Case T-192/06

Caffaro Srl

v

European Commission

(Competition – Agreements, decisions and concerted practices – Hydrogen peroxide and sodium perborate – Decision finding an infringement of Article 81 EC – Fines – Limitation period – Differentiated treatment – Duration of the infringement – Mitigating circumstances)

Summary of the Judgment

1.      Competition – Fines – Amount – Determination – Criteria – Commission's margin of discretion

(Art. 81(1) EC; Commission Notice 98/C 9/03, Section 5D)

2.      Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Participation allegedly under pressure – Economic dependance

(Art. 81(1) EC; Commission Notice 98/C 9/03, Section 5D)

3.      Competition – Fines – Amount – Determination – Principle of equal treatment

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3))

4.      Competition – Fines – Imposition – Requirement that the undertaking benefited from the infringement – None – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Absence of benefit

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

5.      Competition – Fines – Amount – Determination – Deterrent effect – Criteria for appraising the deterrent

(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03)

6.      Competition – Fines – Amount – Determination – Division of the undertakings concerned into different categories

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

7.      Competition – Administrative procedure – Commission decision finding an infringement – Use as evidence of statements of other undertakings which participated in the infringement – Lawfulness – Conditions

(Art. 81(1) EC)

8.      Competition – Administrative procedure – Commission decision finding an infringement – Defects affecting the decision

(Art. 81(1) EC)

9.      Competition – Administrative procedure – Observance of the rights of the defence

((Art. 81(1) EC)

10.    Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Assessment

(Art. 81(1) EC; Commission Notice 98/C 9/03, Section 3)

11.    Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Conduct deviating from that agreed within the cartel

(Art. 81(1) EC; Commission Notice 98/C 9/03, Section 3, second indent)

1.      The Commission’s power to impose fines on undertakings which intentionally or negligently commit an infringement of Article 81(1) EC is one of the means conferred on the Commission in order to enable it to carry out the task of supervision entrusted to it by EU law. That task encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to guide the conduct of undertakings in the light of those principles.

The Commission has a margin of discretion when fixing the amount of fines, in order that it may channel the conduct of undertakings towards observance of the competition rules. In particular, the fact that in the past the Commission imposed fines of a certain level for certain types of infringement does not mean that it is precluded from raising that level if that is necessary to ensure the implementation of EU competition policy.

That margin of discretion is all the more necessary in connection with the right to impose in certain cases a so-called ‘symbolic’ fine, which the Commission has under point 5 (d) 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, or not to impose a fine.

(see paras 37-39)

2.      In competition matters, the fact of acting in a situation of economic dependence is not in itself a circumstance which may exclude the responsibility of a party to a cartel. Such a circumstance need not necessarily be taken into account when determining the amount of the fine.

An undertaking which participates in meetings with an anti-competitive object, even under constraint from other participants with greater economic power, can always report the anti-competitive activities in question to the Commission rather than continue to participate in the meetings. Even if an undertaking is pressured into joining a cartel, it could always have informed the competent authorities instead of supporting the cartel.

Therefore neither the applicant’s alleged dependence on another party to the cartel nor the aggressive position purportedly adopted by that party in relation to the applicant can denote a situation capable of being taken into account by the Commission as a mitigating circumstance.

A fortiori, therefore, the Commission cannot be required to take those same circumstances into account for the purpose of deciding not to impose a fine or to impose only a symbolic fine.

(see paras 41-44)

3.      The Commission’s practice in previous decisions does not serve as a legal framework for the fines imposed in competition matters and decisions in other cases can give only an indication for the purpose of determining whether there has been a breach of the principle of equal treatment, since the facts of those cases, such as markets, products, the undertakings and periods concerned, are not likely to be the same. That principle applies also with regard to earlier decisions of the Commission in which it did not impose a fine or imposed only a symbolic fine.

Nevertheless, in this context also the Commission must comply with the principle of equal treatment and cannot treat similar situations differently and different situations in the same way, unless such treatment is objectively justified.

(see paras 46-47)

4.      The fact that an undertaking has derived no profit from the infringement cannot prevent it from being fined as otherwise the fine would lose its deterrent effect. It follows that the Commission is not required, for the purpose of fixing the amount of fines, to establish that the infringement secured an improper advantage for the undertakings concerned, or to take into consideration, where it applies, the fact that no profit was derived from the infringement in question.

