Language of document : ECLI:EU:T:2010:255

Case T-66/01

Imperial Chemical Industries Ltd

v

European Commission

(Competition – Abuse of dominant position – Market for soda ash in the United Kingdom – Decision finding an infringement of Article 82 EC – Commission’s power to impose a fine or sanction – Reasonable time – Essential procedural requirements – Res judicata – Existence of the dominant position – Abuse of the dominant position – Effect on trade between Member States – Fine – Gravity and duration of the infringement – Mitigating circumstances)

Summary of the Judgment

1.      Competition – Administrative procedure – Limitation period in proceedings – Suspension

(Council Regulation No 2988/74, Art. 3)

2.      Community law – Principles – Duty to act within a reasonable time – Scope – Competition – Administrative procedure – Judicial proceedings – Distinction for the purposes of assessing whether action has been taken within a reasonable time

(Council Regulation No 17)

3.      Competition – Administrative procedure – Duties of the Commission – Duty to act within a reasonable time

(Council Regulation No 17)

4.      Procedure – Duration of proceedings before the General Court – Reasonable time – Criteria for assessment

5.      Community law – Principles – Rights of the defence – Scope – Competition – Administrative procedure – Scope of the principle after the annulment of the Commission’s first decision

(Arts 81 EC, 82 EC and 233 EC; Council Regulation No 17)

6.      Commission – Principle of collegiality – Scope – Competition decision

7.      Actions for annulment – Judgment annulling a measure – Scope – Force of res judicata

8.      Actions for annulment – Judgment annulling a measure – Effects

(Arts 82 EC, 230 EC and 233 EC)

9.      Competition – Dominant position – Holding of a very large market share an indicator

(Art. 82 EC)

10.    Competition – Dominant position – Abuse – Rebates having a foreclosure effect on the market – Fidelity rebate

(Art. 82 EC)

11.    Competition – Dominant position – Abuse – Quantity rebate – Lawfulness – Conditions – Abusive nature of the rebate system

(Art. 82 EC)

12.    Competition – Dominant position – Abuse – Exclusive supply contracts – Fidelity rebates

(Art. 82 EC)

13.    Competition – Fines – Amount – Determination – Discretion of the Commission

(Arts 81 EC and 82 EC; Council Regulation No 2988/74)

14.    Competition – Administrative procedure – Commission decision – Decision finding an infringement and imposing a fine – Annulled on account of a procedural defect

(Council Regulation No 17)

15.    Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Particularly serious infringements

(Art. 82 EC; Council Regulation No 17, Art. 15(2))

16.    Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Repeated infringement – Concept of infringements of the same type – Infringements of Article 81 EC, on the one hand, and Article 82 EC, on the other – Not included

(Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2))

17.    Competition – Fines – Amount – Determination – Criteria – Obligation to deduct from the amount of the fine costs incurred to guarantee the application of a decision that is subsequently annulled – None

(Council Regulation No 17, Art. 15(2))

18.    Competition – Community rules – Infringements – Committed intentionally – Definition

(Council Regulation No 17, Art. 15)

19.    Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

(Council Regulation No 17, Art. 15(2))

20.    Competition – Fines – Imposition – Requirement that the undertaking benefited from the infringement – None – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Absence of benefit – Not included

(Council Regulation No 17, Art. 15(2))

21.    Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Concealment of the cartel – Absence of secrecy not constituting a mitigating circumstance

(Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2))

1.      Under Article 3 of Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions under the rules relating to competition, the limitation period in proceedings is to be suspended for as long as a decision of the Commission is the subject of ‘proceedings pending before the Court of Justice of the European Communities’. That reference must be understood, after the creation of the General Court, as referring, in the first place, to proceedings pending before it, since actions imposing sanctions or fines in the field of competition law come within its jurisdiction.

