Case T‑412/10

(publication by extracts)

Roca

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 — Attributability of the unlawful conduct — Fines — 2006 Guidelines on the method of setting fines — Gravity of the infringement — Mitigating circumstances — Economic crisis — 2002 Leniency Notice — Reduction of the fine — Significant added value)

Summary — Judgment of the General Court (Fourth Chamber), 16 September 2013

1.      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; Commission Notice 2002/C 45/03, points 20 to 23)

2.      Competition — Fines — Amount — Determination — Guidelines on the method of setting fines for infringements of the competition rules — Reduction of the fine in exchange for cooperation of the undertaking concerned outside the scope of the Leniency Notice — Conditions

(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notices 2002/C 45/03, point 1, and 2006/C 210/02, point 29, fourth indent)

1.      In competition matters, in the 2002 Leniency Notice, 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.

Whilst the Commission is required to state the reasons for which it considers that information provided by undertakings under the 2002 Leniency Notice represents a contribution which does or does 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 the information provided voluntarily by the undertakings was decisive in enabling the Commission 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 will inevitably depend 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. However, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence.

Lastly, 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.

Although the 2002 Leniency Notice does not prejudge the assessment of the reduction of the fine by the Courts of the Union when they adjudicate in the exercise of their unlimited jurisdiction, the Court may see fit to draw on it in recalculating the fine, in particular because it allows all the relevant elements of the case in point to be taken into account and proportionate fines to be imposed on all the undertakings that have participated in the infringement in issue.

(see paras 176, 182-188, 233)

2.      See the text of the decision.

(see paras 221-223)