SA Musique Diffusion française and others v Commission of the European Communities.
Date: 1983-06-07
7 THAT ARGUMENT IS WITHOUT RELEVANCE . AS THE COURT HELD IN ITS JUDGMENTS OF 29 OCTOBER 1980 IN CASES 209 TO 215 AND 218/78 ( VAN LANDEWYCK V COMMISSION ( 1980 ) ECR 3125 ), THE COMMISSION CANNOT BE DESCRIBED AS A ' ' TRIBUNAL ' '  WITHIN THE MEANING OF ARTICLE 6 OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS .
10 AS THE COURT RECALLED IN ITS JUDGMENT OF 13 FEBRUARY 1979 IN CASE 85/76 ( HOFFMANN-LA ROCHE V COMMISSION ( 1979 ) ECR 461 ), THE ABOVEMENTIONED     PROVISIONS ARE AN APPLICATION OF THE FUNDAMENTAL PRINCIPLE OF COMMUNITY LAW WHICH REQUIRES THE RIGHT TO A FAIR HEARING TO BE OBSERVED IN ALL PROCEEDINGS , EVEN THOSE OF AN ADMINISTRATIVE NATURE , AND LAYS DOWN IN PARTICULAR THAT THE UNDERTAKING CONCERNED MUST HAVE BEEN AFFORDED THE OPPORTUNITY , DURING THE ADMINISTRATIVE PROCEDURE , TO MAKE KNOWN ITS VIEWS ON THE TRUTH AND RELEVANCE OF THE FACTS AND CIRCUMSTANCES ALLEGED AND ON THE DOCUMENTS USED BY THE COMMISSION TO SUPPORT ITS CLAIM THAT THERE HAS BEEN AN INFRINGEMENT OF THE TREATY .
11 IT FOLLOWS THAT , ALTHOUGH THE GENERAL SUBMISSION PUT FORWARD BY MDF MUST BE REJECTED AS BEING BASED ON A MISUNDERSTANDING OF THE NATURE OF THE PROCEDURE BEFORE THE COMMISSION , COMMUNITY LAW CONTAINS ALL THE MEANS NECESSARY FOR EXAMINING AND , IN AN APPROPRIATE CASE , UPHOLDING THE FOLLOWING SUBMISSIONS BASED ON ALLEGED BREACHES OF THE APPLICANTS '  RIGHT TO A FAIR HEARING .

( B ) THE FAILURE TO DISCLOSE IN THE STATEMENT OF OBJECTIONS CERTAIN MATTERS MENTIONED IN THE DECISION
12 FIRST , THE APPLICANTS CLAIM THAT THE COMMISSION , IN ARTICLES 1 AND 2 OF ITS DECISION , FOUND THAT THE TWO CONCERTED PRACTICES HAD BEGUN AT THE END OF 1975 , THAT THE CONCERTED PRACTICE BETWEEN MDF , PIONEER AND MELCHERS HAD CEASED IN FEBRUARY 1976 AND THE CONCERTED PRACTICE BETWEEN MDF AND SHRIRO HAD CONTINUED UNTIL THE END OF 1977 , WHEREAS , IN ITS STATEMENT OF OBJECTIONS , THE COMMISSION WAS PROPOSING TO FIND THAT THE TWO INFRINGEMENTS HAD ONLY SUBSISTED DURING THE PERIOD ' ' LATE JANUARY/EARLY FEBRUARY 1976 ' ' .
13 THE COMMISSION MAINTAINS THAT IT WAS ON THE BASIS OF THE INFORMATION CONTAINED IN THE REPLIES TO THE STATEMENT OF OBJECTIONS AND THE REPLIES GIVEN DURING THE HEARING THAT IT CONCLUDED , IN ITS DECISION , THAT THE INFRINGEMENTS WERE OF LONGER DURATION THAN IT HAD CONSIDERED WHEN DRAWING UP THE STATEMENT OF OBJECTIONS .
