Case T-191/06

FMC Foret, 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 – Presumption of innocence – Rights of the defence – Fines – Attenuating circumstances)

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 – Disclosure of information in preparation for an anti‑competitive agreement – Sufficient

(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 – Administrative procedure – Commission decision finding an infringement – Use as evidence of statements submitted in the context of the Leniency Notice by other undertakings which participated in the infringement – Whether permissible – Conditions

(Art. 81 EC; Commission Notice 2002/C 45/03)

5.      Competition – Agreements, decisions and concerted practices – Proof – Single piece of evidence – Whether permissible – Conditions

(Art 81(1) EC)

6.      Competition – Agreements, decisions and concerted practices – Proof – Evidence adduced by the Commission – Participation in meetings having an anti-competitive object

(Art 81(1) EC)

7.      Competition – Agreements, decisions and concerted practices – Proof – Statements made under oath and evidence taken at hearings

(Art. 81 EC)

8.      Competition – Administrative procedure – Article 6 of the European Convention on Human Rights not applicable – Applicability of general principles of European Union law

(Council Regulation No 1/2003, Art. 19(1))

9.      Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Anti-competitive object – Sufficient

(Art. 81(1) EC)

10.    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))

11.    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))

12.    Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Determination by the Commission alone of the documents of use in the defence – Not permissible – Exclusion from the procedural file of exculpatory documents – Unlawfulness of the Commission’s decision – Conditions

(Council Regulation No 1/2003, Art. 27(2))

13.    Competition – Fines – Amount – Determination – Maximum amount – Calculation – Turnover to be taken into consideration

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

14.    Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking

(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, Section 3)

15.    Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking

(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, Section 3, first indent)

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

(Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, Section 3)

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.

(see paras 97-98)

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 of an actual or potential competitor on the market 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.

(see paras 99-101)

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 102-104)

4.      Statements made by undertakings in the context of their applications for leniency must be assessed with caution and, in general, cannot be accepted without corroboration. A statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings which have been similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence.

In order to examine the probative value of statements of undertakings which have made an application for leniency, the General Court takes into account inter alia the weight of consistent indicia supporting those statements and the absence of indicia that they might have tended to play down the importance of their contribution to the infringement and maximise that of other undertakings.

(see paras 119-121)

5.      There is no principle of European Union law which precludes the Commission from relying on a single item of documentary evidence in order to conclude that there has been an infringement of the rules on competition, provided that its probative value is undoubted and that the item in question itself definitely attests to the existence of the infringement in question.

It is true that that assumption does not apply, as a general rule, to mere statements by an accused undertaking, which, in so far as they are contested by other undertakings concerned, must be corroborated by additional and independent evidence.

However, that rule can be qualified in a case where the statement from the undertaking which cooperates is particularly reliable, since, in those circumstances, a lesser degree of corroboration is required, both in terms of precision and depth.

If a body of consistent evidence makes it possible to corroborate the existence and certain specific aspects of the collusion referred to in the statement made in the context of cooperation, that statement may in itself be sufficient to evidence other aspects of the contested decision. In those circumstances, the Commission may rely exclusively on that statement, provided that the veracity of what has been claimed is not susceptible of doubts and the information in it is not vague.

Moreover, even if the statement of an undertaking is not corroborated in terms of the specific facts to which it attests, it may have a certain probative value in corroborating the existence of the infringement, as part of a body of consistent evidence used by the Commission. In so far as a document contains specific information corresponding to that contained in other documents, it must be considered that those items of evidence reinforce each other.

(see paras 122-126)

6.      In competition matters, the Commission must be able to apply conclusions drawn from periods where the evidence is fairly solid to other periods where the gap between the various pieces of evidence is perhaps larger. There will therefore need to be a particularly good explanation in order to convince a court of law that in a particular phase of a series of meetings things occurred which were completely different from what had transpired at earlier and subsequent meetings when those meetings were attended by the same people, took place under similar external conditions and indisputably had the same purpose.

