Bundeswettbewerbsbehörde and Bundeskartellanwalt v Schenker & Co. AG and Others.
Date: 2013-06-18
37. In relation to the question whether an infringement has been committed intentionally or negligently and is, therefore, liable to be punished by a fine in accordance with the first subparagraph of Article 23(2) of Regulation No 1/2003, it follows from the case-law of the Court that that condition is satisfied where the undertaking concerned cannot be unaware of the anti-competitive nature of its conduct, whether or not it is aware that it is infringing the competition rules of the Treaty (see Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others  v Commission  [1983] ECR 3369, paragraph 45; Case 322/81 Nederlandsche Banden-Industrie-Michelin  v Commission  [1983] ECR 3461, paragraph 107; and Case C‑280/08 P Deutsche Telekom  v Commission  [2010] ECR I‑9555, paragraph 124).
38. Therefore, the fact that the undertaking concerned has characterised wrongly in law its conduct upon which the finding of the infringement is based cannot have the effect of exempting it from imposition of a fine in so far as it could not be unaware of the anti-competitive nature of that conduct.
41. However, a person may not plead breach of the principle of the protection of legitimate expectations unless he has been given precise assurances by the competent authority (see Case C‑221/09 AJD Tuna  [2011] ECR I‑1655, paragraph 72, and Case C‑545/11 Agrargenossenschaft Neuzelle  [2013] ECR I‑0000, paragraph 25). It follows that legal advice given by a lawyer cannot, in any event, form the basis of a legitimate expectation on the part of an undertaking that its conduct does not infringe Article 101 TFEU or will not give rise to the imposition of a fine.
42. As for the national competition authorities, since they do not have the power to adopt a negative decision, that is to say, a decision concluding that there is no infringement of Article 101 TFEU (Case C‑375/09 Tele2 Polska  [2011] ECR I‑3055, paragraphs 19 to 30), they cannot cause undertakings to entertain a legitimate expectation that their conduct does not infringe that provision. It appears, moreover, from the wording of the first question that the national competition authority examined the conduct of the undertakings at issue in the main proceedings on the basis of national competition law only.
46. However, in order to ensure that Article 101 TFEU is applied effectively in the general interest (see Case C‑439/08 VEBIC  [2010] ECR I‑12471, paragraph 56), the national competition authorities must proceed by way of exception only not to impose a fine where an undertaking has infringed that provision intentionally or negligently.
48. Thus, in the case of the Commission’s power to reduce fines under its own leniency programme, it is apparent from the Court’s case-law that a reduction of a fine for cooperation on the part of undertakings participating in infringements of European Union competition law is justified only if such cooperation makes it easier for the Commission to carry out its task of finding an infringement and, where relevant, of bringing it to an end, whilst the undertaking’s conduct must also reveal a genuine spirit of cooperation (see, to this 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 3 93, 395 and 396).
49. As regards immunity from or not imposing a fine, in order for such treatment – which is moreover at issue in the main proceedings – not to undermine the effective and uniform application of Article 101 TFEU, it can be accorded in strictly exceptional situations only, such as where an undertaking’s cooperation has been decisive in detecting and actually suppressing the cartel.