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Language of document : ECLI:EU:T:2006:103

Case T-279/02

Degussa AG

Commission of the European Communities

(Competition – Article 81 EC – Cartels – Methionine market – Single, continuous nature of the infringement – Fine – Guidelines on the method of setting fines – Gravity and duration of the infringement – Cooperation during the administrative procedure – Article 15(2) of Regulation No 17 – Presumption of innocence)

Summary of the Judgment

1. Community law – General principles of law – Legal certainty – Principle that penalties must have a proper legal basis

2. Competition – Fines – Amount – Determination

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03)

3. Competition – Fines

(Arts 81 EC, 82 EC, 83(1) and (2)(a) and (d) EC, 202, third indent, EC, and 211, first indent, EC; Council Regulation No 17)

4. Competition – Administrative procedure – Commission decision finding an infringement

5. Community law – Principles – Fundamental rights – Presumption of innocence

(Preamble to the Single European Act; Treaty on European Union, Art. 6(2); Charter of fundamental rights of the European Union, Art. 47)

6. Competition – Agreements, decisions and concerted practices – Concerted practice – Meaning

(Art. 81(1) EC)

7. Competition – Agreements, decisions and concerted practices – Not allowed – Infringements

(Art. 81(1) EC)

8. Competition – Fines – Decision imposing fines

(Art. 253 EC; Council Regulation No 17, Art. 15(2))

9. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements

(Council Regulation No 17, Art. 15(2))

10. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements

(Council Regulation No 17, Art. 15(2))

11. Competition – Fines – Amount – Determination – Criteria – Deterrent effect of the fine

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03, point 1 A, fourth, fifth and sixth paras)

12. Competition – Fines – Amount – Determination

(Council Regulation No 17, Art. 15(2); Commission communication 98/C 9/03, point 1 A, sixth para.)

13. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Mitigating circumstances

(Council Regulation No 17, Art. 15)

14. Competition – Fines – Amount – Determination

(Art. 18(1) EC; Council Regulation No 17, Art. 15(2))

15. Competition – Fines – Amount – Determination – Waiver or reduction of the fine for cooperation of the undertaking concerned

(Council Regulation No 17, Art. 15(2); Commission communication 96/C 207/04, Title D, point 1)

16. Community law – General principles of law – Non-retroactivity of penal provisions

(Council Regulation No 17, Art. 15; Commission communication 98/C 9/03)

17. Competition – Administrative procedure – Professional secrecy

(Art. 287 CE)

1. The principle that penalties must have a proper legal basis is a corollary of the principle of legal certainty, which constitutes a general principle of Community law and requires, inter alia, that any Community legislation, in particular when it imposes or permits the imposition of sanctions, must be clear and precise so that the persons concerned may know without ambiguity what rights and obligations flow from it and may take steps accordingly. That principle, which forms part of the constitutional traditions common to the Member States and which has been enshrined in various international treaties, in particular in Article 7 of the European Convention on Human Rights, must be observed in regard both to provisions of a criminal nature and to specific administrative instruments imposing or permitting the imposition of administrative sanctions. It applies not only to the provisions which establish the ingredients of an offence, but also to those which define the consequences which flow from a contravention of the former. In that regard, it follows from Article 7(1) of that Convention that offences and the relevant penalties must be clearly defined by law. That requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable.

The case-law of the European Court of Human Rights shows that, in order to satisfy the requirements of that provision, it is not necessary for the wording of the provisions pursuant to which those sanctions are imposed to be so precise that the consequences which may flow from an infringement of those provisions are foreseeable with absolute certainty. The existence of vague terms in the provision does not necessarily entail an infringement of Article 7 of the European Convention on Human Rights and the fact that a law confers a discretion is not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference. In that connection, apart from the text of the law itself, the European Court of Human Rights takes account of whether the indeterminate notions used have been defined by consistent and published case-law. Moreover, taking into account the constitutional traditions common to the Member States does not mean giving a different interpretation to the general principle of Community law that penalties must have a proper legal basis.

