JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
28 April 2010 (*)
(Competition – Agreements, decisions and concerted practices – European market in thread for automotive customers – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Fines – Gravity of the infringement – Mitigating circumstances – Cooperation – Proportionality – Equal treatment – Guidelines on the method of setting fines)
In Case T‑448/05,
Oxley Threads Ltd, established in Ashton-Under-Lyne, Lancashire (United Kingdom), represented by G. Peretz, Barrister, M. Rees and K. Vernon, Solicitors,
applicant,
v
European Commission, represented by N. Khan and K. Mojzesowicz, acting as Agents,
defendant,
APPLICATION for partial annulment of Commission Decision C(2005) 3452 of 14 September 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.337 – PO/Thread), as amended by Commission Decision C(2005) 3765 of 13 October 2005 and, in the alternative, for reduction of the fine imposed on the applicant by that decision,
THE GENERAL COURT (Fifth Chamber),
composed of M. Vilaras, President, M. Prek (Rapporteur) and V.M. Ciucǎ, Judges,
Registrar: T. Weiler, Administrator,
having regard to the written procedure and further to the hearing on 18 December 2008,
gives the following
Judgment
Background to the dispute
Subject-matter of the dispute
1 By Decision C(2005) 3452 of 14 September 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.337 – PO/Thread) (‘the contested decision’), as amended by Commission Decision C(2005) 3765 of 13 October 2005 and a summary of which was published in the Official Journal of the European Union (OJ 2008 C 21, p. 10), the Commission of the European Communities found that the applicant – Oxley Threads Ltd (‘Oxley’) – had participated in a set of agreements and concerted practices on the market in thread for automotive customers in the European Economic Area (EEA) (‘the EEA automotive thread market’) during the period from May/June 1998 to 15 May 2000 and on the market in thread for industrial customers, with the exception of the automobile sector, in the United Kingdom (‘the UK industrial thread market’) during the period from October 1990 to September 1996.
2 The Commission imposed a fine of EUR 1 271 million on Oxley for its participation in the EEA automotive thread cartel. No fine was imposed, however, for its participation in the infringement on the UK industrial thread market, on the ground that the imposition of penalties in that regard was time-barred.
Administrative procedure
3 On 7 and 8 November 2001, the Commission carried out inspections pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959‑1962, p. 87; ‘Regulation No 17’) at the premises of a number of sewing thread manufacturers. Those inspections were carried out as a result of information supplied in August 2000 by The English Needle & Tackle Company.
4 On 26 November 2001, Coats Viyella plc (‘Coats’) filed an application for leniency under the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the Leniency Notice’), together with documents intended to show the existence of the following cartels: (i) a cartel on the EEA automotive thread market; (ii) a cartel on the UK industrial thread market; and (iii) a cartel on the industrial thread market, with the exception of the automobile sector, in Benelux, as well as in Denmark, Finland, Sweden and Norway (‘the industrial thread market in Benelux and the Nordic countries’).
5 In March and August 2003, on the basis of the documents taken in the course of the inspections and those provided by Coats, the Commission sent the undertakings concerned requests for information in accordance with Article 11 of Regulation No 17.
6 On 15 March 2004, the Commission drew up a statement of objections which it sent to a number of undertakings on account of their participation in one or more of the cartels referred to in paragraph 4 above, including the cartel on the EEA automotive thread market.
7 All the undertakings to which the statement of objections was sent submitted written observations.
8 A hearing took place on 19 and 20 July 2004.
9 On 24 September 2004, the parties were granted access to the non-confidential version of the responses to the statement of objections, as well as to the comments made by the parties at the hearing, and were given a deadline by which to submit further comments.
10 On 14 September 2005, the Commission adopted the contested decision.
The contested decision
Definition of the relevant market
11 In the contested decision, a distinction is drawn between thread for automotive customers and thread for industrial customers other than automotive customers. The Commission states that the product market by reference to which the infringement imputed to Oxley had been examined, and a fine imposed in consequence, is the automotive thread market.
12 The geographic market concerned by the infringement imputed to Oxley is the market covering the entire territory of the EEA.
Size and structure of the relevant market
13 In the contested decision, the Commission states that sales of thread for automotive customers in the EEA in 1999 were worth approximately EUR 20 million (contested decision, recital 35).
14 The Commission also states that, in 2004, the main suppliers on that market apart from Oxley were Coats, Amann und Söhne GmbH & Co. KG (‘Amann’), Cousin Filterie SA (‘Cousin’), Barbour Threads Ltd (‘Barbour’), Gütermann AG, Zwicky & Co. AG and American & Efird Inc (contested decision, recital 36).
Description of the unlawful conduct
15 The Commission states in the contested decision that the infringement imputed to Oxley in connection with the cartel on the EEA automotive thread market had taken place during the years 1998 to 2001.
16 According to the Commission, the primary objective of the cartel on the EEA automotive thread market was the maintenance of high prices (contested decision, recital 214).
17 The Commission states that, to that end, five meetings had been organised and that, at those meetings, the participants had first of all fixed target prices for core products sold to European automotive customers, one for existing customers and the other for new customers. The Commission states that information had been exchanged on prices to individual customers and that the participants had agreed on minimum prices for those customers. Lastly, the participants had agreed not to undercut, to the advantage of the incumbent supplier (contested decision, recitals 215 to 221).
Enacting terms of the contested decision
18 By Article 1(3) of the contested decision, the Commission found that six undertakings, among them Oxley, had infringed Article 81(1) EC and Article 53(1) of the EEA Agreement by participating in agreements and concerted practices on the EEA automotive thread market from May/June 1998 to 15 May 2000.
19 By point (b) of the first paragraph of Article 2 of the contested decision, the following fines were imposed:
– Cousin and Amann, jointly and severally liable: EUR 4 888 million;
– Coats: EUR 0.65 million;
– Oxley: EUR 1 271 million;
– Barbour and Hicking Pentecost plc, jointly and severally liable: EUR 0.715 million.
Procedure and forms of order sought
20 By application lodged at the Registry of the General Court on 16 December 2005, Oxley brought the present action.
21 Following a change in the composition of the Chambers of the General Court, the Judge-Rapporteur was attached to the Fifth Chamber, to which the present case was accordingly allocated.
22 Oxley claims that the General Court should:
– annul point (b) of the first paragraph of Article 2 of the contested decision in so far as the Commission imposes on Oxley a fine in the amount of EUR 1 271 million or, in the alternative, reduce that fine;
– order the Commission to pay the costs.
23 The Commission contends that the General Court should:
– dismiss the action;
– order Oxley to pay the costs.