14 IT IS CLEAR FROM PREVIOUS DECISIONS OF THE COURT THAT THE STATEMENT OF OBJECTIONS MUST SET FORTH CLEARLY ALL THE ESSENTIAL FACTS UPON WHICH THE COMMISSION IS RELYING AT THAT STAGE OF THE PROCEDURE . THAT MAY BE DONE SUMMARILY AND THE DECISION IS NOT NECESSARILY REQUIRED TO BE A REPLICA OF THE     COMMISSION ' S STATEMENT OF OBJECTIONS . THE COMMISSION MUST TAKE INTO ACCOUNT THE FACTORS EMERGING FROM THE ADMINISTRATIVE PROCEDURE IN ORDER EITHER TO ABANDON SUCH OBJECTIONS AS HAVE BEEN SHOWN TO BE UNFOUNDED OR TO AMEND AND SUPPLEMENT ITS ARGUMENTS , BOTH IN FACT AND IN LAW , IN SUPPORT OF THE OBJECTIONS WHICH IT MAINTAINS , PROVIDED HOWEVER THAT IT RELIES ONLY ON FACTS ON WHICH THE PARTIES CONCERNED HAVE HAD AN OPPORTUNITY TO MAKE KNOWN THEIR VIEWS AND PROVIDED THAT , IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE , IT HAS MADE AVAILABLE TO THE UNDERTAKINGS CONCERNED THE INFORMATION NECESSARY FOR THEIR DEFENCE .
21 THAT PART OF THE SUBMISSION CANNOT BE UPHELD EITHER . IN ITS STATEMENT OF OBJECTIONS , THE COMMISSION EXPRESSLY STATED THAT IT WOULD CONSIDER WHETHER IT WAS APPROPRIATE TO IMPOSE FINES ON THE UNDERTAKINGS AND IT ALSO INDICATED THE MAIN FACTUAL AND LEGAL CRITERIA CAPABLE OF ATTRACTING A FINE , SUCH AS THE GRAVITY AND THE DURATION OF THE ALLEGED INFRINGEMENT AND WHETHER THAT INFRINGEMENT WAS COMMITTED ' ' INTENTIONALLY OR NEGLIGENTLY ' ' . IN DOING SO THE COMMISSION FULFILLED ITS OBLIGATIONS ON THIS POINT INASMUCH AS IT GAVE THE UNDERTAKINGS THE     NECESSARY DETAILS TO ENABLE THEM TO DEFEND THEMSELVES NOT MERELY AGAINST THE FINDING OF AN INFRINGEMENT BUT ALSO AGAINST THE IMPOSITION OF FINES . TO GIVE INDICATIONS AS REGARDS THE LEVEL OF THE FINES ENVISAGED , BEFORE THE UNDERTAKINGS HAVE BEEN INVITED TO SUBMIT THEIR OBSERVATIONS ON THE ALLEGATIONS AGAINST THEM , WOULD BE TO ANTICIPATE THE COMMISSION ' S DECISION AND WOULD THUS BE INAPPROPRIATE .
22 NOR WAS THE COMMISSION BOUND TO MENTION , IN THE STATEMENT OF OBJECTIONS , THE POSSIBILITY OF A CHANGE IN ITS POLICY AS REGARDS THE GENERAL LEVEL OF FINES , A POSSIBILITY WHICH DEPENDED ON GENERAL CONSIDERATIONS OF COMPETITION POLICY HAVING NO DIRECT RELATIONSHIP WITH THE PARTICULAR CIRCUMSTANCES OF THESE CASES .
30 SINCE THE FINDINGS WHICH THE COMMISSION BASED ON THOSE DOCUMENTS , WHICH DID NOT COME TO THE APPLICANTS '  NOTICE , RELATE TO MATTERS WHICH ARE OF PURELY SECONDARY IMPORTANCE IN RELATION TO THE INFRINGEMENTS FOUND TO HAVE BEEN COMMITTED IN ARTICLES 1 AND 2 OF THE DECISION , THAT BREACH OF THE RIGHT TO A FAIR HEARING CANNOT AFFECT THE VALIDITY OF THE WHOLE OF THE DECISION . INSTEAD , IT IS APPROPRIATE FOR THE COURT TO DISREGARD THE CONTENTS OF THOSE DOCUMENTS WHEN CONSIDERING THE SUBSTANTIVE VALIDITY OF THE DECISION .