The absence of such profit cannot be regarded as a mitigating circumstance which may be taken into account when determining the amount of the fine and does not, therefore, justify a symbolic fine. The same considerations apply, in principle, to the fact that an undertaking took part in collusion with its competitors against its own economic interests and that it consequently suffered the negative effects of that collusion. Even if that were proved, it is likewise not a factor which would necessarily have to be taken into account as a mitigating circumstance which would justify a symbolic fine.

An undertaking which continues to collude on prices with its competitors despite the alleged harm which it is suffering cannot be considered to have committed a less serious infringement than the other undertakings also involved in the collusion.

(see paras 59-62)

5.      A fine imposed on an undertaking that has participated in an unlawful cartel cannot be regarded as lacking practical effect solely because that undertaking no longer operates on the market concerned, if it has not ceased all economic activity. The deterrent factor is assessed by taking into account a large number of factors and not merely the particular situation of the undertaking concerned.

In addition, that assessment does not include evaluating the likelihood that the undertaking in question will re-offend. The pursuit of deterrent effect does not concern solely the undertakings specifically targeted by the decision imposing fines. It is also necessary to prompt undertakings of similar sizes and resources to refrain from participating in similar infringements of the competition rules. It would be contrary to the objective of suppressing cartels if the cessation of commercial activities resulted in the undertaking’s escaping a fine for the infringement committed.

(see paras 66-67, 69-70)

6.      The division of the members of a cartel into categories for the purpose of differentiated treatment at the stage of fixing the starting amounts of fines must comply with the principle of equal treatment, according to which it is prohibited to treat similar situations differently and different situations in the same way, unless such treatment is objectively justified. Furthermore, the amount of the fine must at least be proportionate in relation to the factors taken into account in the assessment of the gravity of the infringement.

In the context of differentiated treatment, the use of a different reference year for one member of the cartel does not in itself lead to a breach of the principle of equal treatment.

The use of a reference year common to all the undertakings involved in the same infringement means that each undertaking is assured of being treated in the same way as the others since the penalties are determined in a uniform manner and the fact that the reference year was part of the infringement period enables the scale of the infringement committed to be assessed in the light of the economic reality as it appeared during that period.

However, it does not follow that choosing a common year is the only means of determining the penalties in a manner consistent with the principle of equal treatment.

In particular, the Commission may legally take account of the fact that, for a given undertaking, the common reference year is outside the infringement period found in relation to it and is not therefore a useful indication of its individual weight at the time of the infringement. Therefore the Commission may take into account its turnover for a year other than the common reference year, provided that the division of the cartel members into categories remains consistent and objectively justified.

Applying analogous considerations, a different reference year should be chosen for applying the limit of 10% of turnover, provided for in Article 23(2) of Regulation No 1/2003, in relation to an undertaking which is no longer active in the market during the year chosen for the other parties to the cartel, as it does not provide a reliable indication of its actual economic situation.

(see paras 83, 87-91)

7.      A statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings, cannot be regarded as constituting adequate proof of an infringement committed by the latter undertakings unless it is supported by other evidence.

(see para. 116)

8.      In so far as certain grounds of a Commission decision finding an infringement of the competition rules in themselves provide a sufficient legal basis for that decision, any errors in other grounds of the decision have no effect in any event on its operative part.

(see para. 124)

9.      In competition matters, although the Commission is required to provide the undertaking concerned by an investigation with certain information at the preliminary investigation stage, that obligation relates to the information given to the undertaking concerned at the stage of the first measure affecting it. Thus the rights of defence of an undertaking are not infringed by late information where that undertaking was informed of the investigation, adequately, at the stage of a request for information if that was the first measure affecting it.

(see paras 162-163)

10.    It does not follow from the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) ECSC that the Commission must always take into account separately each of the mitigating circumstances listed in point 3 of the Guidelines. Although the circumstances listed there are undoubtedly among those which may be taken into account by the Commission in a specific case, there is no automatic requirement for it to grant a further reduction under that head when an undertaking provides some indication that one of those circumstances may apply.

Accordingly, in the absence of a mandatory indication in the Guidelines as regards the mitigating circumstances which may be taken into account, the Commission retains a certain discretion when making an overall assessment of the size of any reduction in the fines, taking into account all the mitigating circumstances in the particular case.

(see paras 173-174)

11.    Regarding the alleged non-implementation in practice of agreements, referred to at point 3, second indent, 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, it is necessary to determine whether the applicant has put forward arguments capable of showing that, during the period in which it was party to the offending agreements, it actually avoided implementing them by adopting competitive conduct on the market or, at the very least, that it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation.

(see para. 178)