CELEX: 62006CJ0076
Language: en
Date: 2007-06-07
Title: Judgment of the Court (Fourth Chamber) of 7 June 2007. # Britannia Alloys & Chemicals Ltd v Commission of the European Communities. # Appeals - Competition - Agreements, decisions and concerted practices - Fines - ‘Preceding business year’ for determining the turnover on which the calculation of the fine is based. # Case C-76/06 P.

Case C-76/06 P
      Britannia Alloys & Chemicals Ltd
      v
      Commission of the European Communities
      (Appeals – Competition – Agreements, decisions and concerted practices – Fines – ‘Preceding business year’ for determining the turnover on which the calculation of the fine is based)
      Opinion of Advocate General Bot delivered on 1 March 2007 
      Judgment of the Court (Fourth Chamber), 7 June 2007 
      Summary of the Judgment
      1.     Competition – Fines – Amount – Determination – Maximum amount 
      (Council Regulation No 17, Art. 15(2), first para.)
      2.     Competition – Fines – Amount – Determination – Maximum amount 
      (Council Regulation No 17, Art. 15(2), first para.)
      3.     Competition – Fines – Amount – Determination – Maximum amount 
      (Council Regulation No 17; Commission Notice 98/C 9/03)
      1.     The limit relating to turnover laid down in the first subparagraph of Article 15(2) of Regulation No 17 seeks to prevent fines
         imposed by the Commission from being disproportionate in relation to the size of the undertaking concerned. It follows that,
         in determining the ‘preceding business year’, the Commission must assess, in each specific case and having regard both to
         the context and the objectives pursued by the scheme of penalties created by Regulation No 17, the intended impact on the
         undertaking in question, taking into account in particular a turnover which reflects the undertaking’s real economic situation
         during the period in which the infringement was committed. Therefore, where the undertaking concerned has not achieved any
         turnover for the business year preceding the adoption of the Commission decision, the Commission is entitled to refer to another
         business year in order to be able to make a correct assessment of the financial resources of that undertaking and to ensure
         that the fine has a sufficient deterrent effect. Moreover, the determination of the upper limit of the fine is not a mere
         question of choosing between the two possibilities provided for in the first subparagraph of Article 15(2) of Regulation No
         17, that is, between a maximum fine of EUR 1 million and an upper limit set by reference to the turnover of the undertaking
         concerned.
      
      (see paras 24-25, 30-31)
      2.     When establishing the business year to be taken into account in order to ensure compliance with the upper limit of 10% of
         turnover applicable to fines imposed for breach of Community competition rules, the Commission does not infringe the principle
         of equal treatment by applying to one of the undertakings which participated in a cartel, but which had no turnover in the
         business year preceding the adoption of the penalising decision, different treatment from that applied to the other participants
         in the cartel which were still active when that decision was taken and had turnover for the previous business year giving
         a strong indication of their economic situation.
      
      Moreover, in the context of calculating fines imposed under Article 15(2) of Regulation No 17, differentiated treatment of
         the undertakings concerned is inherent in the exercise of the Commission’s powers under that provision. In exercising its
         discretion, the Commission is required to fit the penalty to the individual conduct and specific characteristics of the undertakings
         concerned in order to ensure that, in each case, the Community competition rules are fully effective.
      
      Even if the Commission’s previous practice had been different concerning an undertaking in breach which withdrew from the
         market concerned by the infringement before the penalising decision was taken, that change of practice cannot constitute an
         infringement of the principle of the protection of legitimate expectations, since a decision-making practice of the Commission
         cannot serve as a legal framework for the imposition of fines in competition matters.
      
      (see paras 41-44, 60-62)
      3.     The provisions governing the implementation of the Community competition rules, and in particular Regulation No 17 and the
         Guidelines, enable undertakings to foresee with certainty the financial consequences likely to result from an infringement
         of those rules. Consequently, the principle of legal certainty can give an undertaking no guarantee that its cessation of
         commercial activities in the sector concerned will result in its escaping the imposition of a fine for the infringement committed
         in that sector.
      
      Moreover, in the light of the Commission’s discretion in this field, an undertaking participating in a cartel cannot acquire
         any certainty as to the amount of the fine likely to be imposed on it by the Commission under the provisions of Regulation
         No 17. In those circumstances, the fact that it was not able to ascertain in advance the relevant reference year for the purposes
         of determining the upper limit of the fine does not, by itself, constitute an infringement of the principle of legal certainty.
      
