In those circumstances, the need for collusion on a given supply contract depends on the allocation of supplies, the perceived need to take measures to maintain the respective market shares, and the ability of each individual contract to bring about an appreciable change in the share of the overall supplies envisaged by each cartel participant. In that regard, with respect to both existing supply contracts and new contracts, the allocation of supplies of automotive glass between the cartel participants affects the whole activity of the cartel participants on the relevant market, in particular when, in accordance with the mode of operation of the cartel, it includes correcting measures which take existing supply contracts into account. It follows that the sales made pursuant to contracts pre-dating the infringement period and not renegotiated during that period are to be regarded as falling within the scope of the cartel.

In the context of determining the amount of a fine for infringing the competition rules, the Commission is justified in taking into consideration the sales made pursuant to contracts pre-dating the infringement period and not renegotiated during that period in so far as those sales are capable of reflecting the economic significance of the infringement in view of the scope of the cartel in question, its mode of operation and its overall objective of stabilising market shares, with the result that it is not necessary to collude on each supply contract in order to achieve that objective.

Article 23 of Regulation No 1/2003 does not contain any indication as to the exchange rate to be used when determining the statutory ceiling of the fine in the case where the total turnover referred to in the second subparagraph of Article 23(2) of the regulation is denominated in a currency other than the euro. In that regard, reference must be made to the objective pursued by the statutory ceiling of the fine, which is to avoid the imposition of fines in respect of which it is foreseeable that the undertakings, owing to their size, as determined — albeit approximately and imperfectly — by their total turnover, will be unable to pay. Therefore, in the light of that objective, the upper limit derived from the second subparagraph of Article 23(2) of Regulation No 1/2003 must be determined, as a rule, by reference to the economic reality as it appears in the business year preceding the adoption of the decision penalising an infringement of Article 81 EC.

That finding is consistent with the choice made by the EU legislature to take, as a rule, the turnover figures for the last full business year preceding the adoption of the decision setting the amount of the fine as the reference value, ascertainable in advance, that is most likely to reflect the financial capacity of an undertaking at the time when the undertaking is identified as responsible for the infringement and a financial penalty is imposed on it by the Commission. However, the choice made by the EU legislature also justifies the use of the exchange rate applicable during that period to convert the reference value in the case where that value is expressed in a currency other than the euro.

First, with regard to the assessment of an undertaking’s financial capacity, it is consistent with the choice of the EU legislature to refer, for that purpose, not to the exchange rate applicable at the time of the decision imposing the fine but to the average exchange rate in the business year preceding the adoption of that decision, since the latter is more likely to reflect the economic reality as it appeared in the course of that business year. Otherwise, the assessment of the economic reality would necessarily be distorted by extrinsic and uncertain factors, such as the changes in exchange rates over a period subsequent to that business year.

Secondly, that method of conversion meets the requirement of predictability for the statutory ceiling of the fine in so far as it is based on an exchange rate ascertainable prior to the adoption of the decision of the Commission imposing the fine, and according to which the upper limit of the fine can be determined in advance.

Thirdly, with regard to the objective pursued by the statutory ceiling, the absolute protection against monetary fluctuations up to the date on which the decision imposing the fine is adopted is not an independent purpose of the statutory ceiling of the fine but rather a feature of the protection offered by that ceiling against excessive and disproportionate fines. Accordingly, although the statutory ceiling limits the possible harmful consequences of monetary fluctuations, it does not follow that that ceiling constitutes an absolute protection against such fluctuations nor that the relevant exchange rate for determining that ceiling is that applicable at the time when the decision imposing the fine is adopted.

(see paras 35, 36, 38-45)