CELEX: 62008CC0413
Language: en
Date: 2010-02-11
Title: Opinion of Mr Advocate General Mazák delivered on 11 February 2010. # Lafarge SA v European Commission. # Appeal - Agreements, decisions and concerted practices - Plasterboard - Distortion of the clear sense of the evidence - Burden of proof - No proper statement of reasons - Regulation No 17 - Article 15(2) - Penalty - Repeated infringement - Stage at which the deterrent effect of the fine is to be taken into account. # Case C-413/08 P.

OPINION OF ADVOCATE GENERAL
      Mazák
      delivered on 11 February 2010(1)
      
      Case C‑413/08 P
      Lafarge SA
      v
      European Commission
      (Appeal – Competition – Cartel – Plasterboard market – Infringement of Article 81 EC – Distortion of facts – Burden of proof – Obligation to state reasons – Principle of equal treatment – Principle of proportionality – Calculation of starting amount of fine – Repeated infringement – Increase of fine – Deterrent effect)I –  Introduction
      1.        By its appeal, Lafarge SA (hereinafter referred also to as ‘the appellant’ and ‘Lafarge’) requests the Court, inter alia,
         to set aside the judgment of the Court of First Instance of the European Communities (Third Chamber) of 8 July 2008 in Case
         T‑54/03 Lafarge v Commission (‘the contested judgment’) and annul Commission Decision 2005/471/EC of 27 November 2002 (2) (‘the contested decision’) in so far as it imposed a fine on the appellant or, in the alternative, set aside in part the
         contested judgment and reduce the amount of the fine imposed by the Commission on the appellant in the contested decision.
      
      II –  Background to the appeal
      A –    Legal framework
      2.        Article 15 of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81] and [82] of the Treaty (3) provides:
      
      ‘…
      2.      The Commission may by decision impose on undertakings or associations of undertakings fines of from 1 000 to 1 000 000 units
         of account, or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the
         undertakings participating in the infringement where, either intentionally or negligently: 
      
      (a)      they infringe Article [81](1) or Article [82] of the Treaty, …
      …
      In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.
      …’
      B –    Contested decision
      3.        On 27 November 2002, the Commission adopted the contested decision in which it found that BPB plc (‘BPB’), the Knauf Group
         (‘Knauf’), Lafarge and Gyproc Benelux NV (‘Gyproc’) had infringed Article 81(1) EC by participating in a set of agreements
         and concerted practices in the plasterboard business. (4) The Commission considered that BPB, Knauf, Lafarge and Gyproc had entered into and participated without interruption in a
         complex and continuing agreement contrary to Article 81(1) EC which was manifested in the following conduct constituting agreements
         or concerted practices:
      
      –        the representatives of BPB and Knauf met in London in 1992 and expressed the common desire to stabilise the markets in Germany
         (‘the German market’), the United Kingdom (‘the UK market’), France (‘the French market’) and the Netherlands, Belgium and
         Luxembourg (‘the Benelux market’);
      
      –        the representatives of BPB and Knauf established, as from 1992, information exchange arrangements, to which Lafarge and subsequently
         Gyproc acceded, relating to their sales volumes on the German, French, UK and Benelux plasterboard markets;
      
      –        the representatives of BPB, Knauf and Lafarge exchanged information, on various occasions, prior to price increases on the
         UK market; 
      
      –        in view of particular developments on the German market, the representatives of BPB, Knauf, Lafarge and Gyproc met at Versailles
         in 1996, Brussels in 1997 and The Hague in 1998 with a view to sharing out or at least stabilising the German market;
      
      –        the representatives of BPB, Knauf, Lafarge and Gyproc exchanged information on various occasions and concerted their action
         on the application of price increases on the German market between 1996 and 1998. 
      
      4.        The duration of the infringement was as follows:
      
      –        ‘BPB PLC: from 31 March 1992, at the latest, to 25 November 1998;
      –        Knauf: from 31 March 1992, at the latest, to 25 November 1998;
      –        Société Lafarge SA: from 31 August 1992, at the latest, to 25 November 1998;
      –        Gyproc Benelux NV: from 6 June 1996, at the latest, to 25 November 1998.’ (5)
      
      5.        The Commission considered, having regard to the nature of the conduct in question, its practical impact on the plasterboard
         market which was highly concentrated and oligopolistic in nature and the fact that it covered the four principal markets at
         the heart of the European Community, that the addressees of the contested decision had committed a very serious infringement
         of Article 81(1) EC. The Commission applied differential treatment to the undertakings concerned in order to take account
         of their effective economic capacity to cause significant damage to competition and in order to set the fine at a level which
         ensures it has sufficient deterrent effect. In view in particular of the considerable disparity between the sizes of the undertakings
         which participated in the infringement, the Commission fixed the basic amounts of the fines as follows on the basis of gravity:
      
      –        ‘BPB: EUR 80 million,
      –        Knauf Westdeutsche Gipswerke: EUR 52 million,
      –        Lafarge: EUR 52 million,
      –        Gyproc: EUR 8 million.’ (6)
      
      6.        In order to ensure that the fines imposed had a sufficient deterrent effect, and in view of its large size and world-wide
         resources, a 100% multiplier was applied to the starting amount of the fine set for Lafarge, bringing it to EUR 104 million.
         The Commission considered that the infringement was of lengthy duration (more than five years) for Knauf, BPB and Lafarge
         and of average duration (from one to five years) for Gyproc and accordingly increased by 65% the basic amount of the fine
         imposed on BPB and Knauf Westdeutsche Gipswerke, by 60% the basic amount of the fine imposed on Lafarge and by 20% the basic
         amount of the fine imposed on Gyproc. As regards aggravating circumstances, the Commission stated that BPB and Lafarge had
         already been subject to previous Commission measures in cartel cases in, respectively, Commission Decision 94/601/EC (7) and Commission Decision 94/815/EC. (8)
      
      7.        The Commission noted, inter alia, that it had previously adopted a decision imposing fines on Lafarge (then known as Lafarge
         Coppée SA) for having taken part in an illegal agreement in the cement sector. Lafarge actively continued to participate in
         a cartel in the plasterboard sector after the abovementioned decision was notified to it. The fact that Lafarge repeated the
         same kind of behaviour in a different sector from the one concerned by the first decision, demonstrated according to the Commission
         that sanctions imposed in the first case did not lead the undertaking to modify its conduct and thus constituted an aggravating
         circumstance. 
      
      8.        The Commission accordingly increased by 50% the basic amount of the fine imposed on BPB and Lafarge.
      
      9.        Gyproc was granted a 25% reduction of the basic amount of the fine on the grounds of attenuating circumstances. The Commission
         granted a 30% reduction in the amount of the fine for BPB and a 40% reduction in the amount of the fine for Gyproc pursuant
         to the Commission Notice on the non-imposition or reduction of fines in cartel cases (the ‘leniency notice’). (9) The following fines were thus imposed on the following undertakings:
      
      –        ‘BPB PLC: EUR 138.6 million,
      –        Gebrüder Knauf Westdeutsche Gipswerke KG: EUR 85.8 million,
      –        Société Lafarge SA: EUR 249.6 million,
      –        Gyproc Benelux NV: EUR 4.32 million.’ (10)
      
      C –    Proceedings before the Court of First Instance
      10.      By application lodged at the registry of the Court of First Instance on 14 February 2003, Lafarge sought, inter alia, the
         annulment of the contested decision and in the alternative, the annulment or reduction of the amount of the fine imposed on
         it by that decision. In support of its action Lafarge raised six pleas. Firstly, breach of the rights of defence. Secondly,
         Lafarge claims on the one hand infringement of Article 81(1) EC and on the other hand manifest errors of assessment. Thirdly,
         breach of Article 81(1) EC inasmuch as the contested decision established a single and continuous infringement and found that
         Lafarge had participated in it. Fourthly, infringement of Article 15(2) of Regulation No 17 due to turnover used to calculate
         the amount of the fine. Fifthly, illegality of the contested decision due to imposition on Lafarge of a global fine for distinct
         infringements. Sixthly, infringement of Article 15(2) of Regulation No 17 and general principles in calculation of the fine.
      
      11.      The Court of First Instance delivered its judgment on 8 July 2008 in which it dismissed the action brought by Lafarge. Lafarge
         was ordered to bear its own costs and to pay those incurred by the Commission. In this appeal, Lafarge challenges the parts
         of the contested judgment which deal with its second, third and sixth pleas before the Court of First Instance. 
      
      III –  Appeal procedure
      12.      On 22 September 2008, Lafarge lodged an appeal against the contested judgment. Lafarge requests the Court to:
      
      –        set aside the contested judgment, and 
      –        grant the form of order sought by Lafarge at first instance, and consequently annul the contested decision, in so far as it
         imposed a fine on Lafarge;
      
      –        in the alternative, set aside in part the contested judgment, and
      –        grant the form of order sought by Lafarge at first instance, and consequently reduce the amount of the fine imposed by the
         Commission on Lafarge in the contested decision;
      
      –        order the Commission to pay the costs.
      13.      The Commission requests the Court to:
      
      –        dismiss the appeal;
      –        order the appellant to pay the costs.
      14.      A hearing was held on 22 October 2009.
      
      15.      The appellant relies on six grounds of appeal. By its first and primary ground of appeal, the appellant submits that the Court
         of First Instance distorted the facts in that it systematically referred to a global context characterised by a series of
         infringements in holding that the Commission had been able validly to establish the very existence of those infringements.
         By its second ancillary ground of appeal, the appellant pleads infringement of the rules governing the burden of proof, the
         principle of presumption of innocence and its corollary, the in dubio pro reo principle, in that the Court of First Instance considered that the Commission had established that the appellant had participated
         in a single, complex and continuous infringement from 31 August 1992. By its third ancillary ground of appeal, the appellant
         contends that the Court of First Instance infringed the obligation to state adequate grounds and the principle of equal treatment,
         in so far as it found that the Commission has validity established that the appellant had committed a single, complex and
         continuous infringement from 31 August 1992. By its fourth ancillary ground of appeal, the appellant submits that the Court
         of First Instance infringed the principles of proportionality and equal treatment in fixing the starting amount of the fine
         imposed. By its fifth ancillary ground of appeal, the appellant contends that the Court of First Instance committed a number
         of errors of law and infringed its duty to state adequate grounds, in so far as it held that the Commission was justified
         in increasing the fine imposed on the appellant on the ground of repeated infringement. Lastly, by its sixth ancillary ground
         of appeal, the appellant submits that the Court of First Instance erred in law by finding that the Commission was justified
         in increasing the starting amount of the fine by way of a deterrent.
      
