Case T-186/06
Solvay SA
v
European Commission
(Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Duration of the infringement – Concepts of ‘agreement’ and ‘concerted practice’ – Access to the file – Fines – Leniency Notice – Equal treatment – Legitimate expectations – Duty to state reasons)
Summary of the Judgment
1. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Concept – Joint intention as to the conduct to be adopted on the market – Included
(Art. 81(1) EC)
2. Competition – Agreements, decisions and concerted practices – Concerted practice – Concept – Exchange of information under a cartel agreement or with a view to setting up a cartel
(Art. 81(1) EC)
3. Competition – Agreements, decisions and concerted practices – Complex infringement comprising elements both of an agreement and of a concerted practice – Classified singly as ‘an agreement and/or concerted practice’ – Whether permissible
(Art. 81(1) EC)
4. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Anti-competitive object – Sufficient
(Art. 81(1) EC)
5. Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement
(Art. 81(1) EC)
6. Competition – Agreements, decisions and concerted practices – Prohibition – Agreements which continue to produce their effects after they have formally ceased to be in force
(Art. 81 EC)
7. Competition – Agreements, decisions and concerted practices – Proof – Evidence adduced by the Commission – Participation in meetings having an anti-competitive object
(Art. 81(1) EC)
8. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Failure to communicate a document – Consequences
(Council Regulation No 1/2003, Art. 27(2))
9. Competition – Administrative procedure – Observance of the rights of the defence – Communication of replies to a statement of objections – Conditions – Limits
(Council Regulation No 1/2003, Art. 27(2))
10. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement
(Council Regulation No 1/2003, Art. 23(3))
11. Competition – Fines – Decision imposing fines – Duty to state reasons – Scope
(Art. 253 EC; Council Regulation No 1/2003, Art. 23(3))
12. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Obligation to take account of the actual impact on the market – Scope
(Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)
13. Competition – Fines – Amount – Determination – Deterrent effect – Account taken of the size of the fined undertaking – Relevance
(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, Section 1A)
14. Competition – Fines – Amount – Determination – Criteria – Account taken of the undertaking’s cooperation with the Commission outside the framework of the Leniency Notice – Conditions – Limits
(Council Regulation No 1/2003, Art. 23; Commission Notices 98/C 9/03, Section 3, and 2002/C 45/03, Section 23(b), third para.)
15. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation of the undertaking concerned – Determination of the date on which the leniency application is submitted – Criteria
(Council Regulation No 1/2003, Art. 23; Commission Notice 2002/C 45/03, Sections 21 and 23(b))
16. Competition – Fines – Amount – Determination – Criteria – Assessment of the degree of cooperation provided by each of the undertakings during the administrative procedure – Respect for the principle of equal treatment
(Council Regulation No 1/2003, Art. 23; Commission Notice 2002/C 45/03)
17. Procedure – Costs – Recoverable costs – Concept
(Rules of Procedure of the General Court, Art. 91(b))
1. In order for there to be an agreement within the meaning of Article 81(1) EC, it is sufficient that the undertakings in question should have expressed their joint intention to conduct themselves on the market in a specific way.
An agreement within the meaning of Article 81(1) EC can be regarded as having been concluded where there is a concurrence of wills on the very principle of a restriction of competition, even if the specific features of the restriction envisaged are still under negotiation.
In that regard, where it is established that discussions were clearly guided by a common intention of the participants to agree on the very principle of a restriction of competition, that finding cannot be undermined by the fact that specific features of the restriction envisaged were the subject of negotiations between the participants and that the modalities of the firm agreement subsequently differed from those discussed at earlier meetings. The Commission is therefore entitled to find that, where the conduct of the participants falls within an initial stage of the cartel, it is part of the same anti‑competitive scheme and is therefore caught by the prohibition laid down in Article 81(1) EC.
(see paras 85-86, 139, 142-143)
2. The concept of a concerted practice refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so‑called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them.
In this respect, Article 81(1) EC precludes any direct or indirect contact between economic operators of such a kind as either to influence the conduct on the market of an actual or potential competitor or to reveal to such a competitor the conduct which an operator has decided to follow itself or contemplates adopting on the market, where the object or effect of those contacts is to restrict competition.
The disclosure of information to one’s competitors in preparation for an anti‑competitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 81 EC.
In this respect, even if the Commission does not succeed in showing that the undertakings concluded an agreement, in the strict sense of the term, it is sufficient, in order to find an infringement of Article 81(1) EC, that the competitors have made direct contact with a view to stabilising the market.
In any event, the presumption must be that – subject to proof to the contrary, which it is for the economic operators concerned to adduce – the undertakings taking part in the concerted arrangements and who remain active on the market take account of the information exchanged with their competitors when determining their conduct on that market.
