Judgments nº T-38/02 of Court of First Instance of the European Communities, October 25, 2005

• Resolution Date: October 25, 2005
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-38/02

(Competition – Cartels – Fines – Guidelines on the method of setting fines – Leniency Notice)

In Case T‑38/02,

Groupe Danone, established in Paris (France), represented by A. Winckler and M. Waha, lawyers,

applicant,

v

Commission of the European Communities, represented by A. Bouquet and W. Wils, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for annulment of Commission Decision 2003/569/EC of 5 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case IV/37.614/F3 PO/Interbrew and Alken-Maes) (OJ 2003 L 200, p. 1), and, in the alternative, for a reduction in the fine imposed on the applicant by Article 2 of that decision,

THE COURT OF FIRST INSTANCEOF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of M. Vilaras, President, E. Martins Ribeiro and K. Jürimäe, Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 8 December 2004,

gives the following

Judgment

Legal framework

1 Article 15(2) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-62, p. 87), provides:

‘The Commission may by decision impose on undertakings or associations of undertakings fines of from [EUR] 1 000 to [EUR] 1 000 000, or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement where, either intentionally or negligently:

a) they infringe Article [81](1) or Article [82] of the Treaty; or

b) they commit a breach of any of the obligations imposed pursuant to Article 8(1) [of the regulation].

In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

2 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 (OJ 1998 C 9, p. 3) (‘the Guidelines’) lay down a method for determining the amount of such fines, ‘which start[s] from a basic amount that will be increased to take account of aggravating circumstances or reduced to take account of attenuating circumstances’ (second introductory paragraph of the Guidelines). According to the Guidelines, ‘the basic amount will be determined according to the gravity and duration of the infringement, which are the only criteria referred to in Article 15(2) of Regulation No 17’ (Section 1 of the Guidelines).

3 The Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the Leniency Notice’) ‘sets out the conditions under which [undertakings] cooperating with the Commission during its investigation into a cartel may be exempted from fines, or may be granted reductions in the fine which would otherwise have been imposed upon them’ (Section A.3 of the notice).

4 Section D of the Leniency Notice is worded as follows:

‘D. Significant reduction in a fine

1. Where an [undertaking] cooperates without having met all the conditions set out in Sections B or C, it will benefit from a reduction of 10% to 50% of the fine that would have been imposed if it had not cooperated.

2. Such cases may include the following:

   – before a statement of objections is sent, an [undertaking] provides the Commission with information, documents or other evidence which materially contribute to establishing the existence of the infringement;

   – after receiving a statement of objections, an [undertaking] informs the Commission that it does not substantially contest the facts on which the Commission bases its allegations.’

   Facts

   5 At the time when the facts took place, Interbrew NV (‘Interbrew’) and Brouwerijen Alken-Maes NV (‘Alken-Maes’) were the largest and the second-largest suppliers on the Belgian beer market. Alken-Maes was a subsidiary of Group Danone SA (‘the applicant’), which also operated on the French beer market through another subsidiary, Brasseries Kronenbourg SA (‘Kronenbourg’). In 2000, the applicant ceased its activities on the beer market.

   6 In 1999, the Commission initiated an investigation under Case IV/37.614/F3 into possible infringements of the Community competition rules in the Belgian brewing sector.

   7 On 29 September 2000, in the context of that investigation, the Commission initiated the procedure and adopted a statement of objections against the applicant and also Interbrew, Alken-Maes, NV Brouwerij Haacht (‘Haacht’) and NV Brouwerij Martens (‘Martens’). The procedure initiated against the applicant and the statement of objections addressed to it related solely to its alleged involvement in the cartel referred to as ‘Interbrew/Alken-Maes’ concerning the Belgian beer market.

   8 On 5 December 2001, the Commission adopted Decision 2003/569/EC relating to a proceeding under Article 81 of the EC Treaty (Case IV/37.614/F3 PO/Interbrew and Alken-Maes) (OJ 2003 L 200, p. 1), addressed to the applicant and also to Interbrew, Alken-Maes, Haacht and Martens (‘the contested decision’).