(see paras 66-69, 71-73)

2. Even if Article 7(1) of the European Convention on Human Rights were to be regarded as applicable to sanctions imposed by the Commission in the event of infringement of Community competition rules, Article 15(2) of Regulation No 17 concerning the imposition of fines on undertakings for breach of Community competition rules does not contravene the principle that penalties must have a proper legal basis, for the following reasons:

– the Commission does not have unlimited discretion in setting fines, as it has to comply with the ceiling fixed by reference to the turnover of the undertakings in question and has to take account of the seriousness and duration of the infringement;

– the Commission is required, when setting fines, to comply with general principles of law, particularly the principles of equal treatment and proportionality;

– those same limits apply in relation to the exercise by the Commission of its power to assess whether or not a fine should be imposed;

– review by the Community judicature has in fact made it possible, through a consistent and published body of case-law, to define any indeterminate concepts contained in Article 15(2) of Regulation No 17;

– the Commission has developed a well-known and accessible administrative practice which, although not constituting a legal framework for fines, may nevertheless serve as a reference concerning compliance with the principle of equal treatment, it being understood that an increase in the level of fines, within the limits fixed by Article 15(2), always remains possible if the proper application of the competition rules so requires;

– the Commission has adopted guidelines for the fixing of fines, thus limiting itself in the exercise of its discretion and thereby contributing to ensuring legal certainty, and must comply with the principles of equal treatment and the protection of legitimate expectations;

– the Commission is required under Article 253 EC to state reasons for decisions imposing a fine.

(see paras 71, 74-84)

3. The power to impose fines for infringements of Articles 81 EC and 82 EC cannot be regarded as belonging originally to the Council which has transferred it or delegated its exercise to the Commission, as provided for in the third indent of Article 202 EC. In accordance with Article 83(1) and (2)(a) and (d) EC and the first indent of Article 211 EC, that power is part of the Commission’s role of ensuring the application of Community law, such role having been defined, set within a framework and formalised, as regards the application of Articles 81 EC and 82 EC, by Regulation No 17. The power to impose fines, which that regulation confers on the Commission, therefore stems from the provisions of the Treaty itself and is intended to facilitate the effective application of the prohibitions laid down in those articles.

(see paras 86-87)

4. The requirement of legal certainty, on which economic operators are entitled to rely, entails that when there is a dispute as to the existence of an infringement of the competition rules, it is incumbent on the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting the infringement. With regard to the alleged duration of an infringement, the same principle of legal certainty requires that, if there is no evidence directly establishing the duration of the infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates.

(see paras 114, 153)

5. The principle of the presumption of innocence, as it results in particular from Article 6(2) of the European Convention on Human Rights, is one of the fundamental rights which, according to the case-law of the Court of Justice, reaffirmed by the preamble to the Single European Act, by Article 6(2) of the Treaty on European Union and by Article 47 of the Charter of Fundamental Rights of the European Union, are recognised in the Community legal order. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies inter alia to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalties.

(see para. 115)

6. The concept of ‘concerted practices’ consists of a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition. The criteria of coordination and cooperation, far from requiring the elaboration of an actual ‘plan’, must be understood in the light of the concept inherent in the Treaty provisions relating to competition, according to which each economic operator must determine independently the policy which it intends to adopt on the common market. Although that requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it strictly precludes any direct or indirect contact between such operators with the object or effect either of influencing the conduct on the market of an actual or potential competitor or of disclosing to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market.

