Judgment of the General Court (Third Chamber) of 27 June 2012 —

YKK and Others v Commission



(Case T-448/07)

Competition — Agreements, decisions and concerted practices — Markets for zip fasteners and ‘other fasteners’, and for attaching machines — Decision finding an infringement of Article 81 EC — Coordinated price increases, fixing of minimum prices, customer-sharing, market-sharing and exchange of other commercial information — Single and continuous infringement — Evidence — Nature and implementation of the infringement — Real impact — Leniency Notice — Fines — Upper limit — Dissuasive effect of the fine — Equal treatment — Proportionality

1. Proceedings — Measures of inquiry — Hearing of witnesses — Discretion of the General Court (Rules of Procedure of the General Court, Art. 68) (see paras 43, 44)

2. 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 (Art. 81(1) EC; Commission Notices 96/C 207/04 and 2002/C 45/03) (see paras 52-58)

3. Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation (Art. 81(1) EC) (see paras 71, 80, 105)

4. Agreements, decisions and concerted practices — Agreements between undertakings — Concept — Joint intention as to the conduct to be adopted on the market (Art. 81(1) EC) (see paras 74, 75, 79)

5. Agreements, decisions and concerted practices — Concerted practice — Concept — Exchange of information in the context of a cartel or with a view to its preparation (Art. 81(1) EC) (see paras 76-79)

6. Agreements, decisions and concerted practices — Participation in meetings having an anti-competitive object — Circumstances from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel — Public distancing — Restrictive interpretation (Art. 81(1) EC) (see paras 113-117)

7. Competition — Fines — Amount — Determination — Infringements classified as very serious on the basis of their nature alone — No requirement to determine their impact and their geographical extent (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(3); Commission Notice 98/C 9/03, Section 1A) (see paras 123-126, 138, 139, 143)

8. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Effective capacity to cause significant damage to competition on the market concerned — Relevance of the market shares of the undertaking concerned (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3)) (see paras 147, 148)

9. Competition — Fines — Amount — Determination — Principles of equal treatment — Decision-making practice of the Commission — Indicative character (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3)) (see paras 149-151)

10. 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 — Discretion of the Commission — Judicial review — Limits (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 96/C 207/04) (see paras 170-172)

11. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Turnover to be taken into consideration — Cumulative turnover of all the companies constituting the economic entity operating as an undertaking (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 192, 193)

Re:

APPLICATION for, primarily, annulment of Commission Decision C(2007) 4257 final of 19 September 2007 relating to a proceeding under Article 81 [EC] (Case COMP/39.168 — PO/Hard Haberdashery: Fasteners) in so far as it concerns the applicants and, in the alternative, annulment or reduction of their respective fines.

Operative part

The Court:

1. Dismisses the action;