Case T-19/05

Boliden AB and Others

v

European Commission

(Competition – Agreements, decisions and concerted practices – Copper plumbing tube industry – Decision finding an infringement of Article 81 EC – Continuous and multiform infringement – Fines – Limitation period – Cooperation)

Summary of the Judgment

1.      Competition – Agreements, decisions and concerted practices – Undertakings that may be held responsible for participating in an overall cartel

(Art. 81(1) EC)

2.      Competition – Fines – Guidelines on the method of setting fines – Method of calculation displaying flexibility in a number of ways

(Art. 229 EC; Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2); Commission Communication 98/C 9/03)

3.      Procedure – Introduction of new pleas during the proceedings – Conditions – New plea

(Rules of Procedure of the General Court, Arts 44(1) and 48(2))

4.      Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Infringements of long duration – 10% increase in the starting amount per year

(Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 2(2); Commission Communication 98/C 9/03, Section 1B)

5.      Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Conditions

(Council Regulations No 17 and No 1/2003; Commission Communication 96/C 207/04)

1.      An undertaking may be held responsible for an overall cartel even though it is shown to have participated directly only in one or some of the constituent elements of that cartel if it knew, or must have known, that the collusion in which it participated was part of an overall plan and that the overall plan included all the constituent elements of the cartel.

(see para. 61)

2.      Whilst the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty may not be regarded as rules of law, they nevertheless form rules of practice from which the Commission may not depart in an individual case without giving reasons which are compatible with the principle of equal treatment. It is therefore for the Court to verify, when reviewing the legality of the fines imposed by a Commission decision, whether the Commission exercised its discretion in accordance with the method set out in those guidelines and, should it be found to have departed from that method, to verify whether that departure is justified and supported by sufficient legal reasoning.

The self-limitation on the Commission’s discretion arising from the adoption of the guidelines is not incompatible with the Commission’s maintaining a substantial margin of discretion. The guidelines display flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with the provisions of Regulations No 17 and No 1/2003, as interpreted by the Court of Justice. Therefore, in areas where the Commission has maintained a discretion, review of the legality of those assessments is limited to determining the absence of manifest error of assessment. The discretion enjoyed by the Commission and the limits which it has imposed in that regard do not, in principle, prejudge the exercise by the Court of its unlimited jurisdiction, which empowers it to annul, increase or reduce the fine imposed by the Commission.

(see paras 74-78)

3.      It follows from Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure of the General Court that the original application must state the subject-matter of the proceedings and contain a summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. However, a submission which may be regarded as amplifying a submission made previously, whether directly or by implication, in the original application, and which is closely connected therewith, will be declared admissible. The same applies to a complaint made in support of a plea in law.

In an action for the annulment or reduction of a fine imposed on an undertaking by a decision of the Commission for breach of the Community competition rules, the Court must declare inadmissible a complaint invoked for the first time in the reply, relating to the assessment of the gravity of the participation of the undertaking concerned in the infringement, where the application contains only a plea in respect of the alleged disproportionality of the fine imposed and covering only the increase in the starting amount of the fine for duration. This complaint cannot be regarded as amplifying the submission made in the application. If an essential element of a decision, such as the assessment of the gravity of the infringement, is to be challenged, this must be specifically stated before the Court at the stage of the application.

(see paras 90-92)

4.      It is clear from the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty that the Commission has not established any overlap or interdependence between assessment of the gravity and that of the duration of the infringement. The fact that it reserved for itself the possibility of increasing the fine per year of infringement, going in the case of long-lasting infringements up to 10% of the amount adopted for the gravity of the infringement, does not in any way oblige it to fix that uplift by reference to the intensity of the activities of the cartel or its effects, or of the gravity of the infringement. It is for the Commission to choose, in the context of its broad discretion, the uplift which it intends to apply in respect of the duration of the infringement.

(see paras 95-96, 98)

5.      In assessing the cooperation given by members of a cartel, the Commission enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings. Only a manifest error of assessment by the Commission is therefore open to censure. In exercising that discretion the Commission cannot, however, disregard the principle of equal treatment.

(see para. 105)