Case T-133/07

Mitsubishi Electric Corp.

v

European Commission

(Competition – Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Market-sharing – Rights of the defence – Proof of the infringement – Duration of the infringement – Fines – Starting amount – Reference year – Equal treatment)

Summary of the Judgment

1.      Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Failure to communicate a document – Consequences

(Art. 81(1) EC; EEA Agreement, Art. 53(1))

2.      Competition – Administrative procedure – Observance of the rights of the defence – Communication of responses to the statement of objections – Conditions – Limits

(Art. 81(1) EC; EEA Agreement, Art. 53(1))

3.      Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Evidence of the infringement – Written witness statements of employees of a company involved in an infringement – Probative value – Assessment

(Art. 81(1) EC)

4.      Competition – Administrative procedure – Statement of objections – Provisional nature – Necessary content – Limits

(Art. 81 EC)

5.      Community law – Principles – Fundamental rights – Presumption of innocence – Procedure in competition matters

(Art. 6(2) EU; Art. 81(1) EC; EEA Agreement, Art. 53(1))

6.      Competition – Administrative procedure – Commission decision finding an infringement – Means of proof – Reliance on a body of evidence

(Art. 81(1) EC)

7.      Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Evidence of the infringement – Assessment of the probative value of various items of evidence – Criteria

(Art. 81(1) EC; EEA Agreement, Art. 53(1))

8.      Competition – Administrative procedure – Commission decision finding an infringement – Burden on the Commission of proving the infringement and its duration

(Art. 81(1) EC; Commission Notice 2002/C 45/03)

9.      Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Adverse effect on competition – Criteria for assessment – Anti-competitive purpose – Sufficient finding

(Art. 81(1) EC; EEA Agreement, Art. 53(1))

10.    Competition – Administrative procedure – Commission decision finding an infringement – Burden on the Commission of proving the infringement and its duration – Extent of the burden of proof

(Art. 81(1) EC; EEA Agreement, Art. 53(1))

11.    Competition – Fines – Amount – Determination – Criteria – Gravity and duration of the infringement – Discretion of the Commission

(Article 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3))

12.    Competition – Fines – Amount – Determination – Compliance with the principles of equal treatment and proportionality

(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)

1.      A corollary of the principle of respect for the rights of the defence, the right of access to the file means that, in administrative proceedings concerning the application of the competition rules, the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved.

The failure to communicate a document on which the Commission based its decision to inculpate an undertaking constitutes a breach of the rights of the defence only if the undertaking concerned shows that the result at which the Commission arrived in its decision would have been different if the document which was not communicated had to be disallowed as incriminating evidence.

Where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission. It is sufficient for the undertaking to show that it would have been able to use the exculpatory document for its defence, in the sense that, had it been able to rely on it during the administrative procedure, it would have been able to invoke evidence which was not consistent with the inferences made at that stage by the Commission and therefore could have had an influence, in any way at all, on the assessments made by the Commission in the decision, at least as regards the gravity and duration of the conduct in which the undertaking was found to have engaged and, accordingly, the level of the fine.

(see paras 40, 45-46)

2.      In the context of proceedings brought for infringement of the competition rules, it is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by means of the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, the replies to the statement of objections of the other undertakings alleged to have participated in the cartel are not, in principle, included in the documents of the investigation file that the parties may consult.

However, if the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 81(1) EC, the other undertakings involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances the passage in question from a reply to the statement of objections or the document annexed thereto constitutes incriminating evidence against the various undertakings alleged to have participated in the infringement.

By analogy, if a passage in a reply to a statement of objections or in a document annexed to such a reply may be relevant for the defence of an undertaking in that it enables that company to invoke evidence which is not consistent with the inferences made at that stage by the Commission, it constitutes exculpatory evidence. In that case, the undertaking concerned must be authorised to examine the passage or the document concerned and to give its view thereon.

(see paras 41-43)

3.      The written witness statements of the employees of a company, drawn up under the supervision of that company and submitted by it in its defence in the administrative procedure for infringement of the competition rules carried out by the Commission cannot, in principle, be classed as evidence which is both different from, and independent of, the statements made by that same company. Generally speaking, the position of a company as to the truth of the facts set out against it by the Commission is based, primarily, on the knowledge and opinions of its employees and management.

(see para. 59)

4.      In the context of administrative proceedings in competition cases, the statement of objections must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure. However, that may be done summarily and the decision is not necessarily required to be a replica of the Commission’s statement of objections, since the statement of objections is a preparatory document containing assessments of fact and of law which are purely provisional in nature. Thus, although the Commission cannot allege that the persons concerned have committed infringements other than those referred to in the statement of objections and may take into consideration only facts on which the persons concerned have had the opportunity of making known their views, it must however take into account the factors emerging from the administrative procedure in order either to abandon such complaints as have been shown to be unfounded or to supplement and redraft its arguments both in fact and in law in support of the complaints which it maintains.

(see para. 66)

5.      Any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement of Article 81(1) EC 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, in particular in proceedings for annulment of a decision imposing a fine.

In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the European Convention of Human Rights, which is one of the fundamental rights which are general principles of Community law. Given the nature of the infringements in question and the nature and degree of gravity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments.

(see paras 73-74)

6.      As regards competition, the Commission must show precise and consistent evidence in order to establish the existence of the infringement. 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.

In addition, as anti-competitive agreements are known to be prohibited, the Commission cannot be required to produce documents expressly attesting to contacts between the traders concerned. The fragmentary and sporadic items of evidence which may be available to the Commission should, in any event, be capable of being supplemented by inferences which allow the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of coincidences and indicia which, taken together, can, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.