The limitation period is also suspended for the duration of appeal proceedings before the Court of Justice. Since Article 60 of the Statute of the Court of Justice and Article 3 of Regulation No 2988/74 are different in scope, the fact that an appeal does not have suspensory effect does not deprive Article 3 of that regulation – which concerns situations in which the Commission must await the decision of the Community judicature – of all effect. Moreover, Article 3 of Regulation No 2988/74 protects the Commission against the effect of the limitation period in situations in which it must await the decision of the Community judicature in proceedings beyond its control before knowing whether the contested act is or is not vitiated by illegality.

The argument that, following the annulment of a Commission decision, the Commission cannot benefit from its own error by imposing a fine after the expiry of the limitation period must be rejected. Any annulment of a measure which the Commission has adopted is necessarily imputable to it, in the sense that it reveals an error on the Commission’s part. Therefore, to exclude suspension of the limitation period where the action leads to recognition of an error imputable to the Commission would deprive Article 3 of Regulation No 2988/74 of all meaning. It is the very fact that an action is pending before the General Court or the Court of Justice which justifies the suspension, and not the conclusions reached by those courts in their judgment.

If the Commission had to adopt a new decision following the annulment of a decision by the General Court without awaiting the judgment of the Court of Justice, there is a risk that there would be two co-existing decisions having the same subject-matter in the event that the Court of Justice were to set aside the judgment of the General Court. It is contrary to the requirements of economy of administrative procedure to require the Commission, with the sole aim of avoiding the lapse of the limitation period, to adopt a new decision before knowing whether the initial decision is or is not vitiated by illegality.

Since the limitation period laid down in Article 3 of Regulation No 2988/74 was suspended for the duration of the proceedings before the General Court and the Court of Justice, the Commission cannot be criticised for breaching the principle that action must be taken within a reasonable time by awaiting the rulings of the General Court and the Court of Justice before adopting the contested decision, it being justified by respect for judicial proceedings and future judgments.

(see paras 73-74, 77, 82, 85-86, 88-89, 132)

2.      When a complaint alleging infringement of the principle that action must be taken within a reasonable time is being examined, a distinction must be drawn between the administrative procedure, conducted in competition matters pursuant to Regulation No 17, and judicial proceedings, in the event of an appeal against the Commission’s decision. The period during which the Community judicature examines the legality of the decision and, in the event of an appeal, the validity of the judgment delivered at first instance, cannot be taken into account in determining the duration of the procedure before the Commission.

(see para. 102)

3.      A breach of the principle that action must be taken within a reasonable time when a decision following an administrative proceeding in competition matters is adopted would justify the annulment of a decision taken by the Commission only in so far as it also constituted an infringement of the rights of defence of the undertakings concerned. Where it has not been established that the undue delay has adversely affected the ability of the undertakings concerned to defend themselves effectively, failure to comply with the principle that action must be taken within a reasonable time cannot affect the validity of the administrative procedure.

(see para. 109)

4.      The general principle of Community law that everyone is entitled to a fair hearing, which is inspired by Article 6(1) of the European Convention for the Protection of Human Rights, and in particular the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law.

The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities.

In that regard, the list of criteria is not exhaustive and the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of the case may be deemed to justify a duration which is prima facie too long.

In the absence of any evidence that the duration of the procedure has had an impact on the outcome of the case, the possibility that the Court may have taken longer than a reasonable time, were that to be established, would have no effect on the lawfulness of the contested decision. It might justify the payment of compensation, were the undertaking to make a claim.

(see paras 114, 116-117)

5.      Annulment of a Community measure does not necessarily affect the preparatory acts, since the procedure for replacing such a measure may, in principle, be resumed at the very point at which the illegality occurred.

Where the procedural defect occurred at the final stage of adoption of a decision imposing sanctions on an undertaking for having infringed Community rules on competition, the annulment of that decision does not affect the validity of the preparatory measures which were taken before the stage at which the defect was found. Where it adopts a new decision having substantially the same content and based on the same objections, the Commission is therefore not required take fresh procedural steps.

In particular, the Commission cannot be criticised for not having conducted a new hearing of the undertaking in question, for not having given that undertaking the opportunity to put forward its arguments again, or for not having sent it a new statement of objections.