66 AT POINT 3 OF HIS STATEMENT , MR MASON DECLARES THAT , IN ABOUT 1974 , COMET COMMENCED AN EXPORT BUSINESS , MAINLY IN HI-FI EQUIPMENT , TO OTHER EEC COUNTRIES . HOWEVER , UNTIL DECEMBER 1975 , THOSE EXPORTS INCLUDED ONLY SMALL     AMOUNTS OF PIONEER EQUIPMENT . ON THE OTHER HAND , IN THE PERIOD FROM 19 DECEMBER 1975 TO 16 JANUARY 1976 , THE DATE OF THE LAST CONSIGNMENT , COMET SOLD TO EURO-ELECTRO IN BRUSSELS PIONEER EQUIPMENT WORTH IN TOTAL MORE THAN UKL 33 000 . IN RESPECT OF THE PERIOD PRIOR TO RECEIPT OF MR TODD ' S LETTER , THE STATEMENT THUS SUPPORTS THE FINDINGS OF THE COMMISSION .
72 IN THE CONTESTED DECISION THE COMMISSION FOUND THAT PIONEER HAD PARTICIPATED BOTH IN THE CONCERTED PRACTICE BETWEEN MELCHERS AND MDF AND IN THE CONCERTED PRACTICE BETWEEN MDF AND SHRIRO . IT BASED THAT FINDING , IN PARTICULAR , ON PIONEER ' S GENERAL POSITION WITH REGARD TO NATIONAL DISTRIBUTORS , ON THE COURSE AND RESULTS OF THE MEETING IN ANTWERP ON 19 AND 20 JANUARY 1976 AND ON THE TRANSMISSION BY PIONEER TO MELCHERS OF COMPLAINTS AND INFORMATION FROM MDF RELATING TO PARALLEL IMPORTS .
73 PIONEER DISPUTES THAT ITS CONDUCT MAY BE DESCRIBED IN SUCH A WAY . IT MAINTAINS THAT IT WAS IN NO POSITION TO HAVE ANY CONTROL OVER THE CONDUCT OF SHRIRO OR MELCHERS . THE PURPOSE OF THE ANTWERP MEETING WAS NOT TO DISCUSS PARALLEL IMPORTS . ON THAT OCCASION , AS ON MANY OTHERS , PIONEER ' S REPRESENTATIVES MERELY LISTENED TO THE COMPLAINTS MADE BY MR SETTON OF MDF AND ADVISED HIM TO LOWER HIS PRICES . THE FORWARDING OF INFORMATION ON PARALLEL IMPORTS MERELY FORMS PART OF THE NORMAL EXCHANGE OF INFORMATION BETWEEN SUPPLIER AND DISTRIBUTOR CONCERNING THE MARKET SITUATION .
74 IN THIS REGARD , IT SHOULD BE REMEMBERED THAT THE PURPOSE OF PIONEER , WHICH IS A WHOLLY-OWNED SUBSIDIARY OF THE PARENT COMPANY IN JAPAN , IS TO IMPORT     PIONEER EQUIPMENT INTO EUROPE AND TO ORGANIZE SALES OF SUCH EQUIPMENT . TO THAT END , IT ATTEMPTS TO FIND A DISTRIBUTOR IN EACH OF THE MEMBER STATES IN QUESTION , OFFERS IT AN EXCLUSIVE DISTRIBUTORSHIP AGREEMENT , DIVIDES THE PRODUCTS IMPORTED AMONGST THE NATIONAL DISTRIBUTORS AND SEEKS TO COORDINATE THEIR SALES EFFORTS , INTER ALIA BY HOLDING REGULAR MEETINGS .
75 EVEN IF THOSE ACTIVITIES DO NOT NECESSARILY CONFER ON PIONEER A DECISIVE INFLUENCE ON THE CONDUCT OF EACH OF THE DISTRIBUTORS , THAT DOES NOT ALTER THE FACT THAT , ON ACCOUNT OF ITS CENTRAL POSITION , IT WAS OBLIGED TO DISPLAY PARTICULAR VIGILANCE IN ORDER TO PREVENT CONCERTED EFFORTS OF THAT KIND FROM GIVING RISE TO PRACTICES CONTRARY TO THE COMPETITION RULES .
76 AS FAR AS MELCHERS '  CONDUCT IS CONCERNED , IT IS NOT DISPUTED THAT PIONEER FORWARDED TO THAT DISTRIBUTOR NOT MERELY MR SETTON ' S COMPLAINTS BUT ALSO INFORMATION CONCERNING THE IMPORT LICENCES OBTAINED BY MR IFFLI FROM THE FRENCH AUTHORITIES . IN THOSE CIRCUMSTANCES SUCH A COMMUNICATION APPEARS TO HAVE BEEN AN IMPLIED INCITEMENT TO MELCHERS TO TRY TO DISCOVER THE SOURCE OF THOSE IMPORTS AND TO PUT A STOP TO THEM .
