Case T‑439/07

Coats Holdings Ltd

v

European Commission

(Competition — Agreements, decisions and concerted practices — Markets for zip fasteners and ‘other fasteners’ — Decision finding an infringement of Article 81 EC — Coordinated price increases, fixing of minimum prices, customer-sharing, market-sharing and exchange of other commercial information — Evidence — Single and continuous infringement — Limitation period — Rights of the defence — Fines — Guidelines)

Summary of the Judgment

1.      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. 81(1) EC)

2.      Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision relying on documentary evidence — Evidential obligations on undertakings disputing the existence of the infringement

(Art. 81(1) EC)

3.      Agreements, decisions and concerted practices — Participation in meetings having an anti-competitive object — Circumstances from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel

(Art. 81(1) EC)

4.      Competition — Administrative procedure — Commission decision finding an infringement — Use as evidence of statements of other undertakings which participated in the infringement — Lawfulness — Probative value of evidence provided voluntarily by the main participants in the cartel with a view to benefiting from the Leniency Notice

(Arts 81 EC and 82 EC; Commission Notices 96/C 207/04 and 2002/C 45/03)

5.      Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Documentary proof — Probative value of an unsigned document — Assessment

(Arts 81 EC and 82 EC)

6.      Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Undertakings that may be held responsible for participating in an overall cartel — Criteria — Single objective — Definition

(Art. 81(1) EC)

7.      Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Single and continuous infringement — Lack of evidence relating to certain specific periods of the overall period considered — No effect

(Arts 81 EC and 82 EC)

8.      Competition — Administrative procedure — Time-limit with regard to proceedings — Point from which time starts to run — Continued or repeated infringements — Burden of proof

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 25(5))

9.      Competition — Administrative procedure — Hearings — Alleged impossibility for the undertaking to examine the witness against it — Infringement of the rights of the defence — None — Whether the communication of the declarations used by the Commission is sufficient

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27)

10.    Competition — Fines — Amount — Determination — Criteria — Duration of the infringement — Infringements of long duration — Increase in the starting amount by 10% per year — Discretion of the Commission — Judicial review — Scope

(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03)

1.      See the text of the decision.

(see paras 38, 40-42, 134)

2.      See the text of the decision.

(see para. 39)

3.      See the text of the decision.

(see paras 43, 44)

4.      See the text of the decision.

(see paras 46-50, 70)

5.      See the text of the decision.

(see para. 67)

6.      The notion of a single infringement covers a situation in which several undertakings participated in an infringement in which continuous conduct in pursuit of a single economic aim was intended to distort competition, and also individual infringements linked to one another by the same object (all the elements sharing the same purpose) and the same subjects (the same undertakings, which are aware that they are participating in the common object).

The concept of a single objective cannot be determined by a general reference to the distortion of competition on the market concerned by the infringement, since an impact on competition, as object or effect, constitutes an essential element of any conduct covered by Article 81(1) EC. Such a definition of the concept of a single objective would deprive the concept of a single and continuous infringement of part of its meaning, since it would mean that different instances of conduct relating to a particular economic sector and prohibited by Article 81(1) EC would have to be systematically characterised as constituent elements of a single infringement. Thus, for the purposes of characterising various unlawful actions as a single and continuous infringement, it is necessary to establish whether they display a link of complementarity in that each of them is intended to deal with one or more consequences of the normal pattern of competition and, through interaction, contribute to the attainment of the set of anti-competitive effects desired by those responsible, within the framework of a global plan having a single objective. In that regard, it will be necessary to take into account any circumstance capable of establishing or of casting doubt on that link, such as the period of implementation, the content (including the methods used) and, correlatively, the objective of the various unlawful actions in question.

(see paras 141, 144)

7.      In the field of competition, the fact that evidence of a single and continuous infringement was not produced for certain specific periods does not preclude the infringement from being regarded as established over a longer overall period than those periods, provided that such a finding is supported by objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that the cartel is shown to have operated during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the cartel, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement.

Consequently, although the period separating two manifestations of infringing conduct is a relevant criterion in order to establish the continuous nature of an infringement, the fact remains that the question whether or not that period is long enough to constitute an interruption of the infringement cannot be examined in the abstract. On the contrary, it needs to be assessed in the context of the functioning of the cartel in question.

In particular, unlike a price‑fixing agreement, under which participants are required to meet regularly to take account of the market evaluation to be able to adapt their conduct on that market during the period of the agreement, a market‑sharing agreement, by definition, must be respected by the parties to the agreement with effect from its conclusion and may occasionally be adjusted either by amending the existing agreement or by means of other agreements.

In that context, provided that the evidence demonstrates that the close relationship between the undertakings concerned continued to exist during a certain period, and that, occasionally, that relationship was adjusted by means of further agreements, the Commission may legitimately conclude that the parties adhered to a common plan which limited or was likely to limit their individual commercial conduct by determining the lines of their mutual action on the market.

(see paras 149, 150, 152-154)

8.      See the text of the decision.

(see paras 159-162)

9.      See the text of the decision.

(see paras 172-175)

10.    See the text of the decision.

(see paras 182-187)