As for questions of law which may arise in the context of the application of Article 233 EC, such as those relating to the passage of time, the possibility of resuming proceedings, the access to the file required on resumption of proceedings, the intervention of the Hearing Officer and the Advisory Committee, and the possible implications of Article 20 of Regulation No 17, they do not render a new hearing necessary either, since they do not alter the substance of the objections, being at most amenable to subsequent judicial review.

Moreover, since a new hearing is not required, a fresh intervention of the Hearing Officer is also unnecessary. It follows from the very substance of the task entrusted to the Hearing Officer that his intervention is necessarily linked to the undertakings being heard in view of the possibility of a decision being adopted.

Furthermore, inasmuch as the new decision does not contain substantial amendments compared with the annulled decision, the Commission, which is not required to hear the undertaking in question again, is not required to arrange for fresh consultation of the Advisory Committee on Restrictive Practices and Monopolies either.

For the same reasons, the file submitted to the members of the College of Commissioners does not have to contain, inter alia, a new report by the Hearing Officer or a fresh report on the consultation of the Advisory Committee.

(see paras 125-126, 134-135, 151, 153-154, 161-162, 168, 174)

6.      The principle of collegiality is based on the equal participation of the Commissioners in the adoption of decisions, from which it follows in particular that decisions should be the subject of collective deliberation and that all the members of the College of Commissioners should bear collective responsibility at political level for all decisions adopted. Compliance with that principle, and especially the need for decisions to be deliberated upon together, are bound to be of concern to the individuals affected by the legal consequences of such decisions, in the sense that they must be sure that those decisions were actually taken by the College of Commissioners and correspond exactly to its intention. This is particularly so, in the case of acts, expressly described as decisions, which the Commission finds it necessary to adopt with regard to undertakings or associations of undertakings for the purpose of ensuring observance of the competition rules and by which it finds an infringement of those rules, issues directions to those undertakings and imposes pecuniary sanctions upon them.

The mere fact that a press release not originating from the Commission and which is not in any way official mentions a statement made by the Commission’s spokesperson detailing the date when a competition decision will be delivered and its content, does not suffice to support the conclusion that the Commission breached the principle of collegiality. Since it is not in any way bound by such a statement, the College of Commissioners may decide, following collective deliberation, not to adopt such a decision.

(see paras 175-178)

7.      In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided for in that connection can no longer be called into question.

A judgment’s status as res judicata is such as to bar the admissibility of an action if the proceedings disposed of by the judgment in question were between the same parties, had the same purpose and the same legal basis, those conditions necessarily being cumulative. The principle of res judicata extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question.

(see paras 196-198)

8.      The institution whose measure is annulled is bound only within the limits of what is required to ensure implementation of the judgment annulling that measure. The procedure for replacing such a measure may thus be resumed at the very point at which the illegality occurred.

Where a decision of the Commission imposing sanctions on an undertaking for abuse of a dominant position is annulled on the ground that the authentication of that decision was carried out after its notification, which constitutes an infringement of an essential procedural requirement within the meaning of Article 230 EC, the Commission can resume its assessment at the point of authentication, without having to examine whether its findings in respect of the relevant market which it made before adopting the first decision were still valid in the light of factual and legal circumstances at the time when it adopted the second decision. The consideration that a finding of a dominant position is the outcome of an analysis of the structure of the market and of competition prevailing at the time the Commission adopts each decision does not imply that the Commission must, in all cases, carry out a fresh analysis of the relevant market at the time when the contested decision is adopted. In particular, the Commission is not required to carry out such an analysis where that is not necessary to implement the judgment annulling the decision.

(see paras 243-245)

9.      The dominant position referred to in Article 82 EC relates to a position of economic strength enjoyed by an undertaking which enables it to hinder the maintenance of effective competition on the relevant market, by allowing it to behave to an appreciable extent independently of its competitors, customers and, ultimately, consumers. Unlike a monopoly or a quasi‑monopoly situation, such a position does not preclude some competition, but enables the undertaking which profits by it, if not to determine, at least to have an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in disregard of it and without suffering any adverse effects as a result of its attitude.