      IV –  First ground of appeal: Distortion of the facts by the Court of First Instance 
      A –    Contested judgment
      16.      By its second plea before the Court of First Instance entitled ‘infringement of Article 81(1) EC and manifest errors of assessment’,
         Lafarge claimed that the London meeting in 1992, the exchange of information, the exchange of information specific to the
         United Kingdom, the price increases in the United Kingdom, the stabilisation of the German market and the price increases
         in Germany do not constitute an infringement for the purposes of Article 81(1) EC. In the present appeal, the appellant does
         not challenge the findings of the Court of First Instance regarding the London meeting. It is sufficient to note in this respect,
         as is apparent from paragraph 212 of the contested judgment, that the Court of First Instance found that Lafarge had not participated
         in that meeting. 
      
      17.      As regards the exchange of information, the Court of First Instance found that the fact that Lafarge knew or ought to have
         known that the purpose of the exchange of information on sales volumes was to monitor the market in order to be informed whether
         the price war had come to an end and whether market shares were remaining relatively stable was demonstrated to the requisite
         legal standard on the basis of a body of objective and consistent evidence. (11)
      
      18.      As regards the exchange of information specific to the United Kingdom, the Court of First Instance found that the Commission
         had demonstrated to the requisite legal standard Lafarge’s participation in an exchange of information on sales volumes on
         the United Kingdom market. (12) Moreover, as regards the price increases in the United Kingdom, for the period prior to 7 September 1996, the Court of First
         Instance found, at paragraph 316 of the contested judgment, that the Commission had not found any documentary evidence of
         contacts between the undertakings in question. Next, the Court found, at paragraphs 319 to 323 of the contested judgment,
         that, as regards that period, the price rise announcements were virtually simultaneous in four cases. The Court of First Instance
         thus held, inter alia, that ‘[i]n the present case, even if the intervals between the various price increase announcements
         may have enabled the undertakings to ascertain those price increases by information from the market and even if those increases
         were not always exactly of the same level, the near-simultaneity of the price rise announcements and the parallelism of the
         prices announced amount to strong evidence of concerted action prior to those announcements, since those increases were made
         in a context characterised by the fact that, as the Commission found in the contested decision, Knauf and BPB agreed at the
         London meeting at the beginning of 1992 to put an end to the price war on the four European markets and that Lafarge acceded
         to that system at the latest by the end of August 1992.’ (13) The Court of First Instance held as regards the period subsequent to 7 September 1996 that the existence of contacts between
         competitors concerning price increases in the United Kingdom was demonstrated by documentary evidence. (14)
      
      19.      As regards the stabilisation of the German market, the Court of First Instance found, at paragraph 402 of the contested judgment,
         that, ‘in the light of the overall context of the case’, and on the basis of the undisputed facts, the Commission has demonstrated
         to the requisite legal standard that even if the undertakings in question did not succeed in concluding a specific agreement
         on sharing the German market between them, they did express their common intention to conduct themselves on that market in
         a specific manner, namely to restrict competition by stabilising that market. 
      
      20.      As regards the price increases in Germany, the Court of First Instance examined the evidence concerning the existence of contacts
         and concerted action between competitors. That court stated, at paragraph 426 of the contested judgment, that the contacts
         between the undertakings in question must be viewed in the context of a period characterised by a series of anti-competitive
         manifestations demonstrating a common wish of the competitors to stabilise the plasterboard market in the four major European
         markets, including the German market. The Court of First Instance also observed that, although the content of an isolated
         document found by the Commission may not unequivocally disclose the existence of anti-competitive conduct, that fact cannot
         preclude that document from being interpreted as corroborating the existence of such a wish when it is one of a series of
         other documents which provide reliable indicia of the existence of contemporaneous and similar anti-competitive conduct. In
         this respect, the Court of First Instance took account of a number of documents in finding that Lafarge had direct contacts
         with its competitors concerning price increases on the German market and the existence of concerted action on the application
         of the price increases.
      
      B –    Argument and assessment
      21.      The appellant submits that the Court of First Instance distorted the facts in that it systematically referred to a global
         context characterised by a series of infringements in holding that the Commission had validly established the very existence
         of those infringements. The appellant thus considers that the Court of First Instance in the contested judgment adopted circular
         reasoning by referring to a global infringing context in order to establish the very existence of the infringements which
         are the basis of the alleged global infringing context. In addition, the Court of First Instance systematically considered
         that an anti-competitive interpretation of the facts was more plausible than the alternative explanations raised by Lafarge.
         Thus the Court of First Instance considered that the anti-competitive object of the exchange of information (paragraphs 270
         and 271 of the contested judgment), together with the exchange of information specific to the United Kingdom (paragraph 303
         of the contested judgment), the existence of concerted action in relation on price increases in the United Kingdom (paragraph
         324 of the contested judgment) and Germany (paragraph 402 of the contested judgment) and the existence of an agreement to
         stabilise the German market (paragraph 430 of the contested judgment) were established having regard to the global infringing
         context when the existence of that context was established not on the basis of evidence but on the basis of infringing behaviour
         which was only qualified as such on the basis of that global context. In that manner, the Court of First Instance distorted
         the facts submitted to it.
      
      22.      It must be recalled that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the
         evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained
         and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence
         have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced
         to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point
         of law which is subject as such to review by the Court of Justice. (15)
      
      23.      A distortion of the facts and evidence before the General Court must be obvious from the documents on the Court’s file without
         there being any need to carry out a new assessment of those elements. (16) Moreover, where the appellant alleges distortion of the evidence by the General Court, he must indicate precisely the evidence
         alleged to have been distorted by that court and show the errors of appraisal which, in his view, led to that distortion. (17)
      
      24.      In my view, the appellant in the present ground of appeal has alleged in general terms that the Court of First Instance distorted
         the facts and has indicated in detail the evidence alleged to have been distorted.
      
      25.      However, the appellant has failed to indicate precisely, save in respect of the internal memorandum of October 1994 discovered
         at Rigips’ premises and referred to at paragraph 430 of the contested judgment in the context of the Court of First Instance’s
         finding in relation to the price increases in Germany, the errors of appraisal which, in its view, led to the distortion of
         evidence. Thus the appellant failed to identify, aside from certain of the contents of paragraph 430 of the contested judgment,
         any material inexactitude in the Court of First Instance’s reading of the documents before it. Thus, in my view, while the
         appellant has alleged distortion of the facts it is in fact seeking a new assessment of the evidence before the Court of First
         Instance. This is clearly beyond the scope of the appeal procedure before the Court of Justice. 
      
      26.      As regards the memorandum from October 1994, the appellant claims that nothing in the memorandum in question supports a finding
         that the competitors had contacts with each other. At first instance Lafarge contested that the memorandum highlighted the
         existence of exchanges between producers concerning the February 1995 price increase. According to Lafarge, the author of
         the memorandum was informed by the market of the proposed announcement of price increases by Knauf. (18)
      
      27.      The Court of First Instance at paragraph 430 of the contested judgment found that, despite Lafarge’s claim that the author
         of the memorandum was informed by the market of Knauf’s planned price increase, ‘the Commission’s interpretation of that memorandum
         is more convincing, having regard to the other elements in the dossier which demonstrate the existence at that time of concerted
         action between the undertakings in question. The Commission correctly considers that the memorandum reveals knowledge of the
         strategy of the competitors and is evidence of contacts between them. Indeed, the author of the memorandum, having first summarised
         the situation on the market stated that Gyproc’s sales manager had complained that his firm had lost market share and had
         to win it back. In addition, it was foreseen in the memorandum to freeze prices at the level referred to therein and that
         a price increase would take place from 1 February 1995. That last remark is particularly revealing. Indeed, if the sending
         of price increase announcements were unilateral and if the other producers merely followed that price increase, BPB would
         not have known in October 1994 that a price increase was forecast for 1 February 1995 given that Knauf only announced that
         increase in November 1994.’
      
      28.      It is clear from the contested judgment that the memorandum in question was not examined in isolation by the Court of First
         Instance. Rather, the memorandum was examined in conjunction with the other elements in the dossier. Thus it is clear from
         the contested judgment that the true import of the memorandum of October 1994 was elucidated by other elements in the dossier.
         In that regard, the other elements which were taken into account to demonstrate the existence at the relevant time of concerted
         action between the undertakings in question were, firstly, a statement by Knauf according to which a practice had long since
         been established of sending price increase announcements with price lists directly to competitors at the same time as to customers
         (paragraph 430 of the contested judgment), secondly, numerous copies of announcements of competitors’ price increases discovered
         during the Commission’s investigation at BPB’s and Lafarge’s premises (paragraph 430 of the contested judgment) and, thirdly,
         the fact that a price increase took place on 1 February 1995 (paragraph 430 of the contested judgment). 
      
      29.      These additional elements have not been contested by the appellant.
      
      30.      I consider that in the light of the additional uncontested elements in question and the ruling of the Court in Aalborg Portland and Others v Commission (19) the appellant has failed to demonstrate that the Court of First Instance clearly misconstrued the memorandum of October 1994.
      
      31.      I therefore consider that the first ground of appeal should be dismissed as partly inadmissible and partly unfounded.
      