Law
24 Oxley has put forward three pleas in law with a view to having the fine cancelled or reduced: (i) incorrect categorisation of the infringement as ‘very serious’; (ii) incorrect determination of the starting amount of the fine; and (iii) manifest error of assessment regarding the extent of cooperation.
The plea alleging incorrect categorisation of the infringement as ‘very serious’
Arguments of the parties
25 Oxley maintains that the Commission made a manifest error of assessment; that it acted in breach of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the Guidelines’); and that it acted in breach of the principle of equal treatment by categorising the cartel on the EEA automotive thread market as ‘very serious’.
26 Oxley compares the cartel on the EEA automotive thread market with the cartel on the industrial thread market in Benelux and the Nordic countries, and states that there are clear differences between the two – in terms of their organisation, the nature of the agreements reached or their overall effect – which were not taken into account.
27 According to Oxley, the Commission acknowledged in recital 218 et seq. of the contested decision that the cartel on the EEA automotive thread market had not been strictly organised; that only five meetings had been held; that, at two of those five meetings, no agreement had been reached on prices; that, in the course of one meeting – at which Oxley was not present and to which there is no evidence that it was invited – the participants had simply exchanged Amann’s price information; that there had been no system for reporting success in abiding by agreements or for airing complaints, and no bilateral contacts between the participants to supplement the agreements. Furthermore, it emerges from recital 424 of the contested decision that the cartel affected a total of only four pricing offers, to three different customers. Oxley also points out that the Commission has not denied that it made no finding that the EEA automotive thread cartel had been implemented throughout the infringement period.
28 The cartel on the industrial thread market in Benelux and the Nordic countries, on the other hand, is characterised by regular meetings, regular exchanges of price lists, agreement at each meeting on future price lists, agreement on maximum rebates and special prices, systems for monitoring compliance with the agreements, bilateral contacts to supplement the meetings and, lastly, by a general impact on pricing.
29 Oxley also maintains that the Commission has not disputed those differences between the cartels. Oxley further maintains that, although the wording of recitals 350 and 351 of the contested decision (relating to the cartel on the industrial thread market in Benelux and the Nordic countries) is the same as the wording of recitals 426 and 427 of that decision (relating to the cartel on the EEA automotive thread market), this does not go to show that the cartels were of the same gravity, in so far as the Commission uses that wording as a standard response to the argument that the cartels did not achieve their object.
30 The Commission contends that this plea in law should be rejected.
Findings of the Court
31 First of all, it should be pointed out that, with regard to the assessment of the gravity of an infringement as such, the first and second paragraphs of 1.A of the Guidelines state as follows:
‘In assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market.
Infringements will thus be put into one of three categories: minor infringements, serious infringements and very serious infringements.
…
– very serious infringements:
These will generally be horizontal restrictions such as price cartels and market sharing quotas, or other practices which jeopardise the proper functioning of the single market, such as the partitioning of national markets and clearcut abuse of a dominant position by undertakings holding a virtual monopoly …’
32 In the contested decision, the Commission points out the following three factors:
– the infringement at issue consisted essentially in fixing target prices for core products sold to European automotive customers; the exchange of information on prices to individual customers and the agreement of minimum target prices for those customers; and agreement to avoid undercutting, to the advantage of the incumbent supplier (contested decision, recital 420);
– the collusive agreements had been implemented, since at least some of the agreed prices were implemented, as well as the agreement not to undercut each other’s prices, and had had an impact on the relevant EEA product market, but that impact could not be measured with any precision (contested decision, recitals 424 to 427);
– the cartel covered the whole of the EEA (contested decision, recital 428).
33 The Commission went on to reach the following conclusion in recital 429 of the contested decision:
‘Taking all these factors into account, the Commission considers that the undertakings to which the Decision is addressed have committed a very serious infringement of Article 81 [EC] and [Article] 53 of the EEA Agreement.’
34 It should be noted that, although the three aspects of the assessment of the gravity of the infringement, referred to in paragraph 31 above, were taken into account by the Commission in the contested decision, they do not each carry the same weight in the context of the overall examination. The role played by the nature of the infringement is of the utmost importance, especially in distinguishing ‘very serious’ infringements. It is clear from the description of very serious infringements given in the Guidelines that agreements or concerted practices which – as in the present case – are mainly designed to fix prices may, on the basis of their nature alone, be categorised as ‘very serious’, without there being any need to distinguish such conduct by reference to a particular impact or geographic area. That conclusion is supported by the fact that, whilst the description of serious infringements expressly mentions their impact on the market and their effects on extensive areas of the common market, the description of very serious infringements makes no mention of any requirement as to actual market impact or effects produced in a particular geographic area (see, to that effect, Joined Cases T‑49/02 to T‑51/02 Brasserie nationale and Others v Commission [2005] ECR II‑3033, paragraph 178; Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 150; and Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 171). As it is, the pricing agreement imputed to Oxley constitutes, as is shown in recitals 420 and 421 of the contested decision, a very serious infringement within the meaning of the Guidelines.
35 What is more, Oxley has not challenged the statement made by the Commission in recital 424 of the contested decision to the effect that the cartel affected at least four pricing offers, to three different customers.
36 It follows that, in categorising the infringement as ‘very serious’, the Commission did not make any manifest error of assessment.
37 Oxley’s argument that doubt can be cast on that categorisation by comparing the cartel on the EEA automotive thread market with the cartel on the industrial thread market in Benelux and the Nordic countries cannot succeed. The Court has ruled that it cannot be inferred from the existence of other cases involving even more serious infringements of competition law that the infringement committed in a particular case is not ‘very serious’. Moreover, the Guidelines provide that, within the ‘minor’, ‘serious’ and ‘very serious’ categories of infringement, the scale of penalties adopted makes it possible to apply differential treatment to undertakings according to the nature of the infringement committed (Section 1A, third paragraph) (see, to that effect, Case T‑64/02 Heubach v Commission [2005] ECR II‑5137, paragraph 145). In any event, even supposing that the infringement at issue could be categorised as ‘serious’, it would then have to be held that Oxley had failed to provide any explanation as to why, even so, the amount of EUR 1.3 million did not represent an appropriate starting amount for the calculation of its fine. In those circumstances, the plea would in consequence have to be rejected as ineffective.
