Language of document : ECLI:EU:T:2008:416

Case T-73/04

Le Carbone-Lorraine

v

Commission of the European Communities

(Competition – Agreements, decisions and concerted practices – Market for electrical and mechanical carbon and graphite products – Guidelines on the method of setting fines – Gravity and duration of the infringement – Mitigating circumstances – Cooperation during the administrative procedure – Principle of proportionality – Principle of equal treatment)

Summary of the Judgment

1.      Competition – Fines – Amount – Determination – Criteria – Complex infringement

(Council Regulation No 17, Art. 15(2); Commission Notice No 98/C 9/03, Section 1A)

2.      Competition – Community rules – Infringements – Fines – Single infringement

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

3.      Competition – Community rules – Application by the Commission – Independent of assessments by the authorities of non-member States

(Arts 3(1)(g) EC and 81 EC)

4.      Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Account to be taken of the effects of the whole of the infringement

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

5.      Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Price-fixing – Commission’s obligation, when assessing the impact of an infringement, to take as a reference the competition that would have existed without that infringement

(Council Regulation No 17, Art. 15(2); Commission Notice No 98/C 9/03, Section 1A)

6.      Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Gravity of each undertaking’s participation

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

7.      Competition – Fines – Amount – Determination – Criteria – Overall turnover of the undertaking concerned – Turnover corresponding to the goods covered by the infringement

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

8.      Competition – Fines – Decision imposing fines – Obligation to state the reasons on which the decision is based

(Art. 253 EC; Council Regulation No 17, Art. 15(2); Commission Notice No 98/C 9/03)

9.      Competition – Fines – Amount – Determination – Deterrent character – General requirement that must be a reference point for the Commission throughout the calculation of the fine

(Council Regulation No 17, Art. 15; Commission Notice No 98/C 9/03, Section 1A)

10.    Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Implementation of a programme of adherence to Community competition rules

(Art. 81 EC; Council Regulation No 17, Art. 15; Commission Notice No 98/C 9/03)

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

(Council Regulation No 17, Art. 15; Commission Notice No 98/C 9/03, Section 3, first indent)

12.    Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances

(Council Regulation No 17, Art. 15; Commission Regulation No 2842/98; Commission Notice No 98/C 9/03, Section 3)

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

(Council Regulation No 17, Art. 15; Commission Notice No 98/C 9/03, Section 3, second indent)

14.    Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Termination of the infringement before the Commission intervenes

(Council Regulation No 17, Art. 15; Commission Notice No 98/C 9/03, Section 3, third indent)

15.    Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Reduction of the amount of the fine in return for cooperation allowing the level of participation of another undertaking to be determined

(Council Regulation No 17, Art. 15; Commission Notice No 98/C 9/03, Section 3, sixth indent)

16.    Competition – Fines – Amount – Determination – Criteria – Reduction of the amount of the fine in return for cooperation by an undertaking

(Council Regulation No 17; Commission Notice No 96/C 207/04, Section D(2))

17.    Competition – Fines – Amount – Determination – Criteria – Financial situation of the undertaking concerned

(Council Regulation No 17, Art. 15)

1.      For the purposes of applying Article 81 EC, the reason for defining the relevant market, if at all, is to determine whether an agreement is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market. Consequently, there is an obligation on the Commission to define the relevant market in a decision applying Article 81 EC only where it is impossible, without such a definition, to determine whether the agreement, decision by an association of undertakings or concerted practice at issue is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the common market.

The Commission is not required to define the relevant product markets in order to assess the gravity of an infringement for each of the categories of relevant products. First, in accordance with the guidelines on the method for setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, the assessment of the gravity of an infringement must take account of the nature of the infringement, its actual impact on the market where that can be measured and the size of the relevant geographic market. There is no obligation on the Commission, in the guidelines, to assess the impact of a cartel, specifically, for each category of relevant products. Furthermore, in dealing with a single complex infringement concerning a number of products, the Commission is not obliged to carry out a separate assessment for each aspect of the infringement, nor to break down the amount of the fine in respect of those aspects, nor is it required to examine the gravity of each infringement when it imposes a single fine on an undertaking which has committed several infringements. Such a finding is not, in addition, such as to allow an ‘arbitrary collective punishment’ of undertakings involved in a cartel.

Pursuant to Section 1.A, sixth paragraph, of the aforementioned guidelines, a limited presence on a market could possibly lead to a lower starting amount in the context of ‘differential treatment’ for the undertakings involved in a cartel. In addition, the relative gravity of the participation of each of the undertakings in question must be examined by the Commission in the assessment of mitigating circumstances.

