Keywords

Summary



Keywords

1 Actions for annulment - Claims challenging the lawfulness of the ECSC Treaty - Inadmissible

(ECSC Treaty, Arts 33, 36, 65 and 66)

2 Community law - Principles - Fundamental rights - Observance ensured by the Community judicature - European Convention on Human Rights taken into consideration

(Treaty on European Union, Art. F(2))

3 ECSC - Agreements, decisions and concerted practices - Administrative proceedings - Observance of the rights of the defence - Procedural guarantees - Effective judicial review of Commission decisions - An `independent and impartial tribunal' - Unlimited jurisdiction

(ECSC Treaty, Arts 33, 36 and 65)

4 ECSC - Agreements, decisions and concerted practices - Prohibited - Infringement by a group and its subsidiaries - Difficulty in identifying the parent company - Subsidiaries may be held jointly and severally responsible

(ECSC Treaty, Art. 65(5))

5 ECSC - Agreements, decisions and concerted practices - Administrative proceedings - Rules governing languages - Annexes to the statement of objections - To be available in the original language

6 ECSC - Agreements, decisions and concerted practices - Administrative proceedings - Obligations of the Commission - Action to be taken within a reasonable time

(ECSC Treaty, Art. 65)

7 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Calculation methods - Conversion into ecus of the undertakings' reference year turnover figures on the basis of the average exchange rate for that year - Whether permissible

(ECSC Treaty, Art. 65(5))

8 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Conduct differing from that agreed by the cartel - Assessment

(ECSC Treaty, Art. 65(5))

9 ECSC - Agreements, decisions and concerted practices - Prohibited - Infringements - Committed intentionally - Meaning

(ECSC Treaty, Art. 65(1))

10 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Attitude of the undertaking during the administrative proceeding

(ECSC Treaty, Art. 65(5))

11 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Cessation of the infringement following the Commission's intervention - Not included

(ECSC Treaty, Art. 65(5))

12 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Cases in which the fine is fixed by the Community judicature - Unlimited jurisdiction

(ECSC Treaty, Art. 36, second para.)

Summary

1 Claims are inadmissible where they seek to challenge the lawfulness of the system introduced by Articles 65 and 66 of the ECSC Treaty for preventing and penalising agreements, decisions and concerted practices or of the system introduced by Articles 33 and 36 thereof for the judicial review of administrative acts.

The Treaty itself is not an act of the Commission and it is not amenable, therefore, to review by the Community judicature under Articles 33 or 36.

2 Fundamental rights form an integral part of the general principles of law, the observance of which the Community judicature ensures. The Court of Justice and the Court of First Instance draw inspiration from the constitutional principles common to the Member States and also from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. In that context, the European Convention on Human Rights - to which reference is made in Article F(2) of the Treaty on European Union - has special significance.

3 During administrative proceedings which culminate in the adoption of a decision finding that the competition rules have been infringed and imposing a fine under the ECSC Treaty, the Commission is obliged to observe the procedural guarantees laid down by Community law. The fact that the Commission combines the functions of prosecutor and judge is not contrary to those safeguards and they do not require the Commission to adopt an internal arrangement under which an official is not permitted to act as both investigator and rapporteur in the same case.

The requirement of effective judicial review of any Commission decision establishing and penalising an infringement of the Community competition rules is a general principle of Community law which follows from the constitutional traditions common to the Member States. The unlimited jurisdiction of the Court of First Instance, an independent and impartial tribunal, to review the penalty, pursuant to Article 36 of the Treaty - in conjunction, where necessary, with a review of the legality of the other elements of the decision, pursuant to Article 33 of the Treaty - is consistent with that requirement.

4 In view of the fact that a parent group and its subsidiaries form one economic unit, the actions of the subsidiaries may be attributed to the parent company where, even though each of the subsidiaries has separate legal personality, they do not decide independently upon their own conduct on the market, but essentially apply the instructions given to them by the group, which plays a stimulating and coordinating role.