      (see paras 80-81, 83-84)
JUDGMENT OF THE COURT (Fourth Chamber)
      7 June 2007 (*)
      
      (Appeals – Competition – Agreements, decisions and concerted practices – Fines – ‘Preceding business year’ for determining the turnover on which the calculation of the fine is based)
      In Case C-76/06 P,
      APPEAL pursuant to Article 56 of the Statute of the Court of Justice, brought on 7 February 2006,
      Britannia Alloys & Chemicals Ltd, established in Gravesend (United Kingdom), represented by S. Mobley and M. Commons, solicitors,
      
      applicant,
      the other party to the proceedings being:
      Commission of the European Communities, represented by F. Castillo de la Torre, acting as Agent, with an address for service in Luxembourg
      
      defendant at first instance,
      THE COURT (Fourth Chamber),
      composed of K. Lenaerts, President of the Chamber, E. Juhász, R. Silva de Lapuerta (Rapporteur), G. Arestis and T. von Danwitz,
         Judges,
      
      Advocate General: Y. Bot,
      Registrar: R. Grass,
      having regard to the written procedure,
      after hearing the Opinion of the Advocate General at the sitting on 1 March 2007,
      gives the following
      Judgment
      1       By its appeal, Britannia Alloys & Chemicals Ltd (‘Britannia’) asks the Court to set aside the judgment of the Court of First
         Instance of the European Communities of 29 November 2005 in Case T-33/02 Britannia Alloys & Chemicals v Commission [2005] ECR II‑4973 (‘the judgment under appeal’), by which the Court dismissed its appeal against Commission Decision 2003/437/EC
         of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/37.027
         – Zinc phosphate) (OJ 2003 L 153, p. 1; ‘the contested decision’), and to annul Article 3 of that decision in so far as it
         concerns the applicant. 
      
       Legal context
       Regulation No 17
      2       Article 15 of Council Regulation No 17: First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special
         Edition 1959-1962, p. 87), provides: 
      
      ‘1. The Commission may by decision impose on undertakings or associations of undertakings fines of from 100 to 5 000 units
         of account where, intentionally or negligently:
      
      …
      (b)      they supply incorrect information in response to a request made pursuant to Article 11(3) or (5) …
      …
      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.’
       The Guidelines
      3       The Commission Notice entitled ‘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 Guidelines’) states in its introduction: 
      
      ‘The principles outlined … by the Guidelines should ensure the transparency and impartiality of the Commission’s decisions,
         in the eyes of the undertakings and of the Court of Justice alike, whilst upholding the discretion which the Commission is
         granted under the relevant legislation to set fines within the limit of 10% of overall turnover. This discretion must, however,
         follow a coherent and non-discriminatory policy which is consistent with the objectives pursued in penalising infringements
         of the competition rules.
      
      The new method of determining the amount of a fine will adhere to the following rules, which start from a basic amount that
         will be increased to take account of aggravating circumstances or reduced to take account of attenuating circumstances.’
      
       Background to the dispute
      4       In paragraphs 1 to 10 of the judgment under appeal, the Court summarised the factual background to the dispute brought before
         it as follows:
      
      ‘1       Britannia …, a company incorporated under English law, is a subsidiary of M.I.M. Holdings Limited (“MIM”), an Australian company.
         In October 1993, Pasminco Europe (ISC Alloys) Limited sold its zinc business to MIM, which transferred it to Britannia. That
         undertaking produced and sold zinc products, including zinc phosphate. In March 1997, Trident Alloys Limited (“Trident”),
         an independent company formed by Britannia’s management, acquired Britannia’s zinc business for GBP 14 359 072. Britannia
         is still in existence as a subsidiary of MIM, but is a non-trading company and therefore has no turnover.
      
      2      Although they may have slightly differing chemical formulae, zinc orthophosphates form a homogeneous chemical product, generically
         referred to as “zinc phosphate”. Zinc phosphate, which is derived from zinc oxide and phosphoric acid, is widely used as an
         anti-corrosion mineral pigment in the paint industry. It is marketed either as standard zinc phosphate or as modified (or
         activated) zinc phosphate.
      
      3      In 2001, virtually all of the world zinc production was controlled by the following five European producers: Dr Hans Heubach
         GmbH & Co. KG (“Heubach”), James M. Brown Limited (“James Brown”), Société Nouvelle des Couleurs Zinciques SA (“SNCZ”), Trident
         (formerly Britannia) and Union Pigments AS (formerly Waardals AS) (“Union Pigments”). 
      