      V –  Second ground of appeal: Infringement of the rules governing the burden of proof, the principle of presumption of innocence
            and its corollary, the in dubio pro reo principle, in that the Court of First Instance considered that the Commission had established that the appellant had participated
            in a single, complex and continuous infringement from 31 August 1992 
      A –    Contested judgment
      32.      In the contested decision, the Commission found that Lafarge participated in the infringement in question from 31 August 1992
         until 25 November 1998. At first instance Lafarge claimed that its participation in the information exchange arrangements
         was necessarily after June 1993, and probably even from the beginning of 1994. (20) In upholding the duration of Lafarge’s participation in the infringement, as determined in the contested decision, the Court
         of First Instance took account of a number of statements by BPB. In that regard, BPB stated that, after the meeting, the information
         exchange process was extended to Lafarge. (21) The Court of First Instance considered that the terms ‘after that meeting’ used by BPB meant that the commencement of Lafarge’s
         participation could not have taken place long after the London meeting. (22) In addition, in its reply to the statement of objections BPB stated that it arranged to exchange data with Lafarge in the
         middle of 1992. (23) The Court of First Instance considered that BPB’s statements were more precise than those of Lafarge. Lafarge relied on a
         statement by Mr N of Lafarge to the effect that, in view of the serious lack of data on the relevant markets in Europe, Lafarge’s
         competitors had suggested to him to exchange some general information on sales volumes. (24) The Court of First Instance noted, at paragraph 508 of the contested judgment, that Lafarge had not provided either the exact
         date or details of the circumstances which led it to take part in that exchange and, in particular, of the contacts which
         must have taken place before the exchange with a view to determining the basic conditions thereof, namely its purpose, the
         parties involved and the frequency of exchanges. (25) The Court of First Instance also found that the veracity of BPB’s statements is supported by the fact that Lafarge’s market
         share on the main European markets is indicated in Mr D of BPB’s tables in absolute terms and percentages from 1991 onwards. (26)
      
      B –    Argument
      33.      The appellant claims that the Court of First Instance infringed the rules governing the burden of proof, the principle of
         presumption of innocence and its corollary, the in dubio pro reo principle, in that the Court of First Instance considered that the Commission had established that the appellant had participated
         in a single, complex and continuous infringement from 31 August 1992. The appellant recalls that it is settled case-law that
         the Court of Justice has jurisdiction to verify whether a breach of procedure adversely affecting the appellant’s interests
         was committed before the Court of First Instance and must satisfy itself that the general principles of Community law and
         the Rules of Procedure applicable to the burden of proof and the taking of evidence have been complied with. (27) The appellant also stated that in accordance with the settled case-law it is incumbent on the Commission to prove an infringement
         of the competition rules and the duration of the infringement. (28) According to the appellant the Court of First Instance considered that the Commission had validly established the appellant’s
         participation in the infringement from 31 August 1992, despite the contradictory and imprecise statements of BPB, as the appellant
         has not indicated the exact date its participation commenced or the circumstances which led it to take part in that anti-competitive
         exchange of information. 
      
      34.      The Commission considers that the present plea should be rejected.
      
      C –    Assessment
      35.      According to the Court in Aalborg Portland and Others v Commission, it should be for the party or the authority alleging an infringement of the competition rules to prove the existence thereof
         and it should be for the undertaking or association of undertakings invoking the benefit of a defence against a finding of
         an infringement to demonstrate that the conditions for applying such defence are satisfied, so that the authority will then
         have to resort to other evidence. Although according to those principles the legal burden of proof is borne either by the
         Commission or by the undertaking or association concerned, the factual evidence on which a party relies may be of such a kind
         as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that
         the burden of proof has been discharged. (29)
      
      36.      It is clear from the contested judgment that the Court of First Instance considered that the Commission had validly established
         that BPB had informed Lafarge at the latest at the end of August 1992 of the agreement between BPB and Knauf on the exchange
         of information and that on that occasion, Lafarge adhered to that exchange. (30) In coming to that finding the Court of First Instance relied, in particular, on a number of statements by BPB and the fact
         that Lafarge’s market share on the main European markets was contained in tables held by BPB. That court also considered that
         Lafarge’s explanations on the matter were unconvincing. 
      
      37.      In stating that Lafarge had not provided, inter alia, the exact date when the latter’s participation commenced and that it
         was effectively the best placed to do so, (31) the Court of First Instance did not breach of the burden of proof, the principle of presumption of innocence and its corollary,
         the in dubio pro reo principle. The Court of First Instance merely indicated that, despite Lafarge’s claim at paragraph 494 of the contested judgment
         that its adherence to the exchange was necessarily after June 1993 and probably at the beginning of 1994, it had failed to
         adduce any evidence in support of that claim.
      
      38.      It follows, in my view, that the second ground of appeal is unfounded and should be dismissed.
      
      VI –  Third ground of appeal: Infringement by the Court of First Instance of obligation to state adequate grounds and the principle
            of equal treatment, in so far as it found that the Commission has validly established that the appellant had committed a single,
            complex and continuous infringement from 31 August 1992
      A –    Argument
      39.      The appellant claims that the Court of First Instance did not address, even implicitly, the argument raised by it at first
         instance relating to the unequal treatment of Lafarge as compared with Gyproc. The appellant therefore considers that the
         contested judgment is inadequately reasoned. The appellant considers that the claim in question was raised in order to demonstrate
         that it had not participated in a single, complex and continuous infringement from 31 August 1992. 
      
      40.      At paragraphs 500 to 518 of the contested judgment, the Court of First Instance found that the evidence invoked by the Commission
         namely the reference to Lafarge’s market share in Mr D’s tables and certain statements by BPB validly demonstrated the participation
         of Lafarge in a single, complex and continuous infringement from 31 August 1992. According to the appellant, the Commission
         itself considered that those elements of proof were insufficient with respect to Gyproc. The appellant thus considers that
         the Court of First Instance breached the principle of equal treatment in finding that the elements of proof invoked by the
         Commission validly demonstrated Lafarge’s participation in a single, complex and continuous infringement from 31 August 1992
         whilst those same elements were considered insufficient in the case of Gyproc.
      
      41.      The appellant, in its reply, considers that the present plea is admissible as, in its application at first instance, the appellant
         mentioned on a number of occasions the breach of the principle of equal treatment by the Commission.
      
      42.      The Commission considers that Lafarge did not raise a plea in law claiming breach of the principle of equal treatment before
         the Court of First Instance. In the relevant section of its application at first instance, Lafarge merely argued, inter alia,
         that ‘the Commission considered that Gyproc’s participation in those same “manifestations” was insufficient to establish adhesion
         to a single, complex and continuous infringement’. The Commission therefore considers that the contested judgment is adequately
         reasoned. Moreover, according to the Commission, Gyproc is not in the same situation as Lafarge. 
      
      43.      In addition, the Commission claims that the appellant cannot at the appeal stage raise a plea based on infringement of the
         principle of non-discrimination which was not raised at first instance. That plea is thus inadmissible. 
      
      44.      As regards the appellant’s claim in its reply that it referred on a number of occasions in its application at first instance
         to breach of the principle of equal treatment, the Commission considers that those references were contained in very different
         sections of the application in support of other pleas which the appellant has not claimed were left unanswered in the contested
         judgment. The claims by the appellant in its reply thus constitute a new plea which is inadmissible as the appellant did not
         claim in its application on appeal that other sections of its application at first instance were left unanswered.
      
      B –    Assessment
      45.      In its application, the appellant indicated that the section of the contested judgment (32) in question in the present ground of appeal relates to the third plea examined at first instance in which the appellant claimed
         breach of Article 81(1) EC inasmuch as the contested decision established a single, complex and continuous infringement and
         found that Lafarge had participated in it. The section of the plea relates specifically to the duration of Lafarge’s participation
         in the infringement. 
      
      46.      In my view, this ground of appeal may be divided into two parts. Firstly, the appellant claims infringement by the Court of
         First Instance of the obligation to state adequate grounds. Secondly, the appellant claims that the Court of First Instance
         infringed the principle of equal treatment, in so far as it found that the Commission has validly established that the appellant
         participated in a single, complex and continuous infringement from 31 August 1992.
      
      47.      As regards the claim that the Court of First Instance breached its obligation to state adequate grounds, the question whether
         the grounds of a judgment are insufficient or contradictory is a question of law which may, as such, be raised on appeal. (33)
      
      48.      Moreover, it is settled case-law that the requirement that the Court of First Instance give reasons for its decisions cannot
         be interpreted as meaning that it is obliged to respond in detail to every single argument advanced by the appellant, particularly
         if the argument was not sufficiently clear and precise. (34)
      
      49.      It should also be recalled that the obligation to state reasons does not require the General Court to provide an account which
         follows exhaustively and one by one all the arguments put forward by the parties to the case and that the reasoning may therefore
         be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments
         and provides the Court of Justice with sufficient material for it to exercise its power of review. (35)
      
      50.      In my view, the appellant, by claiming in its application at first instance that ‘the Commission considered that Gyproc’s
         participation in those same “manifestations” [(36)] was insufficient to establish adhesion to a single, complex and continuous infringement’, (37) made a clear reference to discrimination to which the Court of First Instance was required to respond. While the words ‘discrimination’
         or ‘unequal treatment’ were not used by Lafarge at first instance in the context of the third plea, I consider that the wording
         of Lafarge’s application concerning that plea was sufficiently clear and precise for the Court of First Instance to comprehend
         the import of that plea. 
      
      51.      I consider that there can be no doubt that a plea of discrimination was raised in the context the third plea examined at first
         instance. I therefore consider that the Commission’s claim that Lafarge did not raise a plea in law claiming breach of the
         principle of equal treatment before the Court of First Instance cannot be accepted.
      
      52.      In my view, the Court of First Instance did not address even implicitly the question of discrimination in the context of the
         third plea at first instance, despite the fact that it is clear from paragraph 496 of the contested judgment that the Court
         of First Instance itself considered that the question of discrimination constituted an integral part of Lafarge’s submissions
         at first instance. The question of discrimination was invoked, in my view, by Lafarge in order to call into question the probative
         value of the evidence relied upon by the Commission in the contested decision to find that Lafarge had participated in a single,
         complex and continuous infringement from 31 August 1992 as allegedly that same evidence was considered by the Commission as
         inadequate for such a finding in respect of Gyproc. Moreover, the principle of non-discrimination is a general principle of
         Community law and thus the plea raised by Lafarge in that regard in connection with the evidence invoked by the Commission
         in the contested decision to establish that Lafarge had participated in a single, complex and continuous infringement from
         31 August 1992 was, in my view, required to be addressed by the Court of First Instance. (38)
      
      53.      It follows from the foregoing that the contested judgment does not deal adequately with the argument set out by the applicant
         at first instance concerning discrimination and the duration of the infringement. In particular, the contested judgment does
         not enable the Court of Justice to exercise its power of judicial review, so that the first part of this ground of appeal
         should, in my view, be declared founded.
      
