Case T‑347/06

Nynäs Petroleum AB and

Nynas Belgium AB

v

European Commission

(Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Imputability of the unlawful conduct — Fines — Cooperation during the administrative procedure — Significant added value — Equal treatment)

Summary — Judgment of the General Court (Sixth Chamber), 27 September 2012

1.      Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption — National law imposing certain obligations on parent companies in respect of their subsidiaries — No effect

(Arts 81 EC and 82 EC)

2.      Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — No infringement of the principle of individual responsibility

(Arts 81 EC and 82 EC)

3.      Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Control exercised by the parent company over its subsidiary — No need for a connection with the infringing conduct of the subsidiary

(Arts 81 EC and 82 EC)

4.      Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned — Need for conduct which facilitated the Commission’s finding of an infringement — Discretion of the Commission — Burden of proof — Judicial review — Scope

(Art. 81(1) EC; Council Regulation No 1/2003, Arts 18 and 23(2); Commission Notice 2002/C 45/03, Sections 20 to 22)

5.      Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned — Conditions — Significant added value of the evidence provided by the undertaking concerned — Criteria — Continuous nature of the cooperation — Account taken at the stage when the exact level of the fine reduction was determined

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03, Sections 7 and 21 to 23)

6.      Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned — Account taken of the chronological element of the cooperation provided — Respect for the principle of equal treatment — Criteria for assessment

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notices 96/C 207/04, Title D and 2002/C 45/03, Sections 7 and 23)

7.      Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned — Need for conduct which facilitated the Commission's finding of an infringement — Discretion of the Commission — Respect for the principle of equal treatment — Comparability of situations

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03)

8.      Proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Similar requirements for claims raised in support of a plea — Imprecise formulation of a plea — Inadmissibility

(Art. 256 TFEU; Rules of Procedure of the General Court, Art. 44(1))

9.      Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Cooperation of the impugned undertaking outside the scope of the Leniency Notice — Conditions

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notices 96/C 207/04 and 2002/C 45/03)

1.      See the text of the decision.

(see paras 31-35, 37-38)

2.      See the text of the decision.

(see paras 39-40)

3.      See the text of the decision.

(see paras 48, 51-53, 55)

4.      See the text of the decision.

(see paras 60, 62-63)

5.      As provided in points 7, 21 and 22 of the Commission Notice on immunity from fines and reduction of fines in cartel cases (‘the 2002 Leniency Notice’), the Commission must assess each undertaking’s actual contribution, in terms of quality and timing, to the establishment of the infringement, and the concept of ‘significant added value’ refers to the extent to which the evidence provided strengthens, by its nature and its level of detail, the Commission’s ability to prove the facts constituting the infringement. The Commission therefore ascribes particular value to evidence which might enable it, together with other evidence already in its possession, to establish the existence of a cartel or to evidence that enables it to corroborate evidence that exists already, or to evidence that has direct consequences on the gravity or duration of the cartel. On the other hand the decisive criterion is not limited to whether an undertaking ‘facilitated the Commission’s task’.

Moreover, the continuous nature of an undertaking’s cooperation cannot be taken into consideration by the Commission at the stage of the assessment of the significant added value of the evidence provided, since point 23 of the 2002 Leniency Notice limits the taking into account of the extent and continuity of an undertaking’s cooperation to the stage of the determination of the exact level of the reduction of the fine within certain bands, when the Commission has already found that the evidence provided has significant added value.

The sole purpose of point 22 of the 2002 Leniency Notice, which gives a definition of the concept of ‘added value’, is to clarify point 21 which refers to the concept of ‘significant added value’. Moreover, the very concept of ‘added value’ indicates that, whatever the stage of the administrative procedure, the Commission must assess the value of the evidence provided in comparison with the other evidence at its disposal, either from inspections or as a result of submissions by other undertakings. Any recognition at the preliminary stage that the evidence submitted has added value would not in any event have any effect on the Commission’s final assessment and on the level of reduction granted to the undertaking, which is determined only at that final assessment stage.

(see paras 65-66, 74)

6.      It is expressly clear from points 7 and 23 of the 2002 Leniency Notice that the Commission must, when assessing the value of the information provided, take account of the date on which it was submitted to the Commission.

In that regard, concerning the Commission’s obligation to comply with the equal treatment principle, although it might previously have been possible to take the view that, in order that it could be considered comparable, the undertakings’ cooperation did not necessarily have to commence on the same day, but at the same stage of the procedure, that principle applied to Section D of the Commission Notice on the non-imposition or reduction of fines in cartel cases (‘the 1996 Leniency Notice’), which did not provide for different treatment for the undertakings concerned on the basis of the order in which they cooperated with the Commission, unlike the 2002 Leniency Notice.

(see paras 76, 101)

7.      In the exercise of its discretion in assessing the extent to which undertakings have cooperated, the Commission is not entitled to disregard the principle of equal treatment, which is infringed where comparable situations are treated differently or different situations are treated in the same way, unless such difference of treatment is objectively justified and that principle precludes the Commission from treating in different ways cooperation on the part of undertakings covered by the same decision. The Commission does not contravene that principle if it reduces, or does not reduce, fines according to the level of cooperation that it has received from the undertaking concerned during the administrative procedure. A difference in the treatment of the undertakings concerned must be capable of being ascribed to differences in the degree of cooperation provided, particularly where different information was provided or where information was supplied at different stages in the administrative procedure or in dissimilar circumstances.

Where an undertaking providing cooperation does no more than confirm, in a less precise and explicit manner, certain information already provided by another undertaking by way of cooperation, the extent of the cooperation provided by the former undertaking, while possibly of some benefit to the Commission, cannot be treated as comparable to that provided by the undertaking which was the first to supply that information. A statement which merely corroborates to a certain degree a statement which the Commission already had at its disposal does not facilitate the Commission’s task significantly. Accordingly, it cannot be sufficient to justify a reduction of the fine for cooperation.

(see paras 100, 102)

8.      See the text of the decision.

(see paras 107-109)

9.      In accordance with the sixth indent of Section 3 of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS], the Commission may reduce the basic amount of the fine for effective cooperation by the undertaking in the proceedings, outside the scope of the 1996 [Leniency] Notice on the non-imposition or reduction of fines in cartel cases. The Commission can grant an undertaking which has cooperated during proceedings for infringement of the competition rules a reduction of the fine under the Guidelines only in cases where the 1996 Leniency Notice is not applicable.

In a manner similar to the 1996 Leniency Notice which it replaced, under certain conditions, from 14 February 2002, the 2002 Leniency Notice applies to secret cartels between two or more competitors aimed at fixing prices, production or sales quotas, sharing markets including bid-rigging or restricting imports or exports, and therefore excludes vertical cartels or cartels falling within the scope of Article 82 EC.

Thus, where an infringement falls within the scope of the 2002 Leniency Notice, the provisions of the sixth indent of Section 3 of the Guidelines are not applicable.

(see paras 114-116)