      4      On 13 and 14 May 1998, the Commission carried out simultaneous and unannounced investigations under Article 14(2) of Regulation
         No 17 at the premises of Heubach, SNCZ and Trident … .
      
      5      On 11 December 2001, the Commission adopted the contested decision. The decision which is the subject of the present judgment
         is the one notified to the undertakings concerned, and which is annexed to the application … . 
      
      6      In the contested decision, the Commission states that a cartel, consisting of Britannia (Trident as from 15 March 1997), Heubach,
         James Brown, SNCZ and Union Pigments, existed between 24 March 1994 and 13 May 1998. The cartel was limited to standard zinc
         phosphate. The members of the cartel first adopted a market sharing agreement with sales quotas for the producers. Subsequently,
         they agreed on “bottom” or “recommended” prices at each meeting, which they generally followed. There was also a certain amount
         of customer allocation.
      
      7      The operative part of the contested decision reads as follows:
      “Article 1
      Britannia ... , Heubach ... , James Brown, [SNCZ], Trident ... and [Union Pigments] have infringed the provisions of Article
         81(1) of the Treaty and Article 53(1) of the EEA Agreement by participating in continuing agreement and/or concerted practice
         in the zinc phosphate sector.
      
      The duration of the infringement was as follows:
      …
      (b)      in the case of Britannia ...: from 24 March 1994 until 15 March 1997
      …
      Article 3
      For the infringement referred to in Article 1, the following fines are imposed:
      (a)      Britannia ...: EUR 3.37 million;
      (b)       ... Heubach ...: EUR 3.78 million;
      (c)      James ... Brown ...: EUR 940 000;
      (d)      [SNCZ]: EUR 1.53 million;
      (e)      Trident ...: EUR 1.98 million;
      (f)      [Union Pigments] ...: EUR 350 000.
       …”
      8      In calculating the fines, the Commission applied the method set out in the Guidelines … and the Commission Notice of 18 July
         1996 on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4, “the Leniency Notice”). 
      
      9      The Commission found first that the appropriate basic amount of fine for the applicant was EUR 3.75 million ([paragraph] 313
         [of the grounds of] the contested decision). Next, it referred to the limit which, under Article 15(2) of Regulation No 17,
         the fine to be imposed on each of the undertakings concerned may not exceed. In fixing the upper limit of 10% of turnover
         achieved in the previous financial year laid down by that provision, the Commission, in the case of the applicant, “took into
         account its global turnover for the business year ending 30 June 1996, which is the last available figure reflecting an entire
         year of normal economic activity” ([paragraph] 345 … ). As that turnover was EUR 55.7 million ([paragraph] 50), the upper
         limit of the fine was set at about EUR 5.5 million. As the amount of the fine before application of the Leniency Notice was
         below that upper limit, the Commission did not reduce it on that basis. 
      
      10      Finally, the Commission granted the applicant a reduction of 10% under the Leniency Notice ([paragraph] 366). The final amount
         of the fine imposed on the applicant was thus EUR 3.37 million ([paragraph] 370).’
      
       The procedure before the Court of First Instance and the judgment under appeal
      5       By application lodged at the Registry of the Court of First Instance on 21 February 2002, Britannia brought an action for
         the partial annulment of the contested decision and, in the alternative, for reduction in the amount of the fine imposed by
         that decision. 
      
      6       By the judgment under appeal, the Court of First Instance dismissed the action.
       Forms of order sought by the parties to the appeal
      7       By its appeal, Britannia claims that the Court should:
      –       set aside the judgment under appeal in so far as it dismissed its action;
      –       annul Article 3 of the contested decision in so far as it concerns the applicant;
      –       in the alternative, amend Article 3 in so far as it concerns the applicant, so as to annul or substantially reduce the fine
         imposed on the applicant therein;
      
      –       further, in the alternative, refer the case back to the Court of First Instance for judgment in accordance with the judgment
         of the Court of Justice as to the law;
      
      –       in any event, order that the Commission bear its own costs and pay Britannia’s costs relating to the proceedings before the
         Court of First Instance and the Court of Justice.
      
      8       The Commission contends that the Court should:
      –       dismiss the appeal in part as inadmissible, or, in the alternative, dismiss it as unfounded;
      –       order the applicant to pay the costs.
       The appeal
      9       In support of its claims, Britannia relies, in essence, on three pleas alleging, respectively, breach of Article 15(2) of
         Regulation No 17, infringement of the principle of equal treatment and infringement of the principle of legal certainty.
      
