CELEX: 62003TJ0054
Language: en
Date: 2008-07-08 00:00:00
Title: Judgment of the Court of First Instance (Third Chamber) of 8 July 2008. # Lafarge SA v Commission of the European Communities. # Competition - Agreements, decisions and concerted practices - Plasterboard market - Decision finding an infringement of Article 81 EC - Liability - Deterrence - Repeat infringement - Fine - Guidelines on the method of setting fines. # Case T-54/03.

Judgment of the Court of First Instance (Third Chamber) of 8 July 2008 – Lafarge v Commission
      (Case T-54/03)
      Competition – Agreements, decisions and concerted practices – Plasterboard market – Decision finding an infringement of Article 81 EC – Liability – Deterrence – Repeat infringement – Fine – Guidelines on the method of setting fines
      1.                     Competition – Administrative procedure – Article 6 of the European Convention on Human Rights not applicable – Compliance
            by the Commission with procedural guarantees (Arts 81 EC and 82 EC; Council Regulation No 17, Art. 17; Council Decision 88/591)
            (see paras 36-47)
      2.                     Competition – Administrative procedure – Commission decision finding an infringement – Use as evidence of statements of other
            undertakings which participated in the infringement – Lawfulness – Conditions (Arts 81 EC and 82 EC) (see paras 57-59, 293-294)
      3.                     Competition – Administrative procedure – Hearings – Hearing of other participants in the same infringement in camera – Infringement
            of the defence rights – None (Commission Regulation No 2842/98, Art. 9) (see paras 142-149)
      4.                     Competition – Administrative procedure – Observance of  the rights of the defence – Incriminating document – Meaning – Commission
            document summarising the factual data supplied by the participants in the infringement – Not included (Art. 81(1) EC) (see
            paras 156-157)
      5.                     Actions for annulment – Pleas in law – Challenge to the factual findings underlying a decision imposing penalties for breach
            of the competition rules – Challenge concerning a meeting between competitors by an undertaking which did not take part –
            Admissibility – Conditions (Art. 230 EC) (see paras 212-214)
      6.                     Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Agreement creating an information
            exchange system – Not permissible in an oligopolistic market – Rebuttable presumption (Art. 81(1) EC) (see paras 256-259,
            397)
      7.                     Competition – Agreements, decisions and concerted practices – Concerted practice – Meaning – Parallel conduct – Presumption
            of the existence of a concerted practice – Limits (Art. 81(1) EC) (see paras 318, 324)
      8.                     Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Burden of proving the infringement
            borne by the Commission – Degree of probative value required for the evidence on which the Commission relies (Art. 81(1) EC)
            (see paras 426, 452)
      9.                     Competition – Agreements, decisions and concerted practices – Concerted practice – Meaning – Coordination and cooperation
            incompatible with the obligation on each undertaking to determine independently its conduct on the market – Receipt by an
            operator of information emanating from a competitor concerning its future market conduct (Art. 81(1) EC (see paras 458-463)
      10.                     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) (see paras 479,
            482-487, 490, 613-616)
      11.                     Competition – Community rules – Infringement committed by a subsidiary – Imputation to the parent company – Conditions – Separate
            legal personality of the subsidiary not relevant – Relevance of the fact that the subsidiary is wholly owned – Obligation
            of the parent company to rebut the presumption that management power was actually exercised over its subsidiary (Art. 81(1)
            EC) (see paras 539-541, 545, 557-558)
      12.                     Competition – Fines – Amount – Determination – Criteria – Actual impact on the market (Council Regulation No 17, Art. 15(2);
            Commission Notice 98/C 9/03, point 1 A, first para.) (see paras 580-585)
      13.                     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, point 1 A) (see paras 618-624)
      14.                     Competition – Fines – Amount – Determination – Need to take account of the turnover of undertakings in the same infringement
            or similar previous infringements and to ensure the proportionality of the fines to those turnovers – None  – Judicial review
            – Unlimited jurisdiction (Council Regulation No 17, Art. 15(2)) (see paras 634-639)
      15.                     Competition – Fines – Amount – Determination – Deterrent effect – Account taken of the size and global resources of the fined
            undertaking (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1 A) (see paras 663-673, 678-684)
      16.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Discretion
            of the Commission – Taking into account of repeat offences – Infringement of the principles that penalties must have a legal
            basis, of legal certainty, and ne bis in idem – None  (Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2); Commission
            Notice 98/C 9/03) (see paras 716-730)
      17.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Recidivism
            – Meaning (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 2) (see paras 733-739)
      18.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive
            or ‘follow-my-leader’ role of the undertaking – Criteria for assessment (Council Regulation No 17, Art. 15(2); Commission
            Notice 98/C 9/03, point 3, first indent) (see paras 763-767)
      19.                     Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Termination of the infringement after
            the Commission’s intervention – Conditions (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 3) (see
            paras 780-784)
      20.                     Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking –
            Conditions (Council Regulation No 17, Art. 15(2); Commission Notice 96/C 207/04, title D, point 2) (see paras 791-794)
      Re: 
      
         APPLICATION for annulment of Commission Decision 2005
               / :
                  														
               
               471
               / :
                  														
               
               EC of 27 November 2002 relating to proceedings under Article 81 [EC] against BPB plc, Gebrüder Knauf Westdeutsche Gipswerke
                  KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E-1/37.152 – Plasterboard) (OJ 2005 L 166, p. 8), or, in the alternative,
                  an application for the annulment of or a reduction in the fine imposed on the applicant.
               
            Operative part
      The Court:
      
         
                  1.
               
               
                  
               
               
                  	Dismisses the action;
               
            
         
                  2.
               
               
                  
               
               
                  	Orders Lafarge SA to bear its own costs and to pay those incurred by the Commission;
               
            
         
                  3.
               
               
                  
               
               
                  	Orders the Council to bear its own costs.