Case T‑82/08
Guardian Industries Corp. and Guardian Europe Sàrl
v
European Commission
(Competition — Agreements, decisions and concerted practices — Market for flat glass in the EEA — Decision finding an infringement of Article 81 EC — Price-fixing — Evidence of the infringement — Calculation of the amount of the fines — Exclusion of captive sales — Duty to state reasons — Equal treatment — Mitigating circumstances)
Summary — Judgment of the General Court (Sixth Chamber), 27 September 2012
1. Competition — Administrative procedure — Commission decision finding an infringement — Method of proof — Reliance on a body of evidence — Degree of evidential value necessary — Decision which still allows the Court to entertain doubts — Observance of the principle of the presumption of innocence
(Art. 81(1) EC)
2. Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision based on documentary evidence — Evidential obligations on undertakings disputing the existence of the infringement
(Art. 81(1) EC)
3. Agreements, decisions and concerted practices — Concerted practice — Definition — Statement of intention eliminating or substantially reducing uncertainty as to the conduct of the operator on the market — Sufficient evidence
(Art. 81(1) EC)
4. Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Participation of an undertaking in an agreement or concerted practice — Criteria — Contribution to the attainment of common objectives
(Art. 81(1) EC)
5. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Evidential value of evidence provided voluntarily by the main participants in a cartel with a view to benefiting from the application of the Leniency Notice
(Art. 81 EC; Commission Notice 2002/C 45/03)
6. Agreements, decisions and concerted practices — Participation in meetings with an anti-competitive object — Circumstances from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel
(Art. 81(1) EC)
7. Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Obligation to define the market — None in the case of an agreement the object of which is to restrict competition
(Art. 81 EC)
8. Acts of the institutions — Statement of reasons — Obligation — Scope
(Arts 81 EC and 253 EC)
9. Competition — Fines — Amount — Determination — Criteria — Gravity and duration of the infringement — Infringement committed by several undertakings — Relative gravity of the participation of each of them
(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2))
10. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Passive or ‘follow-my-leader’ role of the undertaking
(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02)
11. Competition — Fines — Amount — Determination — Deterrent nature — No obligation on the Commission to differentiate the undertakings involved in the same infringement in terms of their overall turnover or their turnover on the market of the product at issue
(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2))
12. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Repeated infringement — Meaning — No limitation period — Infringement of the principle of legal certainty — Infringement of the principle of proportionality — None — Judicial review
(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02)
1. The burden of proving an infringement of Article 81(1) EC rests on the authority alleging the infringement, which must adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement. Furthermore, where there is doubt, the benefit of that doubt must be given to the undertakings accused of the infringement and, in accordance with the principle of the presumption of innocence, the Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine. The Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement.
Furthermore, it is normal for the activities relating to anti-competitive practices and agreements to take place in a clandestine fashion, 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.
(see paras 32-33)
2. As regards cartels, where the Commission’s reasoning is based on the supposition that the facts established cannot be explained other than by concerted action between undertakings, it is sufficient for the applicants to prove circumstances which cast the facts established by the Commission in a different light and thus allow another explanation of the facts to be substituted for the one adopted by the Commission.
That principle does not however apply where the Commission’s findings are based on documentary evidence.
(see paras 34-35)
3. Any direct or indirect contact between economic operators of such a kind as to disclose to a competitor the conduct that the economic operator concerned has decided upon or envisaged on the market, where the object or effect of such contact is to create conditions of competition which would not correspond to the normal conditions of the market, constitutes a concerted practice prohibited by Article 81(1) EC. That form of coordination between undertakings knowingly substitutes for the risks of competition practical cooperation between them.
In order to prove that there has been a concerted practice, it is therefore not necessary to show that the competitor in question has formally undertaken, in respect of one or several other competitors, to adopt a particular course of conduct or that the competitors have colluded over their future conduct on the market. It is sufficient that, by its statement of intention, the competitor eliminated or, at the very least, substantially reduced uncertainty as to the conduct to expect from it on the market.
(see para. 45)
4. See the text of the decision.
(see para. 48)
5. See the text of the decision.
(see para. 54)
6. See the text of the decision.
(see paras 73-74)
7. The obligation to define the market in a decision adopted pursuant to Article 81 EC is binding on the Commission only where, without such a definition, it is impossible to determine whether the agreement in question is capable of affecting trade between Member States and has the object or effect of preventing, restricting or distorting competition within the common market. In principle, if the actual object of an agreement is to restrict competition, it is not necessary to define the geographic markets in question precisely, provided that actual or potential competition on the territories concerned was necessarily restricted, whether or not those territories constitute markets in the strict sense. In order to establish the geographic scope of the infringement, which must be taken into account in order to assess the seriousness of the infringement, it is sufficient for the Commission to assess the greater or lesser extent of the market or markets concerned, without being required to define precisely the markets in question.
(see para. 90)
8. See the text of the decision.
(see paras 102-103)
9. Where an infringement has been committed by several undertakings, it is appropriate, in setting the amount of fines, to consider the relative gravity of the participation of each of them, which involves, in particular, establishing their respective roles in the infringement during the period of their participation in it.
(see para. 109)
10. According to the third indent of point 29 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, an undertaking’s passive role in an infringement thus constitutes a mitigating circumstance. Amongst the circumstances that may indicate the adoption by an undertaking of a passive role within a cartel are the situation where the undertaking’s participation in cartel meetings is significantly more sporadic than that of the ‘ordinary’ members of the cartel, its belated entry to the market on which the infringement occurred, irrespective of the duration of its participation in the infringement, or again the existence of express statements to that effect emanating from representatives of other undertakings which participated in the infringement. The fact that an undertaking has been the member which attended least regularly the meetings of the cartel or limited itself to receiving information passed on unilaterally by a competitor, without expressing any reservations or objections, cannot play any part in establishing that that undertaking had a passive role within the cartel.
Likewise, the fact that the undertakings concerned did not implement some of the anti-competitive agreements adopted is not sufficient to establish that their conduct in the market was competitive.
(see paras 110-111, 113)
11. The deterrent nature of fines is one of the factors to be taken into account in calculating the amount of fines imposed for infringements of the rules of European Union competition law. The fines imposed for infringements of Article 81 EC and laid down in Article 23(2) of Regulation No 1/2003 are designed to punish the unlawful acts of the undertakings concerned and to deter both the undertakings in question and other operators from infringing the rules of European Union competition law in future. However, the Commission is not required, when assessing fines in accordance with the gravity and duration of the infringement in question, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between them in terms of their overall turnover or their relevant turnover.
(see para. 117)
12. Neither Regulation No 1/2003 nor the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 prescribe a maximum period outside which recidivism cannot be taken into account, which is not contrary to the principle of legal certainty.
Nevertheless, the principle of proportionality requires that the time which has elapsed between the infringement in question and a previous breach of the competition rules be taken into account in assessing an undertaking’s tendency to infringe those rules. For the purposes of judicial review of the Commission’s measures in matters of competition law, the Court may therefore be called upon to scrutinise whether the Commission complied with that principle when it increased, on grounds of repeated infringement, the fine imposed, and, in particular, whether such increase was imposed in the light of, among other things, the time which had elapsed between the infringement in question and the previous breach of the competition rules.
Where more than 15 years elapse before the beginning of the second infringement committed by the undertakings in question and the existence of continuity between the first and second infringements has not been established, that period does not confirm a tendency on the part of those undertakings to infringe the rules of competition. Consequently, the Commission does not infringe the principle of non-discrimination in taking the view that the period which had elapsed between the two infringements was sufficiently long to preclude an increase in the fine on grounds of recidivism.
(see paras 121-123)