(see paras 36, 45-46, 48-52)

2.      In the context of the application of Article 81 EC, it is open to the Commission to initiate a single proceeding for practices concerning a number of different products, and such a procedure may lead to the adoption of a single decision that an undertaking has committed a number of separate infringements, and imposes on that undertaking as many separate fines each within the limits laid down in Article 15(2) of Regulation No 17. Where the Commission takes the view that the entire product group covered by the proceeding was the object of a single complex infringement, in the light of, inter alia, the functioning of the cartel at issue, it may choose to adopt one decision imposing a single fine on each of the relevant undertakings. That choice is neither illogical nor contrary to the principle of sound administration.

(see paras 56, 63-66)

3.      The practice adopted by non-member States’ competition authorities cannot be imposed on the Commission which is responsible for the implementation and guidance of Community competition policy. The exercise of their powers by the authorities of non-Member States under their territorial jurisdiction meets requirements specific to those States. The elements forming the basis of other States’ legal systems in the field of competition not only include specific aims and objectives but also result in the adoption of specific substantive rules and a wide variety of legal consequences, whether administrative, criminal or civil, when the authorities of those States have established that there have been infringements of the applicable competition rules. On the other hand, the legal situation is completely different where an undertaking is caught exclusively – in competition matters – by the application of Community law and the law of one or more Member States on competition, that is to say, where a cartel is confined exclusively to the territorial scope of application of the legal system of the European Community.

It follows that, when the Commission imposes sanctions on the unlawful conduct of an undertaking, even conduct originating in an international cartel, it seeks to safeguard the free competition within the common market which constitutes a fundamental objective of the Community under Article 3(1)(g) EC. On account of the specific nature of the legal interests protected at Community level, the Commission’s assessments pursuant to its relevant powers may diverge considerably from those of authorities of non-member States.

(see paras 57-60)

4.      Where the Commission considers that a collection of agreements or concerted practices constitute a single continuous infringement, it is not bound, for the purposes of calculating the starting amount of the fine, to carry out a genuine assessment of the unlawful practices on each of the relevant markets, nor to take account of the actual behaviour which an undertaking claims to have adopted. It must only take into account the combined effects of the infringement taken as a whole.

(see paras 80, 89-90, 95, 97, 102)

5.      In order to assess the actual effect of an infringement on the market, the Commission must take as a reference the competition that would normally exist if there were no infringement.

In the case of a price cartel, the Commission may legitimately infer that the infringement had effects from the fact that the cartel members took measures to apply the agreed prices, for example by announcing them to customers, instructing their employees to use them as a basis for negotiation and monitoring their application by their competitors and their own sales departments. In order to conclude that there has been an impact on the market, it is sufficient that the agreed prices have served as a basis for determining individual transaction prices, thereby limiting customers’ room for negotiation.

By contrast, the Commission cannot be required, once the implementation of a cartel has been established, to systematically show that the agreements have actually allowed the undertakings in question to obtain a level of transaction price higher than that which would have prevailed in the absence of the cartel. In that regard, the argument that only the fact that the level of transaction prices would have been different from that which would have applied in the absence of collusion can be taken into consideration in determining the gravity of the infringement cannot be upheld. In addition, it would be disproportionate to insist on such proof, which would absorb considerable resources, given that it would require making hypothetical calculations based on economic models, whose accuracy would be difficult for the Court to verify, and whose infallibility is in no way proved.

To assess the gravity of the infringement, it is decisive to know that the undertakings did all that they could to give concrete effect to their intentions. Those undertakings cannot therefore benefit from external factors which counteracted their own efforts, by turning them into factors justifying a reduction in the fine.

The Commission is therefore entitled to rely on the implementation of the cartel to find that there was an impact on the market without it being necessary to determine precisely the significance of that impact.

Even supposing that the actual impact of the cartel had not been proved to the requisite legal standard by the Commission, the classification of an infringement as ‘very serious’ could still be appropriate. The three aspects to be taken into account in the assessment of the gravity of the infringement under the guidelines on the method for setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty – which are the nature of the infringement, its actual impact on the market where that can be measured and the size of the relevant geographic market – do not have the same weight in the context of an overall assessment. The nature of the infringement plays a primary role, in particular, for classifying infringements as ‘very serious’. In that regard, it follows from the description of very serious infringements in those guidelines that agreements or concerted practices involving, in particular, price-fixing may be classified as ‘very serious’ on the basis of their nature alone, without it being necessary for such conduct to have a particular impact or cover a particular geographic area. That conclusion is corroborated by the fact that, while the indicative description of serious infringements expressly mentions the market impact and the effects on extensive areas of the common market, that of very serious infringements does not mention any requirement as to the actual market impact or the effects produced in a particular geographical area.

(see paras 83-87, 91)

6.      In the context of determining the amount of the fine for an infringement of competition rules under the guidelines on the method for setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, a distinction must be drawn between the assessment of the gravity of the infringement, which is used to determine the starting amount of the fine, and the assessment of the relative gravity of the participation of each of the undertakings concerned, as that latter issue must be examined in the context of a possible application of aggravating or mitigating circumstances.