Consequently, in order to prove that there has been a concerted practice, it is not necessary to show that the competitor in question has formally undertaken, in respect of one or several others, to adopt a particular course of conduct or that the competitors have colluded over their future conduct on the market. It is sufficient that, through its declaration of intention, the competitor has eliminated or, at the very least, substantially reduced the uncertainty as to the conduct to be expected from it on the market. In addition, whilst the mutual communication by the participants in a cartel of their intention to terminate it is not a condition of its cessation, the fact remains that, where an undertaking participates, even without taking an active part, in meetings between undertakings with an anti‑competitive purpose and does not publicly distance itself from what occurred at those meetings, thus giving the impression to the other participants that it subscribes to the results of the meetings and will act in conformity with them, it may be held as established that it participates in the cartel resulting from those meetings.

Moreover, although it is clear from the very terms of Article 81(1) EC that a concerted practice implies, besides undertakings’ concerting together, conduct on the market pursuant to those collusive practices, and a relationship of cause and effect between the two, there must be a presumption, subject to proof to the contrary, which it is for the economic operators concerned to adduce, that the undertakings participating in the concerted action and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market. That is all the more true where the undertakings concert together on a regular basis over a long period.

(see paras 132-134, 136)

7. An infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from 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 taken in isolation an infringement of that provision. When the different 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.

(see para. 155)

8. As regards the calculation of the amount of fines imposed by the Commission for infringements of Community competition law, the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration. Furthermore, the scope of the obligation to state reasons must be determined in the light of the fact that the gravity of infringements must be determined by reference to numerous factors, no binding or exhaustive list of the criteria which must be applied having been drawn up. Nor does the obligation to state reasons require the Commission to set out in its decision the figures showing the method of calculating the fines, it being sufficient merely to indicate the factors which enabled it to determine the gravity of the infringement and its duration.

(see paras 193-194)

9. When determining the gravity of an infringement of the competition rules, account must be taken of, inter alia, the legislative background and economic context of the conduct to which exception is taken. In order to assess, as it is required to do each time it is possible, the actual impact of an infringement on the market, the Commission must refer to the competition which would normally have existed had it not been for the infringement. It follows that, in the case of price-fixing arrangements, the finding by the Commission that the agreements did in fact enable the undertakings concerned to achieve a higher level of transaction price than that which would have prevailed had there been no cartel allows the Commission to take into consideration, in determining the amount of the fine, the significance of the harmful effects of the infringement on the market and therefore to set the amount of the fine, in the light of the gravity of the infringement, at a higher level than it would have been set had it not been for such a finding. In that assessment, the Commission must take into account all objective conditions on the relevant market, having regard to the prevailing economic and, where necessary, legislative context. Account must be taken of the existence, where appropriate, of ‘objective economic factors’ showing that, in a context of ‘free play of competition’, the level of prices would not have evolved in an identical manner to the level of prices applied.

(see paras 216, 222-224)

10. The seriousness of an infringement of the competition rules may be established by reference to the nature and the object of the abusive conduct. Factors relating to the object of a course of conduct may be more significant for the purposes of setting the amount of the fine than those relating to its effects. The effect of an anti‑competitive practice is not a conclusive criterion for assessing the proper amount of a fine. Factors relating to the intentional aspect may be more significant than those relating to the effects, particularly where they relate to infringements which are intrinsically serious, such as price‑fixing and market‑sharing. Moreover, horizontal price agreements have always been regarded as among the most serious infringements under Community competition law.

(see paras 250-252)

11. In determining the amount of fines for infringements of competition law, the Commission must take into account not only the gravity of the infringement and the particular circumstances of the case but also the context in which the infringement was committed and must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the Community.

In that regard, 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 provide, moreover, that, apart from the nature of the infringement, its impact on the market and the latter’s geographic size, it is necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers, and to set the fine at a level which ensures that it has a sufficiently deterrent effect (point 1.A, fourth paragraph). Account may also be taken of the fact that large undertakings are better able to recognise that their conduct constitutes an infringement and be aware of the consequences stemming from it (point 1.A, fifth paragraph).

