JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
24 March 2011 (*)
(Competition – Agreements, decisions and concerted practices – Copper and copper alloy fittings sector – Decision finding an infringement of Article 81 EC – Fines – Leniency Notice – Guidelines on the method of setting fines – Attenuating circumstances – Immunity from fines – Legitimate expectations – Equal treatment)
In Case T‑381/06,
FRA.BO SpA, established in Bordolano (Italy), represented initially by R. Celli, Solicitor, and F. Distefano, lawyer, and subsequently by F. Distefano,
applicant,
v
European Commission, represented by A. Nijenhuis and V. Bottka, acting as Agents, and by S. Kinsella, Solicitor, and K. Nordlander, lawyer,
defendant,
APPLICATION for annulment in part of Commission Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 – Fittings), and also, in the alternative, for a reduction in the fine imposed on the applicant in that decision,
THE GENERAL COURT (Eighth Chamber),
composed of M.E. Martins Ribeiro, President, N. Wahl (Rapporteur) and A. Dittrich, Judges,
Registrar: T. Weiler, Administrator,
having regard to the written procedure and further to the hearing on 8 February 2010,
gives the following
Judgment
Background to the dispute
1 By Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 – Fittings) (summary published in OJ 2007 L 283, p. 63; ‘the contested decision’), the Commission of the European Communities found that a number of undertakings had infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating, over various periods between 31 December 1988 and 1 April 2004, in a single, complex and continuous infringement of the Community competition rules taking the form of a complex of anti-competitive agreements and concerted practices in the market for copper and copper alloy fittings, which covered the territory of the EEA. The infringement consisted in fixing prices, agreeing on price lists, agreeing on discounts and rebates, agreeing on implementation mechanisms for introducing price increases, allocating national markets, allocating customers and exchanging other commercial information and also in participating in regular meetings and in maintaining other contacts intended to facilitate the infringement.
2 The applicant, FRA.BO SpA, a producer of copper fittings, is among the addressees of the contested decision.
3 On 9 January 2001, Mueller Industries Inc., another producer of copper fittings, informed the Commission of the existence of a cartel in the fittings sector and in other related industries in the copper tubes market, and expressed its willingness to cooperate with the Commission under the terms of the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the 1996 Leniency Notice’) (recital 114 to the contested decision).
4 On 22 and 23 March 2001, in the framework of an investigation concerning copper tubes and fittings, the Commission, 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), carried out unannounced inspections at the premises of a number of undertakings (recital 119 to the contested decision).
5 Following those first inspections, the Commission, in April 2001, split the investigation relating to copper tubes into three different proceedings, namely the proceedings relating to Case COMP/E-1/38.069 (Copper Plumbing Tubes), Case COMP/F-1/38.121 (Fittings) and Case COMP/E-1/38.240 (Industrial Tubes), respectively (recital 120 to the contested decision).
6 On 24 and 25 April 2001, the Commission carried out further unannounced inspections at the premises of Delta plc, a company at the head of an international engineering group whose ‘Engineering’ division encompassed a number of fittings manufacturers. Those inspections related solely to fittings (recital 121 to the contested decision).
7 From February/March 2002, the Commission sent the parties concerned a number of requests for information pursuant to Article 11 of Regulation No 17, and then pursuant to Article 18 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) (recital 122 to the contested decision).
8 In September 2003, IMI plc submitted an application for leniency under the 1996 Leniency Notice. That application was followed by applications from the Delta group (March 2004) and the applicant (July 2004). The applicant provided, inter alia, information drawing the Commission’s attention to the fact that the infringement had continued during the period from 2001 to 2004, that is to say, after the Commission’s inspections. The final leniency application was submitted in May 2005 by Advanced Fluid Connections plc (recitals 115 to 118 to the contested decision).
9 On 22 September 2005, the Commission initiated an infringement proceeding in the framework of Case COMP/F-1/38.121 (Fittings) and adopted a statement of objections, which was then notified to the applicant (recitals 123 and 124 to the contested decision).
10 On 20 September 2006 the Commission adopted the contested decision.
11 In Article 1 of the contested decision, the Commission found that the applicant had infringed Article 81 EC and Article 53 of the EEA Agreement between 30 July 1996 and 1 April 2004.
12 For that infringement, the Commission imposed on the applicant a fine of EUR 1.58 million under Article 2(f) of the contested decision.
13 For the purposes of setting the amount of the fine imposed on each undertaking, the Commission applied, in the contested decision, the method set out in 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 1998 Guidelines’).
14 As regards, first of all, the fixing of the starting amount of the fine by reference to the gravity of the infringement, the Commission characterised the infringement as very serious, on account of its nature and its geographic scope (recital 755 to the contested decision).