38 In conclusion, none of the arguments put forward by Oxley in connection with this plea has been sufficient, as such, to show that the alleged infringement cannot, in itself or when compared with the cartel on the industrial thread market in Benelux and the Nordic countries, be categorised as ‘very serious’. By the same token, and as the Commission rightly stated, Oxley has failed to provide any explanation as to why the amount of EUR 1.3 million would not have represented an appropriate starting amount for the calculation of its fine if the infringement committed by it had been categorised as ‘serious’ – unless it were to be supposed that the infringement was ‘minor’ and, given the characteristics of that infringement, that is not a position which could seriously be maintained in the present case.
39 Thus, in the light of those considerations, the plea alleging incorrect categorisation of the infringement as ‘very serious’ must be rejected.
The plea alleging incorrect determination of the starting amount of the fine
Arguments of the parties
40 Oxley maintains that, in determining the starting amount of its fine, the Commission acted in breach of the Guidelines, the principle of equal treatment, the principle of proportionality and the duty to state reasons.
41 According to Oxley, the Commission acted in breach of the Guidelines in calculating the starting amount of the fine. Oxley submits that, under the Guidelines, the Commission must, if it is going to place undertakings in different categories for the purposes of determining the appropriate starting amount, base that approach on the assessment of ‘the relative deterrent effect of the fine’ on the undertakings concerned; on their relative effective economic capacity to cause significant damage to competition; and on their respective specific weight and the relative actual impact of their conduct on competition.
42 Oxley argues that, where the Commission separates the undertakings concerned into different categories, it must comply with the principles of equal treatment and proportionality. Oxley also maintains that the thresholds specified by the Commission must be set in a way that is consistent and objectively justified. In the present case, the Commission based its division of the undertakings on a single factor: turnover on the relevant market.
43 In that connection, Oxley argues that the extreme disparity between the undertakings concerned – the total turnover of the group made up of Coats and Barbour (‘the Coats Group’) is 71 times that of Oxley – should have prompted the Commission to adopt another approach. Oxley’s comments are illustrated by a comparative table showing the starting amounts and world turnovers of the undertakings concerned and their sales figures for industrial thread in the EEA.
44 According to Oxley, the Commission adopted a narrower focus than that envisaged by the Guidelines. The Commission refers in recital 432 of the contested decision to a disparity in ‘market size’ between the undertakings concerned. However, that approach is at odds with the Guidelines, which refer to disparity in ‘size’ in a general sense, that is to say, disparity in overall size.
45 Oxley argues that, in order to assess its importance and its ‘effective economic capacity to cause significant damage to competition’, it is necessary to take into account not only the fact that, overall, it is a much smaller undertaking than Coats, but also and above all the fact that it is a less significant player than Coats in the industrial threads market in general (a sector which includes the relevant product market).
46 Oxley acknowledges that the Commission is indeed entitled to consider turnover in the relevant market as well as total turnover, but maintains that the Commission may not attach disproportionate importance to one or other of those figures, as compared with the other criteria. According to Oxley, the Commission attributed disproportionate importance to turnover in the relevant market, as compared with other factors such as total turnover, Oxley’s total turnover being 71 times smaller than that of the Coats Group, and turnover on the EEA industrial thread market, its turnover on that market being 4 to 6 times smaller than the aggregate turnover of the Coats Group.
47 Oxley claims that the ‘difference in size’ as between Oxley and the Coats Group is so vast that the Commission acted in breach of the principles of proportionality and equal treatment by deciding to take no account of that disparity when dividing the undertakings concerned into different categories. In relation to the total turnover of the undertakings concerned, the fine imposed on Oxley was 71 times higher than that imposed on the Coats Group.
48 First, Oxley challenges the Commission’s argument that the undertakings can be divided into two categories solely on the basis of turnover on the relevant market. It maintains that the Court has acknowledged the existence of cases in which the ‘difference in size’ between the undertakings concerned can be so great as to make it necessary to place them in different categories. Thus, even though the Commission was entitled not to take an approach which rigidly reflects every single difference in overall turnover between the undertakings concerned, it is not entitled to ignore every difference in overall turnover or in turnover on the relevant market.
49 Secondly, Oxley states that the case-law relied upon by the Commission, according to which the fact that the Commission has placed in the same category two undertakings with appreciably different overall turnovers does not mean that the Commission has acted in breach of the principle of equal treatment, concerns cases in which the overall turnover of one of the undertakings was no more than 10 times lower than that of the other company placed in the same category. In the present case, therefore, that case-law cannot apply, given the considerable disparity between Oxley’s overall turnover and that of the Coats Group.
50 Accordingly, Oxley maintains that, in accordance with the ‘principle of equal punishment for the same conduct’, laid down in the seventh paragraph of Section 1A of the Guidelines, the starting amount for its fine should have been substantially lower than the starting amount set for the other undertakings in the same category.
51 Additionally, Oxley argues that its status as a small- or medium-sized enterprise (SME) was sufficient to require the application of criteria different from those applied to the other undertakings in its category. Ms N. Kroes, the Commissioner responsible for competition, has expressed concern about the ‘rigidity’ of the Guidelines and has recognised that ‘the system of fixed minima according to the gravity of the infringement appears to hit [SMEs] harder than large businesses’. In that connection, Oxley observes that a fine of EUR 1.3 million is not the same burden for Coats as it is for Oxley: although Coats was placed in the same category as Oxley, its overall turnover is 1 000 times that amount.
52 According to Oxley, none of the factors set out in the Guidelines or in the contested decision justifies basing the thresholds for each category on turnover in the relevant market.
53 Similarly, Oxley maintains that ‘the need to ensure deterrence’ did not require a fine to be imposed on Oxley which was 71 times the fine imposed on the Coats Group. Oxley also states that, in another case, the Commission took account of the ‘disparity in size’ between the undertakings concerned by applying a multiplier to the starting amounts for the undertakings with the highest overall turnover, a step which it did not take in the present case.
54 Furthermore, Oxley’s ‘relative importance’ on the market and, in consequence, its role in the infringement were – it claims – overstated and exaggerated. Oxley submits that, on the general industrial thread market (which includes the automotive thread market) in the EEA, it is a less significant player, by a factor of between four and six, than the Coats Group; that, as a SME, it does not have the financial backing or the sophisticated management of a large corporate group; that, unlike the Coats Group, it was not involved in the cartel on the industrial thread market in Benelux and the Nordic countries; and that, at the time of its involvement in the cartel on the EEA automotive thread market, it had only just entered that market and its market share was low as compared with that of the other undertakings concerned and, in comparison with the relationships which the ‘established players’ had with existing clients, its relationships with those clients were still fragile.
