Keywords

Summary



Keywords

1. Competition – Administrative procedure – Commission decision finding an infringement – Judicial review – Limits

(Arts 81(1) EC and 230 EC; EEA Agreement, Art. 53(1))

2. Community law – Principles – Fundamental rights – Presumption of innocence – Procedures in competition matters – Applicability

(Art. 6(2) EU; Art. 81(1) EC; Charter of Fundamental Rights of the European Union, Art. 47; EEA Agreement, Art. 53(1))

3. Competition – Administrative procedure – Commission decision finding an infringement – Means of proof – Reliance on a body of evidence

(Art. 81(1) EC; EEA Agreement, Art. 53(1))

4. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Evidence of the infringement – Lack of documentary evidence – Effect

(Art. 81(1) EC; EEA Agreement, Art. 53(1))

5. Competition – Administrative procedure – Commission decision finding an infringement – Burden on the Commission of proving the infringement and its duration

(Art. 81(1) EC; EEA Agreement, Art. 53(1); Commission Notice 2002/C 45/03)

6. Competition – Administrative procedure – Commission decision finding an infringement – Judicial review – Identification of the evidence relied on by the Commission

(Art. 81(1) EC; EEA Agreement, Art. 53(1); Council Regulation No 1/2003)

7. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Evidence of the infringement – Assessment of the probative value of various items of evidence – Acknowledgement by an undertaking of its participation in the unlawful meetings

(Art. 81(1) EC)

8. 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 – Account taken of the characteristics of the infringement as a whole

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, Section 22)

9. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02)

10. Competition – Fines – Amount – Determination – Criteria – Commission's margin of discretion – Raising of the general level of fines – Lawfulness

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23)

11. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Conduct deviating from that agreed within the cartel – Assessment

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(3))

12. Competition – Fines – Amount – Discretion of the Commission – Judicial review – Finding of an illegality – Need for the Court to exercise its unlimited jurisdiction and give judgment on the alteration of the decision

(Art. 261 TFEU)

Summary

1. In relation to adducing evidence of an infringement of Article 81(1) EC, it should be pointed out that the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement.

Moreover, in proceedings for annulment brought under Article 230 EC, all that is required of the Courts of the European Union is to verify the legality of the contested measure.

Thus, the role of a Court hearing an application for annulment of a Commission decision finding the existence of an infringement of the competition rules and imposing fines on the addressees is to assess whether the evidence and other information relied on by the Commission in its decision are sufficient to establish the existence of the alleged infringement.

(see paras 90-92)

2. Where there is doubt, the benefit of that doubt must be given to the undertakings to which a Commission decision finding an infringement of the competition rules is addressed. The Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine.

In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the Convention of Human Rights which is one of the fundamental rights which, according to the case-law of the Court of Justice and as reaffirmed in the preamble to the Single European Act, by Article 6(2) EU and by Article 47 of the Charter of Fundamental Rights of the European Union are protected in the legal order of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments.

(see paras 93-94)

3. In competition matters, the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place.

However, it is important to emphasise that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets that requirement.

Moreover, as anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the traders concerned. The fragmentary and sporadic items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may thus 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.

(see paras 95-97)

4. In so far as concerns the types of evidence which may be relied on to establish an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA Agreement), the prevailing principle of European Union law is the unfettered evaluation of evidence.

Consequently, an absence of documentary evidence is relevant only in the overall assessment of the body of evidence relied on by the Commission. It does not, in itself, enable the undertaking concerned to call the Commission’s claims into question by submitting a different version of the facts. That may be done only where the evidence submitted by the Commission does not enable the existence of the infringement to be established unequivocally and without the need for interpretation.

In addition, no provision or general principle of European Union law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings, even if only gathered in the context of a leniency application seeking to obtain immunity from, or a reduction of, fines in cartel cases. If that were not the case, the burden of proving conduct contrary to Article 81 EC and Article 53 of the EEA Agreement, which is borne by the Commission, would be unsustainable and incompatible with its task of supervising the proper application of those provisions.

