Case T-44/07

Kaučuk a.s.

v

European Commission

(Competition – Agreements, decisions and concerted practices – Market in butadiene rubber and emulsion styrene butadiene rubber – Decision finding an infringement of Article 81 EC – Participation in the cartel – Imputability of the offending conduct – Fines – Gravity and duration of the infringement – Attenuating circumstances)

Summary of the Judgment

Competition – Administrative procedure – Commission decision finding an infringement – Evidence which has to be gathered

(Art. 81(1) EC)

As regards proof of an infringement of Article 81(1) EC, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. It is accordingly necessary for the Commission to produce precise and consistent evidence to support the firm conviction that the infringement took place.

Any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point.

Furthermore, it is normal for the activities entailed by anti-competitive practices and agreements to take place clandestinely, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, 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.

Even if the evidence accepted by the Commission may have a certain probative value, it is not sufficient to justify the finding that there was an infringement by the undertaking concerned, having regard to the contradictions in the Commission’s decision in relation inter alia to the meetings organised in connection with the cartel and the doubt which must operate to the advantage of the undertaking concerned; therefore, the Commission’s decision must be annulled.

(see paras 48-49, 66, 68)