      54.      As regards the second part of this ground of appeal based on a breach of the principle of equal treatment, I consider that
         in order for the Court to be able to review the judgment of the Court of First Instance, that judgment must be sufficiently
         reasoned. In this case the total absence of reasoning of the Court of First Instance with respect to question of discrimination
         in respect of the third plea examined by that court precludes the Court of Justice from deciding whether the contested judgment
         is in breach of the principle of equal treatment on that point. 
      
      55.      I therefore consider that in the light of the above circumstances, the contested judgment must be set aside as regards its
         findings concerning the duration of the appellant’s participation in a single, complex and continuous infringement from 31
         August 1992. In the absence of a ruling at first instance on the complaint raised concerning discrimination and the duration
         of Lafarge’s participation in a single, complex and continuous infringement, I consider that the Court may not give final
         judgment on the matter pursuant to Article 61 of the Statute of the Court and the Court should refer that question back to
         the General Court. (39)
      
      VII –  Fourth ground of appeal: Infringement by the Court of First Instance of the principles of proportionality and equal treatment
            in fixing the starting amount of the fine imposed 
      A –    Argument
      56.      The appellant considers that the contested judgment infringes the principles of proportionality and equal treatment as it
         upheld the starting amount of the fine fixed by the Commission which is disproportionate with regard to the starting amount
         fixed with respect to the other addressees of the contested decision. The appellant contests the statement made by the Court
         of First Instance at paragraph 634 of the contested judgment pursuant to which the amount of the fine may be calculated independently
         of the turnover of the undertakings. Even if that statement is correct, the Commission itself in the contested decision chose
         to divide the undertakings concerned into categories based on their market share. Thus in accordance with the case Tokai Carbon and Others v Commission (40) once the Commission decided to establish categories based on market shares, the Commission and thus the Court of First Instance
         on judicial review must assure a proportional relationship between, on the one hand the thresholds of the different categories
         and on the other hand, the market share of an undertaking and its classification in one or other category.
      
      57.      Thus the starting point fixed for Lafarge was 6.5 times higher than that of Gyproc even though the market share of Lafarge
         (24% – placed in the second category), was only 3.4 times higher than that of Gyproc (7% – placed in the third category).
         Moreover, while Lafarge’s market share in 1997 was less that 81% of that held by Knauf, those undertakings were placed in
         the same category and the staring amount of the fine was fixed at EUR 52 million.
      
      58.      In its reply, the appellant claims that the present ground of appeal is admissible as the arguments in question were raised
         at first instance.
      
      59.      The Commission claims that the Court of First Instance at paragraph 634 of the contested judgment did not state that the amount
         of the fine may be calculated independently of the turnover of the undertakings. The Commission considers that the claim by
         the appellant contesting the possibility or at least the method followed by the Commission in order to classify undertakings
         is inadmissible as it was not raised at first instance.
      
      60.      The Commission considers that in any event that claim is manifestly unfounded. In SGL Carbon v Commission, (41) the Court confirmed that the members of a cartel may be divided into different categories when fixing the starting point
         of the fine. Contrary to what is claimed by Lafarge, when the Commission decides to divide undertakings into categories on
         the basis of their market shares it is not required to ensure that the starting amount of the fine of each undertaking is
         strictly proportional to its market share. As the undertakings’ market shares are necessarily different that would oblige
         the Commission to create the same number of categories as undertakings subject to a fine, and thus defeat the purpose of the
         division into categories. The Commission also notes that it chose to divide the undertakings in question into three categories
         on the basis of their relevant market shares for 1997. Thus BPB as a result of its market share of 42% and its position as
         a large producer was placed in the first category. Knauf and Lafarge who respectively had market shares of 28% and 24% were
         placed in the second category. Gyproc, with a market share of 7% and as a very small actor was placed in the third category.
      
      B –    Assessment
      61.      In my view, the present ground of appeal is inadmissible and should be dismissed. While it is true that the appellant at first
         instance called into question the fact that the starting amount of the fine imposed on it was fixed at EUR 52 million, Lafarge
         alleged that it did not have the economic capacity to influence the United Kingdom and German markets. Lafarge did not challenge
         at first instance, as it has in the present ground of appeal, the possibility or at least the method followed by the Commission
         in order to classify undertakings. Moreover, at first instance, the appellant did not claim that once the Commission decided
         to divide the undertakings into categories based on their market share in order to fix the starting point of the fine, the
         Commission was obliged to ensure that the starting point of the fine for each undertaking was strictly proportional to its
         market share.
      
      62.      In any event, I consider in the light of the ruling of the Court in SGL Carbon v Commission (42) that the present ground of appeal should be rejected. It is clear from the aforementioned case that each difference between
         the undertakings in terms of turnover or market share does not have to be taken into account when dividing undertakings participating
         in a cartel into categories for the purposes of fixing the basic amount.
      
      63.      In addition, it has been consistently held that the Commission enjoys a wide discretion as regards the method used for calculating
         fines and that it can, in this respect, take account of numerous factors, whilst complying with the ceiling on turnover laid
         down in Article 15(2) of Regulation No 17. The Court of Justice has also stated that the calculation method set out in the
         1998 Guidelines (43) contains various flexible elements, enabling the Commission to exercise its discretion in accordance with Article 15 of Regulation
         No 17, as interpreted by the Court of Justice. (44)
      
      64.      In my view, while it is clear that there is no strict proportionality between the market shares of Lafarge and the other undertakings
         participating in the infringement and the starting point of the fine fixed in relation to them, in the light of the Commission’s
         arguments outlined at point 60 above, I do not consider that the appellant has established that the classification method
         established by the Commission for the purposes of fixing the basic amount of the fine infringes the principles of proportionality
         and equal treatment.
      
      VIII –  Fifth ground of appeal: Errors in law and infringement of duty to state adequate grounds with respect to increase of fine
            on the ground of repeated infringement 
      65.      This ground of appeal was divided into two parts.
      
      A –    First part
      1.      Contested judgment
      66.      At first instance, Lafarge claimed, inter alia, that as there is no legal basis laying down the conditions for increasing
         the fine due to repeated infringement and given that no limitation period has been fixed with regard to the time between two
         infringements, increasing the fine in those circumstances infringed the principle of legality of penalties and the principle
         of legal certainty. (45)
      
      67.      The Court of First Instance stated that in the light of Aalborg Portland and Others v Commission, (46) repeated infringement is one of the factors which may be taken into account when assessing the gravity of an infringement. (47) As regards the question of a limitation period, the Court of First Instance recalled, at paragraph 724 of the contested judgment,
         that the Commission has a discretion as regards the choice of factors to be taken into account for the purposes of determining
         the amount of the fine, such as the particular circumstances of the case, its context and the dissuasive effect of fines,
         there being no need to refer to a binding or exhaustive list of the criteria which must be taken into account. It was then
         stated, at paragraph 725 of the contested judgment, that the Commission cannot be bound by any limitation period when taking
         repeated infringement into account. The Court of First Instance stated that repeated infringement is an important factor which
         the Commission must appraise, and that it may, in each individual case, take into consideration the indicia which confirm
         a tendency towards infringing the competition rules, including the time that has elapsed between the infringements in question.
         The Court of First Instance considered that if a period of less than 10 years has elapsed between the two findings of infringement
         this shows a propensity on the part of the undertaking concerned not to draw the appropriate consequences from a finding that
         it has infringed the Community competition rules. (48) The Court of First Instance stated that Lafarge showed such a propensity as, having been the addressee of Decision 94/815,
         a subsidiary of Lafarge continued for a period of four years after that decision had been notified to it to actively participate
         in the cartel in question. (49)
      
      2.      Argument
      68.      The appellant considers that the contested judgment infringes the general principle of law nulla poena sine lege and the general principles of law common to Member States in that the Court of First Instance considered that the Commission
         had a legal basis in order to increase the amount of the fine due to repeated infringement. Regulation No 17 does not authorise
         the Commission to increase the fine due to repeated infringement.
      
      69.      The appellant also considers that the contested judgment infringes the general principle of legal certainty common to Member
         States in that it held that the Commission could find that there was a repeated infringement without any limitation period.
         Persons may not be punished indefinitely for acts they committed in the past. In most Member States the law fixes in relation
         to repeated infringements a maximum time period between the infringement under examination and a possible previous finding
         of infringement beyond which time the latter may not be taken into account. The appellant thus invites the Court to re-examine
         its position in the Groupe Danone v Commission case. (50)
      
      70.      The Commission considers that similar arguments were rejected by the Court in the Groupe Danone v Commission case. A fine may be increased due to repeated infringement on the basis of Regulation No 17. As regards the limitation period,
         in the present case, it is not necessary to assess whether the findings of the Court of First Instance would lead to the possibility
         of perpetually imposing a sanction for repeated infringement as the Court of First Instance held that a subsidiary of the
         appellant had continued to participate actively in the cartel for four years after Decision 94/815 had been notified, while
         a period of less than 10 years between infringements was considered by the Court in the Groupe Danone v Commission case to show a propensity not to draw the appropriate consequences from a finding that it had infringed the competition rules.
      