As regards the first of those factors, the objective of deterrence which the Commission is entitled to pursue when setting the amount of a fine is intended to ensure compliance by undertakings with the competition rules laid down by the Treaty for the conduct of their activities within the Community or the European Economic Area. That objective can be properly achieved only if regard is had to the situation of the undertaking at the time when the fine is imposed. A distinction must be made between, on the one hand, the scale of the infringement on the market and the share of responsibility to be borne for it by each participant in the cartel (which is covered by point 1.A, fourth and sixth paragraphs, of the Guidelines) and, on the other, the deterrent effect which the imposition of the fine must have.

As regards the scale of the infringement on the market and the share of responsibility to be borne for it by each participant in the cartel, the proportion of the turnover accounted for by the goods in respect of which the infringement was committed gives a proper indication of the scale of the infringement on the relevant market. The turnover in the products which were the subject of a restrictive practice constitutes an objective criterion giving a proper measure of the harm which that practice does to normal competition.

However, the need to ensure that the fine has a sufficient deterrent effect, where it is not found to justify raising the general level of fines in the context of the implementation of a competition policy, requires that the amount of the fine be adjusted in order to take account of the desired impact on the undertaking on which it is imposed, so that the fine is not rendered negligible, or on the contrary excessive, in particular in the light of the financial capacity of the undertaking in question, in accordance with the requirements arising from, on the one hand, the need to ensure effectiveness of the fine and, on the other, compliance with the principle of proportionality. However, inter alia as a result of transactions bringing about transfers or concentrations, an undertaking’s overall resources may vary, decreasing or increasing significantly within a relatively short space of time, in particular between the end of the infringement and the adoption of the decision imposing the fine.

It follows that those resources must be valued, so as properly to achieve the objective of deterrence, in accordance with the principle of proportionality, at the time when the fine is imposed. In that regard, for the same reasons, under Article 15(2) of Regulation No 17, the upper limit of the fine set at 10% of the turnover of the undertaking concerned is to be determined according to the overall world turnover in the business year preceding the decision. Similarly, in determining any increase in the fine intended to ensure that it has a deterrent effect, it is important to take into account the undertaking’s financial capacity and actual resources at the time when the fine is imposed on it, and not the inherently notional pro forma valuation entered in its balance sheet, which results from the application of accounting rules imposed on itself by the undertaking concerned.

As regards the second factor, namely the legal and economic infrastructures available to the undertakings to enable them to recognise that their conduct constitutes an infringement, it is intended to punish large undertakings more severely since they are presumed to have sufficient knowledge and structural resources to be aware that their conduct constitutes an infringement and to assess the potential benefits of it. For that purpose, the turnover on the basis of which the Commission determines the size of the undertakings in question, and therefore their capacity to determine the character and consequences of their conduct, must relate to their situation at the time of the infringement.

(see paras 95-96, 272-274, 278-280, 283, 285, 289-290, 302)

12. The approach of dividing the cartel members into several categories, which has the consequence that a flat-rate starting amount is fixed for all the undertakings in the same category, although it effectively ignores the differences in size between undertakings in the same category, cannot in principle be condemned. The Commission is not required, when determining the amounts of fines, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines reflect any distinction between the undertakings concerned in terms of their overall turnover.

The fact nevertheless remains that such a division into categories must comply with the principle of equal treatment under which comparable situations must not be treated differently and different situations must not be treated in the same way, unless such treatment is objectively justified. From the same perspective, 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 provide, in the sixth paragraph of point 1.A, that ‘considerable’ disparity between the sizes of the undertakings committing infringements of the same type is, inter alia, such as to justify a differentiation for the purposes of assessing the gravity of the infringement. Moreover, the amounts of fines must at least be proportionate in relation to the factors taken into account in assessing the gravity of the infringement. Consequently, where the Commission divides the undertakings concerned into categories for the purpose of setting the amount of the fines, the thresholds for each of the categories thus identified must be coherent and objectively justified.