In general a dominant position derives from a combination of several factors which, taken separately, would not necessarily be determinative. In order to assess whether there is a dominant position on the relevant market it is necessary to examine first of all its structure and then the competitive situation on that market.

Very large market shares are in themselves, and save in exceptional circumstances, evidence of the existence of a dominant position. An undertaking which has a very large market share and holds it for a certain period of time, by means of the volume of production and the scale of the supply which it stands for – without those having much smaller market shares being able to meet rapidly the demand from those who would like to break away from the undertaking which has the largest market share – is by virtue of that share in a position of strength which makes it an unavoidable trading partner and which, because of this alone, secures for it, at the very least during relatively long periods, that freedom of action which is the special feature of a dominant position.

Thus, a share of between 70% and 80% is, in itself, a clear indication of the existence of a dominant position in the relevant market. Likewise, a market share of 50% is in itself, and save in exceptional circumstances, evidence of the existence of a dominant position.

(see paras 254-257)

10.    A rebate system which has a foreclosure effect on the market will be regarded as contrary to Article 82 EC if it is applied by an undertaking in a dominant position. That is true of a fidelity rebate granted in return for an undertaking by the customer to obtain his stock exclusively or almost exclusively from an undertaking in a dominant position. Such a rebate is designed, through the grant of financial advantage, to prevent customers from obtaining their supplies from competing producers. By obstructing access to the market by competitors, the conduct of such an undertaking is likely to affect patterns of trade and competition on the common market.

(see paras 296-297, 337)

11.    Quantity rebate systems linked solely to the volume of purchases made from an undertaking occupying a dominant position are generally considered not to have the foreclosure effect prohibited by Article 82 EC. If increasing the quantity supplied results in lower costs for the supplier, the latter is entitled to pass on that reduction to the customer in the form of a more favourable tariff. Quantity rebates are therefore deemed to reflect gains in efficiency and economies of scale made by the undertaking in a dominant position.

It follows that a rebate system in which the rate of discount increases according to the volume purchased will not infringe Article 82 EC unless the criteria and rules for granting the rebate reveal that the system is not based on an economically justified countervailing advantage but tends, following the example of a fidelity and target rebate, to prevent customers from obtaining their supplies from competitors.

In determining whether a quantity rebate system is abusive, it is therefore necessary to consider all the circumstances, particularly the criteria and rules governing the grant of the rebate, and to investigate whether, in providing an advantage not based on any economic service justifying it, the rebates tend to remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties or to strengthen the dominant position by distorting competition.

(see paras 298-300)

12.    An undertaking which is in a dominant position on a market and ties purchasers – even if it does so at their request – by an obligation or promise on their part to obtain all or most of their requirements exclusively from the undertaking abuses its dominant position within the meaning of Article 82 EC, whether the obligation in question is stipulated without further qualification or whether it is undertaken in consideration of the grant of a rebate. The same applies if the undertaking, without tying the purchasers by a formal obligation, applies, either under the terms of agreements concluded with these purchasers or unilaterally, a system of fidelity rebates, that is to say discounts conditional on the customer’s obtaining all or most of its requirements from the undertaking in a dominant position. Obligations of this kind to obtain supplies exclusively from a particular undertaking, whether or not they are in consideration of rebates or of the granting of fidelity rebates intended to give the purchaser an incentive to obtain his supplies exclusively from the undertaking in a dominant position, are incompatible with the objective of undistorted competition within the common market, because they are not based on an economic transaction which justifies this burden or benefit but are designed to deprive the purchaser of or restrict its possible choices of sources of supply and to deny other producers access to the market.

(see para. 315)

13.    In determining the amount of fines for infringements of competition law, the Commission must take into account not only the gravity of the infringement and the particular circumstances of the case but also the context in which the infringement was committed and must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the Community. Moreover, where the Commission adopts a decision in compliance with Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions under the rules relating to competition and with the principle that action must be taken within a reasonable time, there can be no complaint that it delayed in adopting that decision. In such circumstances, a fine, imposed by a decision adopted following the annulment of a first decision, should not be cancelled on account of the time which passed between the adoption of the two decisions.