55 Oxley also takes issue with the Commission for giving no explanation as to why, when dividing the undertakings concerned into different categories for the purposes of determining the starting amount, it chose to do so by reference solely to turnover on the relevant market. That amounts to a failure to state reasons, especially given the ‘disparity in size’ between the undertakings concerned. Moreover, according to Oxley, it was incumbent upon the Commission to explain why it chose not to refer to overall turnover.
56 Lastly, Oxley maintains that the Commission is wrong in contending that Oxley’s arguments go to show that the fine imposed on Coats was too low, not that the fine imposed on Oxley was too high, and in maintaining that the way to cure the discrimination is to take away the advantage from the party which benefited, rather than to make good the loss suffered by the victim. Referring to case-law, Oxley states that, if the Commission acted in breach of the principle of equal treatment in the present case, as Oxley submits, the Court must remedy that breach by reducing the fine imposed on the victim because, if it does not do so, there would be no way of ‘correcting’ infringements of that basic principle. Oxley also argues that the Commission’s decision to ignore the overall turnover of the undertakings concerned for the purposes of determining the starting amounts of the fines could have been justified only if the Commission had then applied a multiplier to the fine imposed on Coats. By choosing not to do so, the Commission cannot claim that it did anything else but close its eyes to the huge difference in size between Coats and Oxley.
57 The Commission disputes all those arguments and contends that the plea in law should be rejected as unfounded.
Findings of the Court
58 It should first be pointed out that, even though the contested decision makes no express reference to the Guidelines, it is clear from recitals 418 to 435 of that decision that the Commission applied the method laid down in those guidelines when determining the starting amount for the fine to be imposed on Oxley.
59 It emerges from the contested decision that, in order to determine the starting amount for the fine, the Commission assessed the gravity of the infringement (contested decision, recitals 419 to 429) before applying differential treatment to the undertakings concerned in order to take account of the ‘effective economic capacity of [each undertaking] to cause significant damage to competition, as well as to set the fine at a level which ensures that it has sufficient deterrent effect’ (contested decision, recital 430). The Commission added that, in order to set the starting amount of the fines, it was necessary to take account of the specific weight of each undertaking and, as a consequence, the actual impact of its offending conduct on competition, and that, ‘for this purpose, the undertakings concerned [could] be divided into different categories, established according to their relative importance in the relevant market’ (contested decision, recital 431).
60 Accordingly, the Commission divided the undertakings concerned into two categories. Amann, whose turnover on the relevant market was between EUR 6 million and EUR 9 million, was placed in the first category. Oxley, Coats and Barbour, whose turnover on the relevant market varied between EUR 1 million and EUR 3 million, were placed in the second category. On the basis of the above considerations, the Commission set the starting amount, determined according to the gravity of the infringement, at EUR 5 million for Amann and at EUR 1.3 million for each of the other undertakings, among them Oxley (contested decision, recitals 432 to 435).
– The alleged breach of the Guidelines
61 It should be pointed out that the fourth and sixth paragraphs of Section 1A of the Guidelines, which the Commission applied, essentially state that, especially where the infringement involves a number of undertakings and there is considerable disparity in size between the undertakings party to the infringement, the Commission is to apply differential treatment to the undertakings concerned in order to take account of their actual economic ability to cause significant damage to competition and to set the fine at a level which ensures that it has a sufficiently deterrent effect (see Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraph 216).
62 It should also be pointed out that the Commission may not depart from rules which it has imposed on itself. In particular, whenever the Commission adopts guidelines for the purposes of specifying, in accordance with the Treaty, the criteria which it proposes to apply in the exercise of its discretion, there arises a self-imposed limitation of that discretion inasmuch as the Commission must then follow those guidelines (see Case T‑220/00 Cheil Jedang v Commission [2003] ECR II‑2473, paragraph 77 and the case-law cited).
63 Accordingly, it must be determined whether, by taking into account solely the turnover on the relevant market for the purposes of dividing the undertakings concerned into two categories, and by doing so despite the huge disparity between those undertakings in terms of overall turnover, the Commission departed from the Guidelines which it has imposed on itself.
64 In that regard, it should be noted that, although the Guidelines do not provide that fines are to be calculated according to the overall turnover of the undertakings concerned or their turnover on the relevant market, they do not preclude the Commission from taking either figure into account in determining the amount of the fine in order to ensure compliance with the general principles of the law of the European Union (‘EU law’) and where circumstances so require. In particular, turnover may be relevant when the various factors referred to in the fourth and sixth paragraphs of Section 1A of the Guidelines are being taken into consideration (see, to that effect, Cheil Jedang v Commission, paragraph 62 above, paragraph 82).
65 As regards the choice open to the Commission to use one and/or the other turnover figure, it is apparent from the case-law that, for the purposes of the analysis – undertaken with a view to setting the fine for an infringement of the competition rules – of the effective economic capacity of the offenders to cause significant damage to competition, which involves an assessment of the actual importance of those undertakings in the market affected, that is to say, of their influence on the market, their total turnover gives only an incomplete picture. The possibility cannot be ruled out that a powerful undertaking with many different activities may have only a limited presence on a specific product market. Similarly, the possibility cannot be ruled out that an undertaking occupying an important position on a geographical market outside the European Union occupies only a weak position on the EU market or the EEA market. In such circumstances, the mere fact that the undertaking concerned has a high overall turnover does not necessarily mean that it has a decisive influence on the market affected. That is why, even though an undertaking’s turnover on the market affected cannot be a decisive factor in concluding that that undertaking belongs to a powerful economic entity, it is nevertheless relevant for the purposes of determining the influence which that undertaking may exert on the market (Case T‑52/02 SNCZ v Commission [2005] ECR II‑5005, paragraph 65, and Case T‑62/02 Union Pigments v Commission [2005] ECR II‑5057, paragraph 152).
66 Thus, it has previously been held that, by relying exclusively on the worldwide turnover of the undertaking concerned and by not taking into account, therefore, the market shares in terms of volume of the undertakings in question on the market affected or even their turnover on that market, the Commission failed to apply the fourth and sixth paragraphs of Section 1A of the Guidelines. An assessment of the specific weight, that is to say, of the actual impact of the infringement committed by each of the undertakings, in fact involves establishing the scale of the infringement committed by each of them, rather than the importance of the undertaking in question in terms of its size or economic power. The proportion of turnover derived from the goods in respect of which the infringement was committed is likely to give a fair indication of the scale of the infringement on the relevant market (Cheil Jedang v Commission, paragraph 62 above, paragraphs 88 to 92, and Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II‑2597, paragraphs 194 to 197).
