Case T-384/06

IBP Ltd and International Building Products France SA

v

European Commission

(Competition – Agreements, decisions and concerted practices – Copper and copper alloy fittings sector – Decision finding an infringement of Article 81 EC – Duration of participation in the infringement – Fines – Aggravating circumstances)

Summary of the Judgment

1.      Competition – Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices capable of being treated as constituting a single infringement

(Art. 81(1) EC)

2.      Competition – Agreements, decisions and concerted practices – Proof

(Art. 81(1) EC)

3.      Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission

(Art. 81(1) EC)

4.      Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Proof

(Art. 81(1) EC)

5.      Competition – 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

(Art. 81(1) EC)

6.      Competition – Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices capable of being treated as constituting a single infringement – Meaning

(Art. 81(1) EC)

7.      Competition – Fines – Conditions for the imposition of fines by the Commission – Infringement committed intentionally or negligently – Obstruction or supply of false or misleading information in response to a Commission request for information

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

8.      Competition – Administrative procedure – Statement of objections – Obligation to respond – None

(Council Regulation No 1/2003, Arts 18(1) and 23(1)(a))

9.      Competition – Fines – Amount – Determination – Criteria – Financial situation of the undertaking concerned

(Council Regulation No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, Section 5(b))

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

(Council Regulation No 1/2003, Art. 23(2); Commission Communication 96/C 207/04, Section D)

1.      An infringement of Article 81 EC may result not only from an isolated act but also from a series of acts or from continuous conduct. When the different actions form part of an overall plan because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole. Furthermore, 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 is shown that 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. Similarly, an undertaking which has participated in a single complex infringement by its own conduct, which was intended to play a part in bringing about the infringement as a whole, may also be responsible for the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the case where it is proved that the undertaking in question was aware of the unlawful conduct of the other participants, or could reasonably foresee such conduct, and was prepared to accept the risk.

(see paras 55-56)

2.      As regards proof of an infringement of Article 81(1) EC, the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place. Any doubt in the mind of the European Union judicature must operate to the advantage of the undertaking to which the decision finding the infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment of a decision imposing a fine. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement.

Furthermore, it is normal for the activities which anti-competitive agreements entail to take place clandestinely, for meetings to be held in secret and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of meetings, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.

(see paras 57-59)

3.      The duration of the infringement is a constituent element of the concept of an infringement under Article 81(1) EC, and the burden of proof in that regard falls on the Commission.

(see para. 60)

4.      The statements made in the context of the leniency policy play an important role. Those statements made on behalf of undertakings have a probative value that is not insignificant, since they entail considerable legal and economic risks. 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.

(see para. 69)

5.      An exchange of information does not necessarily have to be reciprocal for the principle of autonomous conduct on the market to be undermined. The disclosure of sensitive information removes uncertainty as to the future conduct of a competitor and thus directly or indirectly influences the strategy of the recipient of the information.

(see para. 71)

6.      With regard to conduct consisting in the regular organisation over a number of years of multilateral and bilateral contacts between competing producers, with the object of establishing unlawful practices by which the functioning of the copper fittings market was artificially affected, in particular in relation to prices, the fact that certain characteristics or the intensity of those practices changed after the Commission’s inspections is not relevant to the continuation of the cartel, since the objective of the anti-competitive practices remained the same, namely collusion on prices in relation to fittings. It may well be that the cartel becomes less structured after the Commission’s inspections, and the intensity of its activities more variable. Nevertheless, the fact that a cartel might have experienced periods of activity of varying intensity does not mean that the cartel has come to an end.

(see paras 73, 76)

7.      The fact that Regulation No 1/2003 allows the Commission to impose a fine of a maximum of 1% of an undertaking’s turnover for obstruction or for the supply of false or misleading information in response to a request for information, as an autonomous infringement, does not mean that it cannot be taken into account as an aggravating circumstance. However, if conduct is classified under one of those heads, it cannot at the same time be classified under the other.

(see para. 109)

8.      Even though the undertakings are free to reply or not to reply to requests put to them under Article 18(1) of Regulation No 1/2003, it follows from Article 23(1)(a) of that regulation that where undertakings have agreed to reply, they are required to provide accurate information.

In that regard, it must be concluded that, in light of the general scheme of Regulation No 1/2003, the obligation to provide accurate information applies equally in the case of a response to the statement of objections. Admittedly, there is no obligation to respond to a statement of objections. In addition, the exercise of rights of the defence also involves the right to challenge the probative value of the documents on which the Commission relies. However, if an undertaking provides other information, such as a witness statement, in order to demonstrate that the evidence adduced by the Commission in the statement of objections is incorrect, that information must be accurate.

(see para. 111)

9.      The Commission is not required, when determining the amount of the fine which it imposes on an undertaking for infringement of the competition rules, to take into account the poor financial situation of the undertaking, since recognition of such an obligation would be tantamount to giving unjustified competitive advantages to undertakings least well adapted to the market conditions.

That principle is not in any way called into question by Section 5(b) of the 1998 Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty. The ability to pay can be relevant only in a specific social context, namely the consequences which payment of a fine could have, in particular, by leading to an increase in unemployment or deterioration in the economic sectors upstream and downstream of the undertaking concerned.

(see paras 120-121)

10.    A reduction in the amount of the fine on grounds of cooperation during the administrative procedure is justified only if the conduct of the undertaking in question enabled the Commission to establish the existence of an infringement more easily, and, where relevant, to bring it to an end. A reduction of the fine under the 1996 Leniency Notice can be justified only where the information provided and, more generally, the conduct of the undertaking concerned could be considered to demonstrate genuine cooperation on its part.

(see para. 123)