       The first plea, alleging breach of Article 15(2) of Regulation No 17 
       Arguments of the parties
      10     By its first plea, Britannia submits that the Court of First Instance erred in law by holding that, in fixing the fine, the
         Commission had correctly applied the upper limit of 10% of turnover to Britannia’s turnover for the business year ending 30 June
         1996, rather than to the turnover for the business year preceding the adoption of the contested decision.
      
      11     Britannia argues that, since it had not achieved any turnover for the business year immediately before the adoption of the
         contested decision, the Commission could only impose on it a fine of between EUR 1 000 and 1 000 000. Accordingly, the Court
         erred in law by holding that the Commission did not have to refer to the turnover for the business year ending on 30 June
         2001. 
      
      12     Britannia submits that the adjective ‘preceding’, in the first subparagraph of Article 15(2) of Regulation No 17, refers to
         the last full 12-month financial year as at the date of adoption of the decision imposing the fine.
      
      13     It maintains that the purpose of the upper limit on turnover, provided for in that provision of Regulation No 17, requires
         that that limit be applied to a business year which reflects the economic importance of the undertaking concerned on the date
         of the Commission decision. However, the Court of First Instance considered that, if an undertaking has not carried on any
         economic activity in the business year preceding such a decision, the turnover for that period will give no indication of
         its standing, and therefore cannot serve as a basis for setting the fine. 
      
      14     Britannia states that the figures, which appear in its audited accounts for the business year preceding the adoption of the
         contested decision, reflect its financial situation at the date on which the fine was imposed on it, that is, a turnover of
         zero. In order to determine the amount of that fine, the Commission could therefore not use a business year in which that
         company’s economic activity was greater. 
      
      15     The Commission contends that, in accordance with the objective pursued by Article 15(2) of Regulation No 17, the premiss of
         the Court’s reasoning is that the upper limit relating to turnover only applies if the undertaking has achieved that turnover
         in the business year preceding the decision closing the administrative procedure. 
      
      16     According to the Commission, the Court of First Instance correctly held that the upper limit was not applicable since there
         was no turnover for the last business year and, since the 10% upper limit seeks to reflect the financial capacity of the undertaking
         concerned, it applies where there is a turnover to which it can be linked.
      
      17     The Commission states that the pre-condition for applying the 10% upper limit is the existence of a turnover. Where there
         is no turnover for the business year preceding the adoption of the final decision, other indicators have to be found in order
         to assess the amount of the fine to be imposed. 
      
      18     The Commission goes on to state that the Court’s findings as to whether a zero turnover is a valid indication of Britannia’s
         economic situation is a matter of fact which cannot be reviewed in the course of an appeal. 
      
       Findings of the Court
      19     By its first plea, the applicant submits that the Court erred in law as regards the interpretation of the concept of ‘preceding
         business year’ contained in the first subparagraph of Article 15(2) of Regulation No 17.
      
      20     Thus, at issue between the parties before the Court of Justice is the question of how the Commission has to determine the
         concept of ‘preceding business year’ in those cases where substantial changes in the economic situation of the undertaking
         concerned have taken place between the period in which the infringement was committed and the date of adoption of the Commission
         decision imposing the fine.
      
      21     As regards that concept, it should be pointed out that, according to settled case-law, in interpreting a provision of Community
         law it is necessary to consider not only its wording, but also its context and the objectives pursued by the rules of which
         it is part (see Case C‑17/03 VEMW and Others [2005] ECR I‑4983, paragraph 41, and Case C‑391/05 Jan De Nul [2007] ECR I‑0000, paragraph 20). 
      
      22     In that regard, it should be recalled that the purpose of Article 15(2) of Regulation No 17 is to empower the Commission to
         impose fines with a view to enabling it to carry out the task of supervision conferred on it by Community law (see Joined
         Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 105). That task includes in particular suppressing illegal activities and preventing their reoccurrence
         (see Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 173).
      
      23     It should be added that, pursuant to the second subparagraph of Article 15(2) of Regulation No 17, the Commission is required
         to take into account the gravity and the duration of the infringement in question.
      