67 Furthermore, the setting 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. By contrast, there is no general principle that the penalty be proportionate to the importance of the undertaking on the product market in respect of which the infringement was committed (Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2006] ECR I‑4429, paragraphs 100 and 101).
68 In the present case, it should be noted that Coats is a multinational with a very high overall turnover, while Oxley is a SME with a more modest turnover. Nevertheless, the turnovers of the undertakings present on the EEA automotive thread market are very similar. Thus, the Commission applied the Guidelines correctly in considering that the specific weight – hence the actual impact – of the offending conduct of Coats and of Oxley on the relevant market depends on their relative importance on that market, which can be determined with reasonable precision by reference to turnover on the relevant product market. The turnover derived from sales of thread for automotive customers in the EEA is likely to give a fair indication of the liability of each cartel member on the same market. Indeed, that figure constitutes an objective criterion which gives a proper measure of the harm which the offending conduct represents for normal competition and it is therefore a good indicator of the capacity of each undertaking to cause damage.
69 That conclusion is unaffected by the argument that the Commission should have taken into account the fact that Oxley is a medium-sized company.
70 It should be borne in mind that, since the Commission is under no obligation to calculate the fine on the basis of amounts determined by reference to the overall turnover of the undertakings concerned, it is also under no obligation to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect every difference between those undertakings in terms of their overall turnover or their turnover on the relevant product market (Case T‑21/99 Dansk Rørindustri v Commission [2002] ECR II‑1681, paragraph 202).
71 In that regard, it should be pointed out that, likewise, neither Article 15(2) of Regulation No 17 nor Article 23(3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 EC] and [82 EC] (OJ 2003 L 1, p. 1; ‘Regulation No 1/2003’) requires that, where fines are imposed on a number of undertakings involved in the same infringement, the fine imposed on an undertaking which is small- or medium-sized must be no higher, as a percentage of turnover, than the fines imposed on the larger undertakings. It is clear from those provisions that, both for small- or medium-sized undertakings and for larger undertakings, account must be taken, in determining the amount of the fine, of the gravity and duration of the infringement. Where the Commission imposes on undertakings involved in a single infringement fines which are justified, for each of them, by reference to the gravity and duration of the infringement, it cannot be criticised on the ground that, for some of the undertakings, the fine is higher in relation to its turnover than that imposed on the others (Dansk Rørindustri v Commission, paragraph 70 above, paragraph 203, and Case T‑303/02 Westfalen Gassen Nederland v Commission [2006] ECR II‑4567, paragraph 174).
72 Thus, the Commission is not required to reduce the fines where the undertakings concerned are small- or medium-sized companies. The size of the undertaking is taken into consideration by virtue of the upper limit laid down in Article 15(2) of Regulation No 17, Article 23(2) of Regulation No 1/2003 and in the Guidelines. Apart from those considerations concerning size, there is no reason to treat SMEs differently from other undertakings. The fact that the undertakings concerned are SMEs does not exempt them from their duty to comply with the competition rules (SNCZ v Commission, paragraph 65 above, paragraph 84).
73 The plea alleging breach of the Guidelines must therefore be rejected.
– The alleged breach of the principles of equal treatment and proportionality
74 Since, by these pleas, Oxley is claiming that the Commission acted in breach of the principles of equal treatment and proportionality by placing Oxley in the same category as the other undertakings concerned even though the overall turnover of the latter was significantly different from Oxley’s, they must be rejected.
75 In the first place, in the context of its allegation that the Commission acted in breach of the principle of equal treatment, Oxley claims, essentially, that the Commission breached the principle of equal treatment by placing Oxley in the same category as other undertakings from among those concerned, whose circumstances were different because of their size.
76 According to settled case-law, the principle of equal treatment is infringed where comparable situations are treated differently or different situations are treated in the same way, unless that treatment is objectively justified (see Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraph 406 and the case-law cited).
77 In the present case, it is common ground that the Commission placed Oxley in the same category as other undertakings, from among those concerned, which were not of the same size.
78 It must be determined, therefore, whether the fact that the same treatment was applied is objectively justified.
79 In that regard, it should be pointed out that the sixth paragraph of Section 1A of the Guidelines provides that a considerable disparity in size between the undertakings committing infringements of the same type is a factor which particularly justifies differentiated treatment for the purposes of assessing the gravity of the infringement.
80 Nevertheless, the Court has held that it was consistent and objectively justified to group together undertakings which had very similar turnovers on the relevant market and very similar market shares. Moreover, as was stated in paragraph 66 above, the proportion of turnover derived from the goods in respect of which the infringement was committed is likely to give a fair indication of the scale of the infringement on the relevant market and constitutes an objective criterion which gives a proper measure of the harm which the offending conduct represents for normal competition.
81 In the second place, Oxley’s claim alleging breach of the principle of proportionality cannot be sustained either.
82 It should be borne in mind that the principle of proportionality requires that the measures adopted by Community institutions must not exceed what is appropriate and necessary for attaining the objective pursued. In relation to the calculation of fines, the gravity of infringements has to be determined by reference to numerous factors and it is important not to confer on one or other of those factors an importance which is disproportionate in relation to other factors. In that context, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account to assess the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (Jungbunzlauer v Commission, paragraph 61 above, paragraphs 226 to 228).
83 In the present case, the Commission has in no way acted in breach of the principle of proportionality by relying on the turnover of the undertakings concerned on the relevant market. The starting amount was adjusted in order to take account of the actual impact on competition of the offending conduct of each of those undertakings. As was observed in paragraph 68 above, it was consistent and objectively justifiable to refer to the turnover on the relevant market for the purposes of determining the capacity of each undertaking to cause damage. In so proceeding, the Commission was also seeking to ensure deterrence by making it quite clear that it would penalise more severely undertakings which had participated in a cartel affecting a market on which they had significant weight.
84 Furthermore, by placing Oxley in the second category of the undertakings concerned and by setting the starting amount for Oxley at the same level as for Coats – whose turnover on the relevant market was comparable – the Commission did not set a disproportionate starting amount for the fine to be imposed on Oxley, in view of the gravity of the infringement committed by Oxley and the need to ensure that the fine had a deterrent effect. The soundness of that assessment is unaffected by the fact that, in terms of size, Coats was more significant than Oxley. Competition on the relevant market was actually impaired by Oxley’s actions, a fact which justifies the assessment made by the Commission at that stage of calculating the fine. It follows that the Commission did not take into account a disproportionate amount, given the scale of the infringement committed by Oxley on the relevant market.
