basic amount of a fine imposed for an infringement of the competition rules. It is evidence that the sanction previously imposed was not sufficiently deterrent. In that respect, the fact that, in the first infringement, the role of the undertaking penalised was minor and passive cannot call in question the consequences attaching to the repeated infringement, since what matters is the fact that, despite the finding that there has been an infringement of Community competition law, the undertaking in question continued to infringe it.

When setting an increase for repeated infringement, the Commission may confine itself to examining what would be the proportional percentage and does not need to take into account the amount, in absolute terms, of the increase of the basic amount of the fine as a result of the application of that percentage. As long as the percentage increase is not excessive, the increase in absolute terms is only the mathematical consequence of the application of that percentage to the basic amount, whose proportionality in relation to the gravity and duration of the infringement in question was examined separately.

The mere fact that, in another decision, the Commission increased the basic amount for a repeated infringement differently does not mean that it is required to apply the same percentage increase in the contested decision. The Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters, since that framework is defined solely in Regulation No 17.

The fact that that increase exceeds the starting amount of the fine imposed for the gravity of the infringement on the other participants in the infringement is also irrelevant as regards the level of the increase for repeated infringement. Since the fine was determined correctly and the increase for repeated infringement is proportionate, the fact that the increase in absolute terms is higher than the starting amount of the fines imposed on the other participants in the infringement is just a mathematical consequence of the increase which is unrelated to the amount of the other fines.

The same applies in respect of the fact that the increase for repeated infringement exceeds the reduction of the amount of the fine awarded to the penalised undertaking on account of its cooperation with the Commission. They are in fact two separate stages in determining the amount of the fine.

Finally, the penalised undertaking cannot, in order to call in question the amount of the increase of the fine for repeated infringement, rely on the fact that the Commission applied to it the same increase for repeated infringement as to another participant in the same infringement, even though the characteristics of the earlier infringement committed by that participant are not analogous to those of the earlier infringement attributed to that undertaking. Since the increase for repeated infringement relates to an aggravating circumstance specific to the undertaking in question, what is relevant is the fact that both undertakings were previously involved in infringements, but that, despite the finding of those infringements, they did not bring to an end their involvement in a fresh infringement.

(see paras 398-399, 401, 406-412)

20. Whilst it is indeed important that an undertaking takes steps to prevent fresh infringements of Community competition law from being committed by members of its staff in the future, that circumstance does not alter the fact that an infringement was found to have been committed. It follows that the mere fact that in certain of its previous decisions the Commission took the establishment of a programme for aligning the undertaking’s conduct with Community competition rules into consideration as a mitigating factor does not mean that it is obliged to act in the same manner in any given case.

The Commission is therefore not required to take a circumstance such as that into account as a mitigating factor, provided that it adheres to the principle of equality of treatment, which requires that it should not assess the matter differently for any undertaking addressed by the same decision.

(see paras 423-424)

21. The possibility of granting to an undertaking which has cooperated with the Commission during proceedings for infringement of the competition rules a reduction of the fine outside the framework laid down by the Notice on the non‑imposition or reduction of fines in cartel cases, as provided for in the sixth indent of Section 3 of the Guidelines adopted by the Commission on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, necessarily means that the cooperation in question was not capable of reward under the Leniency Notice and that it was effective, that is to say, that it facilitated the Commission’s task of finding and putting an end to infringements of the Community competition rules.

(see paras 426, 428)

22. Under the third indent of Section 3 of the Guidelines adopted by the Commission on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, ‘termination of the infringement as soon as the Commission intervenes (in particular when it carries out checks)’ is an attenuating circumstance. However, a reduction of the fine by reason of the termination of an infringement as soon as the Commission intervenes cannot be automatic but depends on an appraisal of the circumstances of the case by the Commission in the course of its discretion. In that regard, the application of that provision of the Guidelines in favour of an undertaking will be particularly appropriate where the conduct in question is not manifestly anti‑competitive. Conversely, its application will be less appropriate, as a general rule, where the conduct is clearly anti‑competitive, on the assumption that it is proven. Even if, in the past, the Commission has regarded voluntary termination of an infringement as an attenuating circumstance, it is entitled, when applying its Guidelines, to take account of the fact that, even though their illegality was established at the inception of Community competition policy, very serious manifest infringements are relatively frequent and, therefore, to take the view that it is appropriate to abandon that generous practice and no longer reward the termination of such an infringement by a reduction of the fine. In those circumstances, the appropriateness of a reduction of a fine by reason of termination of the infringement depends on whether the un dertaking accused of the infringement could reasonably doubt the illegality of its conduct.

That is not the case in respect of a secret cartel whose object is an exchange of information in an oligopolistic market and a stabilisation of markets. That type of cartel constitutes a very serious infringement and the undertakings concerned must therefore be aware of the unlawful nature of their conduct. The secret nature of the cartel confirms moreover the fact that the undertakings concerned are aware of the unlawful nature of their actions.

(see paras 436-439)

23. Whilst the amount of the fine imposed for infringement of the Community competition rules must be proportionate to the duration of the infringement and the other factors capable of affecting the assessment of the gravity of the infringement, including the profit that the undertaking concerned was able to derive from those practices, the fact that an undertaking did not benefit from an infringement cannot preclude the imposition of a fine since otherwise it would cease to have a deterrent effect. It follows that the Commission is not required, when fixing the amount of fines, to take account of the fact that no benefit was derived from the infringement in question.

In that connection, although the Commission may, under Section 2, fifth indent, of its Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty and in respect of aggravating circumstances, increase a fine in order to exceed the amount of gains improperly made as a result of the infringement, that does not mean that the Commission is then under an obligation to establish in every case, for the purpose of determining the amount of the fine, the financial advantage linked to the infringement found to have been committed. In other words, the absence of such an advantage cannot be regarded as an attenuating circumstance.

(see paras 441-443)

24. In carrying out the duties assigned to it in competition matters, the Commission may obtain all necessary information from the governments and competent authorities of the Member States and from undertakings and associations of undertakings. The Commission is in particular entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in that undertaking’s possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti‑competitive conduct. Consequently, replies given pursuant to Article 11(1) of Regulation No 17 constitute the performance of an obligation and not voluntary cooperation within the meaning of the Notice on the non‑imposition or reduction of fines in cartel cases.

(see para. 468)

25. As a consequence of a judgment of annulment, which takes effect ex tunc and thus has the effect of retroactively eliminating the annulled measure from the legal system, the defendant institution is required, by virtue of Article 233 EC, to take the necessary measures to reverse the effects of the illegalities as found in the judgment of annulment, and, in the case of a measure that has already been executed, this may take the form of restoring the applicant to the position he was in prior to that measure.

Foremost amongst the measures referred to in Article 233 EC, in the case of a judgment annulling or reducing the fine imposed on an undertaking for infringement of the Treaty competition rules, is the Commission’s obligation to repay all or part of the fine paid by the undertaking in question in so far as that payment must be characterised as a sum unduly paid following the annulment decision. That obligation applies not only to the principal amount of the fine overpaid but also to default interest on that amount. If the Commission did not consent to any default interest on the principal amount of the fine reimbursed following such a judgment, it would be failing to take a measure necessary to comply with that judgment and would thereby be in breach of its obligations under Article 233 EC.

It follows that, in proceedings for annulment of a fine imposed for infringement of the competition rules, an order requiring the Commission to repay all or part of the fine paid by the undertaking in question, plus interest, is inadmissible, in so far as that payment must be considered as a sum unduly paid following the annulment decision.

(see paras 486-489)