      24     In the light of those factors, the Court has stated that the limit relating to turnover laid down in the first subparagraph
         of Article 15(2) of Regulation No 17 seeks to prevent fines imposed by the Commission from being disproportionate in relation
         to the size of the undertaking concerned (Musique Diffusion française and Others v Commission, paragraph 119). 
      
      25     It is clear from the above considerations that, in determining the ‘preceding business year’, the Commission must assess,
         in each specific case and having regard both to the context and the objectives pursued by the scheme of penalties created
         by Regulation No 17, the intended impact on the undertaking in question, taking into account in particular a turnover which
         reflects the undertaking’s real economic situation during the period in which the infringement was committed.
      
      26     Having regard to that legal framework, the Court of First Instance held, in paragraphs 38 and 48 of the judgment under appeal,
         that the calculation of the upper limit of the fine presupposes not only that the Commission has at its disposal the turnover
         figures for the last business year preceding the date of adoption of its decision, but also that those figures represent a
         full year of normal economic activity over a period of 12 months.
      
      27     Furthermore, in paragraphs 39 and 49 of the judgment under appeal, the Court referred to a number of specific situations in
         order to illustrate the fact that the Commission must be able to use turnover achieved in a complete year of normal business
         activity for the purposes of applying Article 15(2) of Regulation No 17.
      
      28     Thus, if it had been accepted, the applicant’s argument would have led to an interpretation of the first subparagraph of Article
         15(2) of Regulation No 17 to the effect that, in cases in which no turnover has been achieved in the business year preceding
         the adoption of the Commission decision, the Commission would be required to apply only the first part of that subparagraph,
         since there is no turnover to which the upper limit set out in the second part of that subparagraph can be linked.
      
      29     However, such an interpretation disregards not only the scope of the Commission’s powers under Article 15(2), but also the
         fact that, in certain situations, the turnover for the business year preceding the adoption of the Commission decision does
         not provide any useful indication as to the actual economic situation of the undertaking concerned and the appropriate level
         of fine to impose on that undertaking. 
      
      30     Accordingly, where, as in the present case, the undertaking concerned has not achieved any turnover for the business year
         preceding the adoption of the Commission decision, the Commission is entitled to refer to another business year in order to
         be able to make a correct assessment of the financial resources of that undertaking and to ensure that the fine has a sufficient
         deterrent effect.
      
      31     It must be added that, as the Advocate General noted in point 74 of his Opinion and as the Court of First Instance correctly
         held in paragraph 40 of the judgment under appeal, the determination of the upper limit of the fine is not a mere question
         of choosing between the two possibilities provided for in the first subparagraph of Article 15(2) of Regulation No 17, that
         is, between a maximum fine of EUR 1 million and an upper limit set by reference to the turnover of the undertaking concerned.
         
      
      32     The Court of First Instance therefore did not err in law by holding that the Commission could refer, pursuant to the first
         subparagraph of Article 15(2) of Regulation No 17, to the last complete business year preceding the adoption of the contested
         decision, namely the year ending 30 June 1996.
      
      33     Accordingly, the first plea in law relied on by Britannia in support of its appeal must be rejected.
       The second plea, alleging infringement of the principle of equal treatment
      34     This plea is in two parts.
       The first part of the second plea
      –       Arguments of the parties
      35     By the first part of its second plea, Britannia submits that the Court of First Instance infringed the principle of equal
         treatment by dismissing the action, when, in the contested decision, the upper limit of 10% was applied to the last business
         year in which that company was considered by the Commission to have pursued ‘normal economic activity’, and, in the case of
         other undertakings participating in the cartel, the Commission took into account the business year preceding the adoption
         of that decision. 
      
      36     Britannia asserts that the application of the upper limit relating to turnover to a business year other than that preceding
         the contested decision fails to have regard to its financial situation on the date of adoption of that decision. In order
         to ensure compliance with the principle of equal treatment, the Commission should have applied the upper limit laid down in
         the first subparagraph of Article 15(2) of Regulation No 17 to the business year preceding the adoption of that decision in
         respect of all the undertakings concerned. 
      
      37     Britannia takes the view that, contrary to the Court’s findings, its zero turnover for that business year accurately reflects
         its economic situation for the period in which the infringement was committed.
      
      38     The Commission observes that the Court considered that the applicant was in a different situation from that of the other two
         undertakings which participated in the cartel, since the 10% upper limit laid down in the first subparagraph of Article 15(2)
         of Regulation No 17 was applicable to those undertakings. Those undertakings achieved a turnover for the business year preceding
         the adoption of the contested decision, which was a reliable indication of their economic situation. 
      
