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Language of document : ECLI:EU:T:2011:562

Case T-39/06

Transcatab SpA

European Commission

(Competition – Agreements, decisions and concerted practices – Italian market for the purchase and first processing of raw tobacco – Decision finding an infringement of Article 81 EC – Price fixing and market sharing – Attributability of the unlawful conduct – Fines – Proportionality – Gravity and duration of the infringement – Mitigating circumstances – Cooperation)

Judgment of the General Court (Third Chamber), 5 October 2011 ?II ‑ 0000

Summary of the Judgment

1. Competition – Community 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

(Art. 81 EC)

2. Competition – Administrative procedure – Observance of the rights of the defence – Statement of objections – Necessary content

(Art. 81 EC; Council Regulation No 1/2003, Art. 27(1))

3. Competition – Fines – Amount – Determination – Maximum amount – Calculation – Turnover to be taken into consideration

(Council Regulation No 1/2003, Art. 23(2))

4. 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 1/2003, Art. 23(2); Commission Notice 98/C 9/03)

5. Competition – Fines – Amount – Determination – Infringements classified as very serious on the basis of their nature alone

(Council Regulation No 1/2003; Commission Notice 98/C 9/03, Section 1A)

6. Competition – Fines – Decision imposing fines – Duty to state reasons – Scope

(Arts 81 EC and 253 EC; Council Regulation No 1/2003, Art. 23(2) and (3))

7. Competition – Administrative procedure – Observance of the rights of the defence – Statement of objections – Necessary content

(Council Regulation No 1/2003, Art. 27)

8. Competition – Fines – Amount – Determination – Commission’s margin of discretion – Limits – Observance of the principle of proportionality – Scope

(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03)

9. Competition – Fines – Amount – Determination – Criteria – Deterrent effect of the fine

(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, Section 5b))

10. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Agreement not actually implemented

(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, Sections 1A, first para., and 3, second indent)

11. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Ending of the infringement as soon as the Commission intervened – Scope

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, Section 3, third indent)

12. European Union law – Principles – Protection of legitimate expectations – Conditions

13. Agriculture – Competition rules – Regulation No 26 – Application of the derogation laid down for agreements, decisions and practices necessary to attainment of the objectives stated in Article 33 EC – Conditions

(Arts 33 EC and 81(1) EC; Council Regulation No 26, Art. 2)

14. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Cooperation of the infringing undertaking outside the scope of the Leniency Notice – Conditions

(Council Regulation No 1/2003, Art. 23; Commission Notices 98/C/9/03, Section 3, sixth indent, and 2002/C 45/03)

15. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – First application of the competition rules to a particular economic sector – Commission’s margin of discretion

(Council Regulation No 1/2003; Commission Notice 98/C 9/03, Section 3)

16. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Poor financial state of the sector in question – Commission’s margin of discretion

(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03)

17. Procedure – Application initiating proceedings – Formal requirements

(Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Arts 44(1)(c) and 48(2))

18. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Conditions

(Council Regulation No 1/2003, Art. 23; Commission Notice 2002/C 45/03, Section 23, final paragraph)

19. Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement

(Art. 81(1) EC)

1. In competition law, the conduct of a subsidiary may be attributed to the parent company in particular where that subsidiary, despite having a separate legal personality, does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, regard being had in particular to the economic, organisational and legal links between those two legal entities. In such a situation, since the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC, the Commission may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement.

In the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules, the parent company is able to exercise decisive influence over the conduct of the subsidiary and there is a rebuttable presumption that the parent company does in fact exercise such influence. Thus, the Commission is entitled to presume that the parent company exercises decisive influence over the conduct of that subsidiary, and is not required to adduce additional evidence establishing that the parent company actually exercised such influence or was even aware of the infringement or of that subsidiary’s involvement in the infringement. The presumption in question is rebuttable and can be rebutted by evidence to the contrary. It is therefore for the parent company to rebut that presumption by producing evidence capable of showing that its subsidiary determines its course of action on the market autonomously and that the two companies therefore do not form a single economic entity. If the parent company fails to do so, the exercise of control is demonstrated by the fact that the presumption arising from 100% ownership of a subsidiary has not been rebutted.

The fact that a subsidiary has its own local management and its own resources does not prove, in itself, that that company decides upon its conduct on the market independently of its parent company. Entrusting the day-to-day business to the local management of a wholly-owned subsidiary is a common practice and is not therefore capable of proving that subsidiaries have real independence.