Having regard to the objective which it pursues, namely adjustment of the amount of the fine having regard to the overall resources of the undertaking and its capacity to mobilise the funds necessary for the payment of that fine, the setting of the rate of increase of the basic amount in order to ensure that the fine has a sufficiently deterrent effect is intended more to ensure the effectiveness of the fine than to reflect the harmfulness of the infringement to normal competition and thus the gravity of the infringement. It follows that the requirement relating to the objectively justified nature of the method consisting in classifying the undertakings by category must be interpreted more strictly where that classification is made, not for the purpose of determining the amount of the fine according to the gravity of the infringement, but for that of determining the increase in the basic amount with a view to ensuring that the fine imposed has a sufficient deterrent effect.

In the context of determining the amount of the fine according to the gravity of the infringement, even if the effect of the division into groups is that certain applicants are allocated the same basic amount even though they differ in size, that difference in treatment is objectively justified by the importance attached to the nature of the infringement in comparison with the size of the undertakings in the assessment of the gravity of the infringement. However, that justification is not intended to apply to the determination of the rate of increase of the fine with a view to ensuring that it has a sufficient deterrent effect, given that that increase is essentially and objectively based on the size and resources of the undertakings, and not on the nature of the infringement.

(see paras 323-325, 328-331)

13. In determining the amount of a fine for breach of the competition rules, whilst it is important that the applicant took steps to prevent fresh infringements of Community competition law from being committed by members of its staff in the future, that circumstance does not alter the fact that an infringement was found to have been committed. It follows that the mere fact that in certain cases the Commission took the implementation of a compliance programme into consideration as a mitigating factor does not mean that it is obliged to act in the same manner in any given case. The Commission is therefore not required to take a circumstance such as that into account as a mitigating factor, provided that it adheres to the principle of equal treatment, which requires that it should not assess the matter differently for any undertaking addressed by the same decision.

In addition, mere adoption by an undertaking of a programme of compliance with the competition rules cannot constitute a valid and definite guarantee of future and continuing compliance by that undertaking with those rules, with the result that such a programme cannot require the Commission to reduce the fine on the ground that the objective of prevention pursued by it has already been at least partly achieved.

(see paras 350-351, 361)

14. Whilst the prohibition of general preventive grounds applies to the particular situation of measures derogating from the principle of freedom of movement for citizens of the Union enshrined in Article 18(1) EC and adopted by Member States on grounds of public policy, it is far from constituting a general principle, and therefore clearly cannot purely and simply be transposed to the context of fines imposed by the Commission on undertakings for infringements of Community competition law. On the contrary, it is open to the Commission to have regard to the fact that anti‑competitive practices, although they were established as being unlawful at the outset of Community competition policy, are still relatively frequent on account of the profit that certain of the undertakings concerned are able to derive from them and, consequently, it is open to the Commission to consider that it is appropriate to raise the level of fines so as to reinforce their deterrent effect, which reflects, at least in part, the need to confer on fines a deterrent character in relation to undertakings other than those on which the fines are imposed.

(see paras 359-360)

15. The reduction of fines where there is cooperation on the part of the undertakings participating in infringements of Community competition law is based on the consideration that such cooperation facilitates the Commission’s task.

However, an undertaking which simply refrains, during the administrative procedure, from expressing any view on the Commission’s factual allegations, and thus from acknowledging the correctness of those allegations, does not in fact further the Commission’s task. Similarly, it is not sufficient for an undertaking to state in general terms that it does not contest the facts alleged, in accordance with the Leniency Notice, if, in the circumstances of the case, that statement is not of any help to the Commission at all. Finally, a reduction under the Leniency Notice can be justified only where the information provided and, more generally, the conduct of the undertaking concerned might be considered to demonstrate genuine cooperation on its part. It is clear from the very concept of cooperation, as described in the Leniency Notice, and in particular in the introduction to and Section D(1) of that notice, that it is only where the conduct of the undertaking concerned reveals such a spirit of cooperation that a reduction may be granted on the basis of that notice.