(see paras 354-355)

14.    Where a decision is annulled because of a procedural defect, the Commission is fully entitled to adopt a new decision, without having to initiate a fresh administrative proceeding. Since the content of the new decision is practically identical to that of previous decision, and since those two decisions are based on the same grounds, the new decision is subject, in the context of setting the amount of the fine, to the rules in force at the time when the previous decision was adopted. The Commission recommences the proceeding from the point where the procedural error was committed and adopts a new decision, without carrying out a fresh assessment of the case in the light of rules which were not in existence at the time when the first decision was adopted.

(see paras 366-368)

15.    In assessing the gravity of the infringement of Community competition rules for which an undertaking is liable, in order to determine a fine which is proportionate, the Commission may take into account the exceptional duration of certain infringements; the number and diversity of the infringements, which concerned all or almost all the undertaking’s products and some of which affected all the Member States; the particular gravity of the infringements which formed part of a deliberate and coherent strategy seeking, by various eliminatory practices towards competitors and by a policy of retaining customers, to maintain artificially or to strengthen the dominant position of the undertaking in question on markets where competition was already limited; particularly harmful effects of the abuses in terms of competition and the benefit gained by the applicant from its infringements.

The Commission is entitled to categorise as particularly serious the practices of an undertaking in a dominant position which, by granting rebates on marginal tonnage to its customers and by entering into loyalty‑inducing agreements with them, foreclose for a long time sales opportunities for all competitors and cause lasting damage to the structure of the market concerned, to the detriment of consumers.

(see paras 370, 372, 374)

16.    The analysis of the gravity of an infringement of Community competition rules must take account of any repeated infringement. The concept of repeated infringement, as understood in a number of national legal orders, implies that a person has committed new infringements after being punished for similar infringements. The Guidelines on the methods of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty make similar provisions where they refer to an ‘infringement of the same type’. Therefore, the Commission cannot find that an aggravating circumstance for repeated infringement exists in the case of an undertaking which abuses its dominant position on the market within the meaning of Article 82 EC because of previous collusive practices relating to Article 81 EC, which are in addition very different from those giving rise to the infringement of Article 82 EC.

(see paras 377-381)

17.    In competition matters, where an undertaking incurs costs in providing the guarantees for payment of a fine imposed by a decision which is subsequently annulled by the Community judicature and in establishing that that decision was unlawful, the Commission is not required to take those costs into account when it sets the fine in the decision adopted following the judgment annulling the first decision, since the undertaking is able to seek their reimbursement in the context of an action for damages.

(see para. 383)

18.    For an infringement to be regarded as having been committed intentionally, it is not necessary for the undertaking to have been aware that it was infringing the prohibition laid down by the competition rules in the Treaty applicable to undertakings; it is sufficient that it could not have been unaware that the contested conduct had as its object or effect the distortion of competition in the common market.

(see para. 412)

19.    Factors relating to the object of a course of conduct may be more significant than those relating to its effects.

(see para. 435)

20.    Although the amount of the fine imposed for infringement of the Community competition rules must be proportionate to the duration of the infringement and the other factors capable of affecting the assessment of the gravity of the infringement, such as the profit that the undertaking was able to derive from its practices, the fact that an undertaking did not benefit from the infringement cannot preclude the imposition of a fine, since otherwise it would cease to have a deterrent effect. It follows that the Commission is not required, in order to set fines, to take into consideration any lack of benefit from the infringement at issue. Furthermore, the absence of such a benefit cannot be regarded as a mitigating circumstance.

(see para. 443)

21.    The Commission is fully entitled to hold secrecy to be an aggravating circumstance when assessing the gravity of an infringement of Articles 81 or 82 EC. However, it cannot be inferred therefrom that the absence of secrecy constitutes a mitigating circumstance.

(see paras 446-447)