(see paras 92-94, 103, 106)

2. In competition law, respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, properly to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty.

Article 27(1) of Regulation No 1/2003 reflects that principle in so far as it provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the procedure, to enable the parties concerned properly to identify the conduct complained of by the Commission and to defend themselves properly before the Commission adopts a final decision. That obligation is satisfied if the final decision does not allege that the persons concerned have committed infringements other than those referred to in the statement of objections and takes into consideration only facts on which the persons concerned have had the opportunity of stating their views.

However, that may be done summarily and the final decision is not necessarily required to be a replica of the statement of objections, since the statement is a preparatory document containing assessments of fact and of law which are purely provisional in nature. Thus, it is permissible for the Commission to supplement the statement of objections in the light of the replies submitted by the parties, whose arguments show that they have actually been able to exercise their rights of defence. The Commission may also, in the light of the administrative procedure, revise or supplement its arguments of fact or of law in support of its objections.

Further, as regards the attributability to a parent company of an infringement committed by its wholly owned subsidiaries, the Commission is not required, at the stage of the statement of objections, to submit evidence other than proof of the shareholding of the parent company in its subsidiaries.

(see paras 115-117, 123)

3. The maximum amount of 10% of turnover provided for in Article 23(2) of Regulation No 1/2003 must be calculated on the basis of the total turnover of all the companies constituting the economic entity acting as an undertaking for the purposes of Article 81 EC, since only the total turnover of the component companies can constitute an indication of the size and economic power of the undertaking in question.

(see paras 129-130)

4. The Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS are an instrument designed to clarify, in compliance with superior rules of law, the criteria which the Commission intends to apply when exercising the discretion conferred on it by Article 23(2) of Regulation No 1/2003 for the purpose of setting fines. The Guidelines do not constitute the legal basis of a decision imposing fines, which is based on Regulation No 1/2003, but they determine, generally and abstractly, the method which the Commission has bound itself to use in assessing the fines imposed by that decision and, consequently, ensure legal certainty on the part of the undertakings.

Thus, although the Guidelines may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons.

The fact that the Commission has limited its own discretion by adopting the Guidelines is not however incompatible with its maintaining a significant discretion. The fact that, in the Guidelines, the Commission set out its approach to assessment of the gravity of an infringement does not prevent it from assessing infringements as a whole by reference to all the relevant circumstances of the case, including factors that are not expressly mentioned in the Guidelines.

(see paras 141-143)

5. It follows from the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS that the Commission may classify horizontal agreements aimed in particular at price fixing as ‘very serious’ solely on account of their nature, without being required to demonstrate an actual impact of the infringement on the market and without such classification being precluded by the limited extent of the geographic market concerned. That conclusion is supported by the fact that, while the description of ‘serious’ infringements expressly mentions market impact and effects over extensive areas of the common market, the description of ‘very serious’ infringements makes no mention of a requirement that there be an actual impact on the market or that there be effects in a particular geographic area.

In order to assess the gravity of the infringement of the competition rules, it is decisive to ascertain that the cartel members had done all they could to give concrete effect to their intentions. Since what then happened, so far as the market prices actually obtained were concerned, was liable to be influenced by other factors outside the control of the cartel members, the cartel members cannot benefit, by transforming them into factors that would justify a reduction of the fine, from external factors which counteracted their own efforts.

The Commission cannot be required, where the implementation of a cartel has been established, systematically to demonstrate that the agreements in fact enabled the undertakings concerned to achieve a higher level or, in the case of buying cartels, a lower level of transaction prices than that which would have prevailed in the absence of a cartel. It would be disproportionate to require such proof, which would absorb considerable resources, given that it would necessitate making hypothetical calculations based on economic models whose accuracy it would be difficult for the Court to verify and whose infallibility is in no way proved.

Further, the extent of the geographic market is not an autonomous criterion, in the sense that only infringements affecting the majority of Member States are capable of being classified as ‘very serious’ infringements. Neither the Treaty, nor Regulation No 1/2003, nor the Guidelines, nor the case-law support the conclusion that only geographically very extensive restrictions of competition may be so classified. Furthermore, agreements aimed in particular at fixing purchase prices and allocating quantities purchased may carry with them, on the sole basis of their actual nature, the classification of very serious infringement, without there being any need to characterise such conduct by a particular geographic extent. It follows that the size of the relevant geographic market, even on the assumption that it is limited, does not preclude the infringement found being classified as ‘very serious’.