15 Taking the view, next, that there was considerable disparity between the undertakings concerned, the Commission applied differentiated treatment, taking as its basis their relative importance on the relevant market as determined by their market shares. On that basis, the Commission divided the undertakings concerned into six categories (recital 758 to the contested decision).
16 The applicant was placed in the fifth category, for which the starting amount of the fine was set at EUR 5.5 million (recital 765 to the contested decision).
17 On account of the duration of the applicant’s participation in the infringement (seven years and eight months), the Commission then increased the fine by 75% (recital 775 to the contested decision), which resulted in the amount of the fine being set at EUR 9.6 million (recital 777 to the contested decision).
18 Taking the view that the applicant, exceptionally, deserved a reduction in the amount of its fine outside the scope of the 1996 Leniency Notice owing to its cooperation in having informed the Commission that the infringement had continued over the period from March 2001 to April 2004, the Commission considered that, in view of the nature of that cooperation, the applicant should not be penalised for its participation in the cartel between March 2001 and April 2004, which would have resulted in the imposition of a higher fine than it would have received had it not cooperated. For that reason, the basic amount of the fine imposed on the applicant was reduced by the amount of the fine which it would have had to pay for three years of the infringement. The Commission did not consider that the applicant’s fine should be increased by 60% for aggravating circumstances. Accordingly, a provisional amount of EUR 7.975 million was applied to the applicant.
19 In application of the 10% ceiling provided for in Article 23(2) of Regulation No 1/2003, the Commission reduced the basic amount of the fine imposed on the applicant to EUR 1.97 million (recital 831 to the contested decision).
20 Last, the applicant was granted a 20% reduction in the amount of its fine, under the first and second indents of Section D.2 of the 1996 Leniency Notice (recitals 859 and 860 to the contested decision), which ultimately resulted in the amount of the fine being set at EUR 1.58 million (see paragraph 12 above).
Procedure and forms of order sought by the parties
21 By application lodged at the Registry of the Court on 15 December 2006, the applicant brought the present action.
22 Upon hearing the Report of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral procedure.
23 The parties presented oral argument and their answers to the questions put by the Court at the hearing on 8 February 2010.
24 The applicant claims that the Court should:
– annul Article 2 of the contested decision in so far as the Commission imposed a fine of EUR 1.58 million on the applicant;
– in the alternative, reduce the amount of the fine imposed on the applicant;
– order the Commission to pay the costs.
25 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
26 In support of its action, the applicant relies on two pleas in law, alleging, first, an improper application of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’) and, second, an improper application of the principles of the 1996 Leniency Notice.
First plea in law: improper application of the 2002 Leniency Notice
27 The first plea is divided into two parts, whereby the applicant claims that the Commission made a ‘manifest error of law’ as a result, first, of the application by analogy of the ‘partial immunity rule’ in point 23 of the 2002 Leniency Notice while excluding the application of the 1996 Leniency Notice and, second, of the application of the ‘partial immunity rule’ as an attenuating circumstance.
First part: ‘manifest error of law’ as a result of the application by analogy of the ‘partial immunity rule’ in the 2002 Leniency Notice while excluding the application of the 1996 Leniency Notice
– Arguments of the parties
28 In the context of the first part of the first plea, the applicant puts forward three complaints. By its first complaint, the applicant asserts that its cooperation in relation to the period from March 2001 to April 2004 falls within the scope of the 1996 Leniency Notice. By its second complaint, the applicant claims that the ‘partial immunity rule’ must be applied in addition to the reduction in the amount of the fine granted under the 1996 Leniency Notice. Last, in the context of its third complaint, the applicant claims that by applying the ‘partial immunity rule’ without applying the 1996 Leniency Notice, the Commission breached the principles of legal certainty and fairness.
29 With regard to the first complaint, the applicant asserts that the Commission made a ‘manifest error of law’ in considering that the most significant part of the applicant’s cooperation, namely that relating to the period from March 2001 to April 2004, did not come within the scope of the 1996 Leniency Notice.
30 In that regard, the applicant maintains that the Commission ought to have taken its entire cooperation into account and applied a ‘comprehensive, overall’ assessment.
31 In the first place, the applicant recalls that the 1996 Leniency Notice creates legitimate expectations on the part of undertakings and that the Commission has bound itself to apply that notice in its practice in taking decisions. In the applicant’s submission, there is no reference in that notice to the possibility of reducing the amount of the fine solely on the basis of a portion of the cooperation. On the contrary, Section D.2 of the 1996 Leniency Notice provides that an advantage is to be conferred on undertakings which, before a statement of objections is sent, provide ‘information, documents or other evidence which materially contribute to establishing the existence of the infringement’.
