Case C‑634/13 P

Total Marketing Services SA

v

European Commission

(Appeal — Competition — Paraffin waxes market — Slack wax market — Duration of participation in an unlawful cartel — Cessation of the participation — Interruption of the participation — Absence of collusive contact established during a certain period of time — Continuation of the infringement — Burden of proof — Public distancing — Perception of the other participants in the cartel of the company’s intention to distance itself — Obligation to state reasons — Principles of the presumption of innocence, equal treatment, effective judicial protection and that penalties must be specific)

Summary — Judgment of the Court (Fifth Chamber), 17 September 2015

1.        Agreements, decisions and concerted practices — Participation in meetings of undertakings having an anti-competitive object — Tacit approval without any public distancing of itself by the undertaking enough for it to incur liability — Public distancing rebutting presumption of participation

(Art. 81(1) EC)

2.        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 — Single and continuous infringement — Proof that anti-competitive conduct has come to an end — No public distancing — Assessment

(Art. 81(1) EC)

3.        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 — Proof established by a number of indicia and coincidences evidencing the existence and duration of continuous anticompetitive conduct — Lawfulness

(Arts 81 EC and 82 EC)

4.        Appeal — Grounds — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted

(Art. 256 TFEU; Statute of the Court of Justice, Art. 58)

1.        In EU competition law, a public distancing by an undertaking from the content of anti-competitive practice is necessary in order that such an undertaking which participated in collusive meetings can prove that its participation was without any anti-competitive intention. For that purpose, the undertaking at issue must demonstrate that it had indicated to its competitors that it was participating in such meetings in a spirit that was different from theirs.

An undertaking’s participation in an anti-competitive meeting creates a presumption of the illegality of its participation, which that undertaking must rebut through evidence of public distancing, which must be perceived as such by the other parties to the cartel.

Therefore, a public distancing is required as necessary proof in order to rebut such a presumption only in the case of an undertaking that participated in anti-competitive meetings; however, it does not require in all circumstances that there be such a distancing that puts an end to participation in the infringement.

(see paras 20-22)

2.        In EU competition law, with regard to participation in an infringement that took place over several years rather than in individual anti-competitive meetings, the absence of public distancing forms only one factor amongst others to take into consideration with a view to establishing whether an undertaking has actually continued to participate in an infringement or has, on the contrary, ceased to do so.

Even if a public distancing is not the only means available to an undertaking implicated in a cartel of proving that it has ceased participating in that cartel, such distancing none the less constitutes an important fact capable of establishing that anti-competitive conduct has come to an end. The absence of public distancing forms a factual situation on which the Commission can rely in order to prove that an undertaking’s anti-competitive conduct has continued. However, in a case where, over the course of a significant period of time, several collusive meetings have taken place without the participation of the representatives of the undertaking at issue, the Commission must also base its findings on other evidence. That condition is satisfied where, in the absence of the undertaking at issue having publicly distanced itself from the cartel, there is other factual evidence on which the Commission relies which, in conjunction with the absence of public distancing and the perception of the organiser of the collusive meetings constitute consistent indicia permitting a finding that that undertaking had continued to participate in the cartel.

(see paras 23, 28, 30, 31)

3.        The fact that direct evidence of an undertaking’s participation in a cartel during a certain period has not been produced does not, in the case of an infringement lasting several years, preclude participation in that cartel, also during that period, from being regarded as established, provided that such participation is based on objective and consistent indicia. As a result, the General Court does not err in law by holding that, alongside the absence of public distancing, there are objective and consistent indicia which allow the finding that the undertaking’s participation in the cartel was not interrupted during the period at issue.

(see paras 26, 27, 42, 45)

4.        See the text of the decision.

(see para. 40)