(see paras 148-149, 168-169, 172)

6. As regards the determination of fines for infringement of competition law, the obligation to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration.

In the context of analyses relating to infringements of Article 81 EC, Article 253 EC cannot be interpreted as requiring the Commission to explain in its decisions the reasons why, in relation to calculation of the amount of the fine, it did not adopt alternative approaches to the one in fact adopted in the final decision.

(see paras 175, 177)

7. Where the Commission expressly states in its statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and it indicates the main factual and legal criteria capable of giving rise to the imposition of a fine, such as the gravity and the duration of the alleged infringement and whether that infringement was committed intentionally or negligently, it fulfils its obligation to respect the undertakings’ right to be heard. In so doing, the Commission provides the undertakings with the elements necessary to defend themselves not only against the finding of an infringement but also against the imposition of a fine.

On the other hand, the Commission is not obliged, provided that it has indicated the elements of fact and of law on which it would base its calculation of the amount of the fines, to explain the way in which it would use each of those elements in determining the level of the fine. Furthermore, in its decision, the Commission may also, in the light of the administrative procedure, revise or add arguments of fact or of law in support of its objections.

It follows that, as regards the determination of the amount of fines, the rights of defence of the undertakings concerned are guaranteed before the Commission by the opportunity given to them to make submissions on the duration, the gravity and the anti-competitive nature of the alleged acts.

(see paras 180-182)

8. In the procedures initiated by the Commission in order to penalise infringements of the competition rules, the application of the principle of proportionality requires that fines must not be disproportionate to the objectives pursued, that is to say, by reference to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity thereof. In particular, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purpose of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified.

In that regard, neither Regulation No 1/2003 nor the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS provide that the amount of the fines must be fixed in direct proportion to the size of the relevant market, as that factor is not mandatory but just one among a number of other factors to be taken into account in evaluating the gravity of the infringement. Those provisions therefore do not as such require the Commission to take account of the limited size of the product market.

Nor does the applicable law contain any general principle that the fine must be proportionate to the undertaking’s turnover on the relevant market. It is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. It is important not to confer on one or the other of those figures an importance which is disproportionate in relation to other factors to be assessed and, consequently, the fixing of an appropriate fine cannot be the result of a simple calculation based on total turnover. That is particularly the case where the goods concerned account for only a small part of that figure. In addition, in so far as the amount of the final fine does not exceed 10% of the total turnover of the undertaking concerned during the last year of the infringement, the fine cannot be regarded as disproportionate solely because it exceeds the turnover achieved on the relevant market.

(see paras 189-190, 196-197, 199)

9. In the calculation of the fine for an infringement of the competition rules, since the objective of deterrence relates to the conduct of undertakings within the European Union, the deterrence factor is assessed by taking into account a large number of factors and not merely the particular situation of the undertaking concerned.

The Commission is not required, when determining the amount of the fine, to take into account of the financial losses of an undertaking, since recognition of such an obligation would be tantamount to conferring an unfair competitive advantage on the undertakings least well adapted to market conditions. Thus an undertaking cannot dispute the application of the multiplier for deterrence in reliance on the ground that it incurred losses during the period when the cartel was implemented, with the consequence that it has no longer been active on the market to which the cartel related since the initiation of the administrative procedure.

Furthermore, the fact that a measure adopted by an institution leads to the insolvency or liquidation of a given undertaking is not prohibited as such by European Union law. Although the liquidation of an undertaking in its existing legal form may adversely affect the financial interests of the owners, investors or shareholders, it does not mean that the personal, tangible and intangible elements represented by the undertaking would also lose their value.

(see paras 221-224)

10. The mitigating circumstance provided for in the second 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, that there was no effective application of the unlawful agreements or practices, is based on the actual conduct of each undertaking. It follows that in order to assess that mitigating circumstance, it is necessary to take into account not the effects arising from the infringement as a whole, which must be taken into consideration in assessing the actual impact of an infringement on the market for the purposes of determining its gravity (first paragraph of Section 1A of the Guidelines), but the individual conduct of each undertaking, for the purposes of examining the relative gravity of the participation of each undertaking in the infringement.