32 In the second place, the applicant maintains that it follows from the Commission’s practice in previous decisions that the reduction in the amount of the fine granted must be ‘in direct proportion to the value added by a leniency applicant’. The added value is determined by the communication of ‘new facts’ and any ‘explanations that facilitated the Commission’s understanding of the case’ (recitals 549 and 550 to Commission Decision 2004/138/EC of 11 June 2002 relating to a proceeding under Article 81 [EC] (Case COMP/36.571/D-1: Austrian Banks – ‘Lombard Club’) (OJ 2004 L 56, p. 1). Since its cooperation constituted ‘significant added value’ in establishing the infringement, and since it also satisfied the conditions required in order to benefit from the 1996 Leniency Notice, the applicant contends that its contributions relating to the period from March 2001 to April 2004 fall within the scope of that leniency notice.
33 In the applicant’s submission, it follows from the practice applied in previous decisions that the Commission takes account of the cooperation of leniency applicants in its entirety and that it grants greater reductions of fines to undertakings which have disclosed additional periods of the cartel’s operation of which it was previously unaware.
34 In addition, the applicant relies on Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 275, which, in light of the grounds set out in that judgment, is of considerable interest in the present case. In particular, it follows from that judgment that the Commission is under an obligation to reward cooperation under the 1996 Leniency Notice by taking all the evidence provided into account. The disclosure of any additional duration of the cartel amounts to establishing an important aspect of the case and should therefore be treated as such under Section D.2 of that notice.
35 The applicant also refers to Case T‑59/02 Archer Daniels Midland v Commission [2006] ECR II‑3627, paragraph 410, where it was held that the Commission could not disregard the provisions of the 1996 Leniency Notice simply because it considered it appropriate to do so. According to the applicant, it follows that the Commission cannot lawfully treat the most significant part of the applicant’s cooperation as not falling within the scope of the 1996 Leniency Notice.
36 In the context of its second complaint, the applicant maintains that the ‘partial immunity rule’ must be applied in addition to the reduction in the amount of the fine granted under the 1996 Leniency Notice. That approach is consistent with the wording of the final subparagraph of point 23(b) of the 2002 Leniency Notice, which provides that, ‘if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence’.
37 That ‘cumulative reward’ approach also corresponds with the objective of the introduction of the concept of ‘partial immunity’ into the Commission’s leniency policy, which is to encourage undertakings to disclose facts previously unknown to the Commission. Thus, the ‘partial immunity rule’ provides for ‘additional, distinct and specific’ recognition for leniency applicants.
38 By its third complaint, the applicant claims that the fact that the Commission applied the ‘partial immunity rule’, while excluding the application of the 1996 Leniency Notice, is in any event contrary to the principles of legal certainty and fairness.
39 The applicant maintains that, since the 2002 Leniency Notice does not apply to the present case, it cannot, even by analogy, be applied retroactively to the exclusion of the application of the 1996 Leniency Notice, unless that would lead to more favourable results for the leniency applicant. That follows from the general principles of legal certainty and fairness.
40 In the applicant’s submission, the application by analogy of the ‘partial immunity rule’ does not confer any ‘tangible benefit’ on it. The reduction in the basic amount of the fine was only a ‘purely theoretical reward’, in view of the application of the 10%-of-turnover ceiling provided for in Article 23(2) of Regulation No 1/2003. On the other hand, if the Commission had applied the 1996 Leniency Notice for the applicant’s entire cooperation, the applicant could have benefited from a reduction of up to 50% of the final amount of the fine imposed on it. According to the applicant, the retroactive application of the ‘partial immunity rule’ did not therefore lead to more favourable results for the applicant.
41 It follows, in the applicant’s submission, that the fine which it is required to pay is the same as the one which it would have had to pay if it had not provided information about the cartel. The applicant further claims that the Commission’s approach is likely to deter small undertakings – whose fine would in all likelihood exceed 10% of their turnover – from cooperating.
42 The applicant asserts that the Commission is under a legal obligation to examine whether application, by analogy, of the 2002 Leniency Notice would lead to more favourable results for the undertaking which has made an application for leniency. That obligation arises under the general principle of Community law applicable to penalties of a criminal nature, according to which the retroactive application of a provision is possible only in so far as it may result in a more favourable legal situation for the person concerned. Otherwise it constitutes a breach of the principle of legal certainty.
43 The applicant takes issue with the Commission for having failed to undertake that analysis in the present case, which has had adverse consequences for the applicant and is therefore contrary to the principle of legal certainty.