      39     The Commission submits that the applicant claims not that it was in the same situation as those undertakings, but merely that
         its zero turnover for that business year precisely reflected its economic situation at the time. However, such an argument
         calls into question a finding of fact by the Court of First Instance. 
      
      –       Findings of the Court
      40     It is settled case-law that the principle of equal treatment is infringed only where comparable situations are treated differently
         or different situations are treated in the same way, unless such difference in treatment is objectively justified (see Case C‑344/04
         IATA and ELFAA [2006] ECR I-403, paragraph 95).
      
      41     In relation to the present case, it should be recalled that the two undertakings which are the subject of Britannia’s argument
         still carried on a commercial activity on the market which was the subject of the cartel when the Commission adopted the contested
         decision. Their turnover for the business year preceding the adoption of that decision thus enabled the Commission to assess
         the financial resources of those undertakings and to determine their economic situation.
      
      42     In contrast, such an assessment was not possible in the case of Britannia. It is common ground that Britannia, on the date
         the contested decision was adopted, was in an entirely different situation from that of the other two undertakings which participated
         in the cartel.
      
      43     In those circumstances, the Court of First Instance was correct to hold, in paragraphs 61 to 63 of the judgment under appeal,
         that the Commission was justified in treating the applicant differently from those undertakings, given that those undertakings
         were still active and that their turnover for the business year preceding the adoption of the contested decision was a strong
         indication of their economic situation. 
      
      44     It should be added that, in the context of calculating fines imposed under Article 15(2) of Regulation No 17, differentiated
         treatment of the undertakings concerned is inherent in the exercise of the Commission’s powers under that provision. In exercising
         its discretion, the Commission is required to fit the penalty to the individual conduct and specific characteristics of the
         undertakings concerned in order to ensure that, in each case, the Community competition rules are fully effective (see, to
         that effect, Case C-308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraph 46 and the case-law cited).
      
      45     The first part of the second plea cannot therefore be upheld.
       The second part of the second plea
      –       Arguments of the parties
      46     By the second part of its second plea, Britannia submits that the Court of First Instance infringed the principle of equal
         treatment by dismissing the action, when the contested decision, in so far as it fixes the business year to which the 10%
         upper limit applies, does not accord with previous administrative practice in comparable cases.
      
      47     Britannia states that, according to the Court, the Commission was entitled to depart from its previous practice in this area
         given that Britannia’s situation was not comparable to that in other cases in which fines were imposed on the undertakings
         concerned. 
      
      48     In support of that second part of the second plea, Britannia refers to three types of situation.
      49     First, it considers that its situation was comparable to cases in which an undertaking involved in a cartel had transferred
         its activities to another commercial entity while continuing to exist. 
      
      50     Secondly, Britannia takes the view that it was the subject of discrimination as compared with other undertakings whose turnover
         had decreased. 
      
      51     Thirdly, Britannia submits that it was not treated in the same way as an undertaking which was the subject of Commission Decision
         1999/271/EC of 9 December 1998 relating to a proceeding pursuant to Article [81] of the EC Treaty (IV/34.466 – Greek Ferries)
         (OJ 1999 L 109, p. 24).
      
      52     On that latter point, Britannia observes that that undertaking had withdrawn from the market before adoption of the Commission
         decision. As the turnover of that undertaking for the preceding business year was not available, the Commission relied on
         the first part of the first subparagraph of Article 15(2) of Regulation No 17 in order to impose on it a fine of EUR 1 million.
         Accordingly, Britannia should not be in a less favourable situation than that of the undertaking in that case.
      
      53     The Commission takes the view that the question as to whether or not the applicant’s situation was comparable to that of other
         undertakings which were the subject of previous decisions is a matter of fact which was ruled on by the Court of First Instance
         in the judgment under appeal and, therefore, cannot be reviewed by the Court of Justice in the context of the appeal.
      
      54     As regards the first argument based on a transfer of activities, the Commission states that the Court held that the applicant
         was not in a comparable situation to that of other undertakings concerned by previous decisions, since, unlike those undertakings,
         Britannia had not achieved any turnover in the business year preceding the adoption of the contested decision.
      
      55     In relation to the second argument, namely that Britannia was not treated in the same way as other undertakings whose turnover
         had decreased, the Commission submits that this argument was never raised by the applicant during the procedure before the
         Court of First Instance. 
      