Moreover, where an undertaking has, even without playing an active role, attended a meeting during which unlawful concerted action has been mooted, it is deemed to have participated in that concerted action unless it proves that it openly distanced itself from it or informed the other participants that it intended to take part in that meeting in a spirit that was different from theirs.

Where the Commission shows that an undertaking participated in such unlawful meetings, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention.

(see paras 127, 159-160, 204, 236)

7.      Evidence given under oath in a court or, possibly, in connection with an investigation before a public prosecutor may have high probative value in view of the adverse consequences which might arise under criminal law for a person who perjured himself in an investigation, which renders such a deposition more reliable than a mere statement. However, that is not applicable to written statements by an undertaking’s employees submitted to the Commission during the administrative procedure in competition matters or to their testimony given during the hearing before the Commission. Accordingly, the view cannot be taken that, in so far as such statements have been made under oath, they have high probative value and that, therefore, the Commission is required, where relevant, to show that the witnesses ‘perjured’ themselves.

(see paras 132-133)

8.      In the administrative procedure in competition matters, the Commission does not have the power to compel persons to give evidence under oath.

In addition, the Commission is required to hear natural or legal persons who have a sufficient interest only in so far as such persons actually apply to be heard. The Commission therefore has a reasonable margin of discretion to decide how expedient it may be to hear persons whose evidence may be relevant to the investigation. The guarantee of the rights of the defence does not require the Commission to hear witnesses put forward by the parties concerned, where it considers that the investigation of the case has been sufficient.

It is true that even though the Commission is not a tribunal within the meaning of Article 6 of the European Convention on Human Rights and even though the fines imposed by the Commission are not of a criminal law nature, the Commission must nevertheless observe the general principles of European Union law during the administrative procedure.

However, the fact that the provisions of competition law do not place the Commission under an obligation to call witnesses whom the undertaking concerned wishes to give evidence on its behalf is not contrary to those principles. Although the Commission may hear natural or legal persons where it deems it necessary to do so, it is not entitled to call witnesses to testify against the undertaking concerned without their agreement. As the procedure before the Commission is purely an administrative procedure, the Commission is not required to afford the undertaking concerned the opportunity to cross-examine a particular witness and to analyse his statements at the investigation stage. It is sufficient that the statements used by the Commission were provided in the file sent to the applicant, who is able to challenge them before the judicature of the European Union.

(see paras 135, 137-139)

9.      There is no need to consider the effects of an agreement or a concerted practice where its anti‑competitive object is established. The liability of a particular undertaking in respect of the infringement is properly established where it participated in meetings with knowledge of their anti‑competitive object, even if it did not proceed to implement any of the measures agreed at those meetings.

(see paras 252-253)

10.    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 262-265)

11.    In an administrative procedure in competition matters, the replies given by undertakings to the statement of objections are not part of the investigation file proper. Accordingly, 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 undertakings concerned only if it transpires that they contain new incriminating or exculpatory evidence.

With respect, in particular, to exculpatory documents, the Commission is not required to make available, of its own initiative, documents which are not in its investigation file and which it does not intend to use against the parties concerned in the final decision. Since the Commission is not, as a general rule, required to divulge such documents of its own initiative, an undertaking cannot, in principle, reasonably invoke failure to communicate alleged exculpatory evidence contained in the replies to the statement of objections, where it did not request access to those replies during the administrative procedure.

Where the applicant undertaking’s arguments seek to establish that the Commission ought to have established the presence of exculpatory evidence in the replies concerned and, therefore, communicated them of its own initiative, it is for that undertaking, in putting forward such arguments, to provide prima facie evidence as to how the replies are relevant for its defence. That undertaking 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.

Moreover, whilst the Commission is required to disclose to the undertakings concerned the passages of the reply to the statement of objections containing any relevant information with respect to an item of incriminating evidence, the Commission is not obliged to extend that disclosure to the other passages of that reply having no connection with the evidence relied on.