44 The Commission asserts that a closer examination of the case-law and of its decisions makes it possible to refute the applicant’s arguments. As regards, more particularly, the complaint concerning an alleged breach of the principle of fairness, the Commission contends that it observed that principle when applying the ‘partial immunity rule’ to the applicant. In the Commission’s submission, the application of that rule in relation to the period from March 2001 to April 2004 constitutes ‘ample reward’ for the applicant.
– Findings of the Court
45 In the context of the first part of the first plea, the applicant claims that the entire period of its cooperation, the period from March 2001 to April 2004 inclusive, falls within the scope of the 1996 Leniency Notice, and that therefore that cooperation ought to be rewarded under that notice and not on the basis of partial immunity from a fine by the application, by analogy, of the 2002 Leniency Notice.
46 In that regard, it must be held that the 1996 Leniency Notice is applicable in the present case, given that the first producer to have informed the Commission of its willingness to cooperate, namely Mueller Industries, submitted its application under that notice on 9 January 2001, and in light of point 28 of the 2002 Leniency Notice, according to which ‘[f]rom 14 February 2002, this notice replaces the 1996 notice for all cases in which no undertaking has contacted the Commission in order to take advantage of the favourable treatment set out in that notice’.
47 It must also be held that the 1998 Guidelines are applicable to the present case.
48 In addition it must be noted that the 1996 Leniency Notice does not provide for a particular reward for cooperation relating to the gravity and duration of a cartel. The concept of ‘partial immunity’ was introduced by the 2002 Leniency Notice.
49 Section D of the 1996 Leniency Notice – which is applicable in the present case because the applicant was not the first to have provided information about the existence of the cartel in question – provides for the possibility of a reduction of 10 to 50% of the fine, but not of immunity from a fine.
50 However, in order to reward the cooperation of an undertaking outside the scope of the 1996 Leniency Notice, it is possible to apply the ‘partial immunity rule’ by applying the option provided for by the 1998 Guidelines. According to the sixth indent of Section 3 of those guidelines, ‘effective cooperation by the undertaking in the proceedings, outside the scope of [the 1996 Leniency Notice]’ may constitute an attenuating circumstance.
51 In the present case, it is clear from the contested decision that, in taking the view that it was not necessary to impose a fine on the applicant in respect of the period from March 2001 to April 2004, the Commission availed itself of that possibility. It did not increase the amount of the fine by 30% for the relevant period, or by 60% for aggravating circumstances in light of the continuation of the cartel following the Commission’s inspections in March 2001.
52 It follows from this that the Commission rewarded the applicant adequately for the information it had provided in relation to the continuation of the cartel between March 2001 and April 2004.
53 As regards the applicant’s reliance on Archer Daniels Midland v Commission, cited in paragraph 35 above, it must be observed that, contrary to the applicant’s claim, that judgment is not relevant in this instance. The cooperation of the applicant in that case fell entirely within the scope of the 1996 Leniency Notice, and therefore the provision of the 1998 Guidelines which provides for the effective cooperation by the undertaking in the proceedings, outside the scope of the 1996 Leniency Notice, to be an attenuating circumstance was not applicable.
54 As regards the complaint relating to the cumulative application of the 1996 Leniency Notice and the ‘partial immunity rule’, it must be noted that the applicant explained at the hearing that it was not seeking a cumulative reduction in the amount of the fine in respect of the same cooperation, but either the full and comprehensive application of the 1996 Leniency Notice or the application of partial immunity from the fine after the application of the 10% ceiling provided for in Article 23(2) of Regulation No 1/2003.
55 With regard to the application of the 1996 Leniency Notice, it is sufficient to refer to the considerations set out above (see paragraphs 45 to 53 above). As regards the application of partial immunity from the fine after the application of the 10% ceiling referred to in Article 23(2) of Regulation No 1/2003, reference must be made to the findings in respect of the complaint raised in connection with the second part of the present plea (see paragraph 69 et seq. below).
56 As regards the third complaint, relating to the alleged breach of the principles of fairness and legal certainty, it is apparent from recitals 784 and 826 to the contested decision that the Commission observed those principles. The Commission took the view that the applicant should not be penalised for its cooperation by receiving a higher fine than it would have had to pay had it not cooperated. It therefore actually reduced the basic amount of the applicant’s fine by the amount of the fine which would have been imposed on it for a three-year infringement, and did not apply the aggravating circumstance represented by the cartel’s continuation following the inspections.
57 The fact that that reduction was applied as an attenuating circumstance before the application of the 10% ceiling provided for in Article 23(2) of Regulation No 1/2003 does not affect that conclusion.
58 In that regard, it must be noted that paragraphs (2) and (3) of Article 23 of Regulation No 1/2003 cover different objectives.
59 Article 23(3) of Regulation No 1/2003 provides that, ‘[i]n fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement’. That provision is intended to ensure that the amount of the fine is proportionate to the infringement.
