BASF AG v Commission of the European Communities.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2006:74
• Court: General Court (European Union)
• Docket Number: T-15/02
• Date: 15 March 2006
• Celex Number: 62002TJ0015
• Procedure Type: Recurso de anulación - infundado

Case T-15/02

BASF AG

v

Commission of the European Communities

(Competition – Cartels in the vitamin products sector – Rights of the defence – Guidelines on the method of setting fines – Determination of the starting amount of the fine – Deterrent effect – Aggravating circumstances – Role of leader or instigator – Cooperation during the administrative procedure – Professional secrecy and principle of sound administration)

Summary of the Judgment

1. Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence

(Council Regulation No 17, Art. 19(1); Commission Regulation No 2842/98, Arts 2 and 3)

2. Competition – Fines – Amount – Determination

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

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

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

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

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

5. Competition – Fines – Amount – Determination

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

6. Competition – Fines – Amount – Determination

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

7. Competition – Fines – Amount – Determination

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

8. Competition – Fines – Amount – Determination – Deterrent effect

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

9. Competition – Fines – Amount – Determination – Deterrent effect

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

10. Competition – Fines – Amount – Determination – Deterrent effect

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

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

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

12. Competition – Fines – Amount – Determination – Deterrent effect

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

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

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

14. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances

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

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

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

16. Competition – Fines – Amount – Determination

(Art. 229 CE; Council Regulation No 17, Art. 17)

17. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances

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

18. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances

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

19. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances

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

20. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances

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

21. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances

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

22. Competition – Fines – Amount – Determination – Commission notice on the non-imposition or reduction of fines in return for the cooperation of the undertakings concerned

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

23. Competition – Fines – Amount – Determination – Criteria – Taking into account of the undertaking’s cooperation with the Commission

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

24. Competition – Fines – Amount – Determination – Criteria – Taking into account of the undertaking’s cooperation with the Commission

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

25. Competition – Fines – Amount – Determination

(Council Regulation No 17, Art. 15(2); Commission communications 96/C 207/04, Title B, and 98/C 9/03, point 2)

26. Competition – Fines – Amount – Determination – Criteria – Taking into account of the undertaking’s cooperation with the Commission

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

27. Competition – Fines – Judicial review

(Arts 81 EC and 229 EC; EEA Agreement, Art. 53(1); Council Regulation No 17, Art. 17)

28. Competition – Fines – Amount – Determination – Criteria – Taking into account of the undertaking’s cooperation outside the framework of the Leniency Notice

(Council Regulation No 17, Art. 17; Commission communications 96/C 207/04 and 98/C 9/03, point 3)

29. Competition – Administrative procedure – Professional secrecy

(Art. 287 EC; Council Regulation No 17, Art. 20(2))

1. In application of the competition rules, the statement of objections must be couched in terms that, albeit succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of by the Commission. It is only on that condition that the statement of objections can fulfil its function under the Community regulations of giving undertakings all the information necessary to enable them to defend themselves properly, before the Commission adopts a final decision. That function does not vary according to the specific situation of the undertaking to which it is addressed and the extent to which it cooperates with the Commission. That requirement is satisfied if the decision does not allege that the persons concerned have committed infringements other than those referred to in the statement of objections and takes into consideration only facts on which they have had the opportunity of making known their views.

With regard to exercise of the rights of the defence in respect of the imposition of fines, provided the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined. Therefore, as regards determining the amount of fines, the rights of defence of the undertakings concerned are guaranteed before the Commission through the opportunity to make submissions on the duration, the gravity and the anti-competitive nature of the alleged acts.

The Commission is not bound to mention in the statement of objections the possibility of a change in its policy as regards the general level of fines, a possibility which depends on general considerations of competition policy having no direct relationship with the particular circumstances of the case in question, nor the extent of any increase in the fine in order to ensure that it will act as a deterrent, as the Commission is not required, once it has indicated the main factual and legal criteria on which it will base its calculation of the amount of the fines, to specify the way in which it will use each of those elements in order to determine their level. To give indications as regards the level of the fines envisaged, before the undertakings have been invited to submit their observations on the allegations against them, would be to anticipate the Commission’s decision and would thus be inappropriate.

(see paras 46-49, 58-59, 62)

2. Although the Commission has a discretion when determining the amount of each fine and is not required to apply a precise mathematical formula, it may not depart from the rules which it has imposed on itself. Since 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 are an instrument intended to define, while complying with higher-ranking law, the criteria which the Commission proposes to apply in the exercise of its discretion when determining fines, the Commission must in fact take account of the Guidelines when determining fines, in particular the elements which are mandatory under the Guidelines.

(see para. 119)

3. In the case of a decision imposing fines on several undertakings for an infringement of the Community competition rules, the scope of the obligation to state reasons must be established, inter alia, in the light of the fact that the gravity of infringements must be determined by reference to numerous factors including, in particular, the specific circumstances of the case, its context and the deterrent element of the fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up. The requirement to state reasons is thus satisfied where the Commission sets out in its decision the factors which enabled it to measure the gravity and duration of the infringement and it is not required to set out a more detailed account or the figures...