Judgment of the General Court (Fourth Chamber) of 3 February 2011 – Cetarsa v Commission

(Case T-33/05)

Competition – Agreements, decisions and concerted practices – Spanish market for the purchase and first processing of raw tobacco – Decision finding an infringement of Article 81 EC – Price fixing and market-sharing – Fines – Gravity and duration of the infringement – Equal treatment – Principle of proportionality – Maximum limit of 10% of turnover – Cooperation

1.                     Competition – Fines – Amount – Principle of equal treatment – Imposition of a symbolic fine on some undertakings and a substantial fine on others – Lawfulness (Council Regulation No 17, Art. 15) (see paras 68-69, 77-79)

2.                     Acts of the institutions – Guidelines on the method of setting fines for infringements of the competition rules – Measure designed to produce external effects – Scope (Council Regulation No 17, Art. 15; Commission Communication 98/C 9/03) (see para. 102)

3.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Assessment – Assessment on a case-by-case basis – Taking into account of criteria not expressly mentioned by the Guidelines issued by the Commission (Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03) (see para. 102)

4.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Assessment – Interdependence of the three criteria expressly mentioned by the Guidelines issued by the Commission – Classification of an infringement as very serious – Primary role of the criterion as to the nature of the infringement – Not independent of that as to the size of the product market in question (Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03) (see paras 100, 103, 105-106, 111-115)

5.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Determination of the fine in proportion to the factors for assessing the gravity of the infringement (Council Regulation No 17, Art. 15(2)) (see para. 107)

6.                     Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Effect on trade between Member States – Criteria for assessment (Art. 81(1) EC) (see paras 120-125)

7.                     Competition – Fines – Amount – Judicial review – Unlimited jurisdiction – Obligation on the addressee of the statement of objections to challenge the various legal and factual elements therein during the administrative procedure in order to be able to rely thereon at the court stage of the proceedings – None (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 31) (see para. 127)

8.                     Competition – Fines – Amount – Determination – Criteria – Actual impact on the market – No obligation to demonstrate such an impact in order to classify an infringement as very serious (Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 1A, first para.) (see paras 137-138)

9.                     Competition – Fines – Legal context – Determination – Effect of Commission’s previous decision-making practice – None (Council Regulations Nos 17 and 1/2003) (see para. 149)

10.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Assessment – First case applying competition rules in a given sector of the economy – No effect (Council Regulations Nos 17 and 1/2003) (see para. 163)

11.                     Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Increase in the starting amount of the fine – Taking into account of variations in the intensity of the infringement – Not included (Council Regulation No 17, Art. 15(2); Commission Communication 98/C 9/03, Section 1B) (see para. 177)

12.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Measure of the actual impact on competition of the infringing conduct of each undertaking – Relevance of the market share of each of the undertakings concerned (Council Regulation No 17, Art. 15(2); Commission Communication 98/C 9/03) (see paras 195, 199-203)

13.                     Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Participation allegedly under constraint – Matter not providing a justification for an undertaking which did not make use of the possibility of lodging a complaint with the competent authorities (Art. 81(1) EC) (see para. 217)

14.                     Competition – Fines – Amount – Determination – No obligation to take account of the turnover figures of the undertakings concerned and to ensure the proportionality of the fine with those figures (Council Regulation No 17, Art. 15(2); Commission Communication 98/C 9/03) (see para. 234)

15.                     Competition – Fines – Amount – Determination – Criteria – Reduction in the amount of the fine in exchange for the cooperation of the undertaking involved with the Commission – Reduction of the amount as a result of the application of the ceiling on the amount of fines (Council Regulation No 17, Art. 15(2); Commission Communication 96/C 207/04) (see para. 246)

16.                     Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Conditions – Discretion of the Commission (Council Regulations Nos 17 and 1/2003; Commission Communication 96/C 207/04) (see paras 255-256)

Re:

Firstly, an application for the annulment of Commission Decision C(2004) 4030 final of 20 October 2004 relating to a proceeding under Article 81(1) EC (Case COMP/C.38.238/B.2 – Raw Tobacco – Spain); secondly, and in the alternative, an application for the reduction of the amount of the fine imposed on the applicant in that decision; and, thirdly, a counterclaim by the Commission seeking to have that amount increased.

Operative part

The Court:

1. Sets the amount of the fine imposed on Compañía española de tabaco en rama, SA (Cetarsa) in Article 3 of Commission Decision C(2004) 4030 final of 20 October 2004 relating to a proceeding under Article 81(1) EC (Case COMP/C.38.238/B.2 – Raw Tobacco – Spain) at EUR 3 147 300;

2. Dismisses the action as to the remainder;

3. Dismisses the European Commission’s counterclaim;

4. Orders Cetarsa to bear eight tenths of its own costs and eight tenths of the costs incurred by the Commission, and orders the Commission to bear two tenths of its own costs and two tenths of the costs incurred by Cetarsa.