77 AS REGARDS THE ANTWERP MEETING THERE IS NO WRITTEN RECORD OF IT EXCEPT THE LETTERS SENT BY MR TODD OF SHRIRO TO ITS TWO MAIN CUSTOMERS AND THOSE TAKING PART IN THE MEETING WERE UNABLE TO GIVE A CONSISTENT EXPLANATION OF ITS PURPOSE .
78 IN HIS LETTERS OF 28 AND 29 JANUARY 1976 , MR TODD EXPLAINED TO HIS TWO CUSTOMERS THAT HE WAS CALLED TO ANTWERP TO DISCUSS COMPLAINTS BY THE FRENCH DISTRIBUTOR AGAINST PARALLEL IMPORTS ; HE EXPLAINED HOW HE WAS CONFRONTED WITH THE RESULTS OF THE TEST PURCHASES MADE BY MDF WITH THE TWO CUSTOMERS AND HE REGRETTED THAT THEY ' ' HAVE CAUSED MY PRINCIPALS TO LOOK ON ME WITH A CERTAIN AMOUNT OF DISFAVOUR ' ' . EVEN IF SUCH LANGUAGE MAY , AS MR TODD MAINTAINED DURING THE ADMINISTRATIVE PROCEDURE , HAVE BEEN EXAGGERATED TO A     CERTAIN EXTENT IN ORDER TO IMPRESS HIS CUSTOMERS , IT ACCORDS WITH OTHER FACTORS WHICH TEND TO PROVE THAT PARALLEL IMPORTS CONSTITUTED AN IMPORTANT SUBJECT OF DISCUSSION AT THE MEETING .
79 THUS IT IS NOT DISPUTED THAT MR SETTON DID INDEED BRING TO THE MEETING THE RESULTS OF THREE TEST PURCHASES WHICH UNDERTAKINGS MANAGED BY HIM HAD MADE FROM BRITISH CUSTOMERS OF SHRIRO AND THAT HE INSISTED ON THE NEED TO PUT A STOP TO PARALLEL IMPORTS TO FRANCE . MOREOVER , IT IS NOT DISPUTED THAT MR TODD ' S LETTERS TO HIS CUSTOMERS WERE A DIRECT CONSEQUENCE OF THAT MEETING AND NOT OF LATER CONTACTS WITH MR SETTON . IN THOSE CIRCUMSTANCES , PIONEER , WHICH HAD CALLED THE MEETING AND PRESIDED OVER IT , MUST ACCEPT RESPONSIBILITY FOR THAT CONSEQUENCE , REGARD BEING HAD TO THE POSITION WHICH IT OCCUPIES IN RELATION TO ITS NATIONAL DISTRIBUTORS , AS DESCRIBED ABOVE .
80 IT MUST THEREFORE BE CONCLUDED THAT THE COMMISSION WAS JUSTIFIED IN FINDING THAT PIONEER HAD PARTICIPATED IN TWO CONCERTED PRACTICES .

( E ) THE MARKET SHARES HELD BY THE APPLICANTS AND THE EFFECT ON TRADE BETWEEN MEMBER STATES
82 MDF AND PIONEER GB DISPUTE THOSE CALCULATIONS . ON THE ONE HAND , THE COMMISSION INCLUDED , IN THE TURNOVER FIGURES STATED , PRODUCTS OTHER THAN PIONEER HI-FI EQUIPMENT ; ON THE OTHER HAND , IT DEFINED THE HI-FI MARKET TOO NARROWLY . THE TWO APPLICANTS CONSIDER THAT THEIR MARKET SHARES IN 1976 WERE 3.38% IN FRANCE AND 3.18% IN THE UNITED KINGDOM . THEY MAINTAIN THAT SUCH MARKET SHARES ARE NOT SUFFICIENT FOR THEIR CONDUCT TO BE REGARDED AS CAPABLE OF AFFECTING TRADE BETWEEN MEMBER STATES WITHIN THE MEANING OF ARTICLE 85 ( 1 ) OF THE TREATY .