(see paras 87-89, 147-148, 160)
3. The concepts of agreement and concerted practice within the meaning of Article 81(1) EC are intended to catch forms of collusion having the same nature and are distinguishable from each other only by their intensity and the forms in which they manifest themselves.
In the context of a complex infringement which involved many producers seeking over a number of years to regulate the market between them, the Commission cannot be expected to classify the infringement precisely, as an agreement or concerted practice, as in any event both those forms of infringement are covered by Article 81 EC.
The twofold characterisation of the infringement as an agreement ‘and/or’ concerted practice must be understood as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 81(1) EC, which lays down no specific category for a complex infringement of this type.
(see paras 90-92, 130)
4. For the purposes of applying Article 81(1) EC there is no need to take account of the actual effects of an agreement or a concerted practice once it appears that the infringement had as its object the prevention, restriction or distortion of competition within the common market.
In particular, the fact that a concerted practice has no direct effect on price levels does not preclude a finding that it limited competition between the undertakings concerned, inter alia by eliminating competitive pressures.
(see paras 158, 162)
5. In so far as the Commission has categorised a cartel as a single infringement, it is not required to establish, as part of that categorisation, the different durations of the acts which related to one of the markets concerned. Moreover, in so far as a case does not concern separate infringements, the Commission is not required to take account of that difference when determining the duration of the infringement as a whole.
It would be artificial to split up continuous conduct, characterised by a single purpose, into a number of separate infringements on the ground that the collusive practices varied in their intensity according to the market concerned. Those factors must be taken into consideration only when the gravity of the infringement is assessed and when determining the amount of the fine.
(see paras 165-166)
6. Article 81 EC applies to agreements which continue to produce effects after they have formally ceased. In particular, the Commission may lawfully find that a cartel continues to produce its effects after collusive meetings have formally ceased in so far as the price increases planned during those meetings are to be applied at a later time.
(see paras 174-175)
7. Where there is a consistent body of evidence demonstrating the existence of a cartel, there needs to be a particularly good explanation in order to demonstrate that, during a particular meeting, things occurred which were completely different from what had transpired at earlier meetings when all those meetings were attended by the same people, took place under similar external conditions and indisputably had the same purpose.
(see para. 181)
8. The right of access to the file, which is a corollary of the principle of respect for the rights of the defence, means, in an administrative procedure for applying the rules on competition, that the Commission must provide the undertaking concerned with the opportunity to examine all the documents in the investigation file that may be relevant for its defence.
Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved.
As regards incriminating evidence, the failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, second, that the objection could be proved only by reference to that document. It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if that uncommunicated document had to be disallowed as evidence.
By contrast, where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the Commission’s decision. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents for its defence, by showing in particular that it would have been able to invoke evidence which was not consistent with the Commission’s assessments at the stage of the statement of objections and therefore could have had an influence, in any way at all, on its assessments in the decision.
(see paras 205-208)
9. In an administrative procedure in competition matters, the replies to the statement of objections are not part of the investigation file proper. Since they are documents which are not part of the file compiled at the time of notification of the statement of objections, the Commission is required to disclose those replies to other parties concerned only if it transpires that they contain new incriminating or exculpatory evidence.
Moreover, although it cannot be for the Commission alone to determine the documents of use in the defence of the undertaking in question, that consideration, relating to documents within the Commission’s file, cannot apply to the replies given by other parties concerned to the statement of objections.
Accordingly, considerations based on respect for the principle of equality of arms and respect for the rights of the defence cannot, as a rule, lead to an obligation on the Commission to disclose the replies to the statement of objections to other parties, so that they can ascertain that there is no exculpatory evidence.
In so far as the undertaking in question, the applicant, relies, before the General Court, on the existence of alleged exculpatory evidence in replies which have not been disclosed, it is for the applicant to provide prima facie evidence of the relevance of those documents for its defence. An applicant must in particular indicate the potential exculpatory evidence in question or adduce evidence that it exists and therefore of its relevance for the purposes of the case. In this respect, the mere fact that the other undertakings concerned put forward substantially the same arguments as the undertaking in question is not sufficient to regard those arguments as exculpatory evidence. Equally, the fact that some undertakings succeeded in their replies to the statement of objections in showing that there is no adequate proof of their participation in the alleged infringements does not mean that those replies contain evidence of such a nature as to cast a different light on the specific documentary evidence on which the Commission relies in respect of other undertakings.
(see paras 224-225, 228-231, 233-234)
10. The gravity of an infringement of the rules on competition is assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of fines, in respect of which the Commission has a margin of discretion.
Although the starting amount of the fine is determined according to the gravity of the infringement as a whole, in the case of a single and continuous infringement it may be appropriate to reflect, at that stage of the determination of the amount of the fine, the variable intensity of the unlawful conduct.