In any event, in order to benefit from the second indent of Section 3 of the Guidelines, the offenders must show that they adopted competitive conduct or, at the very least, that they clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation and did not give the appearance of complying with the agreement, thereby encouraging other undertakings to implement the cartel in question.

(see paras 273, 275)

11. Under the third 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 basic amount of the fine set by the Commission may be reduced when the undertaking which is the subject of the complaint terminates the infringement as soon as the Commission intervenes.

However, such a reduction of the fine cannot be automatic, but depends on an assessment of the circumstances of the case by the Commission in the exercise of its discretion. The circumstances of the case may therefore lead the Commission not to grant such a reduction of the basic amount of the fine to an undertaking which is a party to an unlawful agreement.

To recognise a mitigating circumstance in situations where an undertaking is party to a manifestly unlawful agreement which it knew or could not be unaware constituted an infringement could encourage undertakings to continue a secret agreement as long as possible, in the hope that their conduct would never be discovered, while knowing that if it were discovered they could expect, by then curtailing the infringement, their fine to be reduced. Such a recognition would deprive the fine imposed of any deterrent effect and would undermine the effectiveness of Article 81(1) EC.

Furthermore, the fact that an intentional infringement was terminated cannot be regarded as an mitigating circumstance where it was terminated as a result of the Commission’s intervention.

(see paras 282-284)

12. The right to rely on the principle of protection of legitimate expectations assumes that three conditions are satisfied. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the authorities. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules.

In competition law, the mere fact that the Commission considered in previous decisions that certain factors constituted mitigating circumstances for the purposes of determining the amount of the fine does not mean that it is obliged to make the same assessment in a subsequent decision. Accordingly, an undertaking cannot find support in the fact that that mitigating circumstance was applied in other cases of infringements for a claim of legitimate expectations in that regard.

(see paras 289, 291)

13. Regulation No 26, applying certain rules of competition to production of and trade in agricultural products, and in particular Article 2 thereof, establishes a derogation from the applicability of Article 81(1) EC for agreements, decisions and practices relating to production of or trade in the products listed in Annex I to the EC Treaty, which form an integral part of a national market organisation or are necessary for attainment of the objectives set out in Article 33 EC.

As a derogation from the general rule in Article 81(1) EC, Article 2 of Regulation No 26 must be interpreted strictly. Furthermore, the first sentence of Article 2(1) of Regulation No 26, which provides for the exception claimed, applies only if the agreement in question is conducive to attainment of all the objectives of Article 33 EC. In addition, as is clear from the very wording of the first sentence of Article 2(1) of Regulation No 26, the agreement in question must be ‘necessary’ for the attainment of those objectives.

In that regard, in the absence of notification and a formal procedure, an undertaking which has taken part in a manifest and very serious infringement of Article 81 EC in the tobacco sector cannot claim that it was in any doubt as to the possibility that the agreement concerned would fall within the scope of the derogation provided for by Regulation No 26. Furthermore, in a system such as that provided for by Regulation No 26, it must be precluded that private traders might substitute their own discretion for that of the Commission as to the most appropriate means of attaining the objectives determined by Article 33 EC and thus take unlawful initiatives that would be justified by the fact that the traders concerned pursued those objectives. Further, the maintenance of effective competition on the market for agricultural products is one of the objectives of the common agricultural policy and the common organisation of the relevant markets. Accordingly, such an undertaking cannot claim that the manifestly anti-competitive agreements to which it was party pursued the objectives referred to in Article 33(1) EC.

(see paras 298-300, 303, 305)

14. According to 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 basic amount of a fine may be reduced to take account of effective cooperation by the undertaking in the proceedings, outside the scope of the notice on immunity from fines and reduction of fines in cartel cases (‘the Leniency Notice’). That specific mitigating circumstance applies only to infringements which do not fall within the scope of the Leniency Notice.

In that regard, the application of the sixth indent of Section 3 of the Guidelines cannot have the consequence of depriving the Leniency Notice of its practical effect. The Leniency Notice defines a framework for rewarding cooperation in the Commission investigation by undertakings which are or have been party to secret cartels affecting the European Union. It therefore follows from the wording and the structure of that notice that undertakings can, in principle, obtain a reduction of the fine for cooperation only where they satisfy the strict conditions laid down in that notice.