(see para. 100)

7.      The Commission is not required, when assessing fines in accordance with the gravity and duration of the infringement, to base its calculations on the turnover of the undertakings concerned and more particularly the turnover obtained from the relevant products. While it cannot be denied that that turnover can constitute an appropriate basis for establishing the threat to competition in the relevant product markets, and the relative importance of the participants to a cartel vis-à-vis the relevant products, it is nevertheless true that turnover is not, by any means, the only criteria according to which the Commission must assess the gravity of the infringement. To limit the assessment of the proportional nature of the starting amount to a comparison of that starting amount and the turnover for the relevant products would be to grant that factor excessive importance. The nature of the infringement, its actual impact, the geographic scope of the market affected and the necessary deterrent effect of the fine are further factors, which justify the aforementioned figure.

(see paras 114, 118-119)

8.      Regarding the setting of the fines for an infringement of competition law, the Commission satisfies the requirement to state reasons when, in its decision, it states the factors which enabled it to determine the gravity of the infringement and its duration, without being required to provide a more detailed account of figures relating to the method for setting the fine. Statements of figures relating to the calculation of fines, however useful such figures may be, are not essential to compliance with the duty to state reasons.

Concerning the reasons for the starting amounts in absolute terms, fines constitute an instrument of the Commission’s competition policy, and it must be allowed a margin of discretion when fixing their amount, in order that it may channel the conduct of undertakings towards observance of the competition rules. In addition, the level of fines must not be easily foreseen by economic operators. Therefore, the Commission cannot be required to provide, in that regard, aspects of its reasoning other than those relating to the gravity of the infringement.

(see paras 129-130)

9.      As deterrence is an objective of fines for infringements of competition rules, the need to ensure it is a general requirement which must be a reference point for the Commission throughout the calculation of fines and does not necessarily imply that there be a specific step in that calculation in which an overall assessment is made of all relevant circumstances for the purposes of attaining that objective.

For the purposes of taking account of the deterrent effect, the Commission did not define, in the guidelines on the method for setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, a methodology or individual criteria, which it may be obligatory to detail specifically. The fourth paragraph of Section 1.A of the Guidelines, in the context of instructions on the assessment of the gravity of the infringement, mentions only the need to set the fine at a level which ensures that it has a sufficiently deterrent effect.

(see paras 131-132)

10.    Although it is important that an undertaking takes measures to prevent future infringements of Community competition law by its personnel – for example the implementation of a programme of adherence to competition rules – the taking of such measures does not alter the reality of the infringement found. In the context of determining the amount of the fine imposed for infringement of competition rules, the Commission is not, therefore, bound to consider such a factor as a mitigating circumstance, nor in the context of taking account of the deterrent effect of the fine, all the more so when the infringement in question is a clear infringement of Article 81 EC. In that regard, it is irrelevant that such measures have been implemented by the undertaking before the Commission intervened. Moreover, it is impossible to determine the effectiveness of internal measures taken by an undertaking to prevent future infringements of competition law.

(see paras 143-144, 231)

11.    In accordance with Section 3, first indent, of the Guidelines, ‘an exclusively passive’ role in an infringement will, where it is established, constitute a mitigating circumstance in setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty. A passive role implies that the undertaking will adopt a ‘low profile’, that is to say not actively participate in the creation of any anti-competitive agreements.

Among the factors likely to demonstrate an undertaking’s passive role in a cartel, a significantly more sporadic participation in the meetings than that of the other ordinary members of the cartel can be taken into account as well as its late entry on the market which is the subject of the infringement, independently of the duration of the undertaking’s participation, or even the existence of statements dealing specifically with that point coming from other undertakings which participated in the infringement. It is therefore not sufficient that the applicant adopted a ‘low profile’ during certain periods of the cartel or in relation to certain cartel agreements. Furthermore, an approach which consists of separating the assessment of an undertaking’s attitude depending on the subject-matter of the agreements or concerted practices seems, at the least, theoretical when those agreements or concerted practices are part of a general strategy, which determines the conduct of the members of the cartel on the market and limits their commercial freedom in order to pursue an identical anti-competitive objective and a single economic aim, namely to distort the normal conditions of competition in the relevant market.

In addition, the fact that an undertaking puts an end to its participation in the cartel only a few months before the other members of the cartel does not justify a reduction in the amount of the fine on the basis of the mitigating circumstance relating to an ‘exclusively passive role in the infringement’.

(see paras 163-164, 179-180, 184)

12.    Where the Commission applies, in a decision, the method laid down in the guidelines on the method for setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty and concludes that there are neither aggravating nor attenuating circumstances applicable for the undertaking in question, that undertaking is entitled to claim, before the Community courts, the benefit of mitigating circumstances and the reduction of the amount of the associated fine, even if it did not so claim in its response to the statement of objections.

