Case T‑378/10

Masco Corp. and Others

v

European Commission

(Competition — Agreements, decisions and concerted practices — Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Coordination of price increases and exchange of sensitive business information — Single infringement)

Summary — Judgment of the General Court (Fourth Chamber), 16 September 2013

1.      Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Concept — Overall cartel — Criteria — Single objective — Detailed way in which infringement committed — Irrelevant

(Art. 101(1) TFEU)

2.      Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability for an undertaking by reason of participation in the infringement considered as a whole — Conditions

(Art. 101(1) TFEU)

3.      Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Concept — Classification as a single infringement — Discretion of the Commission — Judicial review — Scope

(Art. 101(1) TFEU)

1.      In competition matters, an infringement of Article 101(1) TFEU may result not only from isolated agreements or concerted practices which fall to be penalised as separate infringements, but also from a series of acts or from continuous conduct, the components of which may therefore justifiably be considered to be constituent elements of a single infringement.

In that regard, so far as concerns the finding of a single infringement, it is for the Commission to establish that the agreements or concerted practices in issue, although they relate to distinct goods, services or territories, form part of an overall plan knowingly implemented by the undertakings in question with a view to achieving a single anti-competitive objective. Links of complementarity between agreements or concerted practices constitute objective indicia of an overall plan. The Commission is required to examine all the facts capable of establishing or of casting doubt on that overall plan.

The Commission does not err in law where it finds a single infringement on the basis of the finding of an overall plan pursued by the undertakings concerned with the sole objective of allowing manufacturers of three sub-groups of complementary products to coordinate, in the context of the same three-level distribution system, price rises which they invoice to the wholesalers who are common customers and who have significant negotiating strength.

The claim that the undertakings participating in the unlawful practices are not identical does nothing to cast doubt on that conclusion. Such identity does not constitute a condition for the existence of an infringement as such, but only one indicator among others which have to be taken into consideration by the Commission when determining whether there is an overall plan or separate infringements. Moreover, the fact that the undertakings concerned supply products belonging to separate markets does not preclude the existence of a single infringement; the finding of a single infringement by definition presupposes that the anti-competitive conduct in question relates to distinct goods or territories. Furthermore, the fact that the unlawful practices in question start on different dates, depending on the Member States and the product sub-groups concerned, does not affect a finding that there were many material, geographic and temporal overlaps between the unlawful practices concerning the products in issue.

(see paras 21-23, 29, 32, 59, 67, 79)

2.      In competition matters, concerning the finding that an undertaking has participated in a single infringement, it is for the Commission to establish that that undertaking intended to contribute by its own conduct to the single objective pursued by all the participants and that it was aware of the unlawful conduct planned or put into effect by other undertakings in pursuit of that same objective or that it could reasonably have foreseen it and that it was prepared to take the risk. The Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole, only where it is established that that undertaking has participated directly in all of the conduct, or where it has participated in only some of it, but was aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and was prepared to take the risk.

The Commission does not err in law by holding that the mere fact that each participant in a cartel may play the role which is appropriate to its own specific circumstances does not exclude its responsibility for the infringement as a whole, where the undertaking in question was aware of the unlawful behaviour of the other participants or could reasonably have foreseen it and was prepared to take the risk.

(see paras 24-26, 28, 29)

3.      See the text of the decision.

(see para. 57)