However, a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence, although the degree of corroboration required may be lesser in view of the reliability of the statements at issue. Such a requirement for corroboration of statements of an undertaking is also to be met where such a statement is contested by an undertaking similarly accused.

(see paras 98-101, 206)

5. In competition matters, particularly great probative value may also be attached to those which, first, are reliable, second, are made on behalf of an undertaking, third, are made by a person under a professional obligation to act in the interests of that undertaking, fourth, go against the interests of the person making the statement, fifth, are made by a direct witness of the circumstances to which they relate and, sixth, were provided in writing deliberately and after mature reflection.

Even if some caution as to the evidence provided voluntarily by the main participants in an unlawful agreement is generally called for, given the possibility that they might tend to play down the importance of their contribution to the infringement and maximise that of others, the fact of seeking to benefit from the application of the Leniency Notice in order to obtain immunity from, or a reduction of, the fine in cartel cases does not necessarily create an incentive for the other participants in the offending cartel to submit distorted evidence. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the person seeking to benefit, and thereby jeopardise his chances of benefiting fully under the Leniency Notice. In that regard, the potential consequences of the submission of distorted evidence to the Commission are even more serious since a statement of an undertaking that is disputed must be corroborated by other evidence. That being so, the likelihood of the Commission and the other undertakings accused of participating in the infringement of detecting the inaccurate nature of those statements is increased.

(see paras 104-106)

6. The administrative procedure under Regulation No 1/2003, which takes place before the Commission, is divided into two distinct and successive stages, each having its own internal logic, namely a preliminary investigation stage and an inter partes stage. The preliminary investigation stage, during which the Commission uses the powers of investigation provided for in Regulation No 1/2003 and which covers the period up until the notification of the statement of objections, is intended to enable the Commission to gather all the relevant information tending to prove or disprove the existence of an infringement of the competition rules and to adopt an initial position on the course of the procedure and how it is to proceed. By contrast, the inter partes stage, which covers the period from the notification of the statement of objections to the adoption of the final decision, must enable the Commission to reach a final decision on the infringement concerned.

When assessing the evidence and other items relied on by the Commission to establish the existence of an infringement of the competition rules, the identification by the Court of those items of evidence can only relate to the part of the grounds of the Commission’s decision in which the Commission describes the inter partes stage of the administrative procedure. It is only after having received, at that stage, the observations of the undertaking concerned on the Commission’s initial position on conclusion of the preliminary investigation stage, as set out in the statement of objections, that the Commission may decide whether or not to maintain its initial position and thus reach its final decision on the alleged infringement.

Where, after having received the observations of an undertaking on the statement of objections, the Commission itself calls the probative value of that evidence into question in its assessment of the evidence which it had at its disposal at the end of the preliminary investigation stage in order to determine whether that undertaking participated in an infringement, the Court cannot but take account of that assessment on the part of the Commission.

(see paras 109-110, 113)

7. In relation to the acknowledgment by an undertaking of its participation in a meeting contrary to the competition rules, an undertaking’s express or implicit acknowledgement of matters of fact or of law during the administrative procedure before the Commission may constitute additional evidence when determining whether an action is well founded.

Consequently, for such an acknowledgement to be able to constitute reliable evidence, it is necessary, when assessing whether an action is well founded, to consider whether the terms of that acknowledgment complement other items of evidence gathered by the Commission.

(see paras 217-218)

8. Whilst the gravity of the infringement is initially assessed on the basis of the particular characteristics of the infringement, such as its nature, the cumulative market share of all the undertakings involved, the geographical scope of the infringement and whether it was implemented, that assessment is subsequently adjusted to take account of aggravating and mitigating circumstances specific to each of the undertakings which participated in the infringement.

