Case T‑380/10
Wabco Europe and Others
v
European Commission
(Competition — Agreements, decisions and concerted practices — Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Coordination of price increases and exchange of sensitive business information — Distortion of competition — Proof — Calculation of the fine — Cooperation during the administrative procedure — 2002 Leniency Notice — Immunity from fines — Reduction of the fine — Significant added value — 2006 Guidelines on the method of setting fines — Principle of non-retroactivity)
Summary — Judgment of the General Court (Fourth Chamber), 16 September 2013
1. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope — Account taken of the Guidelines on the method of setting fines — Limits — Compliance with general legal principles
(Arts 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Art. 31; Commission Notice 2006/C 210/02)
2. Competition — Administrative procedure — Commission decision finding an infringement — Judicial review — Limits
(Arts 101(1) TFEU and 263 TFEU)
3. EU law — Principles — Fundamental rights — Presumption of innocence — Procedures in competition matters — Applicability
(Art. 6(2) EU; Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Arts 47 and 48(1))
4. Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation
(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 2)
5. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the duration of the infringement on the Commission — Extent of the burden of proof
(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 2)
6. Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Exchange of information between competitors — Anti-competitive object or effect — Presumption — Conditions — Information concerning a product marketed on a market that does not concern rival undertakings — No presumption
(Art. 101(1) TFEU)
7. Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Concept — Overall cartel — Criteria — Single objective — Condition — Existence of a distortion of competition affecting each of the product markets concerned by the said single infringement
(Art. 101(1) TFEU)
8. Acts of the institutions — Statement of reasons — Obligation — Scope — Regularisation of insufficient reasoning ruing the contentious proceedings — Conditions — Exceptional circumstances
(Art. 296 TFEU)
9. 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 — Scope — Account taken of the chronological element of the cooperation provided — Discretion of the Commission — Judicial review — Scope
(Art. 101(1) TFEU; Council Regulation No 1/2003, Arts 18 and 23(2); Commission Notice 2002/C 45/03, points 20 to 23)
10. Judicial proceedings — Application initiating proceedings — Defence — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Documents annexed to the application or to the defence — Admissibility — Conditions
(Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c))
11. EU law — Principles — Non-retroactivity of penal provisions — Scope — Fines imposed for breach of the competition rules — Included — Whether breach by applying guidelines for the calculation of fines to an infringement prior to their introduction — Foreseeability of changes made by the Guidelines — No infringement
(Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 49; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notices 98/C 9/03 and 2006/C 210/02)
1. See the text of the decision.
(see paras 28, 140, 186, 195, 196)
2. See the text of the decision.
(see paras 42-44)
3. See the text of the decision.
(see paras 45, 46)
4. See the text of the decision.
(see paras 47-52, 94)
5. See the text of the decision.
(see para. 53)
6. In competition matters, the provision of sensitive business information, such as an exchange of future price increases, has — where that information is given to one or more competitors — an anti-competitive effect inasmuch as the independence of the undertakings concerned in their conduct on the market is modified as a result. Where such practices occur, the Commission is not obliged to prove their anti-competitive effects on the relevant market if they are capable in an individual case, having regard to the specific legal and economic context, of resulting in the prevention, restriction or distortion of competition within the internal market.
However, it cannot be presumed that an agreement or a concerted practice whereby undertakings exchange information which is commercially sensitive but which relates to a product sold on a market on which they are not competitors has an anti-competitive object or effect on that market. A practice whereby an undertaking which is active on two distinct product markets provides to its competitors — which are present on one market — commercially sensitive information which relates to a second market — on which those competitors are not present — is not capable, in principle, of having an impact on competition on the second market.
(see paras 78, 79)
7. In competition matters, there is a single infringement in the case of agreements or concerted practices which, whilst they relate to distinct goods, services or territories, form part of an overall plan knowingly implemented by undertakings with a view to achieving a single anti-competitive objective. However, a finding that there is such an infringement does not remove the precondition that there be a distortion of competition affecting each of the product markets covered by the said single infringement.
(see para. 92)
8. See the text of the decision.
(see paras 107, 110)
9. In competition matters, the Commission sets out the conditions under which undertakings cooperating with it during its investigation into a cartel may be exempted from fines, or may be granted a reduction of the fine which would otherwise have been imposed upon them.
It is apparent from the logic of the 2002 Leniency Notice that the effect sought is to create a climate of uncertainty within cartels by encouraging those participating in them to denounce the cartels to the Commission. That uncertainty results precisely from the fact that the cartel participants know that only one of them can benefit from immunity from fines by denouncing the other participants in the infringement, thereby exposing them to the risk that they face being fined. In the context of that system, and according to the same logic, the undertakings that are quickest to provide their cooperation are supposed to benefit from greater reductions of the fines that would otherwise be imposed on them than those granted to the undertakings that are less quick to cooperate. The chronological order and the speed of the cooperation provided by the members of the cartel therefore constitute fundamental elements of the system put in place by the 2002 Leniency Notice.
In that regard, whilst the Commission is required to state the reasons for which it considers that information provided by undertakings under the Leniency Notice constitutes a contribution which may or may not justify a reduction of the fine, it is incumbent on undertakings wishing to contest the Commission’s decision in that regard to show that, in the absence of such information provided voluntarily by the undertakings, the Commission would not have been in a position to prove the essential elements of the infringement and therefore adopt a decision imposing fines. In view of the rationale for the reduction, the Commission cannot disregard the usefulness of the information provided, which inevitably depends on the evidence already in its possession.
Where an undertaking providing cooperation does no more than confirm, in a less precise and explicit manner, certain information that has already been 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 with 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. Moreover, the cooperation of an undertaking in the investigation does not entitle it to a reduction of its fine where that cooperation went no further than the cooperation incumbent upon it under Article 18 of Regulation No 1/2003.
Last, even though the Commission must be held to have a margin of discretion when it considers whether information provided to it under the 2002 Leniency Notice represents significant added value, the fact remains that the Court cannot use that margin of discretion as a basis for dispensing with a thorough review as to matters of law and of fact of the Commission’s assessment in that regard.
(see paras 142, 147-153)
10. See the text of the decision.
(see paras 162, 163)
11. See the text of the decision.
(see paras 175-179)