   9 The contested decision finds two separate infringements of the competition rules, namely, first, a complex set of agreements and/or concerted practices in respect of beer sold in Belgium (‘the Interbrew/Alken-Maes Cartel’) and, secondly, concerted practices in respect of private-label beer. The contested decision finds that Interbrew and Alken-Maes participated in the first infringement, while Interbrew, Alken-Maes, Haacht and Martens participated in the second.

   10 Although the applicant was, at the material time, the parent company of Alken-Maes, the contested decision makes only one finding of infringement on its part. In the light of its active involvement in the Interbrew/Alken-Maes Cartel, the applicant was held responsible both for its own involvement in the cartel and for that of Alken-Maes. By contrast, the Commission considered that there was no reason to attribute responsibility to the applicant for the participation of its subsidiary in the concerted practice relating to private-label beer, since the applicant was not itself involved in that cartel.

   11 The infringement found to have been committed by the applicant consists in its participation, both directly and through its subsidiary Alken-Maes, in a complex set of agreements and/or concerted practices relating to a general non-aggression pact, prices and promotions in the off-trade, customer sharing in the on-trade, including ‘national’ customers, the restriction of investment and advertising in the on-trade, a new pricing structure for the on-trade and the off-trade, and the exchange of information about sales in both the on-trade and the off‑trade.

   12 The contested decision finds that the infringement took place over the period from 28 January 1993 to 28 January 1998.

   13 Being of the view that a series of factors enabled it to conclude that the infringement had ceased, the Commission did not deem it necessary to require the undertakings concerned to bring the infringement to an end pursuant to Article 3 of Regulation No 17.

   14 However, the Commission considered it appropriate, pursuant to Article 15(2) of Regulation No 17, to impose a fine on Interbrew and the applicant for their participation in the Interbrew/Alken-Maes Cartel.

   15 In that regard, the Commission held in the contested decision that all the participants in the Interbrew/Alken-Maes Cartel had committed the infringement intentionally.

   16 For the purpose of setting the fines to be imposed, the Commission applied in the contested decision the method laid down in the Guidelines and the Leniency Notice decision.

   17 The operative part of the contested decision is worded as follows:

   ‘Article 1

   [Interbrew], [Alken-Maes] and [the applicant] have infringed Article 81(1) [EC] by taking part in a complex set of agreements and/or concerted practices relating to a general non-aggression pact, prices and promotions in the off-trade, customer sharing in the on-trade (both the “traditional” sector and national customers), the restriction of investment and advertising in the on-trade, a new pricing structure for the on-trade and the off-trade, and the exchange of information about sales in both the on-trade and the off‑trade during the period from 28 January 1993 to 28 January 1998.

   Article 2

   The following fines are hereby imposed on [Interbrew] and [the applicant] in respect of the infringements found in Article 1:

   a) on [Interbrew]: a fine of EUR 45.675 million;

   b) on [the applicant]: a fine of EUR 44.043 million.

   …’

   Procedure and forms of order sought

   18 By application lodged at the Registry of the Court of First Instance on 22 February 2002, the applicant brought the present action.

   19 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Fifth Chamber) decided to open the oral procedure. Pursuant to Article 64 of its Rules of Procedure, the Court requested the parties to produce certain documents and to answer a number of written questions. The parties complied with those requests within the prescribed period.

   20 By letter of 30 November 2004, the applicant requested the Court, first, to place on the file the Commission Decision of 29 September 2004 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/C.37750/B2 – Brasseries Kronenbourg, Brasseries Heineken), notified under number C (2004) 3597 final (‘the Kronenbourg/Heineken Decision’), and, secondly, by way of measures of organisation of procedure under Article 64(4) of the Rules of Procedure, to invite the Commission to indicate, before or at the hearing, the results of its investigation into possible abuses of Interbrew’s dominant position on the Belgian beer market.

   21 By decision of 3 December 2004, the Court, first, added to the file the letter referred to above and informed the Commission that it would be invited at the hearing to put forward its observations on the applicant’s request that the Kronenbourg/Heineken Decision...