60 As for Article 23(2) of Regulation No 1/2003, this provides that the fine imposed on each undertaking is not to exceed 10% of its total turnover in the preceding business year. Its purpose is to avoid the addressee of the Commission’s decision being unable to pay the fine imposed.
61 Admittedly it is possible that, in the case of an infringement committed by an undertaking with a relatively modest turnover, the basic amount of the fine will exceed 10% of its turnover and, consequently, a reduction in the basic amount of the fine on account of an attenuating circumstance will not necessarily result in a reduction in the amount of the fine actually payable by the undertaking. That does not, however, mean that the application of the ‘partial immunity rule’ cannot benefit the undertaking concerned.
62 Having regard to all the foregoing, it must be concluded that the principles of fairness and legal certainty have not been breached by the Commission.
63 Consequently, the first part of the first plea in law must be rejected as unfounded.
Second part: application of the ‘partial immunity rule’ as an attenuating circumstance
– Arguments of the parties
64 The applicant maintains that, in order to reflect ‘properly the value of [its] cooperation’, the ‘partial immunity rule’ should have been applied after the application of the 10%-of-turnover ceiling referred to in Article 23(2) of Regulation No 1/2003.
65 In support of its argument, the applicant undertakes a textual analysis of a number of provisions of the 2002 Leniency Notice. It submits, first of all, that the 2002 Leniency Notice ‘relates to “leniency”’ and not to the calculation of the fine. More specifically, it states that the ‘partial immunity rule’ provided for at point 23 of the 2002 Leniency Notice comes under Section B of that notice, entitled ‘Reduction of a fine’. Next, the applicant asserts that the final subparagraph of point 23 of that notice refers to a reduction in the amount of the fine relative to the amount of the fine which would have been imposed on the undertaking had it not cooperated.
66 The applicant further asserts that, under a ‘fundamental principle inherent in the Commission’s leniency policy’, any reward for cooperation must be granted by way of a reduction in the amount of the fine calculated by reference to the final amount of the fine after the application of the 10%-of-turnover ceiling referred to in Article 23(2) of Regulation No 1/2003, and not be treated as an attenuating circumstance.
67 In conclusion, the applicant submits that in order to quantify the reward due to it, the Court should express the lump sum reduction awarded under the ‘partial immunity rule’ as a percentage reduction, and then apply that percentage in order to reduce the amount of the fine that the Commission would have imposed in the absence of cooperation. The applicant therefore requests the Court to apply the reduction in the amount of the fine under the 1996 Leniency Notice and the ‘partial immunity rule’ in such a way as to reduce the final amount of the fine after the application of the 10% ceiling referred to in Article 23(2) of Regulation No 1/2003.
68 The Commission asserts that, in order to be able to reward the applicant’s cooperation relating to the continuation of the infringement with partial immunity from a fine, it had no choice, notably in the context of the 1998 Guidelines, other than to treat such immunity as an attenuating circumstance.
– Findings of the Court
69 In the context of the second part of the first plea, the applicant takes issue with the Commission for having applied the partial immunity from a fine as an attenuating circumstance and not after the application of the 10%-of-turnover ceiling referred to in Article 23(2) of Regulation No 1/2003.
70 As a preliminary point, it must be borne in mind that the 2002 Leniency Notice does not apply to the present case. Consequently, in order to reward the applicant’s cooperation by partial immunity from a fine, the Commission could apply such immunity only as an attenuating circumstance in accordance with the 1998 Guidelines (see paragraphs 48 to 50 above). It must also be noted that the 10% ceiling referred to in Article 23(2) of Regulation No 1/2003 applies after account has been taken of aggravating or attenuating circumstances and before account is taken of cooperation in the context of the 1996 Leniency Notice. It is inherent in the logic of the leniency policy that partial immunity from a fine never results in a reduction of the final amount of the fine, but in exemption from the application of the multiplier for duration, in order to ensure that undertakings which have applied for leniency do not receive a fine for the period of the infringement in respect of which they have provided the Commission with information.
71 Furthermore, if the present case had fallen entirely within the scope of the 2002 Leniency Notice or of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17), the applicant would have been treated in the same way as it was in the present case, that is to say, it would have been granted immunity from the fine for the period from 2001 to 2004, a reduction in the amount of the fine by application of the 10%-of-turnover ceiling referred to in Article 23(2) of Regulation No 1/2003 and a 20% reduction in the amount of the fine under the 2002 or 2006 Leniency Notices.
72 In light of the foregoing, the second part of the first plea must be rejected and, therefore, the first plea must be rejected in its entirety.