83 IT CANNOT BE DENIED THAT THERE IS NO GENERALLY RECOGNIZED DEFINITION OF THE TERM ' ' HI-FI PRODUCTS ' '  AND THE DIFFERENT MARKET STUDIES ON WHICH THE PARTIES RELY VARY CONSIDERABLY IN THIS RESPECT . IT SEEMS THAT NONE OF THOSE STUDIES CORRESPONDS EXACTLY TO THE TYPES OF PRODUCTS ENVISAGED BY THE PARTIES WHEN THEY STATED THE TURNOVER OF THE TWO UNDERTAKINGS . HOWEVER , AN EXAMINATION OF THOSE QUESTIONS OF FACT , WHICH ARE HIGHLY TECHNICAL AND DIFFICULT , MAY BE SUPERFLUOUS IF THE MARKET SHARES INDICATED BY THE APPLICANTS ARE THEMSELVES SUFFICIENT FOR THE PURPOSES OF ARTICLE 85 ( 1 ).
85 IN THE SAME JUDGMENT THE COURT ACKNOWLEDGED THAT AN EXCLUSIVE DEALING AGREEMENT , EVEN WITH ABSOLUTE TERRITORIAL PROTECTION , MAY ESCAPE THE PROHIBITION LAID DOWN IN ARTICLE 85 WHERE IT AFFECTS THE MARKET ONLY INSIGNIFICANTLY , REGARD BEING HAD TO THE WEAK POSITION OF THE PERSONS CONCERNED ON THE MARKET IN THE PRODUCTS IN QUESTION .
86 THAT IS NOT THE POSITION OF THE APPLICANTS IN THE PRESENT CASE . THE STUDIES PRODUCED BY MDF AND PIONEER GB SHOW THAT THE MARKET IN HI-FI PRODUCTS IN     FRANCE AND THE UNITED KINGDOM IS VERY LARGE BUT THAT IT IS MARKEDLY DIVIDED BETWEEN A VERY GREAT NUMBER OF BRANDS , SO THAT THE PERCENTAGES STATED BY THE APPLICANTS EXCEED THOSE OF MOST OF THEIR COMPETITORS . IF REGARD IS HAD SOLELY TO IMPORTED BRANDS , IT EVEN SEEMS THAT THE TWO APPLICANTS WERE AMONGST THE LARGEST SUPPLIERS OF THE TWO MARKETS . IN THOSE CIRCUMSTANCES , REGARD BEING HAD TO THEIR ABSOLUTE TURNOVER FIGURES , IT CANNOT BE DENIED THAT CONDUCT BY THOSE UNDERTAKINGS SEEKING TO RESTRAIN PARALLEL IMPORTS AND THEREFORE TO PARTITION NATIONAL MARKETS WAS CAPABLE OF EXERCISING AN INFLUENCE ON THE PATTERN OF TRADE BETWEEN MEMBER STATES IN A WAY CAPABLE OF HINDERING THE ATTAINMENT OF THE OBJECTIVES OF A SINGLE MARKET .
93 THAT SUBMISSION CANNOT BE UPHELD . NOTIFICATION IS NOT A FORMALITY IMPOSED ON UNDERTAKINGS BUT AN INDISPENSABLE CONDITION FOR OBTAINING CERTAIN BENEFITS . UNDER THE TERMS OF ARTICLE 15 ( 5 ) ( A ) OF REGULATION NO 17 NO FINE MAY BE IMPOSED IN RESPECT OF ACTS TAKING PLACE AFTER NOTIFICATION , PROVIDED THEY FALL WITHIN THE LIMITS OF THE ACTIVITY DESCRIBED IN THE NOTIFICATION . THAT ADVANTAGE ENJOYED BY AN UNDERTAKING WHICH NOTIFIES AN AGREEMENT OR A CONCERTED PRACTICE IS THE COUNTERPART OF THE RISK INCURRED BY THE UNDERTAKING IN ITSELF REPORTING THE AGREEMENT OR CONCERTED PRACTICE . THAT UNDERTAKING IN FACT TAKES THE RISK NOT ONLY OF HAVING THE AGREEMENT OR PRACTICE FOUND TO BE IN BREACH OF ARTICLE 85 ( 1 ) AND OF HAVING THE APPLICATION OF SUBPARAGRAPH ( 3 ) REFUSED BUT ALSO OF BEING PUNISHED BY A FINE FOR ACTS PRIOR TO NOTIFICATION . A FORTIORI , AN UNDERTAKING WHICH DID NOT WISH TO RUN THAT RISK CANNOT CLAIM , ON BEING FINED FOR AN INFRINGEMENT IN RESPECT OF AN AGREEMENT WHICH WAS NOT NOTIFIED , THAT THERE WAS A HYPOTHETICAL POSSIBILITY THAT NOTIFICATION MIGHT HAVE LED TO AN EXEMPTION .