(see paras 380-383)

16. Concerning the change in the Commission’s general competition policy in the matter of fines, resulting, inter alia, from 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, in order to ensure that the principle of non-retroactivity is observed, to examine whether that change was reasonably foreseeable at the time when the infringements concerned were committed.

In that regard, the principal innovation under the Guidelines consists in taking as a starting point for the calculation of the basic amount of the fine, determined on the basis of ranges provided for in that regard, those ranges reflecting the different degrees of gravity of the infringements, but which, as such, bear no relation to the relevant turnover. That method is thus based essentially on a standard scale of fines, albeit a relative and flexible one. It is therefore important to consider whether that new method of calculating fines, even if it had an aggravating effect on the level of the fines imposed, was reasonably foreseeable at the time when the infringements concerned were committed. The fact that the Commission has, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 17 if that is necessary to ensure the implementation of Community competition policy, but that, on the contrary, the proper application of the Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy.

It follows that the undertakings involved in an administrative procedure which may give rise to a fine cannot acquire a legitimate expectation that the Commission will not exceed the level of fines imposed previously or that a particular method will be used to calculate such fines. Consequently, those undertakings must take account of the possibility that the Commission may, at any time, decide, in compliance with the rules governing its action, to raise the level of the amount of the fines compared with that applied in the past. That is true not only when the Commission raises the level of the amounts of fines which it imposes in individual decisions, but also when it raises them by the application, to particular cases, of rules of conduct having general application, such as the Guidelines. It is moreover clear from the case‑law of the European Court of Human Rights that a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can therefore be expected to take special care in assessing the risks that such activity entails.

It must be concluded that the Guidelines and, in particular, the new method of calculating fines which they contain, even if it had an aggravating effect on the level of the fines imposed, were reasonably foreseeable for undertakings at the time when the infringement concerned was committed.

(see paras 388-396)

17. Article 287 EC requires the members, officials and other servants of the institutions of the Community ‘not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components’. Although that provision refers primarily to information gathered from undertakings, the adverbial phrase ‘in particular’ shows that the principle in question is a general one which applies equally to other confidential information. In inter partes procedures which are liable to result in the imposition of a penalty, the nature and amount of the penalty proposed are by their very nature covered by business secrecy until the penalty has been finally approved and announced. That principle follows, in particular, from the need to have due regard for the reputation and standing of the person concerned during a period in which no penalty has been imposed on that person.

Consequently, the Commission’s duty not to disclose to the press information on the specific penalty envisaged is coterminous not only with its obligation to respect professional secrecy, but also with its duty of good administration. Finally, the principle of the presumption of innocence applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. That presumption is clearly not respected by the Commission where, prior to formally imposing a penalty on the undertaking charged, it informs the press of the proposed finding which has been submitted to the Advisory Committee and the college of Commissioners for deliberation.

However, the reality of an infringement which has actually been proved at the end of an administrative procedure cannot be called into question by evidence of the Commission’s premature display of its belief as to the existence of that infringement and of the amount of the fine which it therefore envisages imposing on an undertaking. Nor can it be claimed that disclosure by the Commission of the content of a decision at the end of the administrative procedure and just prior to its formal adoption is, on its own, sufficient to show that the Commission pre‑judged the case or lacked objectivity in its investigation.

Moreover, whilst an irregularity of that kind may lead to annulment of the decision in question, that is conditional upon it being established that the content of that decision would have been different if that irregularity had not occurred.

That latter condition cannot be regarded as an infringement of the right to effective judicial protection of the rights which individuals derive from the Community legal order, which is one of the general principles of law stemming from the constitutional traditions common to the Member States and has also been enshrined in Articles 6 and 13 of the European Convention on Human Rights. That principle must be reconciled with the principle of legal certainty and the presumption that acts of the Community institutions are lawful.

(see paras 409-411, 414-416, 421-423)