      3.      Assessment
      71.      It is clear that Article 15(2) of Regulation No 17 makes no specific reference to repeated infringement. (51) However, the Court in Groupe Danone v Commission confirmed that that provision is the legal basis on which the Commission may impose fines on undertakings and associations
         of undertakings for infringements of Articles 81 EC and 82 EC. Under Article 15(2) of Regulation No 17, in determining the
         amount of the fine, the duration and the gravity of the infringement in question must be taken into consideration. (52) The Court then restated its case-law that, whereas the basic amount of the fine is set according to the infringement, its
         gravity is determined by reference to numerous other factors, in respect of which the Commission has a wide discretion. According
         to the Court, to take into account aggravating circumstances when setting the fine is consistent with the Commission’s task
         of ensuring compliance with the competition rules. Any repeated infringement is among the factors to be taken into consideration
         in the analysis of the gravity of the infringement in question. Thus according to the Court in Groupe Danone v Commission the characterisation of a repeated infringement as an aggravating circumstance does not breach the principle nulla poena sine lege. (53)
      
      72.      In addition, in Aalborg Portland and Others v Commission the Court stated that repeated infringement is one of the factors which may be taken into account when assessing the gravity
         of an infringement. (54)
      
      73.      Aside from the findings of the Court in Groupe Danone v Commission and Aalborg Portland and Others v Commission, I would note in addition that it is settled case-law that the Commission has a duty to investigate and punish individual
         infringements and a duty to pursue a general policy designed to apply, in competition matters, the principles laid down by
         the Treaty and to guide the conduct of undertakings in the light of those principles. In assessing the gravity of an infringement
         for the purpose of fixing the amount of the fine, the Commission must take into consideration not only the particular circumstances
         of the case but also the context in which the infringement occurs and must ensure that its action has the necessary deterrent
         effect. (55)
      
      74.      In my view, if the Commission were limited in its assessment of the gravity of a particular infringement to the circumstances
         of that infringement to the exclusion of all other relevant surrounding circumstances including most notably repeated infringement,
         the true gravity of the infringement in question could not be correctly appreciated and the Commission’s task of ensuring
         compliance with the competition rules would be undermined. I consider that such an approach would run counter to the need
         to ensure the deterrent effect of sanctions imposed in respect of infringements of the Community competition rules. (56)
      
      75.      I therefore consider that the appellant has shown no cogent reason why the Court should depart from its finding in Groupe Danone v Commission that the question of repeated infringement is a matter which falls to be assessed as an aggravating circumstance with regard
         to the gravity of an infringement pursuant to Article 15(2) of Regulation No 17. Thus the contested judgment did not, in my
         view, infringe the general principle of law nulla poena sine lege and the general principles of law common to Member States in that the Court of First Instance considered that the Commission
         had a legal basis in order to increase the amount of the fine due to repeated infringement.
      
      76.      As regards the question concerning the absence of a limitation period in relation to the finding of repeated infringement,
         the Court confirmed in Groupe Danone v Commission that no specific limitation period has been imposed by Article 15(2) of Regulation No 17 or indeed by the Guidelines (57) in relation to the finding of repeated infringement. (58) Moreover, the Court emphasised at paragraph 38 of the judgment that the finding and the appraisal of the specific characteristics
         of a repeated infringement come within the Commission’s discretion and that the Commission cannot be bound by any limitation
         period when making such a finding. The appellant has nonetheless invited the Court to reconsider its finding in Groupe Danone v Commission in that regard.
      
      77.      The Court in Groupe Danone v Commission considered that repeated infringement is an important factor which the Commission must appraise, since the purpose of taking
         repeated infringement into account is to induce undertakings which have demonstrated a tendency towards infringing the competition
         rules to change their conduct. The Commission may therefore, in each individual case, take into consideration the indicia
         which confirm such a tendency, including, for example, the time that has elapsed between the infringements in question. (59)
      
      78.      In my view, paragraph 38 of the Groupe Danone v Commission case tends to indicate that the Court considered that a static and inflexible maximum limitation period would undermine the
         discretion of the Commission in determining the amount of fines. In that regard, I consider that a very serious previous infringement
         may form part of the assessment of the gravity of a subsequent infringement, despite the elapse of a considerable period of
         time, whereas a previous minor infringement may not warrant such consideration after the lapse of a much shorter period of
         time. 
      
      79.      However, I do not consider that the Groupe Danone v Commission case supports the proposition that persons may be punished indefinitely for infringements of competition law found in the
         past. 
      
      80.      Rather, the Court in that case indicated, in my view correctly, that on the facts of the case at hand as a relatively short
         time, namely less that 10 years, had elapsed between infringements, the repetition of unlawful conduct by Groupe Danone showed
         a tendency on its part not to draw the appropriate conclusions from a finding that it had infringed the competition rules. (60)
      
      81.      It is thus clear that while no specific limitation period has been imposed in relation to the finding of repeated infringement,
         the Court may review, when called upon to do so, whether the Commission has exceeded its discretion by taking into account
         a previous infringement of competition rules. I therefore consider that the appellant has not demonstrated any reasons why
         the findings of the Court in the Groupe Danone v Commission case as regards the absence of a fixed limitation period with respect to repeated infringement should be reconsidered by
         the Court.
      
      82.      Moreover, for the sake of completeness, I would note that in the present case the appellant did not contest the finding of
         the Court of First Instance that, despite the notification of Decision 94/815, Lafarge’s subsidiary continued for four years
         to actively participate in the infringement in question. In my view, such a short period of time cannot be considered excessive
         and the Commission thus did not exceed its discretion in that regard.
      
      83.      In my view, the contested judgment did not infringe the general principle of legal certainty common to Member States in holding
         that the Commission could find that there was a repeated infringement without any fixed limitation period.
      
      84.      I therefore consider that the Court should dismiss the first part of the fifth plea as unfounded.
      
      B –    Second part
      1.      Contested judgment
      85.      Lafarge claimed at first instance that in the majority of Member States the question of repeated infringement could not be
         taken into account unless the second infringement is committed after the judgment finding the first infringement has become
         definitive. (61)
      
      86.      The Court of First Instance held, at paragraph 734 of the contested judgment, that it is sufficient that the undertaking has
         been found guilty of an infringement of the same type, even if the decision is still subject to review by the courts. The
         Court of First Instance stated that decisions of the Commission are presumed to be lawful until such time as they are annulled
         or withdrawn and actions do not have a suspensory effect. The Court of First Instance then held at paragraph 737 of the contested
         judgment ‘[a]dmittedly, there might be a problem if an earlier decision which served as the basis for an increased fine in
         a subsequent decision were to be annulled after the adoption of that subsequent decision had become final. In that case, the
         repeated infringement would not in fact exist. However, if the first decision punishing an infringement were to prove unfounded,
         that would constitute a new fact causing time for bringing an appeal to start running again.’
      
      2.      Argument
      87.      The appellant contends that the Court of First Instance erred in law and failed in its obligation to give adequate reasoning
         in that it considered that the Commission could increase the fine imposed on it due to repeated infringement even though the
         first infringement had not become definitive at the time of the facts in question in the contested decision.
      
      88.      Under the Member States criminal legal systems, a person is generally only considered a repeat infringer, if, after he has
         been condemned definitely for the first infringement, he commits another infringement. One of the essential elements of a
         repeated infringement is a definitive finding of infringement which requires the exhaustion of legal remedies at the time
         the second infringement is committed. In the present case, the Commission relied on Decision 94/815 in order to find that
         Lafarge was a repeat infringer. Lafarge however brought an action for annulment against that decision and the Court of First
         Instance handed down its judgment on 15 May 2000. (62) That judgment only became definitive two months after its notification to Lafarge, as the latter did not bring an appeal.
         The practises in question in the contested decision ended, according to the Commission, in November 1998. However, at that
         date Lafarge had not been condemned definitively for any cartel as the Court of First Instance had not yet ruled in the Cimenteries CBR and Others v Commission case.
      
      89.      The Court of First Instance, by allowing the Commission to arbitrarily increase the amount of a fine, thus infringed the general
         principle of nulla poena sine lege. 
      
      90.      The Court of First Instance erred in law by affirming that the time for bringing an appeal would start running again in the
         event that after the adoption of the second decision, the first decision was definitively annulled. The Treaty and other provisions
         of Community law do not provide for time to restart in an action for annulment against a Commission decision. By referring
         to an inexistent procedure in order to justify a finding of repeated infringement in the absence of a first definitive finding
         of infringement, the Court of First Instance also failed to give adequate reasons.
      
      91.      If a judgment annulling a Commission decision were considered a new fact restarting times-limits for an action for annulment
         against a second Commission decision which sanctioned incorrectly the undertaking for repeated infringement, that solution
         would impose an abnormal and unfair burden on the undertaking in question and would thus infringe the principle of sound administration
         of justice and procedural economy.
      
      92.      In its reply, the appellant claims that contrary to the assertions of the Commission, the nature and severity of competition
         sanctions requires that the same guarantees applicable to repeated infringement under criminal law should apply to repeated
         infringement in competition cases. The Court of Justice has stated that, 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 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, to that effect, in particular the judgments of the European Court of Human Rights
         of 21 February 1984, Öztürk v. Germany, Series A No 73, and of 25 August 1987, Lutz v. Germany, Series A No 123‑A). (63) Thus the Court of Justice implicitly accepted that given their nature and severity competition sanctions are criminal sanctions.
         
      
      93.      As regards the Commission’s arguments (64) concerning Queenborough Rolling Mill Company v Commission, (65) the appellant notes that the judgment of the Court relates to the specific application of Commission Decision No 1831/81/ECSC
         of 24 June 1981 establishing for undertakings in the iron and steel industry a monitoring system and a new system of production
         quotas in respect of certain products. (66) Decision 1831/81, which expressly defined the conditions pursuant to which the amount of the fine for exceeding quotas can
         be increased for repeated infringement, cannot be invoked in the case of competition infringements.
      
      94.      The Commission notes that its decisions are presumed to be lawful until such time as they are annulled or withdrawn and that
         actions before the Courts do not have a suspensory effect. The Commission considers that in the present case any analogy with
         criminal law should be avoided. The Court has confirmed the administrative nature of the procedure in competition matters. (67) Moreover, as Lafarge itself recognises, Decision 94/815 was definitive when the contested decision was adopted. 
      
      95.      The Commission considers that the fact that the Community Courts apply certain general principles of criminal law common to
         Member States does not mean that all such principles applicable in each Member State are applicable or transposable. The Member
         States have decided pursuant to Article 15(4) of Regulation No 17 that ‘[d]ecisions taken pursuant to paragraphs 1 and 2 shall
         not be of a criminal law nature’. This legislative choice was confirmed by the Council pursuant to Article 23(5) of Council
         Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and
         82 of the Treaty. (68) The Commission notes that the only jurisdiction of a Member State that has ruled on a similar question, namely the Spanish
         Supreme Court in 2005, adopted the same position as the Commission on the matter.
      