( C ) CONFORMITY OF MELCHERS '  CONDUCT WITH ITS CONTRACTUAL OBLIGATIONS NOTIFIED TO THE COMMISSION
97 IT MUST BE EMPHASIZED , IN THAT RESPECT , THAT ARTICLE 15 ( 1 ) AND ( 2 ) OF REGULATION NO 17 EMPOWERS THE COMMISSION TO IMPOSE ON UNDERTAKINGS OR ASSOCIATIONS OF UNDERTAKINGS FINES WHERE , INTENTIONALLY OR NEGLIGENTLY , THEY HAVE BEEN GUILTY OF INFRINGEMENTS . FOR THAT PROVISION TO APPLY IT IS NOT NECESSARY FOR THERE TO HAVE BEEN ACTION BY , OR EVEN KNOWLEDGE ON THE PART OF , THE PARTNERS OR PRINCIPAL MANAGERS OF THE UNDERTAKING CONCERNED ; ACTION BY A PERSON WHO IS AUTHORIZED TO ACT ON BEHALF OF THE UNDERTAKING SUFFICES .
105 IN THAT CONNECTION IT MUST BE REMEMBERED THAT THE COMMISSION ' S POWER TO IMPOSE FINES ON UNDERTAKINGS WHICH , INTENTIONALLY OR NEGLIGENTLY , COMMIT AN INFRINGEMENT OF THE PROVISIONS OF ARTICLES 85 ( 1 ) OR 86 OF THE TREATY IS ONE OF THE MEANS CONFERRED ON THE COMMISSION IN ORDER TO ENABLE IT TO CARRY OUT THE TASK OF SUPERVISION CONFERRED ON IT BY COMMUNITY LAW . THAT TASK CERTAINLY INCLUDES THE DUTY TO INVESTIGATE AND PUNISH INDIVIDUAL INFRINGEMENTS , BUT IT     ALSO ENCOMPASSES THE 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 .
106 IT FOLLOWS THAT , 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 , ESPECIALLY AS REGARDS THOSE TYPES OF INFRINGEMENT WHICH ARE PARTICULARLY HARMFUL TO THE ATTAINMENT OF THE OBJECTIVES OF THE COMMUNITY .
110 THE SUBMISSION MUST THEREFORE BE REJECTED .

( B ) THE ALLEGED ABSENCE OF INTENTION ON THE PART OF PIONEER
117 THE COMMISSION REPLIES THAT ONLY THE TOTAL TURNOVER OF AN UNDERTAKING CAN GIVE AN INDICATION OF THE MAXIMUM FINE WHICH THE UNDERTAKING IS CAPABLE OF PAYING . FOR THAT REASON , THE LIMIT LAID DOWN IN ARTICLE 15 ( 2 ) OF REGULATION NO 17 MUST , IN ITS VIEW , BE UNDERSTOOD AS REFERRING TO THE TOTAL TURNOVER . LIKEWISE IN ALL THE OTHER CASES IN WHICH , IN THE COMMISSION ' S VIEW , REGARD MUST BE HAD TO TURNOVER IN ORDER TO FIX THE AMOUNT OF A FINE , IT IS THE TOTAL TURNOVER WHICH IS RELEVANT AND NOT THE TURNOVER RESULTING FROM THE TRANSACTIONS CONCERNED BY THE INFRINGEMENT . IT STRESSES HOWEVER THAT , OWING TO THE LARGE NUMBER OF UNQUANTIFIABLE CRITERIA TO BE TAKEN INTO CONSIDERATION IN FIXING A FINE , NO MATHEMATICAL FORMULA OF GENERAL APPLICATION IS POSSIBLE .
118 UNDER THE TERMS OF ARTICLE 15 ( 2 ) OF REGULATION NO 17 , THE COMMISSION MAY IMPOSE 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 . ARTICLE 15 ( 2 ) PROVIDES THAT IN FIXING THE AMOUNT OF THE FINE WITHIN THOSE LIMITS THE GRAVITY AND THE DURATION OF THE INFRINGEMENT ARE TO BE TAKEN INTO CONSIDERATION .