(see paras 255, 260)
11. As regards the statement of reasons in a Commission decision concerning the determination of the starting amount of a fine imposed for infringement of the rules on competition, that essential procedural requirement is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity and duration of the infringement. The Commission satisfies those requirements where it states, in its decision, the factors relating to the nature of the infringement, the extent and the size of the markets concerned, and explains their application to the circumstances of the case in question.
Furthermore, as regards the reasoning behind the starting amount in absolute terms, fines constitute an instrument of the Commission’s competition policy and the Commission must be allowed a margin of discretion when setting their amount, in order that it may channel the conduct of undertakings towards compliance with the competition rules. The Commission cannot therefore be required to set out reasons in that connection other than those relating to the gravity and duration of the infringement.
(see paras 271-273)
12. In the context of the setting of the amount of a fine imposed for infringement of the competition rules, while the existence of an actual impact of the infringement on the market is a factor to be taken into account in assessing the gravity of the infringement, it is one of a number of criteria, such as the nature of the infringement and the size of the geographic market. Likewise, it is apparent from the first paragraph of Section 1A of the 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 that that impact is to be taken into account only where this can be measured.
The Commission may therefore classify horizontal price or market sharing agreements as very serious infringements solely on account of their nature, without being required to demonstrate an actual impact of the infringement on the market. The actual impact of the infringement is only one among a number of factors which, if it can be measured, may allow the Commission to increase the starting amount of the fine beyond the minimum likely amount.
Furthermore, since the actual impact of the infringement is an optional element in the determination of the amount of the fine, it cannot validly be complained that the Commission does not set out in detail why it finds that the actual impact of the infringement cannot be measured.
In establishing the starting amount of the fine imposed, the Commission is entitled, without being required to justify that choice, to disregard the factor of actual impact and rely on other factors, such as the nature of the infringement, the geographic scope and the size of the market.
(see paras 277-278, 288-289)
13. In order to determine the amount of the fine imposed for infringement of the rules on competition, the Commission must ensure that it has the necessary deterrent effect. In this respect, the Commission may inter alia take into consideration the size and the economic power of the undertaking in question.
Where the infringement being punished corresponds to conduct which the Commission has found to be unlawful time and time again since it first became active in the field, the Commission is entitled to set the fine at a sufficiently deterrent level, and is not required to assess the likelihood of any repeated infringement by the applicant.
(see paras 297-298, 300)
14. In relation to infringements of the rules on competition which fall within the scope of the Notice on immunity from fines and reduction of fines in cartel cases, as a rule, an undertaking cannot validly complain that the Commission failed to take into account the extent of its cooperation as an attenuating circumstance outside the legal framework of the Leniency Notice. Thus, where the Commission took an undertaking’s cooperation into account, by reducing the fine pursuant to the Leniency Notice, that undertaking cannot validly complain that the Commission did not apply a further reduction to the fine imposed on that undertaking, outside the scope of that notice.
(see paras 314-315)
15. For the purposes of applying the bands of reduction – provided for in point 23(b) of the Notice on immunity from fines and reduction of fines in cartel cases – of a fine imposed for infringement of the competition rules, the Commission must establish the time at which the undertaking actually provided it with evidence representing significant added value with respect to the evidence already in its possession. The Commission is required to determine the precise time at which the conditions for a reduction in the fine are met by the undertaking concerned, by comparing the evidence provided with that already in its possession when the application is made, and must, therefore, actually have the evidence in question at its disposal.
In this respect, undertakings making a leniency application pursuant to the Leniency Notice must be regarded as being in comparable situations, irrespective of the manner in which the evidence is submitted, that being a matter for the applicant for leniency to choose. Those situations must, therefore, be treated in the same way.
Thus, where an undertaking contacts the Commission to make an oral statement. but submits evidence relating to the infringement concerned only on the following day, the Commission is entitled to find that the undertaking satisfied the requirements of point 21 of the Leniency Notice on the latter date.
It is precisely because the oral disclosure of information is as a rule a slower means of cooperation than the disclosure of information in writing that an undertaking must, by deciding to disclose information orally, take account of the risk that another undertaking may disclose to the Commission, in writing and before it, decisive evidence of the cartel’s existence.
(see paras 365-366, 370-372, 374)
16. Although, in assessing the cooperation given by members of a cartel, the Commission cannot disregard the principle of equal treatment, it has a wide discretion in assessing the quality and usefulness of the cooperation provided by a given undertaking. Accordingly, only a manifest error of assessment by the Commission is open to censure. In this respect, an applicant cannot merely put forward in an annex to its application its own assessment of the submissions of the other undertakings, but must show, by specific arguments, how the Commission’s assessment is vitiated by a manifest error.
(see paras 394-395)
17. The expenses incurred in providing and maintaining a bank guarantee in order to avoid the enforcement of a Commission decision do not constitute costs of the proceedings.
(see para. 444)