Joined Cases T‑147/09 and T‑148/09

Trelleborg Industrie SAS
and
Trelleborg AB

v

European Commission

(Competition — Agreements, decisions and concerted practices — European market for marine hoses — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Price-fixing, market-sharing and the exchange of commercially sensitive information — Concept of continuing or repeated infringement — Limitation period — Legal certainty — Equal treatment — Fines — Gravity and duration of the infringement)

Summary — Judgment of the General Court (First Chamber), 17 May 2013

1.      Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Degree of precision required of the evidence used by the Commission — Body of evidence — Judicial review — Scope — Decision leaving a doubt in the mind of the court — Compliance with the principle of the presumption of innocence

(Art. 81(1) EC; Art. 6(2) TEU; Charter of Fundamental Rights of the European Union, Art. 48(1); Council Regulation No 1/2003, Art. 2)

2.      Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Single and continuous infringement — Lack of evidence relating to certain specific periods of the overall period considered — No effect — Interruption of the participation of the undertaking in the infringement — Repeated infringement — Concept — Consequences for the limitation period

(Art. 81(1) EC; Council Regulation No 1/2003, Arts 2, 25(2), and 31)

3.      EU law — Interpretation — Texts in several languages — Differences between the various language versions — Account to be taken of the overall scheme and purpose of the legislation in question

4.      EU law — Principles — Legal certainty — Scope

5.      Competition — Fines — Amount — Determination — Criteria — Gravity and duration of the infringement — Discretion of the Commission — Judicial review — Unlimited jurisdiction — Effect

(Arts 81(1) EC and 229 EC; Council Regulation No 1/2003, Arts 23(2) and (3), and 31)

1.      See the text of the decision.

(see paras 50-53)

2.      In competition matters, under Article 25(2) of Regulation No 1/2003, the limitation period begins to run on the date on which the infringement was committed. However, in the case of continuing or repeated infringements, time begins to run as from the day on which the infringement ceases.

In that regard, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules. Such indicia and coincidences may provide information not just about the mere existence of anti-competitive practices or agreements, but also about the duration of continuous anti-competitive practices or the period of application of anti-competitive agreements.

Furthermore, such an infringement may be the consequence not only of an isolated act but also of a series of acts or indeed of continuous conduct. That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute, in themselves and in isolation, an infringement of that provision. When the various actions form part of an overall plan because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole.

As regards lack of evidence that there was an agreement during certain specific periods or, at least, lack of evidence of its implementation by an undertaking during a given period, the fact that evidence of the infringement has not been produced in relation to certain specific periods does not preclude the infringement from being regarded as established during a longer overall period than those periods, provided that such a finding is supported by objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that a cartel reveals itself at different periods, which may be separated by more or less lengthy intervals, has no impact on the existence of that cartel, provided that the various actions which form part of the infringement pursue a single aim and come within the framework of a single and continuous infringement. In that regard, several criteria are relevant for assessing whether there is a single infringement, namely the identical nature of the objectives of the practices at issue, the identical nature of the goods or services concerned, the identical nature of the undertakings which participated in the infringement, and the identical nature of the detailed rules for its implementation. Furthermore, whether the natural persons involved on behalf of the undertakings are identical and whether the geographical scope of the practices at issue is identical are also factors which may be taken into consideration for the purposes of that examination.

Thus, as regards continuous infringement, the Commission may assume that the infringement – or the participation of an undertaking in the infringement – has not been interrupted, even if it has no evidence of the infringement in relation to certain specific periods, provided that the various actions which form part of the infringement pursue a single purpose and are capable of falling within the framework of a single and continuous infringement; such a finding must be supported by objective and consistent indicia showing that an overall plan exists. If those conditions are satisfied, the concept of continuous infringement therefore allows the Commission to impose a fine in respect of the whole of the period of infringement taken into consideration and establishes the date on which the limitation period begins to run, namely the date on which the continuous infringement ceased. However, the undertakings accused of collusion may attempt to rebut that presumption by submitting indicia and evidence proving that, on the contrary, the infringement – or their participation in it – did not continue during those same periods.

Moreover, the concept of a repeated infringement is different from that of a continuing infringement, and that distinction is borne out by the use of the conjunction ‘or’ in Article 25(2) of Regulation No 1/2003.

Thus, if the participation of an undertaking in the infringement may be regarded as having been interrupted and the undertaking may be regarded as having participated in the infringement prior to and after that interruption, that infringement may be categorised as repeated if – as in the case of a continuing infringement – there is a single objective which it pursued both before and after the interruption, a circumstance which may be deduced from the identical nature of the objectives of the practices at issue, of the goods concerned, of the undertakings which participated in the collusion, of the main rules for its implementation, of the natural persons involved on behalf of the undertakings and, lastly, of the geographical scope of those practices. The infringement is then single and repeated and, although the Commission may impose a fine in respect of the whole of the period of the infringement, it may not do so for the period during which the infringement was interrupted. Consequently, separate periods of infringement in which the same undertaking takes part, but in respect of which a common objective cannot be established, cannot be categorised as a single infringement – continuing or repeated – and constitute separate infringements.

(see paras 56-63, 83, 88, 89)

3.      See the text of the decision.

(see paras 73, 74)

4.      See the text of the decision.

(see paras 96, 97)

5.      See the text of the decision.

(see paras 110-114)