119 THUS THE ONLY EXPRESS REFERENCE TO THE TURNOVER OF THE UNDERTAKING CONCERNS THE UPPER LIMIT OF A FINE EXCEEDING 1 000 000 UNITS OF ACCOUNT . IN SUCH A CASE THE LIMIT SEEKS TO PREVENT FINES FROM BEING DISPROPORTIONATE IN RELATION TO THE SIZE OF THE UNDERTAKING AND , SINCE ONLY THE TOTAL TURNOVER CAN EFFECTIVELY GIVE AN APPROXIMATE INDICATION OF THAT SIZE , THE AFOREMENTIONED PERCENTAGE MUST , AS THE COMMISSION HAS ARGUED , BE UNDERSTOOD AS REFERRING TO THE TOTAL TURNOVER . IT FOLLOWS THAT THE COMMISSION DID NOT EXCEED THE LIMIT LAID DOWN IN ARTICLE 15 OF THE REGULATION .
120 IN ASSESSING THE GRAVITY OF AN INFRINGEMENT REGARD MUST BE HAD TO A LARGE NUMBER OF FACTORS , THE NATURE AND IMPORTANCE OF WHICH VARY ACCORDING TO THE     TYPE OF INFRINGEMENT IN QUESTION AND THE PARTICULAR CIRCUMSTANCES OF THE CASE . THOSE FACTORS MAY , DEPENDING ON THE CIRCUMSTANCES , INCLUDE THE VOLUME AND VALUE OF THE GOODS IN RESPECT OF WHICH THE INFRINGEMENT WAS COMMITTED AND THE SIZE AND ECONOMIC POWER OF THE UNDERTAKING AND , CONSEQUENTLY , THE INFLUENCE WHICH THE UNDERTAKING WAS ABLE TO EXERT ON THE MARKET .
121 IT FOLLOWS THAT , ON THE ONE HAND , IT IS PERMISSIBLE , FOR THE PURPOSE OF FIXING THE FINE , TO HAVE REGARD BOTH TO THE TOTAL TURNOVER OF THE UNDERTAKING , WHICH GIVES AN INDICATION , ALBEIT APPROXIMATE AND IMPERFECT , OF THE SIZE OF THE UNDERTAKING AND OF ITS ECONOMIC POWER , AND TO THE PROPORTION OF THAT TURNOVER ACCOUNTED FOR BY THE GOODS IN RESPECT OF WHICH THE INFRINGEMENT WAS COMMITTED , WHICH GIVES AN INDICATION OF THE SCALE OF THE INFRINGEMENT . ON THE OTHER HAND , IT FOLLOWS THAT IT IS IMPORTANT NOT TO CONFER ON ONE OR THE OTHER OF THOSE FIGURES AN IMPORTANCE DISPROPORTIONATE IN RELATION TO THE OTHER FACTORS AND , CONSEQUENTLY , THAT THE FIXING OF AN APPROPRIATE FINE CANNOT BE THE RESULT OF A SIMPLE CALCULATION BASED ON THE TOTAL TURNOVER . THAT IS PARTICULARLY THE CASE WHERE THE GOODS CONCERNED ACCOUNT FOR ONLY A SMALL PART OF THAT FIGURE . IT IS APPROPRIATE FOR THE COURT TO BEAR IN MIND THOSE CONSIDERATIONS IN ITS ASSESSMENT , BY VIRTUE OF ITS POWERS OF UNLIMITED JURISDICTION , OF THE GRAVITY OF THE INFRINGEMENTS IN QUESTION .
129 IN FIXING THE AMOUNT OF THE FINES REGARD MUST BE HAD TO THE DURATION OF THE INFRINGEMENTS ESTABLISHED AND TO ALL THE FACTORS CAPABLE OF AFFECTING THE ASSESSMENT OF THE GRAVITY OF THE INFRINGEMENTS , SUCH AS THE CONDUCT OF EACH OF THE UNDERTAKINGS , THE ROLE PLAYED BY EACH OF THEM IN THE ESTABLISHMENT OF THE CONCERTED PRACTICES , THE PROFIT WHICH THEY WERE ABLE TO DERIVE FROM THOSE PRACTICES , THEIR SIZE , THE VALUE OF THE GOODS CONCERNED AND THE THREAT THAT INFRINGEMENTS OF THAT TYPE POSE TO THE OBJECTIVES OF THE COMMUNITY .