Judgments nº T-53/03 of Court of First Instance of the European Communities, July 08, 2008

• Resolution Date: July 08, 2008
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-53/03

In Case T-53/03,

BPB plc, established in Slough (United Kingdom), represented by T. Sharpe QC, and A. Nourry, Solicitor,

applicant,

v

Commission of the European Communities, represented by F. Castillo de la Torre, acting as Agent, J. Flynn QC, and C. Kilroy, Barrister,

defendant,

APPLICATION for the annulment in part of Commission Decision 2005/471/EC of 27 November 2002 relating to a proceeding under Article 81 [EC] against BPB plc, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E-1/37.152 - Plasterboard) (OJ 2005 L 166, p. 8), or, in the alternative, annulment or reduction of the fine imposed on the applicant,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of M. Jaeger, President, V. Tiili and O. Czúcz, Judges,

Registrar: K. Poche-, Administrator,

having regard to the written procedure and further to the hearing on 24 January 2007,

gives the following

Judgment

Facts

1 BPB plc manufactures and markets plasterboard-based building materials.

2 On the basis of information received, on 25 November 1998 the Commission carried out unannounced inspections at the premises of eight undertakings operating in the plasterboard sector, including the applicant. On 1 July 1999, it pursued its investigations at the premises of two other undertakings.

3 The Commission then sent requests for information under Article 11 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87) to the various undertakings concerned. It sent four such requests to the applicant. BPB replied to them on 17 March 1999, 28 October 1999, 18 May 2000 and 6 September 2002.

4 On 18 April 2001, the Commission initiated the procedure in this case and adopted a statement of objections which it addressed to the applicant and to Gebrüder Knauf Westdeutsche Gipswerke KG (-Knauf-), Société Lafarge SA (-Lafarge-), Etex SA and Gyproc Benelux NV (-Gyproc-). The undertakings concerned submitted their written observations and were given access to the Commission-s investigation file in the form of a copy on CD-Rom which was sent to them on 17 May 2001.

5 The applicant replied to the statement of objections on 8 July 2001.

6 On 27 November 2002, the Commission adopted Decision 2005/471/EC relating to a proceeding under Article 81 [EC] against BPB, Knauf, Lafarge and Gyproc (Case No COMP/E-1/37.152 - Plasterboard) (OJ 2005 L 166, p. 8; -the contested decision-).

7 The operative part of the contested decision states:

-Article 1

BPB - , the Knauf Group, - Lafarge - and Gyproc - have infringed Article 81(1) [EC] by participating in a set of agreements and concerted practices in the plasterboard business.

The duration of the infringement was as follows:

(a) BPB -: from 31 March 1992, at the latest, to 25 November 1998

(b) [the] Knauf [Group]: from 31 March 1992, at the latest, to 25 November 1998

(c) - Lafarge -: from 31 August 1992, at the latest, to 25 November 1998

(d) Gyproc -: from 6 June 1996, at the latest, to 25 November 1998

-

Article 3

In respect of the infringement referred to in Article 1, the following fines are imposed on the following undertakings:

(a) BPB -: EUR 138.6 million

(b) - Knauf -: EUR 85.8 million

(c) - Lafarge -: EUR 249.6 million

(d) Gyproc -: EUR 4.32 million -

--

8 The Commission found in the contested decision that the undertakings concerned participated in a single and continuous agreement which was manifested in the following conduct constituting agreements or concerted practices:

- the representatives of BPB and Knauf met in London (United Kingdom) in 1992 and expressed the common desire to stabilise the plasterboard markets in Germany, the United Kingdom, France and the Benelux;

- the representatives of BPB and Knauf established, as from 1992, information exchange arrangements, to which Lafarge and subsequently Gyproc acceded, relating to their sales volumes on the German, French, United Kingdom and Benelux plasterboard markets;

- the representatives of BPB, Knauf and Lafarge exchanged information, on various occasions, prior to price increases on the United Kingdom market;

- in view of particular developments on the German market, the representatives of BPB, Knauf, Lafarge and Gyproc met at Versailles (France) in 1996, Brussels (Belgium) in 1997 and The Hague (Netherlands) in 1998 with a view to sharing out or at least stabilising the German market;

- the representatives of BPB, Knauf, Lafarge and Gyproc exchanged information on various occasions and concerted their action on the application of price increases on the German market between 1996 and 1998.