Second plea in law: improper application of the principles of the 1996 Leniency Notice
Arguments of the parties
73 The applicant claims that the Commission misapplied the 1996 Leniency Notice by failing to take the applicant’s cooperation between March 2001 and April 2004 into account and thus granting the applicant a reduction of the fine that was too low. The applicant contends that the Commission’s approach also amounts to a breach of the principle of equal treatment.
74 In the first place, the applicant asserts that, although the Commission accepted that its cooperation satisfied the requirements set out in Section D.2 of the 1996 Leniency Notice, it granted the applicant a reduction in the amount of the fine of only 20%. In view of the ‘very high value’ of its contribution, however, the applicant ought to have received the maximum reduction in the amount of the fine, that is to say, a reduction of 50%.
75 As regards the significant value of its cooperation, the applicant claims that it is evident from the contested decision itself that the Commission explicitly and repeatedly describes it as ‘particularly decisive’.
76 Furthermore, the applicant contends that, in quantitative terms, its cooperation led to an overall increase of more than 40% in the total amount of the fines imposed on the participants in the cartel. The applicant maintains that that gives a good indication of the value of the disclosure of the different aspects of the infringement.
77 In view of the foregoing, the applicant submits that there is a ‘manifest and direct contradiction’ between, on the one hand, the way in which the information which it provided was used and evaluated and, on the other, the low level of the reduction in the amount of the fine which it was granted.
78 As regards the legitimate expectation arising from the 1996 Leniency Notice, the applicant asserts that it was entitled to have a legitimate expectation that the reduction granted would correspond to the value and degree of its cooperation. In that regard, the applicant refers to Section E.3 of the 1996 Leniency Notice and also to the case-law of this Court and the Commission’s practice in previous decisions.
79 In addition, the applicant claims that the Commission’s decision to grant a 20% reduction in the amount of the fine is vitiated by a lack of reasoning or an error in reasoning.
80 Finally, the applicant submits that the Commission made an error and committed a breach of the legitimate expectation engendered by the 1996 Leniency Notice by according too much significance to the time when the applicant’s cooperation commenced when determining the value of that cooperation. Under Section D of the 1996 Leniency Notice, the time when evidence is produced is not a relevant factor for the purpose of evaluating the leniency application.
81 For all those reasons, the applicant maintains that the Commission erred in law in its interpretation and application of the 1996 Leniency Notice.
82 In the second place, the applicant submits that the Commission breached the principle of equal treatment by granting it a reduction in the amount of the fine under the 1996 Leniency Notice that was too low by comparison with the reductions granted to IMI and Delta and with those granted to other undertakings in the ‘Copper plumbing tubes’ case (Commission Decision 2006/485/EC of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement against Boliden AB, Boliden Fabrication AB and Boliden Cuivre & Zinc SA, Austria Buntmetall AG and Buntmetall Amstetten GmbH, Halcor SA, HME Nederland BV, IMI plc, IMI Kynoch Ltd and IMI Yorkshire Copper Tube Ltd, KM Europa Metal AG, Tréfimétaux SA and Europa Metalli SpA, Mueller Industries, Inc., WTC Holding Company, Inc., Mueller Europe Ltd, DENO Holding Company, Inc. and DENO Acquisition EURL, Outokumpu Oyj and Outokumpu Copper Products OY and Wieland-Werke AG (Case COMP/E-1/38.069 – Copper plumbing tubes) (summary published in OJ 2006 L 192, p. 21)).
83 As regards, first of all, the difference in treatment between it and Delta, the applicant claims that it contacted the Commission relatively more quickly than Delta. Furthermore, unlike Delta, the applicant not only corroborated the facts but also informed the Commission that the cartel was continuing and thus provided ‘new decisive’ evidence.
84 As regards IMI, which received the maximum reduction of 50% under Section D of the 1996 Leniency Notice, the applicant submits that it was entitled to the same treatment, as its cooperation was no less significant than IMI’s.
85 Next, the applicant asserts that it suffered unequal treatment by comparison with Wieland-Werke and KM Europa Metal (‘KME’), who were participants in the cartel in the ‘Copper plumbing tubes’ case.
86 The applicant explains that, in spite of the fact that the two cases gave rise to two separate decisions, it is appropriate to apply the principle of equal treatment, since the present case and the ‘Copper plumbing tubes’ case were initially covered by the same Commission investigation and the latter case has close links with the present case.
87 The applicant maintains that the circumstances of the case giving rise to Decision 2006/485 are comparable to those of the present case for the purposes of the case‑law of this Court. The applicant refers to ‘key elements’ such as the starting date of the procedure, the industry sector concerned, to a certain extent the companies involved, the geographic scope and the overall duration of the cartel.