Thus, the first stage of the Commission’s methodology for setting a fine aims to determine the basic amount of the fine to be imposed on each undertaking concerned, by applying to the value of the sales of the goods and services concerned on the relevant geographical market of each of the undertakings an initial multiplier reflecting the gravity of the infringement, and a second multiplier aimed at deterring them from undertaking unlawful conduct in the future. As is apparent from the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, each of those multipliers is determined in the light of factors which reflect the characteristics of the infringement as a whole, that is to say inasmuch as it combines all of the anti-competitive conduct of all of the participants.

Therefore, in determining the amount of those two multipliers, it is not necessary to take account of the specific characteristics of the infringement committed by each of the participants taken individually. In addition, that finding is supported by the very purpose of the second stage of the method for setting fines, the precise aim of which is to take account of the aggravating or attenuating circumstances which characterise the individual anti-competitive conduct of each of the participants to the infringement at issue.

Consequently, the factors listed in Section 22 of the Guidelines to determine both the multiplier for ‘gravity of the infringement’ (Section 21 of the Guidelines) and the multiplier for the ‘entry fee’ (Section 25 of the Guidelines), all aim to evaluate the infringement of the competition rules of the European Union, taken as a whole. In particular, it is not apparent from the Guidelines that the Commission is required, during the first stage of the method for setting fines, to take account of such specific factors relating to a participant in an infringement of the competition rules, such as less frequent participation by one undertaking in anti-competitive contacts or the non-implementation of the agreements concluded. The Commission does not take account of such factors until the second stage of that method and does so by taking account of aggravating or mitigating circumstances specific to each of the undertakings which participated in the infringement.

(see paras 264-267, 273)

9. Sections 28 and 29 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 provide for the basic amount of fines to be varied in accordance with certain aggravating and mitigating circumstances particular to each undertaking concerned. In particular, Section 29 of the Guidelines establishes a non-exhaustive list of mitigating circumstances which, under certain conditions, may lead to a reduction in the basic amount of a fine. It is true that that list no longer refers, among the mitigating circumstances which may be taken into account, to the passive role of an undertaking. However, in so far as the list set out in Section 29 of the Guidelines is not exhaustive, such a situation cannot, in principle, be excluded from the circumstances which might lead to a reduction in the basic amou nt of a fine.

The passive role of an undertaking in committing an infringement implies that the undertaking adopted a ‘low profile’, that is to say, that it did not actively participate in the creation of any anti-competitive agreements.

Among the factors likely to demonstrate an undertaking’s passive role in a cartel, a significantly more sporadic participation in meetings than that of the other ordinary members of the cartel can be taken into account as well as its late entry on the market which is the subject of the infringement, independently of the duration of the undertaking’s participation, or even the existence of statements dealing specifically with that point from other representatives of undertakings which participated in the infringement.

(see paras 279-281, 284-285)

10. The Commission has a margin of discretion when fixing the amount of fines in order that it may channel the conduct of undertakings towards observance of the competition rules. The fact that the Commission, in the past, imposed fines of a certain level for certain types of infringements does not mean that it is prevented from raising that level within the limits indicated in Regulation No 1/2003 if that is necessary to ensure the implementation of competition policy. On the contrary, the proper application of the European Union competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy.

(see para. 293)

11. When the amount of a fine to be imposed is being determined, the fact that an undertaking proven to have participated in collusion on prices with its competitors did not behave on the market in the manner agreed with those competitors is not necessarily a matter which must be taken into account as a mitigating circumstance. An undertaking which, despite colluding with its competitors, follows a more or less independent policy in the market may simply be trying to exploit the cartel for its own benefit.

(see para. 297)

12. The fact that the examination of the pleas challenging the lawfulness of a Commission decision imposing a fine for infringement of the competition rules of the European Union has revealed an illegality does not dispense the Court from examining whether, in the light of the consequences of that illegality and in exercising its unlimited jurisdiction, it is required to amend the contested decision.

(see para. 306)