Case C‑681/11

Bundeswettbewerbsbehörde
and
Bundeskartellanwalt

v

Schenker & Co. AG and Others

(Request for a preliminary ruling from the Oberster Gerichtshof)

(Agreements, decisions and concerted practices — Article 101 TFEU — Regulation (EC) No 1/2003 — Articles 5 and 23(2) — Intention-related or negligence-related conditions for imposing a fine — Impact of legal advice or of a decision of a national competition authority — Power of a national competition authority to find the infringement of European Union competition law without imposing a fine)

Summary — Judgment of the Court (Grand Chamber), 18 June 2013

1.        Competition — European Union rules — Infringements — Intentional or negligent commission — Error of an undertaking as to whether its conduct constitutes an infringement, as a result of legal advice given by a lawyer or of a decision of a national competition authority — Basis for a legitimate expectation in that regard — None where assurances are provided by persons other than the authorities

(Art. 101 TFEU; Council Regulation No 1/2003, Arts 5 and 23(2))

2.        Competition — Fines — Amount — Determination — Criteria — Reduction of the amount of the fine in return for cooperation by the undertaking concerned — Conditions — Discretion of the Commission

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03)

3.        Competition — European Union rules — Application — Competence of the national competition authorities — Possibility of finding an infringement without imposing a fine because an undertaking has participated in a national leniency programme — Exceptional nature

(Art. 101 TFEU; Council Regulation No 1/2003, Arts 5 and 23(2))

1.        Article 101 TFEU must be interpreted as meaning that an undertaking which has infringed that provision may not escape imposition of a fine where the infringement has resulted from that undertaking erring as to the lawfulness of its conduct on account of the terms of legal advice given by a lawyer and/or of the terms of a decision of a national competition authority.

It is not apparent from the wording of Article 5 of Regulation No 1/2003, which defines the powers of the competition authorities of the Member States, that conditions relating to intention or negligence have to be met in order for the measures of application which are provided for by Article 23(2) of that regulation to be adopted. However, if the Member States establish such conditions, they should be at least as stringent as the condition laid down by Article 23 of Regulation No 1/2003 so as not to jeopardise the effectiveness of European Union law. As regards the question whether an infringement has been committed intentionally or negligently, its classification as such depends on the conduct of the undertaking in question, inasmuch as the latter 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. Thus, undertakings which directly coordinate their behaviour in respect of their selling prices quite evidently cannot be unaware of the anti-competitive nature of their conduct.

Furthermore, 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. 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. 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, they cannot cause undertakings to entertain a legitimate expectation that their conduct does not infringe that provision.

(see paras 35-37, 39, 41-43, operative part 1)

2.        See the text of the decision.

(see paras 48, 49)

3.        Article 101 TFEU and Articles 5 and 23(2) of Regulation No 1/2003 must be interpreted as meaning that, in the event that the existence of an infringement of Article 101 TFEU is established, the national competition authorities may by way of exception confine themselves to finding that infringement without imposing a fine where the undertaking concerned has participated in a national leniency programme.

(see para. 50, operative part 2)