85 Furthermore, Oxley is also wrong in alleging that the Commission acted in breach of the principle of proportionality by not taking into account the ‘disparity in size’ between the undertakings concerned and by not applying a multiplier to the starting amount for the fine to be imposed on the undertakings whose overall turnover is highest.
86 As noted above, the Commission was seeking to ensure deterrence by taking into account the turnover on the relevant market and in no way acted in breach of the principle of proportionality in determining the starting amount of the fine.
87 Moreover, Oxley cannot rely on the fact that no multiplier was applied to the starting amount for the fine to be imposed on Coats in order to ensure that that fine had a deterrent effect. To pursue that line of argument amounts really to asking the Court to review the legality of the fine set for Coats, the level of which Oxley compares with the level of its own fine. However, Oxley has no right of action in that regard. It has been consistently held that the principle of equal treatment must be reconciled with the principle that a person may not rely, in support of his claim, on an unlawful act committed to the benefit of a third party (Case 134/84 Williams v Court of Auditors [1985] ECR 2225, paragraph 14; Case T‑327/94 SCA Holding v Commission [1998] ECR II‑1373, paragraph 160; and Case T‑304/02 Hoek Loos v Commission [2006] ECR II‑1887, paragraph 113).
88 In that connection, no relevance attaches to the reference made by Oxley to the judgment in Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, in so far as that judgment concerns a situation in which JFE Engineering had been ordered to pay the same fine as other undertakings which had also committed another infringement, whereas the present case concerns a situation in which all the undertakings concerned committed the same infringement.
89 JFE Engineering and Others v Commission, cited in paragraph 88 above, falls to be distinguished from the present case on the facts, in that Oxley and Coats committed the same infringement on the EEA automotive thread market and the alleged illegality concerns the stage at which a multiplier could have been applied for the purposes of deterrence.
– The alleged breach of the duty to state reasons
90 It is necessary to consider the argument that the Commission gave no explanation as to why it chose turnover on the relevant market as the criterion on the basis of which to divide the undertakings concerned into different categories for the purposes of determining the starting amount.
91 It should be borne in mind that the scope of the duty to state reasons for the calculation of a fine imposed for infringement of the competition rules falls to be determined in the light of Article 15(2) of Regulation No 17 and Article 23(3) of Regulation No 1/2003, under which, ‘[i]n fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement’. The essential procedural requirement 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. Moreover, the Guidelines indicate the factors which the Commission is to take into consideration in measuring the gravity and duration of an infringement. In those circumstances, the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which it took into account in accordance with the Guidelines and which enabled it to determine the gravity of the infringement and its duration for the purposes of calculating the amount of the fine (see, to that effect, Case T‑48/02 Brouwerij Haacht v Commission [2005] ECR II‑5259, paragraph 46).
92 As was noted in paragraph 59 above, the Commission mentioned the reasons for its decision to attribute particular importance to turnover on the relevant market and the goods concerned by the cartel. Accordingly, the plea alleging breach of the duty to state reasons must be rejected.
93 In the light of those considerations, the plea alleging incorrect determination of the starting amount of the fine must be rejected in its entirety.
The plea alleging manifest error of assessment as regards the extent of Oxley’s cooperation
Arguments of the parties
94 According to Oxley, the Commission did not take sufficient account of the actual level of cooperation provided by Oxley in its response to the request for information.
95 In the first place, Oxley submits that it provided documentary evidence of the contacts between the automotive thread suppliers, that is to say, a table drawn up by Mr B, Oxley’s representative, which was sent to the Commission on 9 June 2004 and which contained detailed price information supplied by the participants in the cartel, including information relating to particular customers. Oxley states that, as is apparent from recital 228 of the contested decision, the Commission was told about the existence of the table but, owing to very specific circumstances, the table could not be sent to the Commission until after the statement of objections of 15 March 2004 had been sent. The reason for the delay was that Mr B’s wife did not discover the table until 16 May 2004, or around that time, as is confirmed in her witness statement of 9 June 2004.
96 First, Oxley maintains that the Commission was incorrect in stating, in recital 459 of the contested decision, that it had not received any documentary evidence from Oxley and that, as a result, the Commission made a manifest error of assessment regarding the extent of Oxley’s cooperation. Oxley argues in that regard that contemporaneous documentary evidence carries greater evidential weight and is therefore more valuable to the Commission than evidence created for the purposes of an investigation, such as witness statements.
97 Secondly, Oxley maintains that the mere fact that its document was provided after the statement of objections had been sent does not mean that the fine cannot be substantially reduced for cooperation. In that regard, Oxley relies on Commission Decision 98/247/ECSC of 21 January 1998 relating to a proceeding pursuant to Article 65 of the ECSC Treaty (Case IV/35.814 – Alloy surcharge) (OJ 1998 L 100, p. 55), as well as on case-law. According to Oxley, the Commission once granted a 40% reduction in the fine imposed on undertakings in a case where the cooperation was provided after the statement of objections had been sent. Oxley also states that it had no means of knowing, after it had provided the table, whether the Commission would choose to draw up a new statement of objections, which means that in that respect it was in a similar position to the undertakings involved in the ‘Alloy surcharge’ case.
98 Thirdly, Oxley maintains that the Commission could well have pursued further enquiries on the basis of that table. The fact that the Commission chose not to rely on the table does not by any means preclude a decision to grant a reduction for cooperation. Oxley claims that the table could have been of particular interest in the present case in the event of a dispute as to the effect of the cartel on the market. On that point, Oxley argues that the list of circumstances set out in Section D2 of the Leniency Notice is merely illustrative, and that the Commission has a measure of discretion as regards the grant of reductions under that provision.
99 Accordingly, Oxley claims that, as soon as it could, it provided documentary evidence which enabled the Commission to establish the infringement more easily, and submits that the provision of such evidence comes within the scope of Section D of the Leniency Notice. Moreover, there is nothing to suggest that the Commission had any documents in its possession other than the table and the Commission has never given any reason why Oxley did not satisfy the conditions for the grant of a reduction.
100 In the second place, Oxley submits that, by providing information concerning the cartel on the UK industrial thread market, at the risk to itself of being sued for damages, its assistance amounted to effective cooperation outside the scope of the Leniency Notice, within the meaning of the sixth indent of Section 3 of the Guidelines. According to Oxley, the provision of information contributed to establishing the existence of another infringement related to the infringement for which its fine has been imposed, and such cooperation is comparable to the provision, under the first indent of Section D2 of the Leniency Notice, of information relating to the latter infringement. Accordingly, the Commission should have taken it into account in the present case.