9 For the purpose of calculating the amount of the fine, the Commission applied the methods set out in its 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-).

10 In fixing the starting amount of the fines, determined according to the gravity of the infringement, the Commission initially considered that the undertakings concerned had committed an infringement which was very serious by its very nature in so far as the aim of the practices at issue was to put an end to the price war and to stabilise the market through exchanges of confidential information. The Commission also considered that the practices at issue had had an impact on the market, since the undertakings concerned represented almost all plasterboard supply and the various manifestations of the cartel had been put into practice in a highly concentrated and oligopolistic market. As regards the geographic extent of the relevant market, the Commission considered that the cartel had covered the four main European Community markets, namely Germany, the United Kingdom, France and the Benelux.

11 Considering, next, that there was a considerable disparity between the undertakings concerned, the Commission took a differentiated approach, relying for that purpose on the sales turnover for the product concerned on the relevant markets during the last complete year of the infringement. On that basis, the starting amount of the fines was set at EUR 80 million for BPB, EUR 52 million for Knauf and Lafarge and EUR 8 million for Gyproc.

12 In order to ensure that the fine had an adequate deterrent effect having regard to the size and aggregate resources of the undertakings, the starting amount of the fine imposed on Lafarge was increased by 100%, becoming EUR 104 million.

13 In order to take account of the duration of the infringement, the starting amount was then increased by 65% for BPB and Knauf, by 60% for Lafarge and by 20% for Gyproc, the infringement being classified by the Commission as of long duration in the case of Knauf, Lafarge and BPB and of medium duration in the case of Gyproc.

14 In respect of aggravating circumstances, the basic amount of the fines imposed on BPB and Lafarge was increased by 50% on account of recidivism.

15 Next, the Commission reduced by 25% the fine imposed on Gyproc on account of attenuating circumstances, in that it had acted as a destabilising element helping to limit the impact of the cartel on the German market and it was absent from the United Kingdom market.

16 Finally, the Commission reduced the amount of the fines by 30% for BPB and by 40% for Gyproc, pursuant to Section D.2 of the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; -the Leniency Notice-). Accordingly, the final amount of the fines imposed was EUR 138.6 million for BPB, EUR 85.8 million for Knauf, EUR 249.6 million for Lafarge and EUR 4.32 million for Gyproc.

Procedure and forms of order sought

17 By application lodged at the Registry of the Court of First Instance on 14 February 2003, the applicant brought the present action.

18 Following a change in the composition of the Chambers of the Court at the beginning of the new judicial year, the Judge-Rapporteur was assigned to the Third Chamber, and this case was therefore also assigned to it.

19 On hearing the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure under Article 64 of the Rules of Procedure of the Court of First Instance, requested the parties to lodge certain documents, and put questions in writing to which they replied within the prescribed period.

20 The parties presented oral argument and their answers to the oral questions put by the Court at the hearing on 24 January 2007.

21 At the hearing, the Court requested the applicant to clarify its request for confidentiality before 7 February 2007. A period of time was also granted to the Commission for any observations it might have on the applicant-s reply concerning the confidential information.

22 The oral procedure was closed on 27 March 2007.

23 The applicant claims that the Court of First Instance should:

- annul Articles 1 and 2 of the contested decision in so far as they relate to it;

- in the alternative, annul Article 3 of the contested decision in so far as it relates to it, or, in the further alternative, reduce appropriately the amount of the fine imposed on it by the Commission in the contested decision;

- subject to the annulment of Article 3 of the contested decision or reduction of the amount of the fine, order repayment of the principal sum paid by the applicant, together with such interest as the Court may determine in accordance with law;

- order the Commission to pay the costs.

24 The Commission contends that the Court of First Instance should:

- dismiss the application;

- order the applicant to pay the costs.

Law

1. The first plea: breach of the rights of the defence

   Arguments of the parties

   25 The applicant considers that the Commission has infringed the rights of the defence and the general principal of equality of arms by relying on...