European Commission v Verhuizingen Coppens NV.
Date: 2012-12-06
36. As the Advocate General observed in point 25 of her Opinion, the first paragraph of Article 264 TFEU is to be interpreted, however, as meaning that the measure contested by the action for annulment must be declared to be void only to the extent that the action is well founded.
37. In that connection, the Court has held that the mere fact that the General Court finds that a plea relied on in support of an action for annulment is well founded does not automatically enable it to annul the contested measure in its entirety. Annulment of the measure in its entirety is not acceptable where it is obvious that, being directed only at a specific part of the contested measure, that plea can provide a basis only for partial annulment ( Commission v Département du Loiret , paragraph 104).
38. However, partial annulment of an act of EU law is possible only if the elements which it is sought to have annulled can be severed from the remainder of the measure. That requirement is not satisfied where the partial annulment of a measure would cause the substance of that measure to be altered, a point which must be determined on the basis of an objective criterion and not of a subjective criterion linked to the political intention of the authority which adopted the measure at issue (see, to that effect, Case C-244/03 France  v Parliament and Council  [2005] ECR I-4021, paragraphs 12 to 14, and Commission  v Département du Loiret, paragraphs 105 and 106).
41. According to settled case-law, an infringement of Article 81(1) EC can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’, because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole ( Commission  v Anic Partecipazioni, paragraph 81, and Joined Cases 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 Aalborg Portland and Others  v Commission  [2004] ECR I-123, paragraph 258).
42. An undertaking which has participated in such a single and complex infringement through its own conduct, which fell within the definition of an agreement or a concerted practice having an anti-competitive object for the purposes of Article 81(1) EC and was intended to help bring about the infringement as a whole, may accordingly be liable also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk ( Commission  v Anic Partecipazioni , paragraphs 87 and 203, and Aalborg Portland and Others  v Commission , paragraph 83).
43. An undertaking may thus have participated directly in all the forms of anti-competitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anti-competitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anti-competitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole.
44. On the other hand, if an undertaking has directly taken part in one or more of the forms of anti-competitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk.
45. That cannot, however, relieve the undertaking of liability for conduct in which it has undeniably taken part or for conduct for which it can undeniably be held responsible. Nor is the fact that an undertaking did not take part in all aspects of an anti-competitive arrangement or that it played only a minor role in the aspects in which it did participate material for the purposes of establishing the existence of an infringement on its part, given that those factors need to be taken into consideration only when the gravity of the infringement is assessed and only if and when it comes to determining the fine ( Commission  v Anic Partecipazioni , paragraph 90, and Aalborg Portland and Others  v Commission, paragraph 86).
63. Nor – since, according to recital 89 of the contested decision, the combined market share of the undertakings involved in the cartel accounted for approximately 50% of the international removal services market in Belgium, which Coppens does not deny – can it be accepted that the agreement on cover quotes had only insignificant effects on the market concerned and could therefore fall outside the prohibition laid down in Article 81(1) EC, in accordance with the case-law of the Court (Case 5/69 Völk  [1969] ECR 295, paragraph 7, and Case C-238/05 Asnef-Equifax  [2006] ECR I-11125, paragraph 50 and the case-law cited).
70. In that connection, it should be borne in mind that the Court has held 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 ( Aalborg Portland and Others  v Commission , paragraph 57, and Case C-105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied  v Commission  [2006] ECR I-8725, paragraph 94).
72. As regards the lack of evidence that there was an agreement during certain specific periods or, at least, the lack of evidence of its implementation by an undertaking during a given period, it should be recalled that the fact that such evidence has not been produced in relation to certain specific periods does not preclude the infringement from being regarded as established during a longer overall period than those periods, provided that such a finding is supported by objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that the agreement is shown to have applied during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the agreement, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement (see, to that effect, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied  v Commission , paragraphs 97 and 98).
73. It is also apparent from the case-law that a party which tacitly approves of an unlawful initiative, without publicly distancing itself from the content of that initiative or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery. That complicity constitutes a passive mode of participation in the infringement which is capable of rendering the undertaking concerned liable ( Aalborg Portland and Others  v Commission , paragraph 84).
74. In addition, an undertaking cannot exempt itself from its liability by relying on the fact that it has not taken part in all aspects of an anti-competitive scheme or that its role in the aspects in which it did participate was limited, as those circumstances are not capable of calling into question its liability for the infringement. Those factors must be taken into consideration only when the gravity of the infringement is assessed and if and when it comes to determining the fine ( Aalborg Portland and Others  v Commission , paragraph 86).
75. Accordingly, in the present case, even though the Commission concedes that it has not proved that Coppens actively participated in the agreement on cover quotes for the years 1994 and 1995, the fact remains that – in the light, first, of the lack of evidence that, during that period, Coppens had publicly distanced itself from the content of that agreement, in particular by informing its competitors in writing of its intention to cease participating in the agreement, and, second, of the numerous pieces of evidence (summarised, in particular, in recital 280 of the contested decision) that Coppens actively participated in the agreement after that period, a point which Coppens does not dispute – the Commission was justified in taking the view that Coppens could be found liable for participating in the agreement on cover quotes continuously throughout the entire period from 13 October 1992 to 29 July 2003.
79. Lastly, it should be observed, first, that by reason of the setting aside of the judgment under appeal and pursuant to Article 31 of Regulation No 1/2003, the Court has unlimited jurisdiction for the purposes of Article 261 TFEU (see, by analogy, Commission  v Anic Partecipazioni , paragraph 218).
80. Secondly, although it is for the Court, in the exercise of its unlimited jurisdiction in this regard, to assess for itself the circumstances of the case and the nature of the infringement in question in order to determine the amount of the fine (Case 322/81 Michelin  v Commission  [1983] ECR 3461, paragraph 111), the exercise of unlimited jurisdiction cannot result, when the amount of the fines to be imposed is determined, in discrimination between undertakings which have participated in an agreement or concerted practice, contrary to Article 81(1) EC. Accordingly, the guidance which can be drawn from the Guidelines is, as a general rule, capable of guiding the Courts of the European Union in their exercise of that jurisdiction where the Commission has applied those guidelines for the purposes of calculating the fines imposed on the other undertakings penalised by the decision which those Courts are asked to examine (see, to that effect, Case C-291/98 P Sarrió  v Commission  [2000] ECR I-9991, paragraphs 97 and 98, 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, paragraph 337).