Moreover, where the Commission bases its decision solely on the conduct of the undertakings at issue on the market to conclude that there was an infringement of Article 81(1) EC, it is sufficient for those undertakings to prove the existence of circumstances which cast the facts established by the Commission in a different light and thus allow another, plausible explanation of those facts to be substituted for the one adopted by the Commission in concluding that the Community competition rules had been infringed.

That rule does not apply to all cases in which the infringement is established solely on the basis of non‑documentary evidence. As regards the evidence which may be relied on to establish an infringement of Article 81 EC, the prevailing principle of Community law is the unfettered evaluation of evidence.

Consequently, even if the lack of documentary evidence may be relevant in the global assessment of the set of indicia relied on by the Commission, it does not, in itself, enable the undertaking concerned to call the Commission’s claims into question by submitting an alternative explanation of the facts. That is only the case where the evidence submitted by the Commission does not enable the existence of the infringement to be established unequivocally and without the need for interpretation.

(see paras 75-76, 79-82)

7.      In the context of proceedings concerning infringement of Article 81(1) EC, the sole criterion relevant in evaluating the different items of evidence is their reliability. According to the general rules regarding evidence, the reliability and, thus, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and its content.

As regards statements made by undertakings, particularly high probative value may be attached to those which, first, are reliable, second, are made on behalf of an undertaking, third, are made by a person under a professional obligation to act in the interests of that undertaking, fourth, go against the interests of the person making the statement, fifth, are made by a direct witness of the circumstances to which they relate and, sixth, were provided in writing deliberately and after mature reflection.

However, a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence, though the degree of corroboration required may be less in view of the reliability of the statements at issue.

(see paras 84-87)

8.      Even if some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is generally called for, considering the possibility that those participants have a tendency to provide most of the incriminating evidence in relation to the activity of their competitors, the fact remains that seeking to benefit from the application of the Commission notice on immunity from fines and reductions of fines in cartel cases in order to obtain immunity from, or a reduction of, the fine does not necessarily create an incentive to submit distorted evidence in relation to the participation of the other members of the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of the cooperation of the person seeking leniency, and thereby jeopardise its chances of benefiting fully under the Leniency Notice.

As regards the particular case of witness statements, it is indeed possible that the employees of an undertaking which has sought leniency, who are required to act in the interests of the undertaking, have a common desire to submit as much incriminating evidence as possible since their cooperation in the procedure may also have a positive impact on their future career. However, if that is the case, the employees at issue will also be aware of the possible negative consequences of submitting inaccurate evidence, which are more sensitive given the requirement for corroboration.

(see paras 88,107)

9.      In order for there to be an agreement within the meaning of Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area (EEA), it is sufficient that the undertakings in question expressed their joint intention to conduct themselves on the market in a specific way. There is no need to take account of the concrete effects of an agreement when it is apparent that it has as its object the prevention, restriction or distortion of competition. In that regard, the existence of a mutual agreement necessarily implies the existence of a meeting of minds, even if there is no evidence which makes it possible to determine with precision the exact point in time that meeting of minds was manifested or which formalised its expression.

(see paras 230-231)

10.    When there is a dispute concerning the existence of an infringement, the requirement of legal certainty, on which economic operators are entitled to rely, means that the Commission, which bears the burden of proving infringements which it finds, must adduce evidence which will sufficiently establish the existence of the facts constituting the infringement. With specific regard to the alleged duration of an infringement, the same principle of legal certainty requires that, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates.

In addition, the fact that the evidence of the existence of a continuous infringement was not adduced for certain specific periods does not preclude the infringement from being regarded as having been established during a more extensive overall period than those periods, provided that such a finding is based on objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that a cartel reveals itself at different periods, which may be separated by more or less lengthy intervals, has no impact on the existence of that cartel, provided that the various actions which form part of the infringement pursue a single aim and come within the framework of a single and continuous infringement.

(see paras 241-242)

11.    In the context of proceedings concerning infringement of Article 81(1) EC, the Commission has a margin of discretion when fixing the amount of fines, in order that it may direct the conduct of undertakings towards compliance with the competition rules.

The amount of the fine is set by the Commission according to the gravity of the infringement and, where appropriate, to its duration. The gravity of an infringement has to be determined by reference to criteria such as the particular circumstances of the case, its context and the dissuasive effect of the fines. Objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements.

(see paras 264-265)

12.    Each time the Commission decides to impose fines pursuant to competition law, it must observe general principles of law, which include the principles of equal treatment and proportionality as interpreted by the Community Courts.

The principle of equal treatment or non‑discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.

Thus, to the extent to which reliance is to be placed on the turnover of undertakings involved in the same infringement for the purpose of determining the proportions between the fines to be imposed, the period to be taken into consideration must be ascertained in such a way that the resulting turnovers are as comparable as possible.

The principle of proportionality, for its part, requires that measures adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.

Thus, when the Commission relies on different years to determine the value of the worldwide sales of certain undertakings and calculates the starting amount of the fines to be imposed on them for the period of their participation in a cartel as individual undertakings on the basis of their turnover made in different years, it does not treat those undertakings equally. Although the objective referred to by the Commission is legitimate since it makes it possible to compare the capacity of the shareholders of a joint venture to harm competition during the period prior to the creation of the joint venture, it does not justify, however, such unequal treatment where it is evident that the Commission could have used other methods to achieve its objective without treating the undertakings unequally in its choice of reference year.

(see paras 266-269, 271-272, 275-276)