CELEX: 62006TJ0195
Language: en
Date: 2011-06-16
Title: Judgment of the General Court (Sixth Chamber, extended composition) of 16 June 2011.#Solvay Solexis SpA v European Commission.#Competition - Agreements, decisions and concerted practices - Hydrogen peroxide and sodium perborate - Decision finding an infringement of Article 81 EC - Duration of infringement - Concept of ‘agreement’ and ‘concerted practice’ - Access to the file - Fines - Equal treatment - Leniency Notice - Duty to state reasons.#Case T-195/06.

Judgment of the General Court (Sixth Chamber, Extended Composition) of 16 June 2011 – Solvay Solexis v Commission
      (Case T-195/06)
      Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Duration of infringement – Concept of ‘agreement’ and ‘concerted practice’ – Access to the file – Fines – Equal treatment – Leniency Notice – Duty to state reasons
      1.                     Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Concept – Joint intention
            as to the conduct to be adopted on the market – Included – Pursuance of negotiations on certain aspects of the restriction
            – No effect (Art. 81(1) EC) (see paras 55-56, 98, 100)
      2.                     Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Exchange of information in the
            context of a cartel or with a view to its preparation – Taking into account of information exachanged – Presumption – Conditions
            (Art. 81(1) EC) (see paras 57-59, 102-103, 116)
      3.                     Competition – Agreements, decisions and concerted practices – Complex infringement with elements of an agreement and elements
            of a concerted practice – Single description as an ‘agreement and/or concerted practice’ – Lawfulness (Art. 81(1) EC) (see
            paras 60-62, 81)
      4.                     Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Anti-competitive
            purpose – Sufficient (Art. 81(1) EC) (see paras 113, 118, 157)
      5.                     Competition – Agreements, decisions and concerted practices – Prohibition – Agreements which continue to produce their effects
            after they have formally ceased to be in force – Application of Article 81 EC (Art. 81(1) EC) (see paras 124-125)
      6.                     Competition – Agreements, decisions and concerted practices – Proof – Evidence adduced by the Commission – Participation in
            meetings having an anti-competitive object – Evidentiary duties of undertakings denying the unlawfulness of some of those
            meetings (Art. 81(1) EC) (see para. 131)
      7.                     Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Non-communication
            of a document – Consequences – Need to draw a distinction, at the level of the burden of proof borne by the undertaking concerned,
            between inculpatory and exculpatory documents (Council Regulation No 1/2003, Art. 27(2)) (see paras 146-149)
      8.                     Competition – Administrative procedure – Commission decision – Duty to state reasons – Scope – Obligation on the Commission
            to take a position on documents not containing exculpatory evidence – None (Arts 81 EC and 253 EC) (see para. 159)
      9.                     Competition – Administrative procedure – Observance of the rights of the defence – Communication of replies to a statement
            of objections – Conditions – Limits (Art. 81 EC) (see paras 167-171, 173, 176, 178-181)
      10.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Single and continuous infringement
            – Taking into account of variations in intensity of the offending conduct (Council Regulation No 1/2003, Art. 23(3)) (see
            paras 191, 210)
      11.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Obligation to take account of the
            actual impact on the market – Scope (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A) (see
            paras 195-197)
      12.                     Competition – Fines – Amount – Determination – Division of the undertakings in question into categories with a specific starting
            point – Lawfulness – Conditions – Judicial review (Council Regulation No 1/2003, Art. 23(2)) (see paras 220-221)
      13.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive
            or ‘follow-my-leader’ role of the undertaking – Criteria for assessment (Council Regulation No 1/2003, Art. 23; Commission
            Notice 98/C 9/03, Section 3, first indent) (see paras 241-243, 252, 268)
      14.                     Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Conduct deviating from that agreed within
            the cartel – Assessment (Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, Section 3) (see paras 269, 271-272)
      15.                     Competition – Fines – Amount – Determination – Criteria – Taking into account of cooperation of the incriminated undertaking
            with the Commission outside the framework laid down by the leniency notice – Conditions – Limits (Council Regulation No 1/2003,
            Art. 23; Commission Notices 98/C 9/03, Section 3, and 2002/C 45/03, Section 23(b), third para.) (see paras 283, 285)
      16.                     Competition – Fines – Decision imposing fines – Duty to state reasons – Scope – Indication of the factors which led the Commission
            to assess the gravity and the duration of the infringement (Art. 253 EC; Council Regulation No 1/2003, Art. 23(3)) (see paras
            297, 299)
      17.                     Competition – Fines – Amount – Determination – Deterrent effect – Criteria for assessing the deterrent effect (Council Regulation
            No 1/2003, Art. 23(2); Commission Notice 98/C 9/03) (see paras 305-306)
      18.                     Competition – Community rules – Infringements – Attribution – Transfer of an area of business – Legal person responsible for
            the running of the undertaking at the time of the infringement (Art. 81(1) EC) (see paras 308, 310)
      Re:
      
         
               APPLICATION for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article
                  81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 – Hydrogen peroxide and perborate) and for a reduction of
                  the fine imposed on the applicant.
               
            Operative part
      The Court:
      
         
                  1.
               
               
                  
               
               
                  	Dismisses the action;
               
            
         
                  2.
               
               
                  
               
               
                  	Orders Solvay Solexis SpA to pay the costs.