      96.      The Commission claims that the definitive nature of the earlier decision is not inherent to the raison d’être of repeated
         infringement. The judgment of the Court in the Queenborough Rolling Mill Company v Commission (69) case confirms that an increase in a fine due to repeated infringement does not require the exhaustion of all judicial remedies.
         The Commission considers that competition policy and the objectives pursued by the Commission would be undermined if an action
         brought against the first decision of the Commission prevented the taking into consideration in a second decision of repeated
         infringement.
      
      97.      The Commission however agrees with the appellant that contrary to the statement of the Court of First Instance at paragraph
         737 of the contested judgment, no provision of Community law provides for the possibility to reopen the time-limits for bringing
         an action for annulment against a decision of the Commission. Given the importance of the issue at hand, the Commission considers
         that the Court should substitute its own reasoning for that of the Court of First Instance. The Commission considers that
         where the first decision finding a breach of competition law is annulled, the undertaking in question can ask the Commission
         to re-examine the second decision. A refusal by the Commission to carry out such a re-examination could be subject to annulment
         proceedings before the General Court. This solution is in conformity with the logic of the system created by the Treaty and
         validated by the case-law. It is also in conformity with the principles of good administration and legal certainty in that
         it avoids the risk of purely time-wasting actions. Article 233 EC provides that the institution which adopted the annulled
         act is required to take the necessary measures to comply with the judgment of the Court. Moreover, it is settled case-law
         that the existence of substantial new facts may justify the submission of a request for reconsideration of a previous judgment
         which has become definitive. The General Court exercising its unlimited jurisdiction could adjust the fine. That solution
         was adopted in the Usinor v Commission (70) case. The Commission considers that the solution proposed by the appellant would undermine the principle that acts of Community
         institutions are presumed valid and the non-suspensory effect of actions.
      
      C –    Assessment 
      98.      The appellant maintains that the Court of First Instance infringed the general principles of law common to Member States,
         the principle of nulla poena sine lege, the principle of sound administration of justice and erred in law by referring to an inexistent procedure and failed in
         its obligation to give sufficient reasons in ruling that the Commission could find a repeated infringement even though the
         finding relative to the first infringement had not become definitive. 
      
      99.      The Court of First Instance, in my view, clearly erred in law by finding at paragraph 737 of the contested judgment that if
         the first decision punishing an infringement were to prove unfounded, that would constitute a new fact causing time for bringing
         an appeal to start running again. I wholly concur with the arguments of both the appellant and the Commission that the time
         for bringing an action for annulment against a decision of the Commission which is fixed by the Article 230 EC cannot start
         running again. (71)
      
      100. As that erroneous reasoning forms an integral part of the reasoning of the Court of First Instance, it follows in my view
         that the contested judgment must be set aside in so far as it rejected Lafarge’s claim that the Commission erred in finding
         that there was a repeated infringement even though the finding relative to the first infringement had not become definitive. (72)
      
      101. Under Article 61 of the Statute of the Court of Justice, if the appeal is well founded, the Court is to quash the decision
         of the General Court. It may then itself give final judgment in the matter, where the state of the proceedings so permits,
         or refer the case back to the General Court for judgment.
      
      102. In the present case, I consider that the state of the proceedings is such as to permit final judgment in the matter. 
      
      103. It is undisputed in the case at hand that at the time the contested decision was adopted on 27 November 2002, the validity
         of Decision 94/815, on which the Commission based its findings in the contested decision of repeated infringement, could no
         longer be challenged by Lafarge in an action for annulment pursuant to Article 230 EC due to the notification of the Cimenteries CBR and Others v Commission (73) case in 2000 and the absence of an appeal within the necessary time-limits. 
      
      104. The appellant however maintains that the Commission should not increase the fine due to repeated infringement where the first
         infringement had not become definitive (74) at the time of the facts in question in the contested decision. 
      
      105. It will be recalled that the infringement by Lafarge identified by the contested decision continued to 25 November 1998. In
         its pleadings at first instance and before the Court, Lafarge claimed that it could thus not be considered a repeat infringer
         for acts committed before the month of July 2000. (75)
      
      106. Lafarge in its pleadings before the Court of First Instance and the Court made considerable reference to the criminal codes
         and case-law of a number of Member States in accordance with which the notion of repeated infringement cannot be applied until
         the first conviction has become definitive. In my view, the appellant’s claim that the nature and severity of competition
         sanctions requires that the same guarantees applicable to repeated infringement under criminal law should apply to repeated
         infringement in competition cases cannot be accepted. 
      
      107. It is clear from the terms of Article 15(4) of Regulation No 17 that a decision of the Commission imposing fines for anti-competitive
         practises is not of a criminal law nature. (76) I consider therefore, in the light of the clear, express will of the Community legislator, that any strict analogy between
         criminal sanctions and sanctions imposed by the Commission for infringement of the rules of competition law should be avoided.
         
      
      108. However, it is the settled case-law of the Court that during the administrative procedure before the Commission in competition
         cases, the Commission is bound to observe the fundamental principles of Community law. (77) It is therefore necessary to examine the question of repeated infringement from that perspective. 
      
      109. While the appellant has made considerable reference to the principle of sound administration of justice, procedural economy
         and the principle of legal certainty in its submissions, I consider that it has wholly failed to demonstrate how those principles,
         which in my view form part of the fundamental principles of Community law, were breached with regard to the appellant’s particular
         circumstances. 
      
      110. It is undisputed that the appellant was never in fact in a position where an increased fine was imposed on it for repeated
         infringement by a second decision when the decision concerning the first infringement, that is Decision 94/815, was still
         subject to the possibility of annulment proceedings and subsequent appeal. The appellant was therefore never in fact faced
         with, in its words, any ‘abnormal’ or ‘unfair burden’. (78) The appellant was never in a position whereby it would, for example, have to request the Commission to amend the contested
         decision due to an excessive fine or bring an action before the Courts of the Union against an eventual refusal by the Commission
         to do so. The claims by the appellant in that regard are thus abstract and hypothetical as they do not impinge on its particular
         circumstances.
      
      111. I consider therefore that issue which is before the Court is rather narrow in nature and that the Court should limit its assessment
         in the light of the undisputed facts at hand. 
      
      112. In my view, the restrictive approach to the question of repeated infringement advocated by the appellant, namely that a fine
         may not be increased due to repeated infringement unless the first infringement was definitive at the time of the facts in
         question in the contested decision, is excessively restrictive in the context of competition sanctions which are not criminal
         in nature. 
      
      113. That approach would restrict unnecessarily and artificially the possibility for the Commission to invoke repeated infringement
         as a means to suppress illegal activities and prevent their recurrence. It would result in the true gravity of certain infringements
         being under-estimated and under-sanctioned. Moreover, I consider that the presumption that acts of institutions of the Union
         are lawful and produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared
         invalid following, inter alia, a reference for a preliminary ruling or a plea of illegally, cannot be overstressed. In my
         view, it is a cornerstone of European Union law and exists in order to assure legal certainty. While the presumption in question
         can be overturned in proceedings before the General Court and the Court of Justice, I consider that there is no apparent reason
         in the context of the present proceedings to qualify any further that presumption. 
      
      114. I therefore consider, in the light of the facts of the case at hand, that the approach advocated by the appellant not only
         unreasonably undermines the power of the Commission to impose fines in order to combat anti-competitive behaviour but also
         undermines that presumption of legality of acts of the Community institutions in the absence of any demonstrated, cogent purpose.
         
      
      115. In addition, I would note for the purpose of completeness that, approving the approach advocated by the appellant, even if
         it were relevant to the case at hand, could lead to a situation in which an infringer, due to the length of proceedings before
         the General Court and the Court of Justice, (79) could avoid the consequences of repeated infringement, thereby hampering the role of the Commission in enforcing competition
         law. By contrast, an infringer may always request the Commission, in the event inter alia of annulment of the decision finding
         the first infringement, to re-examine its later decision finding repeated infringement and bring an action for annulment against
         an eventual refusal by the Commission to do so.
      
      116. It follows from the foregoing that the plea put forward by Lafarge concerning infringement of the principle, recognised by
         the Member States, that a person may not be considered a repeat infringer unless the new infringement is subsequent to the
         first definitive infringement is, in my view, unfounded and should, therefore, be rejected.
      
      IX –  Sixth ground of appeal: Error in law with respect to increase of the starting amount of the fine by way of a deterrent
      A –    Contested judgment
      117. Lafarge claimed at first instance that the need to ensure that the fine has a deterrent effect ought to have been examined
         at the end of the calculation of the fine, and, if the Commission had done so, it would necessarily have reached the conclusion
         that it was inappropriate to increase the fine to ensure it had a sufficient deterrent effect. The Court of First Instance
         held, at paragraph 683 of the contested judgment, ‘that the decision as to whether there is any need for a deterrent factor
         to be applied by virtue of size and overall resources, in that it does not concern the appropriateness of a particular amount,
         is not influenced by the stage in the calculation of the fine at which it occurs’. The Court of First Instance added, at paragraph
         684, that ‘the increase of the fine for deterrent effect is not based on an assessment that the starting amount of a fine
         is appropriate to that fine’s deterrent objective, so that the amount of the fine is irrelevant in the present context’. 
      
      B –    Argument
      118. The appellant claims that the Court of First Instance infringed at paragraphs 680 to 684 of the contested judgment Article
         81 EC and Regulation No 17 by finding that the Commission could assess the necessity to increase the amount of the fine for
         deterrent effect at the stage of the calculation of the basic amount of the fine and not at the end of the calculation of
         the fine. The appellant considers that deterrence consists of increasing the amount of the fine, calculated on the basis of
         the gravity and duration of the infringement and any aggravating or mitigating circumstances, in the event that the final
         amount appears insufficient to convince the undertaking in question and other economic operators of the seriousness of the
         infringement and the need not to repeat it. By definition, in order to assess whether the final amount of the fine is sufficient
         in order to have a deterrent effect, that amount must be known. 
      