(see paras 266-267, 290, 292, 296-297)

12.    In order to respect the rights of the defence, the file compiled by the Commission in an administrative procedure in competition matters must include all the relevant documents obtained during the investigation. In particular, whilst it is, admittedly, permissible to exclude from the administrative procedure evidence which has no relation to the allegations of fact and of law in the statement of objections and which therefore has no relevance to the investigation, it cannot be for the Commission alone to determine the documents of use in the defence of the undertaking concerned.

The Commission fails to fulfil those requirements where it excludes from the file a document containing a transcript of the oral statement given by an undertaking relating to an element of the infringement, whereas the written statement given by that undertaking in respect of that element is used as an item of evidence relevant to the investigation.

However, such irregularity is capable of calling into question the legality of the Commission’s decision only if it might have influenced the course of the proceedings and the content of that decision to the disadvantage of the undertaking concerned, which is required to show that it would have been able to use the exculpatory document for its defence, and 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 the assessments in the Commission’s decision.

(see paras 306-308)

13.    The maximum amount of 10% of turnover laid down in the second subparagraph of Article 23(2) of Regulation No 1/2003 must be calculated on the basis of the total turnover of all the companies constituting the economic entity responsible for the infringement being punished. By contrast, if that economic entity has subsequently broken up, each addressee of the decision is entitled to have the ceiling in question applied individually to it.

(see para. 324)

14.    Where an undertaking submits that the Commission ought to have granted it the benefit of an attenuating circumstance on the basis of its passive role in an infringement of the rules on competition, the fact that that undertaking did not expressly plead its passive role during the administrative procedure is not relevant to the admissibility of its complaint.

Undertakings to which a statement of objections has been addressed are not required to make a specific request to benefit from attenuating circumstances. Moreover, where an infringement has been committed by several undertakings, the Commission is required to examine the relative gravity of the participation of each of them in order to determine whether there are any aggravating or attenuating circumstances relating to them, in particular where it is an attenuating circumstance expressly referred to in the non‑exhaustive list set out in Section 3 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.

(see paras 329-330)

15.    In accordance with the first indent of Section 3 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, an ‘exclusively passive or follow-my-leader’ role in an infringement of the rules on competition may, where it is established, constitute an attenuating circumstance. A passive role implies that the undertaking adopts a low profile, that is to say, not actively participate in the creation of any anti‑competitive agreements.

The factors which may indicate that an undertaking has played a passive role in a cartel include where its participation in cartel meetings is significantly more sporadic than that of the ordinary members of the cartel, where it enters the market affected by the infringement at a late stage, regardless of the length of its involvement in the infringement, or where a representative of another undertaking which has participated in the infringement makes an express declaration to that effect. In any event, it is necessary to take account of all the relevant circumstances in each particular case.

The Commission has a discretion as regards the application of attenuating circumstances.

In that respect, where the Commission establishes to the requisite legal standard that an undertaking was represented or kept informed, as regards the majority of the collusive meetings referred to in the Commission’s decision, the fact that that undertaking did not physically participate in certain meetings but was informed of them by telephone is consistent with the clandestine nature of the way in which they were conducted and does not in any way demonstrate that the undertaking had an exclusively passive or follow‑my‑leader role.

(see paras 331-333, 337)

16.    According to the second indent of Section 3 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, non‑implementation in practice of the offending agreements or practices may amount to an attenuating circumstance, in so far as the undertaking concerned shows that, during the period in which it was party to the 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.

Moreover, the mere fact that an undertaking whose participation in a concerted practice with its competitors is established did not conduct itself in the market in the manner agreed with its competitors and followed a more or less independent policy in the market does not necessarily have to be taken into account as an attenuating circumstance. It cannot be ruled out that that undertaking was merely trying to exploit the cartel for its own benefit.

(see paras 345-346)