In order to preserve the practical effect of the Leniency Notice, therefore, the Commission can grant a reduction of the fine to an undertaking on the basis of the sixth indent of Section 3 of the Guidelines only in exceptional situations. That is the case, in particular, where cooperation provided by an undertaking, which goes beyond its legal obligation to cooperate, but does not give rise to the right to a reduction of the fine under the Leniency Notice, is of objective use to the Commission.

(see paras 327-330)

15. The Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) CS do not expressly provide for any mitigating circumstance relating to the absence of precedents on the market affected by the infringement. However, the final indent of Section 3 of the Guidelines provides that the Commission may take into account mitigating circumstances other than those set out in the preceding indents in order to grant a reduction of the basic amount of the fine. In that regard, it should be borne in mind that the Commission has a discretion as regards the application of mitigating circumstances. In particular, the Commission is not required to moderate fines when taking action for the first time in a particular sector.

(see paras 342-343)

16. When the Commission imposes a fine for an infringement of the competition rules, it is not required to regard as a mitigating circumstance the poor financial state of the sector in question. In general, cartels come into being at a time when a sector is experiencing difficulties. Thus, if the Commission were obliged to take those difficulties into consideration, the fine would have to be reduced in virtually all cartel cases.

While it is true that in the Commission’s practice in taking decisions structural crises have sometimes been regarded as mitigating circumstances, the fact that in previous cases the Commission has taken the economic situation of the sector into account as a mitigating circumstance does not mean that it must necessarily continue to observe that practice.

(see paras 352-353)

17. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential elements of fact and of law on which it is based must be apparent from the text of the application itself, at the very least in summary form, provided that the statement is coherent and comprehensible. In that regard, while the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which must appear in the application. Furthermore, it is not for the General Court to seek and identify, in the annexes, the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function.

Accordingly, to accept the admissibility of pleas not set out in sufficient detail in the application but referring to pleas hypothetically raised by a third party in a different case, to which reference is implicitly made in the application, would be to allow the mandatory requirements of Article 44(1)(c) of the Rules of Procedure of the General Court to be circumvented.

In any event, the General Court is obliged to reject as inadmissible a head of claim in an application brought before it if the essential matters of law and of fact on which the head of claim is based are not indicated coherently and intelligibly in the application itself, and the failure to state such matters in the application cannot be compensated for by putting them forward at the hearing.

(see paras 366, 371-372)

18. It is inherent in the logic of the Leniency Notice that the effect sought by the Leniency Notice 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 fines are imposed on them. 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 Leniency Notice.

The interpretation of the purpose of a provision of the Leniency Notice must be consistent with the specific logic of that notice. From that aspect, the final paragraph of point 23 of that notice must be interpreted as being aimed at rewarding an undertaking, even if it was not the first to submit an application for immunity in relation to the cartel concerned, if it is the first to provide the Commission with evidence concerning facts of which the Commission was not aware and which have a direct impact on the gravity or duration of the infringement. In other words, if the evidence supplied by an undertaking relates to facts which enable the Commission to modify the assessment which it then has of the gravity or duration of the infringement, the undertaking which provides that evidence is rewarded by immunity concerning the assessment of the facts which that evidence is capable of demonstrating.

Thus, the final paragraph of point 23 of the Leniency Notice does not concern cases in which an undertaking merely submits new or more complete evidence relating to facts of which the Commission is already aware. Nor does that paragraph apply to cases in which an undertaking informs the Commission of new facts which, however, are not capable of modifying the Commission’s assessment in relation to the gravity or duration of the infringement. That provision applies, on the contrary, exclusively to cases in which two conditions are satisfied: first, the undertaking in question is the first to prove facts of which the Commission was previously unaware; and, second, those facts, which have a direct impact on the gravity or the duration of the supposed cartel, enable the Commission to make new findings concerning the infringement.

(see paras 379-382)

19. An undertaking that has taken part in an infringement of the competition rules through conduct of its own which falls within the scope of an agreement or concerted practice having an anti-competitive object for the purposes of Article 81(1) EC and which is intended to help to bring about the infringement as a whole is also responsible, throughout the entire period of its participation in that infringement, for conduct of other undertakings in the context of the same infringement.

Likewise, an undertaking may be held responsible for an overall cartel even though it is shown that it participated directly only in one or some of the constituent elements of that cartel if it knew, or must have known, that the collusion in which it participated was part of an overall plan and that the overall plan included all the constituent elements of the cartel.

(see paras 394-395)