      119. The appellant notes that in its 2006 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation
         No 1/2003 (80) (‘2006 Guidelines’) the decision to apply a specific increase of the fine for deterrence is assessed with regard to the final
         amount of the fine and thus after the assessment of the basic amount of the fine and following adjustment for aggravating
         and mitigating circumstances.
      
      120. The Commission considers that contrary to the appellant’s claims the question of deterrence does not ensure increasing the
         amount of the fine solely in the event that the final amount appears insufficient to convince the undertaking in question
         and other economic operators not to repeat infringements. Deterrence is an integral part of competition policy and seeks to
         guide the behaviour of undertakings. The Commission also notes that the contested decision was adopted pursuant to the 1998
         Guidelines and not the 2006 Guidelines. The 1998 Guidelines provide that the size and global resources of the undertaking
         may be taken into account in the assessment of the gravity of the infringement (point 1.A) before taking into account duration
         (point 1.B) and eventually any aggravating or mitigating circumstances. In that regard the Commission may modify its policy
         on fines in the competition field. The terms of the 1998 and 2006 Guidelines are similar as they both provide the Commission
         with the possibility to take into account the size and global resources of undertakings in the calculation of fines. Moreover,
         the stage at which the size of the undertaking is taken into account is not relevant as the increase in the fine on that basis
         is independent of the final amount of the fine. The Commission also considers that the Court, in an appeal case, may not substitute,
         on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on
         the amount of fines. 
      
      C –    Assessment
      121. The present ground of appeal concerns the Court of First Instance’s assessment of the application by the Commission of a deterrence
         multiplier in calculating the fine imposed on the appellant in the light of the size and global resources of that undertaking,
         and more particularly the stage in the calculation when that multiplier was applied. 
      
      122. In accordance with settled case-law, the Commission has a particularly wide discretion as regards the choice of factors to
         be taken into account for the purposes of determining the amount of fines, such as, inter alia, the particular circumstances
         of the case, its context and the dissuasive effect of fines, without the need to refer to a binding or exhaustive list of
         the criteria which must be taken into account. (81)
      
      123. The Court noted in Showa Denko v Commission that ‘deterrence’ is one of the factors to be taken into account in calculating the amount of the fine. (82) It is settled case-law that the fines imposed for infringements of Article 81 EC and laid down in Article 15(2) of Regulation
         No 17 are designed to punish the unlawful acts of the undertakings concerned and to deter both the undertakings in question
         and other operators from infringing the rules of Community competition law in future. Accordingly, when the Commission calculates
         the amount of the fine it may take into consideration, inter alia, the size and the economic power of the undertaking concerned. (83) In that case, the Court held that the Court of First Instance was justified in taking the view that, owing to its ‘enormous’
         worldwide turnover by comparison with the turnovers of the other members of the cartel, Showa Denko KK could more readily
         raise the necessary funds to pay its fine, which, if the fine was to have a sufficiently deterrent effect, justified the application
         of a multiplier. (84) The Court referred to this as the ‘deterrence multiplier’. 
      
      124. It is clear from Showa Denko v Commission that the Court considered that a deterrence multiplier could be applied in order to take into consideration the relative impact
         which a fine may have on the members of a cartel. 
      
      125. Given that the deterrence multiplier in such circumstances relates to the different size and economic power of the undertakings
         concerned, I consider that the Commission may, in the light of the wide discretion accorded to it in the matter, set a deterrence
         multiplier by reference to that particular difference. 
      
      126. In that event, given that the deterrence multiplier is based on the relative size and economic power of the members of a cartel
         rather than on an assessment of the actual, concrete amount of a fine, I consider that the stage in the calculation of the
         fine at which such a deterrence multiplier is applied may be considered irrelevant. Moreover, the question whether the Commission,
         with the adoption of the 2006 Guidelines, (85) altered the stage in the calculation of the fine at which such a deterrence multiplier is applied may thus also, in my view,
         be considered irrelevant where that multiplier is related to the relative size and the economic power of the undertakings
         concerned. (86)
      
      127. I consider therefore that, in holding that the stage in the calculation of a fine by the Commission at which a deterrence
         multiplier is applied in order to take into account the size and the global resources of an undertaking and thus reflect the
         manner in which the members of a cartel are actually affected by the fine is not relevant, the Court of First Instance did
         not err in law. 
      
      128. The appellant’s sixth plea should thus in my view be dismissed as unfounded.
      
      X –  Costs
      129. Since part of the case should, in my view, to be referred back to the General Court of the European Union, the costs relating
         to the present appeal should be reserved.
      
      XI –  Conclusion
      130. I therefore consider that the Court should:
      
      –        set aside the judgment of the Court of First Instance of the European Communities (Third Chamber) of 8 July 2008 in Case T‑54/03
         Lafarge v Commission in so far as that court dismissed Lafarge’s plea that the Commission breached the principle of equal treatment concerning
         the participation of Lafarge in a single, complex and continuous infringement from 31 August 1992;
      
      –        refer the case back to the General Court of the European Union in order to assess whether the Commission breached the principle
         of equal treatment concerning the participation of Lafarge in a single, complex and continuous infringement from 31 August
         1992;
      
      –        for the rest, dismiss the appeal;
      –        reserve the costs.
      1 –	Original language: English.
      
      2 –	Decision relating to proceedings under Article 81 of the EC Treaty against BPB PLC, Gebrüder Knauf Westdeutsche Gipswerke
         KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E‑1/37.152 – Plasterboard) (notified under document number C(2002)
         4570), OJ 2005 L 166, p. 8. 
      
      3 –	OJ, English Special Edition 1959-1962(I), p. 87.
      
      4 –	See Article 1 of the contested decision.
      
      5 –	Article 1 of the contested decision.
      
      6 –	See paragraph 549 of the contested decision. The Commission took as a starting point the market shares of the undertakings
         based on sales turnover for the product on the four principal markets of the Community (paragraph 546 of the contested decision).
      
      7 –	Decision of 13 July 1994 relating to a proceeding under Article [81] of the EC Treaty (Case IV/C/33.833 – Cartonboard)
         (OJ 1994 L 243, p. 1), imposed a fine of ECU 1 750 000. On 14 May 1998, in Case T‑311/94 BPB v Commission [1998] ECR II‑1129, the Court of First Instance reduced the fine to ECU 750 000.
      
      8 –	Decision of 30 November 1994 relating to a procedure under Article [81] of the EC Treaty (Cases IV/33.126 and 33.322 –
         Cement) (OJ 1994 L 343, p. 1), imposed a fine of ECU 22 872 000. On 15 March 2000, in Joined Cases T‑25/95, T‑26/95, T‑30/95
         to T‑32/95, T‑34/95 to T‑39/95, T-42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95
         and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, the Court of First Instance reduced the fine to EUR 14 248 000 (see Case T‑43/95).
      
      9 –	OJ 1996 C 207, p. 4.
      
      10 –	See Article 3 of the contested decision.
      
      11 –	See paragraph 282 of the contested judgment.
      
      12 –	See paragraph 301 of the contested judgment.
      
      13 –	Paragraph 324 of the contested judgment. See also reasoning at paragraph 325 of the contested judgment.
      
      14 –	See paragraph 326 of the contested judgment.
      
      15 –	See, inter alia, Case C‑551/03 P General Motors v Commission [2006] ECR I‑3173, paragraph 52; judgment of 22 May 2008 in Case C‑266/06 P Evonik Degussa v Commission, paragraph 73; and Joined Cases C‑101/07 P and C‑110/07 P Coop de France bétail et viande and Others v Commission [2008] ECR I‑0000, paragraph 59.
      
      16 –	See, inter alia, Evonik Degussa v Commission, cited in footnote 15, paragraph 74, and Coop de France bétail et viande and Others v Commission, cited in footnote 15, paragraph 60.
      
      17 –	Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 50.
      
      18 –	Paragraph 429 of the contested judgment.
      
      19 –	Cited in footnote 17. At paragraphs 55 to 57 the Court held that since the prohibition on participating in anti-competitive
         agreements and the penalties which offenders may incur are well known, it is normal for the activities which those practices
         and those agreements entail to take place in a clandestine fashion, for meetings to be held in secret, most frequently in
         a non-member country, and for the associated documentation to be reduced to a minimum. Even if the Commission discovers evidence
         explicitly showing unlawful contact between traders, such as the minutes of a meeting, it will normally be only fragmentary
         and sparse, so that it is often necessary to reconstitute certain details by deduction. In most cases, the existence of an
         anti-competitive practice or agreement must 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.
      
      20 –	See paragraph 494 of the contested judgment.
      
      21 –	See paragraph 127 of the contested decision and paragraph 503 of the contested judgment.
      
      22 –	See paragraphs 503 and 504 of the contested judgment.
      
      23 –	See paragraph 506 of the contested judgment.
      
      24 –	See paragraph 507 of the contested judgment.
      
      25 –	See also paragraph 510 of the contested judgment.
      
      26 –	See paragraph 512 of the contested judgment.
      
      27 –      Order in Case C‑19/95 P San Marco v Commission [1996] ECR I‑4435, paragraph 40, and judgment in Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 19.
      
      28 –	Case T‑43/92 Dunlop Slazenger International v Commission [1994] ECR II‑441, paragraph 79, and Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 86.
      
      29 –	Case cited in footnote 17, paragraphs 78 and 79.
      
      30 –	See paragraph 515 of the contested judgment.
      
      31 –	See paragraph 510 of the contested judgment.
      
      32 –	The appellant referred specifically to paragraph 496 of the contested judgment.
      
      33 –	See, to that effect, inter alia, Case C‑401/96 P Somaco v Commission [1998] ECR I‑2587, paragraph 53, and judgment of 11 January 2007 in Case C‑404/04 P Technische Glaswerke Ilmenau v Commission, paragraph 90.
      
      34 –	Case C‑274/99 P Connolly v Commission [2001] ECR I‑1611, paragraph 121, and Case C‑197/99 P Belgium v Commission [2003] ECR I‑8461, paragraph 81.
      
      35 –	See, in particular, Aalborg Portland and Others v Commission, cited in footnote 17, paragraph 372, and the judgment of 25 October 2007 in Case C‑167/06 P Komninou and Others v Commission, paragraph 22.
      