101 The Commission disputes all those arguments and contends that the plea should be rejected.
Findings of the Court
102 In the Leniency Notice, the Commission defined the circumstances in which undertakings which cooperate with it in the course of its investigation into a cartel may be exempted from fines or may be granted reductions in the fine which would otherwise have been imposed upon them (see Section A3 of the Leniency Notice).
103 Under Section D1 of the Leniency Notice, ‘[w]here an enterprise cooperates without having met all the conditions set out in Sections B or C, it will benefit from a reduction of 10% to 50% of the fine that would have been imposed if it had not cooperated’.
104 Section D2 of the Leniency Notice states:
‘Such cases may include the following:
– before a statement of objections is sent, an enterprise provides the Commission with information, documents or other evidence which materially contribute to establishing the existence of the infringement;
– after receiving a statement of objections, an enterprise informs the Commission that it does not substantially contest the facts on which the Commission bases its allegations.’
105 In the present case, it is clear from the contested decision that the Commission found that it was able to grant Oxley a 15% reduction in the fine, pursuant to the first and second indents of Section D2 of the Leniency Notice (contested decision, recital 463).
106 In order to substantiate its assessment, the Commission first stated that the information, documents and other evidence provided by Oxley before the statement of objections was sent had materially contributed to establishing the existence of the infringement. The Commission went on to state that the information provided by Oxley mainly concerned the cartel on the UK industrial thread market and, to a much lesser extent, the cartel on the EEA automotive thread market, which meant that it was not ‘as useful’ in relation to that market. The Commission also pointed out that Oxley had admitted, in its initial response to the request for information, attending meetings during which target prices for automotive customers had been discussed. Lastly, the Commission stated that Oxley had not substantially contested the facts on which the Commission based its allegations (contested decision, recitals 457, 458 and 462).
107 In the first place, as regards the plea alleging that the Commission erred in its assessment of the cooperation provided by Oxley, this plea is essentially based on documentary evidence which, Oxley claims, the Commission did not take into account and which consisted in a table drawn up by Oxley’s representative, setting out price information passed on by the participant undertakings for the good of the cartel.
108 First, it must be held that, contrary to Oxley’s assertions, the Commission’s statement in recital 459 of the contested decision that ‘no documentary evidence of the contacts between the automotive thread suppliers was provided’ by Oxley in no way constitutes an error as to fact. As the Commission rightly pointed out, that statement clearly refers to the application for leniency filed by Oxley in the context of its response to the request for information and is wholly unrelated, therefore, to its response after receiving the statement of objections. As was noted above, Oxley had not yet forwarded a copy of the table appended to its response to the request for information.
109 It should also be pointed out that the parties do not dispute either the fact that, thanks to Coats, the Commission was aware of the existence of the table before sending the statement of objections (contested decision, recital 228) or the fact that the Commission did not have the table to hand until after the statement of objections had been sent. Further, it should be noted that, apart from the table drawn up by its representative, there is no other evidence or information sent by Oxley to the Commission upon which Oxley relies in order to demonstrate that it had cooperated more extensively.
110 It should be noted that the Commission has a broad discretion as regards the method of calculating fines and it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. In that context, the Commission is required to make complex assessments of fact, such as those relating to the cooperation provided by the individual undertakings concerned (Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 81).
111 In that regard, the Commission enjoys a broad discretion in assessing – in particular, by reference to the contributions made by other undertakings – the quality and usefulness of the cooperation provided by an undertaking (see SGL Carbon v Commission, paragraph 110 above, paragraph 88).
112 It must also be pointed out that, according to the case-law, the rationale underlying the reduction of fines for cooperation on the part of undertakings which have participated in an infringement of competition law is that such cooperation makes it easier for the Commission to carry out its task of establishing an infringement and, where possible, of bringing it to an end (Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 399, and Case T‑338/94 Finnboard v Commission [1998] ECR II‑1617, paragraph 363). Given that rationale, the Commission cannot disregard the usefulness of the information provided, which necessarily depends on the evidence already in its possession.
113 Furthermore, it should be pointed out that the fact that Section D2 of the Leniency Notice does not envisage the situation where evidence is provided after the statement of objections has been sent in no way precludes the possibility that such a situation could give rise to a reduction in the fine on the basis of that provision. The list of types of cooperation set out in Section D2 of the Leniency Notice is merely illustrative, as is confirmed by the use of the expression ‘may include’ (Joined Cases T‑45/98 and T‑47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II‑3757, paragraph 274). Moreover, the first indent – which envisages the situation where evidence is provided before the statement of objections is sent – cannot be construed a contrario to mean that the Commission may not grant a reduction where the evidence is provided after the statement of objections has been sent.
114 That approach is confirmed by the judgment in Joined Cases C‑65/02 P and C‑73/02 P ThyssenKrupp v Commission [2005] ECR I‑6773, paragraph 59, in so far as the Court of Justice accepted in that judgment that the Commission may take into account the undertakings’ acknowledgement, at an advanced stage of the procedure, of the legal categorisation of the facts alleged, since that ultimately amounts to an admission of the infringement. That situation is contemplated in Sections B and C of the Leniency Notice, but it is not expressly envisaged in Section D thereof. Nevertheless, the Court of Justice held that there was no reason why an undertaking should not be compensated for making such an admission, even if it does so at a later stage in the procedure than that envisaged in Sections B and C of the Leniency Notice. In taking that approach, the Court of Justice confirms the more general principle that leniency is granted by the Commission to an undertaking as a reward for making it easier to establish the infringement, whatever the stage of the procedure at which the undertaking provided assistance, and regardless of whether that assistance consisted in the provision of new information or fresh evidence, or in the admission of facts or acceptance of the legal categorisation of those facts.
115 It follows that, in the present case, the question whether Oxley deserves more by way of reward for having provided, after notification of the statement of objections, the table setting out the price information which the participating undertakings contributed for the good of the cartel primarily depends on the quality of the cooperation and its usefulness, which the Commission evaluates in the exercise of its broad discretion, as referred to in paragraphs 110 and 111 above. When making an overall assessment, the Commission may also take into account the fact that the undertaking concerned did not pass on the documents until after it had received the statement of objections (see, by analogy, Case T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, paragraph 365), but it may not treat that factor as conclusive evidence that the cooperation provided by the undertaking under the first indent of Section D2 of the Leniency Notice is negligible. It must therefore be specifically determined, regard being had both to the quality and usefulness of the document and to the time at which it was passed on, whether in fact the Commission made a manifest error of assessment in its appraisal of the degree of cooperation provided by Oxley.