      56     Finally, as regards the third argument, based on Decision 1999/271, the Commission observes that this was rejected by the
         Court. The Commission’s previous practice cannot serve as a legal framework for setting fines in the field of competition,
         since the legal framework is laid down solely in Article 15(2) of Regulation No 17. Consequently, the interpretation of that
         provision in an earlier case that benefits a specific undertaking is not a matter of law such as to give rise to an obligation
         to treat another undertaking in a later case in the same way. 
      
      –       Findings of the Court
      57     It should be recalled that, as stated in paragraph 44 above, when calculating fines imposed on undertakings which participated
         in a cartel, differentiated treatment of those undertakings is inherent in the Commission’s discretion in this area. 
      
      58     As regards the first two arguments relied on by Britannia, namely that the Commission departed from previous administrative
         practice, it should be borne in mind that the Court of First Instance, in paragraph 61 of the judgment under appeal, held
         that the applicant was not in a comparable situation to that of the undertakings referred to in previous Commission decisions
         since it had not achieved any turnover in the business year preceding the adoption of the contested decision. 
      
      59     In those circumstances, the Court correctly concluded, in paragraph 61, that the Commission was justified in treating Britannia
         differently from those undertakings. 
      
      60     In relation to the applicant’s argument based on Decision 1999/271, it must also be pointed out that, while the situation
         of the undertaking referred to in that decision was similar to that of Britannia, it is clear from established case-law of
         the Court of Justice, set out in paragraphs 201 and 205 of Case C-167/04 P JCB Service v Commission [2006] ECR I‑8935, that the Commission’s practice in previous decisions cannot itself serve as a legal framework for the
         imposition of fines in competition matters and that decisions in other cases can give only an indication for the purpose of
         determining whether there might be discrimination, since the facts of those cases, such as markets, products, the undertakings
         and periods concerned, are not likely to be the same. 
      
      61     It must be added that undertakings involved in an administrative procedure in which fines may be imposed for infringement
         of the Community competition rules cannot acquire a legitimate expectation that the Commission will not exceed the level of
         fines previously imposed or of a particular method of calculating the fines. The Court has stated in particular that the undertakings
         in question must take account of the possibility that the Commission may decide at any time to raise the level of the fines
         by reference to that applied in the past (see, to that effect, Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02
         P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraphs 228 and 229).
      
      62     In the light of all the foregoing, the Court of First Instance did not err in law by holding that the Commission did not infringe
         the principle of equal treatment when establishing the business year to which the upper limit of 10% was applicable.
      
      63     Accordingly, the second part of the second plea cannot succeed.
      64     Consequently, the second plea relied on by Britannia in support of its appeal must be rejected in its entirety.
       The third plea, alleging infringement of the principle of legal certainty
      65     The third plea relied on by Britannia in support of its appeal is also in two parts. 
       The first part of the third plea 
      –       Arguments of the parties
      66     By the first part of its third plea, Britannia submits that the Court of First Instance infringed the principle of legal certainty
         by dismissing the appeal, when, in the contested decision, the Commission had taken into account a business year other than
         the one preceding the adoption of that decision when fixing the upper limit relating to turnover provided for in the first
         subparagraph of Article 15(2) of Regulation No 17. 
      
      67     More precisely, Britannia asserts that the Court erred in law by holding that the fact that the Commission departed from the
         wording of the first subparagraph of Article 15(2) of Regulation No 17 and used a business year other than the one preceding
         the adoption of the contested decision did not constitute an infringement of the principle of legal certainty.
      
      68     Britannia submits that it could not be foreseen that the Commission intended to refer to a year other than that business year.
         In that regard, the Court’s approach led to a significant lack of legal certainty given that it is impossible for undertakings
         concerned by a Commission investigation to determine the relevant reference year used for setting the upper limit of the fine.
      
      69     Britannia adds that the only way to ensure that administrative practice is coherent and predictable is to apply the upper
         limit laid down in the first subparagraph of Article 15(2) of Regulation No 17 to the business year preceding the adoption
         of the Commission decision in all circumstances, even if such an interpretation would mean applying the upper limit laid down
         in that provision to a turnover which is zero.
      
      70     The Commission takes the view that its interpretation of the first subparagraph of Article 15(2) of Regulation No 17 was predictable,
         since the upper limit set by that provision applies to turnover achieved in the business year preceding the decision closing
         the administrative phase and the applicant had no turnover during that year. 
      