88 The applicant asserts that the contribution of Wieland-Werke, which, like the applicant, was the third undertaking to submit an application for leniency, consisted essentially in clarifying the context in which certain notes had been taken by its employees at the material time. Those notes were seized at Wieland‑Werke’s premises during the Commission’s investigations. Its cooperation was thus limited.
89 The applicant claims that KME had informed the Commission of the existence of a separate infringement relating to plastic-coated tubes of which the Commission was not previously aware. For that reason, the Commission applied to KME the ‘partial immunity rule’ by analogy for the additional infringement period disclosed. The Commission also took the same period into account in granting KME a 35% reduction in the amount of the fine under the 1996 Leniency Notice.
90 In addition, the leniency applications submitted by those two undertakings came at a late stage in the proceedings, namely, in the case of Wieland-Werke, almost two years after the investigations carried out at its premises and, in the case of KME, one and a half years after those investigations. The applicant maintains, first, that it is a breach of the principle of equal treatment to invoke its late cooperation as a reason for limiting the level of reduction in the amount of the fine granted to the applicant and not to use the same argument against Wieland-Werke and KME. Second, it is also a breach of the principle of equal treatment to apply, cumulatively, partial immunity from the fine and a substantial reduction of the fine, pursuant to the 1996 Leniency Notice, to KME’s cooperation but not to the applicant’s, since the two are none the less comparable.
91 Regard being had to the foregoing, the applicant submits that it should be granted the maximum reduction in the amount of the fine of 50% under Section D of the 1996 Leniency Notice in order to ensure equal treatment by reference to other undertakings involved in the present case and in the ‘Copper plumbing tubes’ case.
92 The Commission contests the applicant’s arguments.
Findings of the Court
93 As regards the argument that the applicant ought to have been rewarded by a reduction in the amount of the fine of more than 20% under Section D of the 1996 Leniency Notice and that it deserved an additional reduction on account of its ‘particularly decisive’ cooperation in relation to the period of the infringement between 2001 and 2004, it must be borne in mind, as stated in paragraphs 45 to 53 above, that the cooperation relating to the period from March 2001 to April 2004 is not covered by the 1996 Leniency Notice and that the Commission granted the applicant, outside the scope of that notice, partial immunity in respect of that period.
94 With regard to the complaint as to the legitimate expectation arising from the 1996 Leniency Notice, it must be recalled that the legitimate expectation that traders are able to derive from the notice is limited to an assurance that their fines will be reduced by a certain percentage (Joined 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 188).
95 In the present case, it must be observed that the applicant’s cooperation in respect of the period between 1998 and March 2001 is within the scope of Section D of the 1996 Leniency Notice, which provides for a reduction in the order of 10 to 50% of the fine. In so far as the applicant complains of a lack of reasoning in the contested decision with regard to the reduction of 20%, that complaint must be rejected. It is evident from recitals 853 to 859 to the contested decision that, in the first place, the applicant was actually given a reduction in the amount of the fine under the first and second indents of Section D.2 of that notice and, in the second place, the Commission took the view that, given the relatively marginal contribution of the evidence provided by the applicant and falling within the scope of the 1996 Leniency Notice, a 20% reduction of the fine was appropriate. Consequently, it must be held that the applicant’s legitimate expectation was satisfied. In that regard, it must be observed that, while the beneficiaries under Section D of the 1996 Leniency Notice are, by definition, not the first to have contacted the Commission, as the applicant itself admits, it is inherent in the purpose of the leniency policy that an offer of cooperation made at a later stage of the administrative procedure entails the risk that such cooperation will have a lesser value than that of another cartel member at an earlier stage.
96 With regard to the Commission’s assessment of the applicant’s cooperation during the period of the infringement from 1998 to March 2001, it must be noted, first of all, that the exact percentage of the reduction of the fine depends on the added value of the cooperation in question. In that regard, it must be pointed out that a reduction of the fine under the 1996 Leniency Notice is based on the consideration that the cooperation should objectively facilitate the Commission’s task of finding an infringement. In that context, the Commission enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by the various members of a cartel and, therefore, that assessment is subject to limited judicial review. Only the manifest disregard of that margin of discretion may thus be criticised. In the present case, the applicant submitted its application for leniency at a stage at which the Commission had already received evidence of the existence of the infringement, first from Mueller Industries in January 2001, then from IMI in September 2003 and Delta in March 2004; therefore the information provided by the applicant in July 2004 merely corroborated the information already received by the Commission. It is also important to point out that that information was not produced at the same stage of the administrative procedure. Consequently, the Commission was entitled to take the view that a 20% reduction of the fine was appropriate, without committing a manifest error of assessment.
97 The complaints regarding a breach of the principle of equal treatment by comparison with IMI and Delta, on the one hand, and with the undertakings which submitted leniency applications in another case, on the other, must also be rejected.
