Case T‑551/08
H&R ChemPharm GmbH
v
European Commission
(Competition — Agreements, decisions and concerted practices — Market for paraffin waxes — Decision finding an infringement of Article 81 EC — Price-fixing — Evidence of the infringement — 2006 Guidelines on the method of setting fines — Reference period — Calculation of the value of sales — Gravity of the infringement — Concentration occurring during the infringement period — Equal treatment — Proportionality)
Summary — Judgment of the General Court (Third Chamber), 12 December 2014
1. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for breach of the competition rules and concerning a number of addressees — Need for a sufficient statement of reasons in relation to each of the addressees
(Arts 81 EC and 253 EC)
2. Competition — Administrative procedure — Commission decision finding an infringement — Use of a joint designation for two companies belonging to the same group and having personnel and vertical links — No infringement of Article 81 EC
(Art. 81(1) EC)
3. Competition — EU rules — Infringements — Attribution — Imputability to an undertaking of the conduct of its organs — Conditions
(Art. 81 EC)
4. Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Undertakings afforded the opportunity to make known their views on the facts, objections and circumstances alleged by the Commission
(Council Regulation No 1/2003, Art. 27(1))
5. Agreements, decisions and concerted practices — Agreements between undertakings — Concept — Joint intention as to the conduct to be adopted on the market — Included — Pursuance of negotiations on certain aspects of the restriction — No effect
(Art. 81(1) EC)
6. Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Exchange of information between competitors — Anti-competitive object or effect
(Art. 81(1) EC)
7. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proof — Proof adduced by a number of different manifestations of the infringement — Lawfulness — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation — Documentary proof — Criteria — Reliability of evidence produced — Evidential obligations of undertakings disputing the reality of the infringement
(Art. 81(1) EC)
8. EU law — Principles — Fundamental rights — Presumption of innocence — Procedures in competition matters — Applicability — Scope — Consequences
(Art. 81(1) EC)
9. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Probative value of voluntary statements incriminating an undertaking by the main participants in a cartel in order to benefit from application of the Leniency Notice — Statements going against the interests of the said undertaking — High probative value
(Art. 81(1) EC; Commission Notice 2002/C 45/03)
10. Agreements, decisions and concerted practices — Agreements between undertakings — Concept — Participation in meetings having an anti-competitive object — Included — Condition — Undertaking concerned not having distanced itself from the decisions adopted — Criteria for assessment
(Art. 81(1) EC)
11. Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Undertakings that may be held responsible for participating in an overall cartel — Criteria
(Art. 81(1) EC)
12. Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Calculation of the basic amount of the fine — Determination of the value of sales — Criteria — Reference period for calculating the value of sales — Merger occurring during the cartel — Account taken of turnover of acquired companies — Whether value of sales during the reference period representative — Assessment
(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 6)
13. Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Calculation of the basic amount of the fine — Determination of the value of sales — Criteria — Use of the best available data of the incriminated undertaking — No infringement of Article 23(3) of Regulation No 1/2003
(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 15 and 16)
14. Competition — Fines — Guidelines on the method of setting fines — Calculation method taking various elements of flexibility into account — Discretion of the Commission — Compliance with the principles of equal treatment and proportionality — Judicial review — Unlimited jurisdiction — Effect
(Art. 229 EC; Council Regulation No 1/2003, Arts 23(2), and 31; Commission Notice 2006/C 210/02)
15. Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Calculation of the basic amount of the fine — Determination of the value of sales — Criteria — Sales in direct or indirect relation to the infringement — Turnover achieved on the market as a whole affected by the infringement by the incriminated undertaking
(Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13)
16. Competition — Fines — Amount — Determination — Discretion conferred on the Commission by Article 23(2) of Regulation No 1/2003 — Foreseeable character of amendments introduced by the new guidelines — No infringement of the principles of non-retroactivity and protection of legitimate expectations
(Arts 81 EC and 82 EC; Charter of Fundamental Rights of the European Union, Art. 49(1); Council Regulation No 1/2003, Art. 23(2); Commission Notices 98/C 9/03 and 2006/C 210/02)
17. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Determination of the fine proportionately to the assessment factors for the gravity of the infringement
(Art. 81(1) EC; Charter of Fundamental Rights of the European Union, Art. 49(3); Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02)
18. Competition — Fines — Amount — Determination — Criteria — Overall turnover of the undertaking concerned — Turnover corresponding to the goods covered by the infringement — To be taken into consideration — Limits — Respect for the principles of proportionality and equal treatment
(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02)
19. Actions for annulment — Grounds — Infringement of essential procedural requirements — Obligation to state reasons — Separate ground from the one concerning substantive legality
(Arts 230 EC and 253 EC)
1. See the text of the decision.
(see paras 39-43, 60, 62, 342)
2. Use, in a decision finding an infringement of the competition rules, of a joint designation for several companies belonging to a group of undertakings does not constitute an infringement of Article 81 EC, in so far as that presentation corresponds to the perception of the other participants in the cartel and is justified by the existence of vertical commercial links and personnel links between the companies concerned.
(see paras 65-72)
3. The presence of an employee or other representatives at anti-competitive meetings is a factual element that enables the Commission to find an undertaking liable for an infringement of Article 18 EC. The Commission’s power to impose a sanction on an undertaking where it has committed an infringement presumes only the unlawful action of a person who is generally authorised to act on behalf of the undertaking.
In that regard, the participation in anti-competitive meetings of a person employed as a product manager and sales manager by a production company, who at the same time performs duties related to distribution for another company, may be attributed to the production company. It would be too easy for an infringement guilty of an infringement to avoid any penalty if it could validly raise against such a finding the fact that its employee was in reality acting at those meetings on behalf of another company. Such a solution could also allow the companies participating in cartels to avoid any liability by creating situations of dual employment with a company not involved in the cartel, by claiming that the joint employee acted solely on behalf of that other company.
(see paras 73, 127, 131)
4. See the text of the decision.
(see paras 77-85)
5. See the text of the decision.
(see paras 94-96, 159, 208)
6. See the text of the decision.
(see paras 97, 98, 161)
7. See the text of the decision.
(see paras 99, 103-114, 146)
8. See the text of the decision.
(see paras 100-102)
9. See the text of the decision.
(see paras 115-120, 137, 145, 192)
10. See the text of the decision.
(see paras 148-150, 194, 202, 209)
11. See the text of the decision.
(see para. 151)
12. According to section 6 of the 2006 Guidelines for the calculation of fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, the combination of the value of sales to which the infringement relates and of the duration of the infringement is to be regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement.
In that regard, a merger of the incriminated undertaking with an entity or the acquisition, by that undertaking, of an entity which did not participate in the infringement before the merger or acquisition may have an impact on the calculation of the value of sales where the value of sales after the merger or acquisition does not constitute, with respect to the total duration of participation in the infringement, an appropriate proxy within the meaning of section 6 of the 2006 Guidelines. However, in so far as, in the particular circumstances of the case, the economic importance of the infringement and the relative weight of the undertaking having participated therein are adequately reflected by the value of sales realised after such merger, that value may be taken into account.
(see paras 217, 267, 269)
13. See the text of the decision.
(see paras 218, 237, 240, 246)
14. See the text of the decision.
(see paras 219-221)
15. See the text of the decision.
(see paras 256-258)
16. See the text of the decision.
(see paras 294-304)
17. See the text of the decision.
(see paras 308-310, 320, 324, 325, 328)
18. See the text of the decision.
(see paras 323, 326, 327, 330-333)
19. See the text of the decision.
(see para. 341)