116 In that connection, it should be pointed out that Oxley did not contest the finding that the existence of the cartel on the EEA automotive thread market had been established, so far as its principal elements were concerned, on the basis of information provided by Coats and that, in recital 455 of the contested decision, the Commission listed all the evidence provided by Coats which had been used to substantiate various points made in the statement of objections. More specifically, it emerges from paragraph 189 of the statement of objections of 15 March 2004 that Coats stated, first, that the participants had been asked to send Mr B, Oxley’s representative, the highest prices and the lowest prices applied to core products, for the purposes of establishing minimum prices for those products and, secondly, that those figures were set out in a table drawn up by Mr B. Similarly, paragraph 192 of the statement of objections sets out statements made by Coats relating to discussions concerning that table at a meeting at Zurich airport, to the products concerned and to the fact that agreement had been reached as to the price to be obtained. Those points from the statement of objections were reproduced in recitals 228 and 233, respectively, of the contested decision.
117 It is thus apparent that, in the contested decision, the Commission did not rely on the document itself, but on Coats’ description of the circumstances in which the table was drawn up and on Coats’ recollection of its contents.
118 Accordingly, Oxley cannot reasonably maintain that the table provided by its representative after notification of the statement of objections was so useful as to justify an additional reduction in the fine imposed on it.
119 It follows that the Commission did not make a manifest error of assessment in the exercise of its broad discretion for the purposes of assessing the cooperation provided by Oxley.
120 The soundness of that conclusion cannot be affected by the special circumstances, relied upon by Oxley, in which the documentary evidence was provided. Even supposing that those circumstances attest to a genuine desire on Oxley’s part to cooperate, the fact remains that the document was of no use at all to the Commission as a basis for its decision. For that reason, the argument extrapolated by Oxley from the ‘Alloy surcharge’ decision (paragraph 97 above) cannot succeed either.
121 It is also necessary to reject the argument based on the fact that the Commission did not explain why, in providing the table, Oxley did not satisfy the conditions for a reduction in its fine. It is clear – implicitly, but certainly – from recitals 228 and 233 of the contested decision that the table which Oxley provided was of no use to the Commission at all.
122 Secondly, Oxley is wrong in maintaining that, by dint of providing information on the cartel on the UK industrial thread market, it should have been rewarded for effective cooperation in the proceedings, outside the scope of the Leniency Notice, within the meaning of the sixth indent of Section 3 of the Guidelines, when it came to the calculation of the fine imposed on it for the infringement on the EEA automotive thread market.
123 As was mentioned in paragraph 106 above, the Commission stated in recital 458 of the contested decision that the information provided by Oxley had mainly concerned the cartel on the UK industrial thread market and, to a much lesser extent, the cartel on the EEA automotive thread market.
124 It should also be noted that neither Oxley nor any of the other undertakings concerned has been fined for participating in the infringement on the UK industrial thread market, the reason being that the imposition of penalties in that connection was time-barred.
125 It follows that, in the present case, the provision of information concerning the UK market cannot be covered by Section D2 of the Leniency Notice. Indeed, the fact that an undertaking has placed before the Commission information relating to acts for which that undertaking has not had to pay a fine pursuant to Regulation No 17 or Regulation No 1/2003 does not amount to cooperation falling within the scope of the Leniency Notice (Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, paragraph 66 above, paragraph 297, and Joined Cases T‑101/05 and T‑111/05 BASF and UCB v Commission [2007] ECR II‑4949, paragraph 222).
126 It must therefore be considered whether, as Oxley maintains, the provision of that information amounts to effective cooperation outside the scope of the Leniency Notice, within the meaning of the sixth indent of Section 3 of the Guidelines. In that regard, as was noted in paragraph 112 above, a reduction in the fine for cooperation in the administrative procedure is justified only where the conduct of the undertaking concerned has made it easier for the Commission to establish an infringement and, as the case may be, to bring it to an end.
127 It must be held in that connection that Oxley has in no way demonstrated that the information concerning the cartel on the UK industrial thread market enabled the Commission to establish more easily the existence of the cartel on the EEA automotive thread market and that it was therefore useful to the Commission.
128 Furthermore, Oxley has in no way contested the fact that the infringement on the EEA automotive thread market and the infringement on the UK industrial thread market were distinct and did not amount to a single and continuous infringement.
129 It must be held that, in the context of the Guidelines and the Leniency Notice, ‘effective cooperation by the undertaking in the proceedings’ within the meaning of the sixth indent of Section 3 of the Guidelines is to be understood as effective cooperation by the undertaking in the specific administrative procedure relating to the suspected infringement which gave rise to that procedure: in the present case, a cartel on the EEA automotive thread market. The fact that another administrative procedure was under way at the same time in relation to another infringement – namely, the cartel on the UK industrial thread market – cannot affect that finding. The situation could have been different only if, at the end of the investigation, the Commission had concluded that the two infringements were really a single and continuous infringement, which was not the position in the present case.
130 Accordingly, given that the information concerning the United Kingdom was provided in the context of an administrative procedure relating to a different infringement and that, furthermore, Oxley has done nothing to call into question the fact that the information had been of no use at all to the Commission in enabling it to establish more easily the existence of the cartel on the EEA automotive thread market, Oxley cannot legitimately claim the right to an additional reduction in its fine, for effective cooperation outside the scope of the Leniency Notice.
131 As a consequence, it is also necessary to treat as irrelevant Oxley’s argument that account should have been taken of the fact that, in providing information concerning the cartel in the United Kingdom, Oxley ran the risk of being sued for damages.
132 The plea alleging incorrect assessment of the cooperation must therefore be rejected.
133 It follows from the above considerations that the action must be dismissed in its entirety.
Costs
134 Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Oxley has been unsuccessful, it should be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action.
2. Orders Oxley Threads Ltd to pay the costs.
Delivered in open court in Luxembourg on 28 April 2010.
[Signatures]
Table of contents
Background to the dispute
Subject-matter of the dispute
Administrative procedure
The contested decision
Definition of the relevant market
Size and structure of the relevant market
Description of the unlawful conduct
Enacting terms of the contested decision
Procedure and forms of order sought
Law
The plea alleging incorrect categorisation of the infringement as ‘very serious’
Arguments of the parties
Findings of the Court
The plea alleging incorrect determination of the starting amount of the fine
Arguments of the parties
Findings of the Court
– The alleged breach of the Guidelines
– The alleged breach of the principles of equal treatment and proportionality
– The alleged breach of the duty to state reasons
The plea alleging manifest error of assessment as regards the extent of Oxley’s cooperation
Arguments of the parties
Findings of the Court
Costs