      36 –	Namely the reference to Lafarge’s market share in Mr C’s tables and certain statements by BPB.
      
      37 –	In its application at first instance, Lafarge also quoted footnote 413 of the contested decision which provides that ‘the
         Commission would point out that there are certain factual elements which indicate that Gyproc took part in conduct which may
         be characterised as anticompetitive before the Versailles meeting took place … However, with regard to this conduct, the Commission
         is not able to furnish the necessary proof that Gyproc knew or should have known that it was subscribing to the London agreement
         on the exchange of information between [high level representatives] on the four major markets.’
      
      38 –	Lafarge in my view effectively invoked at first instance the principle of procedural equality according to which the same
         evidence should be assessed in the same manner with respect to different parties in the same procedural position.
      
      39 –	See by analogy Case C‑89/08 P Commission v Ireland and Others [2009] ECR I‑0000, paragraph 89; Case C‑519/07 P Commission v Koninklijke FrieslandCampina [2009] ECR I‑0000, paragraphs 106 to 109; Joined Cases C‑83/01 P, C‑93/01 P and C‑94/01 P Chronopost and Others v UFEX and Others [2003] ECR I‑6993, paragraph 45; and Joined Cases C‑359/95 P and C‑379/95 P Commission and France v Ladbroke Racing [1997] ECR I‑6265, paragraph 39.
      
      40 –	Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 [2004] ECR II‑1181.
      
      41 –	Case C‑308/04 P [2006] ECR I‑5977, paragraphs 52 and 53.
      
      42 –	Case cited in footnote 41, paragraphs 52 and 53.
      
      43 –	Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the
         ECSC Treaty (OJ 1998 C 9, p. 3; ‘the 1998 Guidelines’).
      
      44 –	SGL Carbon v Commission, cited in footnote 41, paragraphs 46 and 47. 
      
      45 –	See paragraph 701 of the contested judgment.
      
      46 –	Cited in footnote 17; see paragraph 91.
      
      47 –	See paragraphs 721 and 722 of the contested judgment.
      
      48 –	See paragraphs 725 and 726 of the contested judgment.
      
      49 –	See paragraph 727 of the contested judgment.
      
      50 –	Case C‑3/06 P [2007] ECR I‑1331.
      
      51 –	In his Opinion in Groupe Danone v Commission, Advocate General Poiares Maduro stated that ‘[a]dmittedly, Article 15(2), while setting a clear ceiling, is formulated in
         a broad manner as regards the elements which determine the exact level of the fine. Yet, in the context of competition law,
         I would consider that, as a rule, it is reasonable and foreseeable that the Commission, in the exercise of its discretion,
         should weigh the element of repeated infringement as pertaining to the gravity of the infringement. This also appears to be
         the view of this Court as emerging from the case-law.’ Case cited in footnote 50; see point 21. 
      
      52 –	Idem. See paragraph 24.
      
      53 –	Idem. See paragraphs 25, 26 and 30. 
      
      54 –	Cited in footnote 17; see paragraph 91.
      
      55 –	Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 106.
      
      56 –	The need to ensure the deterrent effect of competition sanctions was stressed by the Court in Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, and Coop de France bétail et viandeand Others v Commission, cited in footnote 15.
      
      57 –	In that case the 1998 Guidelines.
      
      58 –	Case cited in footnote 50; see paragraphs 36 and 37.
      
      59 –	Idem. See paragraph 39.
      
      60 –      Idem. See paragraph 40.
      
      61 –	See paragraph 704 of the contested judgment.
      
      62 –	Cimenteries CBR and Others v Commission, cited in footnote 8.
      
      63 –	Case C‑235/92 P Montecatini v Commission [1999] ECR I‑4539, paragraph 176. 
      
      64 –	See point 96 below.
      
      65 –	Case 64/84 [1985] ECR 1829.
      
      66 –	OJ 1981 L 180, p. 1.
      
      67 –	Aalborg Portland and Others v Commission, cited in footnote 17, paragraph 200.
      
      68 –	OJ 2003 L 1, p. 1.
      
      69 –	Case cited in footnote 65.
      
      70 –	Case 78/83 [1984] ECR 4177, paragraphs 7 to 11.
      
      71 –	I would note however that it is possible in accordance with Article 44 of the Statute of the Court of Justice, to apply
         to the Court for revision of a judgment on discovery of a fact which is of such a nature as to be a decisive factor, and which,
         when the judgment was given, was unknown to the Court and to the party claiming the revision. According to consistent case-law,
         revision is not an appeal procedure but an exceptional review procedure that allows the authority of res judicata attaching
         to a final judgment to be called into question on the basis of the findings of fact relied upon by the Court. Revision presupposes
         the discovery of elements of a factual nature which existed prior to the judgment or the order and which were unknown at that
         time to the Court which delivered the judgment or the order as well as to the party applying for revision and which, had the
         Court been able to take them into consideration, could have led it to a different determination of the proceedings. See Case
         C‑255/06 P‑REV Yedaş Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission [2009] ECR I‑0000, paragraphs 14 to 16. The Court of First Instance in the relevant section of the contested judgment did
         not refer to the revision procedure. 
      
      72 –	The use of the term ‘definitive’ by the Court of First Instance and the arguments of the parties in connection with a decision
         of the Commission is in my view somewhat misleading as it seems to contemplate the exhaustion by the addressee of the decision
         of the possibility of bringing an action for annulment and the possibility of a subsequent appeal. It is however settled case-law
         that acts of the Community institutions are presumed to be lawful. This means that they produce legal effects until such time
         as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling
         or a plea of illegality (see Case C‑475/01 Commission v Greece [2004] ECR I‑8923, paragraph 18, and Case C‑199/06 CELF and Ministre de la Culture et de la Communication [2008] ECR I‑469, paragraph 60). Thus, in my view, acts of the Community institutions could be classed as definitive upon
         adoption, subject however to the possibility of being challenged in a number of different procedural actions, including but
         not limited to, actions for annulment and subsequent appeal. 
      
      73 –	Cited in footnote 8.
      
      74 –	I take this to mean that the possibility of bringing an action for annulment pursuant to Article 230 EC and subsequent
         appeal had not been exhausted.
      
      75 –	See paragraph 706 of the contested judgment.
      
      76 –	See also Article 23(5) of Regulation No 1/2003.
      
      77 –	Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 7; see also Musique Diffusion française and Others v Commission, cited in footnote 55, paragraph 8. 
      
      78 –	See point 91 above.
      
      79 –	Which is unpredictable and unascertainable in advance.
      
      80 –	OJ 2006 C 210, p. 2.
      
      81 –	See, inter alia, Case C‑289/04 P Showa Denko v Commission [2006] ECR I‑5859, paragraph 36; the Order in Case C‑137/95 P SPO and Others v Commission [1996] ECR I‑1611, paragraph 54; and judgment in Case C‑219/95 P Ferriere Nord v Commission [1997] ECR I‑4411, paragraph 33. The Commission’s discretion is however not completely unfettered as it must observe the
         general principles of Community law when fixing fines such as the principles of equal treatment and proportionality.
      
      82 –	At paragraph 15 of Showa Denko v Commission (cited in footnote 81), the Court noted that the worldwide turnover was taken into account by the Commission only for the
         purposes of fixing the ‘deterrence multiplier’. On the other hand, to fix the basic amount of the fine, the Commission took
         account only of worldwide turnover in respect of the products covered by the cartel. As regards the current proceedings, see
         points 5 and 6 above, together with footnote 6.
      
      83 –	See Showa Denko v Commission, cited in footnote 81, paragraph 16, and Musique Diffusion française and Others v Commission, cited in footnote 55, paragraphs 119 to 121. In his Opinion in Britannia Alloys & Chemicals v Commission (case cited in footnote 56), Advocate General Bot noted in footnote 21, that ‘the Court recognised very early, in Case 41/69
         ACF Chemiefarma v Commission [1970] ECR 661, that the object of the penalties provided for in Article 15 of Regulation No 17 “is to suppress illegal activities
         and to prevent any recurrence” (paragraph 173)’.
      
      84 –	See Showa Denko v Commission (cited in footnote 81), paragraph 18.
      
      85 –	It is undisputed that at the time the fine was imposed on Lafarge pursuant to the contested decision the 1998 Guidelines
         were applicable. Section 1.A of the 1998 Guidelines, that is the section concerning gravity, provides inter alia that ‘[i]t
         will also be necessary to take account of the effective economic capacity of offenders to cause significant damage to other
         operators, in particular consumers, and to set the fine at a level which ensures that it has a sufficiently deterrent effect’.
         The contents of the 2006 Guidelines are thus not temporally relevant to the circumstances at hand. Moreover, it is settled
         case-law that the proper application of the Community competition rules requires that the Commission may at any time adjust
         the level of fines to the needs of that policy. See Musique Diffusion française and Others v Commission, cited in footnote 55, paragraph 109, and Case C‑196/99 P Aristrain v Commission [2003] ECR I‑11005, paragraph 81. The Commission may thus change its Guidelines on fines without necessarily calling into
         question its previous position on the matter.
      
      86 –	I would note however that in Showa Denko v Commission (cited in footnote 81), the Court held that the fine imposed on an undertaking may be calculated by including a deterrence
         factor and that factor is assessed by taking into account a large number of factors and not merely the particular situation
         of the undertaking concerned (see paragraph 23). It is thus clear that the size and economic power of the undertakings concerned
         may be only one of the factors included in the fixing of a deterrence multiplier. In that regard, the 2006 Guidelines provide
         under the heading ‘Specific increase for deterrence’ that in addition to the turnover of undertakings in certain circumstances
         the ‘Commission will also take into account the need to increase the fine in order to exceed the amount of gains improperly
         made as a result of the infringement where it is possible to estimate that amount’ (see paragraphs 30 and 31 of the 2006 Guidelines,
         cited in footnote 80). Where the deterrence multiplier is fixed by reference, inter alia, to the amount of gains resulting
         from the infringement, I consider that the stage in the calculation of the fine at which the deterrence multiplier is applied
         may be of relevance. The question of the existence and amount of gains improperly made as a result of the infringement is
         not however relevant to the present proceedings.