Case T‑362/06
Ballast Nedam Infra BV
v
European Commission
(Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Fines — Proof of the infringement — Gravity of the infringement — Attributability of the unlawful conduct — Rights of the defence — Production of new pleas in the course of proceedings — Unlimited jurisdiction)
Summary — Judgment of the General Court (Sixth Chamber), 27 September 2012
1. Competition — Administrative procedure — Statement of objections — Necessary content — Commission decision finding an infringement — Decision not identical to the statement of objections — No clear indication of the capacity in which an undertaking is being accused — Infringement of the rights of the defence
(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 27(1))
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 — Degree of precision required of the evidence used by the Commission — Body of evidence — Judicial review — Scope
(Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 2)
3. Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision relying on documentary evidence — Penalised undertaking having no commercial interest in the agreement — No effect
(Art. 81(1) EC)
4. Agreements, decisions and concerted practices — Agreements between undertakings — Evidence of the infringement — Assessment of the probative value of various items of evidence — Criteria
(Art. 81(1) EC)
5. Agreements, decisions and concerted practices — Prohibition — Exemption — Duty of the undertaking concerned to show that its request is well founded — Commission decision rejecting a request for exemption — Duty to state reasons — Scope
(Art. 81(3) EC)
6. Agreements, decisions and concerted practices — Prohibition — Exemption — Scope — Horizontal cooperation agreements — Purchasing agreements designed to restrict price competition — Assessment in the light of principles set out in the Guidelines — No obligation to take account of actual market effects
(Art. 81(1) and (3) EC; Commission Notice 2001/C 3/02, Sections 18, 124 and 133)
7. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient — Finding not subject to the obligation to prove the existence of inconveniences for end consumers — Assessment by reference to the content of the agreement and the economic context
(Art. 81(1) EC)
8. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Assessment according to the nature of the infringement — Very serious infringements — Horizontal price cartel and application, towards commercial partners, of unequal conditions to equivalent services — Global assessment
(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1)
9. Agreements, decisions and concerted practices — Agreements between undertakings — Participation allegedly under pressure — Matter not providing a justification for an undertaking which did not make use of the possibility of lodging a complaint with the competent authorities
(Art. 81(1) EC; Council Regulation No 1/2003, Art. 7)
10. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Assessment according to the nature of the infringement — Very serious infringements — No requirement to determine their impact and their geographical extent
(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A)
11. Competition — Fines — Amount — Determination — Division of the undertakings concerned into different categories — Conditions — Compliance with the principles of equal treatment and proportionality — Turnover of the undertakings taken into account — Discretion of the Commission
(Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, sixth and seventh paras)
12. Competition — Fines — Amount — Determination — Criteria — No need to differentiate between undertakings involved in the same infringement by reference to their overall turnover or on the product market in question
(Art. 81(1) EC; Council Regulations No 17, Art. 15(2) and No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A, sixth para.)
13. Proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Introduction of new pleas during the proceedings — Taken into account in the exercise of the unlimited jurisdiction of the court — Conditions
(Rules of Procedure of the General Court, Arts 44(1)(c) and 48(2))
14. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the General Court — Account taken of the guidelines for the calculation of fines — Limits
(Art. 81(1) EC; Art. 261 TFEU; Council Regulation No 1/2003, Art. 31; Commission Notices 98/C 9/03 and 2006/C 210/02)
1. In proceedings for breach of the competition rules, respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure initiated before the Commission, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty. Likewise, given its importance, the statement of objections must specify unequivocally the legal person on whom fines may be imposed and be addressed to that person. It is also necessary that the statement of objections indicate in which capacity an undertaking is called on to answer the allegations.
The Commission’s decision is not necessarily required to be an exact replica of the statement of objections. Thus it is only if the final decision alleges that the undertakings concerned have committed infringements other than those referred to in the statement of objections or takes into consideration different facts that there will be an infringement of the rights of the defence. That is not the case where the alleged differences between the statement of objections and the final decision do not concern any conduct other than that in respect of which the undertakings concerned had already submitted observations and are therefore unrelated to any new complaint.
The Commission does not fulfil its obligations where it does not indicate in the statement of objections in what capacity an undertaking is being accused of infringement and where, from the terms of the statement of objections, that undertaking cannot predict that the Commission intends, in its final decision, to impute the infringement to it on the basis of its direct involvement in the activities of the cartel and of its capacity as parent company by reason of the presumption of actual exercise of a decisive influence over the conduct of its subsidiary, which it is for the undertaking to rebut. Where the statement of objections does not enable the undertaking to take cognisance of the objection based on its indirect involvement in the activities of the cartel, the latter is not placed in a position effectively to defend itself in that respect during the administrative procedure.
The mere fact that the Commission has indicated in general terms in the statement of objections that it holds parent companies liable for the conduct of their subsidiaries and that the undertaking knew that it was the 100% parent of its subsidiary cannot suffice for the Commission to be considered to have discharged its obligation to indicate in the statement of objections in which capacity the undertaking was being called on to answer the allegations.
(see paras 22-23, 29-31)
2. See the text of the decision.
(see para. 44)
3. See the text of the decision.
(see paras 45, 74)
4. See the text of the decision.
(see paras 58-60)
5. See the text of the decision.
(see para. 82)
6. See the text of the decision.
(see paras 83-84)
7. See the text of the decision.
(see paras 87-88, 90)
8. See the text of the decision.
(see paras 98-100, 102-103, 106)
9. See the text of the decision.
(see para. 104)
10. See the text of the decision.
(see paras 111-114)
11. See the text of the decision.
(see paras 119, 121-123, 125)
12. See the text of the decision.
(see para. 124)
13. It follows from Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure of the General Court that the original application must contain the subject-matter of the proceedings and a summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure.
In the exercise of its unlimited jurisdiction, the EU judicature may however allow new pleas and arguments where those pleas and arguments are effective for the purposes of that jurisdiction, and where they are not based on grounds of illegality different from those raised in the application.
(see paras 137-138)
14. In competition matters, the General Court is not bound by the Commission’s calculations or by its guidelines when it exercises its unlimited jurisdiction, but it must carry out its own assessment in the light of all the circumstances of the particular case. However, when the amount of the fines to be imposed on them is determined, the exercise of unlimited jurisdiction cannot result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 81 EC. If the Court thus intends, in the case of one undertaking, to depart specifically from the method of calculation used by the Commission with regard to all those undertakings, it must give reasons for that choice.
(see para. 143)