      71     The Commission asserts that the concept of predictability of fines means that undertakings must be in a position to assess
         the consequences of their actions before carrying them out. In the present case, when the applicant decided to commit the
         infringement, its turnover was not very different from that used in calculating the upper limit of 10%, that is, EUR 55.7
         million for the year ending at the end of June 1996.
      
      72     The Commission concludes that, when the infringement of which it is accused was committed, Britannia could assume that, if
         the infringement was discovered and penalised immediately, it would have to pay a fine of around EUR 5.5 million.
      
      –       Findings of the Court
      73     It must be held that by its argument Britannia, in essence, seeks to reformulate all the arguments already set out in support
         of the first plea relied on to support this appeal, alleging infringement of Article 15(2) of Regulation No 17. 
      
      74     Accordingly, since it is clear from paragraph 32 of the present judgment that the first plea is unfounded, the arguments put
         forward by the applicant in support of the first part of its third plea are also unfounded.
      
      75     The first part of the third plea cannot therefore be upheld.
       The second part of the third plea 
      –       Arguments of the parties
      76     By the second part of its third plea, Britannia submits that the Court of First Instance erred in law in dismissing the action,
         even though the contested decision infringes fundamental rights. In fact, in the field of criminal penalties, legal certainty
         is a fundamental right enshrined in Article 7(1) of the European Convention on Human Rights and Fundamental Freedoms, signed
         in Rome on 4 November 1950, and in Article 49(1) of the Charter of fundamental rights of the European Union, proclaimed in
         Nice on 7 December 2000 (OJ 2000 C 364, p. 1). 
      
      77     The Commission contends that that part of the third plea is new since it was not raised before the Court of First Instance.
      78     The Commission goes on to state that, as Britannia’s turnover during the period in which the infringement was committed, that
         is, from 1994 to 1997, was approximately EUR 55 million, that undertaking could have expected a maximum fine of EUR 5.5 million
         if the cartel had been discovered. As Britannia was not in a position to ascertain its turnover for the business year preceding
         the adoption of the contested decision, it cannot claim that it expected a fine of a precise amount. 
      
      –       Findings of the Court
      79     It must be borne in mind that the principle of legal certainty requires that rules of Community law be clear and precise,
         so that interested parties can ascertain their position in situations and legal relationships governed by Community law (see
         Case C-63/93 Duff and Others [1996] ECR I-569, paragraph 20). 
      
      80     As regards the Community competition rules, the Court of First Instance pointed out in paragraph 70 of the judgment under
         appeal that the provisions governing the implementation of those rules, and in particular Regulation No 17 and the Guidelines,
         enable undertakings to foresee with certainty the financial consequences likely to result from an infringement of those rules.
      
      81     The Court of First Instance was correct to hold in paragraph 73 of the judgment under appeal that the principle of legal certainty
         could give the applicant no guarantee that its cessation of commercial activities in the zinc sector would result in its escaping
         the imposition of a fine for the infringement committed. In fact, Britannia was perfectly able to foresee that a fine would
         be imposed on it, since it was clearly in breach of the competition rules and the fine would be determined by reference not
         only to the gravity and duration of that infringement, but also to the circumstances specific to that undertaking.
      
      82     Britannia does not put forward any argument or other evidence such as to show that the Court’s finding in paragraph 73 of
         the judgment under appeal is vitiated by error of law.
      
      83     Furthermore, in the light of the Commission’s discretion in this field, an undertaking participating in a cartel cannot acquire
         any certainty as to the amount of the fine likely to be imposed on it by the Commission under the provisions of Regulation
         No 17.
      
      84     In those circumstances, the fact that Britannia was not able to ascertain in advance the relevant reference year for the purposes
         of determining the upper limit of the fine does not, by itself, constitute an infringement of the principle of legal certainty.
      
      85     The second part of the third plea cannot therefore be upheld.
      86     Accordingly, the third plea relied on by Britannia in support of its appeal must be rejected.
      87     It follows from the foregoing considerations that the appeal must be dismissed in its entirety.
       Costs
      88     Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings pursuant to Article 118 of those Rules,
         the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
         As the Commission has applied for costs against Britannia and Britannia has been unsuccessful, it must be ordered to pay the
         costs.
      
      On those grounds, the Court (Fourth Chamber) hereby:
      1.      Dismisses the appeal;
      2.      Orders Britannia Alloys & Chemicals Ltd to pay the costs.
      [signatures]
      * Language of the case: English.