However, a situation may arise in which a group and its subsidiaries participate equally in various infringements and it is not possible to distinguish between the various components of the group according to the extent of their individual participation in those infringements. Also, owing to the family composition of the group and the dispersal of its shareholders, it may be impossible or exceedingly difficult to identify the legal person at its head to which, as the person responsible for coordinating the group's activities, responsibility may be imputed. In such cases, the Commission is entitled, for the purposes of applying the competition rules, to hold the subsidiaries jointly and severally responsible for all the acts of the group in order to ensure that the formal separation between those companies, resulting from their separate legal personality, cannot prevent a finding that they have acted jointly on the market.

5 In the context of the administrative proceeding culminating in the adoption of a decision finding that the ECSC competition rules have been infringed, the Commission cannot be required to translate more documents than those on which it bases its objections. These documents must also be regarded as incriminating documents on which the Commission relies and, accordingly, must be brought to the addressee's attention as they are, in such a way that the addressee is apprised of the interpretation which the Commission has put on them - and on which it has based both the statement of objections and the decision - and, consequently, is able properly to defend its rights.

6 The requirement that the Commission act within a reasonable time when adopting decisions following administrative proceedings relating to competition policy is a general principle of Community law. The reasonable nature of the duration of the administrative proceedings must be determined in relation to the particular circumstances of each case and, in particular, its context, the various procedural stages followed by the Commission, the conduct of the parties in the course of the procedure, the complexity of the case and its importance for the various parties involved.

7 When the Commission imposes fines on several undertakings for infringements of the ECSC competition rules, there is nothing to prevent it from expressing the amount in ecus, a monetary unity convertible into national currency. That also makes it easier for the undertakings to compare the amounts of the fines imposed.

In calculating the fine, the Commission may convert into ecus the turnover figure of each undertaking for the reference year, that is to say, the last complete year of the period of infringement found, on the basis of the average exchange rate for that year.

First of all, the Commission should ordinarily use one and the same method of calculating the fines imposed on the undertakings penalised for having participated in the same infringement. Second, in order to be able to compare the different turnover figures sent to it, which are expressed in the respective national currencies of the undertakings concerned, the Commission must convert those figures into a single monetary unit, such as the ecu, the value of which is determined on the basis of each national currency of the Member States.

Moreover, the taking into account of the turnover achieved by each undertaking during the reference year enables the Commission to assess the size and economic power of each undertaking and the scale of the infringement committed by each of them, those aspects being relevant for an assessment of the gravity of the infringement committed by each undertaking. Also, taking into account, in order to convert the turnover figures in question into ecus, the average exchange rates for the reference year adopted enables the Commission to prevent any monetary fluctuations occurring after the cessation of the infringement from affecting the assessment of the undertakings' relative size and economic power and the scale of the infringement committed by each of them and, accordingly, its assessment of the gravity of that infringement. That assessment must have regard to the economic reality as revealed at the time when the infringement was committed.

The method of calculating the fine by using the average rate of exchange for the reference year makes it possible to avoid the uncertain effects of changes in the real value of the national currencies which may arise between the reference year and the year in which the decision is adopted. Although this method may mean that a given undertaking must pay an amount, expressed in national currency, which is in nominal terms greater or less than that which it would have had to pay if the rate of exchange at the date of the decision's adoption had been applied, that is merely the logical consequence of fluctuations in the real values of the various national currencies.

8 The fact that an undertaking did not play a particularly active role or act as instigator does not excuse its participation in the infringement.

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

9 It is not necessary for an undertaking to have been aware that it was infringing the prohibition prescribed in Article 65 of the Treaty for an infringement to be regarded as having been committed intentionally; it is sufficient that it could not have been unaware that the contested conduct tended to distort normal competition on the common market.

10 A reduction in the amount of the fine on grounds of cooperation during the administrative procedure is justified only if the conduct enabled the Commission to establish an infringement more easily and, where relevant, to bring it to an end.

11 The fact that a deliberate infringement of the competition rules has been brought to an end cannot be regarded as a mitigating circumstance where it was terminated as a result of the Commission's intervention.

12 By its nature, the fixing of a fine by the Court of First Instance in the exercise of its unlimited jurisdiction is not an arithmetically precise operation. Moreover, the Court is not bound by the Commission's calculations, but must carry out its own assessment, taking all the circumstances of the case into account.