Total Marketing Services SA v European Commission.
Date: 2015-09-17
11. According to the case-law of the Court, the requirement of public distancing is based on the fundamental premiss that an undertaking which has participated in an anti-competitive meeting is deemed to have subscribed to what was discussed in that meeting unless it openly distances itself from it (judgment in Aalborg Portland and Others  v Commission , 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, EU:C:2004:6, paragraphs 81 and 82 and the case-law cited). In addition, as appears from the established case-law of the General Court concerning the taking of evidence on the duration of an undertaking’s participation in a cartel, it is for the Commission to prove not only the existence of the cartel but also its duration and that, in the absence of evidence directly establishing the duration of an infringement, the Commission is to adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates.
20. It must be noted that, in accordance with the case-law of the Court, a public distancing is necessary in order that an undertaking which participated in collusive meetings can prove that its participation was without any anti-competitive intention. For that purpose, the undertakings must demonstrate that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (judgment in Aalborg Portland and Others  v Commission , 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, EU:C:2004:6, paragraphs 81 and 82 and the case-law cited).
21. The Court has also held that an undertaking’s participation in an anti-competitive meeting creates a presumption of the illegality of its participation, which that undertaking must rebut through evidence of public distancing, which must be perceived as such by the other parties to the cartel (see, to that effect, judgment in Comap  v Commission , C‑290/11 P, EU:C:2012:271, paragraphs 74 to 76 and the case-law cited).
22. Therefore, the case-law of the Court requires a public distancing as necessary proof in order to rebut the presumption recalled in the previous paragraph only in the case of an undertaking that participated in anti-competitive meetings; however, it does not require in all circumstances that there be such a distancing that puts an end to participation in the infringement.
23. With regard to participation in an infringement that took place over several years rather than in individual anti-competitive meetings, it can be concluded from the case-law of the Court that the absence of public distancing forms only one factor amongst others to take into consideration with a view to establishing whether an undertaking has actually continued to participate in an infringement or has, on the contrary, ceased to do so (see, to that effect, judgment in Commission  v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 75).
24. Consequently, the General Court erred in law in considering in paragraphs 372 and 374 of the judgment under appeal, that public distancing constitutes the only means available to an undertaking involved in a cartel of proving that it has ceased participating in that cartel, even in the case where that company has not participated in anti-competitive meetings.
26. It is settled case-law that 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 (see judgments in Aalborg Portland and Others  v Commission , 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, EU:C:2004:6, paragraph 57, and in Commission  v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 70).
27. As regards, in particular, an infringement extending over a number of years, the Court has held that the fact that direct evidence of an undertaking’s participation in that infringement during a specified period has not been produced does not preclude that participation from being regarded as established also during that period, provided that that finding is based on objective and consistent indicia (see, to that effect, judgments in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied  v Commission , C‑105/04 P, EU:C:2006:592, paragraphs 97 and 98, and in Commission  v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 72).
28. Even if a public distancing is not the only means available to an undertaking implicated in a cartel of proving that it has ceased participating in that cartel, such distancing none the less constitutes an important fact capable of establishing that anti-competitive conduct has come to an end. The absence of public distancing forms a factual situation on which the Commission can rely in order to prove that an undertaking’s anti-competitive conduct has continued. However, in a case where, over the course of a significant period of time, several collusive meetings have taken place without the participation of the representatives of the undertaking at issue, the Commission must also base its findings on other evidence.
55. The principle of equal treatment must be reconciled with the principle of legality (see, to that effect, judgment in The Rank Group , C‑259/10 and C‑260/10, EU:C:2011:719, paragraph 62 and the case-law cited). Therefore, given that, in the assessment of the first ground of appeal, the finding as to the duration of the appellant’s participation in the cartel was held to be correct, the possibly unjustified favourable treatment limited to Repsol cannot bring about a reduction in the length of that participation.