Case T-113/07

Toshiba 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 – Single and continuous infringement – Fines – Gravity and duration of the infringement – Statement of reasons – Starting amount – Reference year)

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 a 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.      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))

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

(Art. 81(1) EC)

6.      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)

7.      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)

8.      Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation of the undertaking concerned

(Art. 81(1) EC; Commission Notice 2002/C 45/03, Section 21)

9.      Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement – Concept – Personal liability for the entire infringement of undertakings which were co-perpetrators of the infringement – Conditions

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

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

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

11.    Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Infringement committed by several undertakings

(Art. 81(1) EC; EEA Agreement, Art. 53(1); Council Regulation No 1/2003, Art. 23(2))

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

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

13.    Competition – Fines – Amount – Determination – Respect for the principle of equal treatment

(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 41, 46-47)

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 of the other undertakings which participated in the cartel to the statement of objections 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 42-44)

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 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. 58)

4.      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 on 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 79-80)

5.      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. 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 also applies where the evidence which the Commission relies on is insufficient. In that case, the evidence does not enable the existence of the infringement to be established unequivocally and without the need for interpretation.

By contrast, that rule does not apply to all cases in which the infringement is established by deduction from other facts, by indirect or 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.

(see paras 81-82, 85-87)

6.      In the context of infringement 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 90-93)

7.      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 might tend to play down the importance of their contribution to the infringement and maximise that of the others, the fact remains that seeking to benefit from the application of the Commission notice on immunity from fines and reduction 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 to benefit from 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 94, 111)

8.      For the Commission to be able to reduce a fine under point 21 of the Leniency Notice, the evidence concerned must be of significant probative value with respect to the evidence already in the Commission’s possession. Consequently, in a leniency application made after the reply to the statement of objections has been sent, it is legitimate for the undertaking wishing to obtain a reduction of its fine to focus on the evidence which, in its view, has thus far not been established to the requisite legal standard, in order to add significant value to it. This can explain why the undertaking concerned may choose to omit the evidence which it regards as established beyond doubt by the evidence previously submitted.

Similarly, in the light of the wording of point 21 of the Leniency Notice, it cannot be ruled out that the submission of evidence of a certain probative value, but which contains facts established by other evidence, will not result in any reduction.

(see paras 146-147)

9.      The agreements and concerted practices referred to in Article 81(1) EC and in Article 53(1) of the Agreement on the European Economic Area (EEA) are necessarily the result of collusion on the part of a number of undertakings, all of which are co-perpetrators of the infringement, but whose participation can take different forms, varying, in particular, according to the characteristics of the market concerned and the position of each undertaking on that market, the aims pursued and the means of implementation chosen or envisaged. However, the mere fact that each undertaking takes part in the infringement in ways particular to it does not suffice to exclude its liability for the entire infringement, including its liability for conduct which, in practical terms, is put into effect by other participating undertakings, but which has the same anti-competitive object or effect.

Thus, an undertaking that has taken part in such an infringement through conduct of its own which constituted an agreement or concerted practice having an anti‑competitive object for the purposes of Article 81(1) EC and Article 53(1) of the EEA Agreement which were intended to help bring about the infringement as a whole is also liable, throughout the entire period of its participation in that infringement, for conduct put into effect by other undertakings in the context of the same infringement where it is established that the undertaking in question was aware of the offending conduct of the other participants or that it could reasonably have foreseen it and that it was prepared to take the risk.

That is the case of an undertaking of a third country which played only a passive role in the common understanding, reserving the allocation of specific projects in the EEA to European producers, which committed itself not to take such projects, since it was aware of the understanding at issue and that its passive role was not due to its choosing, but to the form of its participation in the agreement relating to the EEA market, its participation being a prerequisite for ensuring that the allocation of projects in the EEA could be carried out by the European producers.

(see paras 218-222)

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 235-236)

11.    Where an infringement of Article 81(1) EC has been committed by several undertakings, the relative gravity of the participation of each of them must be examined. Thus, the fact that an undertaking has not taken part in all aspects of an anti-competitive scheme or that it played a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and when the fine is determined.

As regards, in particular, an agreement under which undertakings from third countries have committed not to enter the European Economic Area (EEA) market, and the European undertakings, for their part, distribute the various projects on that same market through active collusion, the gravity of the conduct of the undertakings from third countries is comparable to that of the conduct of the European undertakings, since their lack of participation in the distribution of such projects was not the result of their choice, but a mere consequence of the nature of their participation in the agreement concerned.

(see paras 258, 260-262)

12.    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 280-281)

13.    Each time the Commission decides to impose fines pursuant to competition law, it must observe general principles of law, which include the principle of equal treatment as interpreted by the Community Courts. That principle 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, 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. In that regard, 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 282-283, 286-287, 290-292)