98 With regard to IMI, it must be noted that the applicant’s situation is not comparable to IMI’s. In the first place, IMI began to cooperate at a much earlier stage of the administrative procedure. In the second place, whereas IMI’s cooperation relates to the period between 1988 and 2001, the information provided by the applicant and evaluated in the context of the 1996 Leniency Notice covers only the period from 1998 to 2001. Last, it is apparent from recitals 838 and 839 to the contested decision ‘that the quantity, quality and value … of the information submitted by IMI allowed’ the Commission ‘to better understand the infringement and interpret the documents obtained in the inspections’, whereas the information provided by the applicant merely corroborates the information which had been provided by other participants in the infringement who submitted applications for leniency at an earlier stage of the administrative procedure, such as IMI (recital 854 to the contested decision).
99 As regards Delta’s situation by comparison with the applicant’s, suffice it to note that, in taking the view that the evidence produced by Delta and by the applicant had a similar value, the Commission granted those undertakings identical reductions of their fines for their cooperation.
100 The applicant’s reference to an earlier Commission decision is, for a number of reasons, irrelevant.
101 First of all, the mere fact that the Commission has, in earlier decisions, granted a certain rate of reduction for particular conduct does not mean that it is obliged to grant the same proportional reduction when appraising similar conduct in the context of a later administrative procedure (see Joined Cases T‑259/02 to T‑264/02 and T‑271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II‑5169, paragraph 534 and the case-law cited).
102 Second, it follows from the case-law that comparisons drawn with other Commission decisions imposing fines can be relevant from the point of view of observance of the principle of equal treatment only where it is demonstrated that the facts of the cases in those other decisions, such as the markets, products, countries, undertakings and periods concerned, are comparable to those of the present case (see Case T‑329/01 Archer Daniels Midland v Commission [2006] ECR II‑3255, paragraph 112 and the case-law cited). It is also apparent from the case-law that it is important to refer to contemporaneous decisions for the purposes of comparison (see, to that effect, Archer Daniels Midland v Commission, cited in paragraph 35 above, paragraph 317).
103 It must be noted that, in the context of an examination of leniency applications, a comparison with other cases is even more delicate than in the context of an examination of the method of calculating the fine, given that, where the Commission assesses the value of the contributions of undertakings in terms of evidence under Section D.2 of the 1996 Leniency Notice, it has to take a certain number of interconnected factors into account. It has to take into consideration the precise nature of the information already available to it, its quality and probative value, the quality of the new information received in support of the leniency application, the extent to which the documents accompanying the new information received are up to date, the stage of the procedure at which the new information was provided and the circumstances in which that information has been made available.
104 With regard to cooperation, the later the information is supplied, the greater the likelihood that that information will have a lesser value because the Commission will already have been made aware of it through other participants in the same cartel. The importance of the information provided therefore depends on the use that the Commission can make of it. Consequently, the fact that the undertaking which, like the applicant in the present case, was the third to submit a leniency application in the ‘Copper plumbing tubes’ case was rewarded by a 35% reduction in the amount of the fine does not necessarily mean that the 20% reduction of the fine that was granted to the applicant in the present case constitutes a breach of the principle of equal treatment.
105 In that regard, it must be observed that the applicant did not provide any detailed arguments to show that the present case and the ‘Copper plumbing tubes’ case are sufficiently similar and, therefore, comparable.
106 Consequently, the fact that, in the ‘Copper plumbing tubes’ case, the leniency applications were also submitted at a relatively late stage of the procedure, that the undertaking which, like the applicant in the present case, was the third to avail itself of Section D of the 1996 Leniency Notice received a 35% reduction of the fine or the fact that the Commission granted that undertaking partial immunity from the fine, that is to say, a ‘tangible reduction’, in addition to a reduction of the fine under the 1996 Leniency Notice, is of no relevance.
107 Finally, contrary to the applicant’s assertion, the treatment of one of the undertakings which submitted a leniency application in the ‘Copper plumbing tubes’ case and the treatment of the applicant in the present case, so far as concerns cooperation outside the scope of the 1996 Leniency Notice, shows that the Commission’s approach is consistent. In both cases, their cooperation outside the scope of that notice was rewarded as an attenuating circumstance, whereas other aspects of their cooperation were rewarded within the framework of the 1996 Leniency Notice.
108 It follows from this that the second plea must be rejected as unfounded.
109 It follows from all of the foregoing that the action must be dismissed in its entirety.
Costs
110 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1. Dismisses the action;
2. Orders FRA.BO SpA to pay the costs.
Martins Ribeiro | Wahl | Dittrich |
Delivered in open court in Luxembourg on 24 March 2011.
[Signatures]