Showa Denko KK v Commission of the European Communities.
Date: 2006-06-29
16. It should be noted that ‘deterrence’ is one of the factors to be taken into account in calculating the amount of the fine. It is settled case-law (see, in particular, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraphs 105 and 106) 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 (see Musique Diffusion française and Others v Commission , paragraphs 119 to 121).
17. It should be added that, as the Court of First Instance noted in paragraph 239 of the judgment under appeal, the Court of Justice has recognised in particular the relevance of taking into account the overall turnover of each undertaking participating in a cartel in fixing the amount of the fine (see, to that effect, Case C‑291/98 P Sarrió  v Commission [2000] ECR I-9991, paragraphs 85 and 86, and Case C-57/02 P Acerinox v Commission [2005] ECR I-6689, paragraphs 74 and 75).
18. In those circumstances, the Court of First Instance was justified in taking the view, in paragraph 241 of the judgment under appeal, that, owing to its ‘enormous’ worldwide turnover by comparison with the turnovers of the other members of the cartel, the appellant 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.
23. As is apparent from settled case-law and the Opinion of the Advocate General (see points 53 to 55 thereof), 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.
29. In addition, as follows from the case-law of the Court of Justice, the size of the undertaking concerned is one of the factors which may be taken into account for the purpose of calculating the fine and, therefore, setting the ‘deterrence multiplier’ (see, in particular, Musique Diffusion française and Others v Commission and 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 242 and 243).
36. 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 (see, inter alia, the order in Case C-137/95 P SPO and Others v Commission [1996] ECR I-1611, paragraph 54, and Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 33).
50. It should be noted, first of all, that the principle of non bis in idem , also enshrined in Article 4 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, constitutes a fundamental principle of Community law the observance of which is guaranteed by the judicature (see, inter alia, Joined Cases 18/65 and 35/65 Gutmann v Commission of the EAEC [1966] ECR 103, 119, and Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C‑247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraph 59).
52. As regards the scope of application of the principle of non bis in idem  in situations in which the authorities of a non-member State have taken action pursuant to their power to impose penalties in the field of competition law applicable in that State, it should be borne in mind that the context of the cartel at issue is an international one, characterised in particular by action of legal systems of non-member States within their respective territories.
53. In that regard, the exercise of powers by the authorities of those States responsible for protecting free competition under their territorial jurisdiction meets requirements specific to those States. The elements forming the basis of other States’ legal systems in the field of competition not only include specific aims and objectives but also result in the adoption of specific substantive rules and a wide variety of legal consequences, whether administrative, criminal or civil, when the authorities of those States have established that there have been infringements of the applicable competition rules.
54. On the other hand, the legal situation is completely different where an undertaking is caught exclusively – in competition matters – by the application of Community law and the law of one or more Member States on competition, that is to say, where a cartel is confined exclusively to the territorial scope of application of the legal system of the European Community.
55. It follows that, when the Commission imposes sanctions on the unlawful conduct of an undertaking, even conduct originating in an international cartel, it seeks to safeguard the free competition within the common market which constitutes a fundamental objective of the Community under Article 3(1)(g) EC. On account of the specific nature of the legal interests protected at Community level, the Commission’s assessments pursuant to its relevant powers may diverge considerably from those by authorities of non-member States.
56. Accordingly, the Court of First Instance was fully entitled to hold in paragraph 134 of the judgment under appeal that the principle of non bis in idem does not apply to situations in which the legal systems and competition authorities of non-member States intervene within their own jurisdiction.
57. Moreover, the Court of First Instance was also fully entitled to hold that there is no other principle of law obliging the Commission to take account of proceedings and penalties to which the appellant has been subject in non-member States.
58. In that respect, it should be stated, as the Court of First Instance correctly observed in paragraph 136 of the judgment under appeal, that there is no principle of public international law that prevents the public authorities, including the courts, of different States from trying and convicting the same natural or legal person on the basis of the same facts as those for which that person has already been tried in another State. In addition, there is no public international law convention under which the Commission could be obliged, upon setting a fine under Article 15(2) of Regulation No 17, to take account of fines imposed by the authorities of non-member States pursuant to their competition law powers.
61. The objective of deterrence which the Commission is entitled to pursue when setting the amount of a fine is to ensure compliance by undertakings with the competition rules laid down by the EC Treaty for the conduct of their activities within the common market (see, to that effect, Case 41/69 ACF Chemiefarma  v Commission [1970] ECR 661, paragraphs 173 to 176). Consequently, when assessing the deterrent nature of a fine to be imposed for infringement of those rules, the Commission is not required to take into account any penalties imposed on an undertaking for infringement of the competition rules of non-member States.
68. Observance of the right to be heard in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed constitutes a fundamental principle of Community law which must be respected even if the proceedings in question are administrative proceedings (see Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9).
69. It should be added in that regard that the obligation to hear undertakings subject to proceedings under Article 81 EC is fulfilled when the Commission states, in the statement of objections, that it will examine whether fines should be imposed on the undertakings considered and when it indicates the main matters of fact and of law which may result in the imposition of a fine, such as the duration and gravity of the infringement involved (see, in particular, Case 322/81 Michelin v Commission  [1983] ECR 3461, paragraphs 19 and 20).