Article 4 of Regulation No 2842/98 on the hearing of parties in certain proceedings under Articles [81 EC] and [82 EC], which provides that parties wishing to make known their views on the objections raised against them are to do so in writing and may in their written comments set out all matters relevant to their defence, does not require undertakings, which are the addressees of a statement of objections, to formalise specifically a request for acknowledgement of mitigating circumstances.

Moreover, the statement of objections is a preparatory act as opposed to the decision which constitutes the final stage in the proceeding and in which the Commission gives its view on the responsibilities of the undertakings and, if appropriate, on the penalties to be imposed on them.

To determine the amount of the fine, the Commission must take account of all the circumstances of the case and in particular the gravity and duration of the infringement, which are the two criteria explicitly referred to in Article 15(2) of Regulation No 17. Where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined by the Commission in order to determine whether there are, in regard to those undertakings, aggravating or mitigating circumstances. Sections 2 and 3 of the aforementioned guidelines, which the Commission must adhere to, provide for a variation in the amount of the fine on the basis of certain aggravating or mitigating circumstances, which are unique to each of the undertakings concerned.

(see paras 188-194)

13.    To determine whether an undertaking should benefit from mitigating circumstances on the basis of the non-implementation in practice of the offending agreements under Section 3, second indent, of the Guidelines on the method for setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, it is necessary to determine whether during the period in which the undertaking was party to those agreements, it actually avoided implementing them by adopting competitive conduct on the market or, at the very least, whether it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation.

(see para. 196)

14.    An undertaking which has taken part in an infringement of Community competition law cannot benefit from mitigating circumstances, pursuant to Section 3, third indent, of the Guidelines on the method for setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, when it has terminated its anti-competitive practices following the intervention of non-member States’ competition authorities.

(see para. 230)

15.    In determining the amount of the fine for infringement of Community competition law, a reduction in the fine on grounds of cooperation during the administrative procedure is justified only if the conduct of the undertaking in question enabled the Commission to establish the existence of an infringement more easily and, where relevant, to bring it to an end.

The provision of information enabling the Commission to evaluate more precisely the degree of cooperation offered by one of the undertakings involved in a cartel during the administrative procedure for the purposes of determining the amount of its fine, and which therefore made the Commission’s task during the investigation easier, can constitute an ‘effective cooperation outside of the scope of the [Leniency] Notice’, within the meaning of Section 3, sixth indent, of the Guidelines on the method for setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty.

However, that information must relate to the anti-competitive practices which are the subject-matter of the investigation, since information concerning a territory different than that which is the subject-matter of the investigation cannot be accepted.

(see paras 238-239, 253)

16.    The Commission has a wide discretion as regards the setting of fines for infringement of Community competition law and it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. The Commission enjoys also a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings. Regard being had for that wide discretion – which is expressed, inter alia, by the indication of a range for the size of the reduction of 10% to 50% – the maximum reduction of 50% does not automatically arise where the conditions laid down in Section D, paragraph 2, first and second indents, of the Leniency Notice are met.

The Commission can base its assessment of the level of reduction on the fact, first, that the evidence provided by the undertaking in question added only limited value to the evidence already in the Commission’s possession, and second, that undertaking’s cooperation started after it had received a request for information pursuant to Article 11 of Regulation No 17.

On the one hand, the reduction of the fines, where there is cooperation from undertakings which participated in the infringements of Community competition law, is justified if the conduct made it easier for the Commission to establish an infringement and, as the case may be, to put an end to it. The Commission cannot, therefore, disregard the usefulness of the information provided, as it is necessarily part of the evidence already in its possession. In that regard, since the fundamental difference at the root of Sections B, C and D of the Leniency Notice is the usefulness of the information provided, the Commission may use the usefulness criterion to determine the level of the reduction for each category of reduction of fine laid down in those sections.

On the other hand, in the context of an overall assessment, the Commission can take account of the fact that an undertaking sent it the documents only after the request for information, without, however, being able to consider that fact as the determining factor to minimise the cooperation provided by that undertaking under Section D, paragraph 2, first indent, of the Notice on the non-imposition or reduction of fines in cartel cases.

(see paras 271-274, 276-277, 279, 283)

17.    While the Commission is not required, when determining the amount of the fine for infringement of Community competition law, to take account of the financial losses of the undertaking in question, since recognition of such an obligation would have the effect of conferring an unfair competitive advantage on the undertakings least well adapted to the conditions of the market, the Commission can nevertheless decide to reduce the amount of the fine on account of serious financial difficulties combined with recent fines imposed on that undertaking for infringements of Community competition law committed at the same time, thereby considering that it is not necessary to impose on that undertaking the total amount of the fine to ensure effective deterrence.

(see paras 308, 314-315)