Dansk Rørindustri A/S (C-189/02 P), Isoplus Fernwärmetechnik Vertriebsgesellschaft mbH and Others (C-202/02 P), KE KELIT Kunststoffwerk GmbH (C-205/02 P), LR af 1998 A/S (C-206/02 P), Brugg Rohrsysteme GmbH (C-207/02 P), LR af 1998 (Deutschland) GmbH (C-208/02 P) and ABB Asea Brown Boveri Ltd (C-213/02 P) v Commission of the European Communities.

• Jurisdiction: European Union
• Celex Number: 62002CJ0189
• ECLI: ECLI:EU:C:2005:408
• Court: Court of Justice (European Union)
• Date: 28 June 2005
• Procedure Type: Recurso de casación - infundado
• Docket Number: C-205/02,C-213/02,C-208/02,C-189/02,C-202/02

Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C‑213/02 P

Dansk Rørindustri and Others

v

Commission of the European Communities

(Appeal – Competition – District heating pipes (pre-insulated pipes) – Article 85(1) of the EC Treaty (now Article 81(1) EC) – Cartel – Boycott – Fines – Guidelines on the method of setting fines – Non-retroactivity – Legitimate expectations – Lawfulness – Leniency notice – Obligation to state reasons)

Opinion of Advocate General Tizzano delivered on 8 July 2004

Judgment of the Court (Grand Chamber), 28 June 2005

Summary of the Judgment

1. Procedure — Measures of inquiry — Examination of witnesses — Discretion of the Court of First Instance – Impact of the general principle of Community law of the right to a fair judicial process

(Rules of Procedure of the Court of First Instance, Art. 68(1))

2. Procedure — Application initiating the proceedings – Formal requirements – Summary account of the pleas in law put forward – Pleas in law not set out in the application – Reference to elements in an annex – Inadmissible

(Rules of Procedure of the Court of First Instance, Art. 44(1)(c))

3. Competition – Community rules – Undertaking – Concept

(EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC))

4. Competition – Community rules – Infringement by an undertaking – Attribution to another undertaking in view of the economic and legal links between them – Conditions – Insufficiency of a single control of capital

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

5. Competition – Agreements, decisions and concerted practices – Participation of an undertaking in an anti-competitive initiative – Sufficiency, in order to engage the liability of the undertaking, of tacit approval without publicly distancing itself or reporting the matter to the competent authorities

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

6. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Anti-competitive object – Sufficient finding

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

7. Appeals – Pleas in law – Plea submitted for the first time in the context of the appeal – Inadmissible

(EC Statute of the Court of Justice, Art. 51)

8. Competition – Community rules – Infringements – Fines – Determination – Criteria – Raising of the general level of fines – Whether permissible – Conditions

(EC Treaty, Arts 85(1) and 86 (now Arts 81(1) EC and 82 EC); Council Regulation No 17)

9. Community law – Principles — Protection of legitimate expectations – Limits – Elimination of infringements of the competition rules – Determination of the amount of fines – Method of calculating fines – Discretion of the institutions – Lack of effect of the Leniency Notice

(Commission Notice 96/C 207/04)

10. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Attenuating circumstances – Obligation for the Commission to adhere to its previous practice in taking decisions – None

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

11. Community law – General principles of law – Non-retroactivity of penal provisions – Scope – Fines imposed for infringement of the competition rules – Included – Possible breach owing to the application to an infringement committed before their introduction of the Guidelines on the method of setting fines – Foreseeability of the changes introduced by the Guidelines – No breach

(European Convention on Human Rights, Art. 7; Council Regulation No 17, Art. 15; Commission Notice 98/C 9/03)

12. Acts of the institutions – Guidelines on the method of setting fines imposed for infringements of the competition rules – Act of general application – Effects

(Commission Notice 98/C 9/03)

13. Competition – Fines – Amount – Determination – Criteria – Overall turnover of the undertaking concerned – Turnover achieved with the goods forming the subject-matter of the infringement – Respective taking into consideration – Limits

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

14. Appeals – Jurisdiction of the Court of Justice – Challenge, for reasons of fairness, of the assessment made by the Court of First Instance of the amount of the fines imposed on undertakings – Excluded – Review limited to ascertaining the taking into consideration by the Court of First Instance of the essential factors to assess the gravity of the infringement and all the arguments raised against the fine imposed

(TC Treaty, Art. 85 (now Art. 81 EC); EC Statute of the Court of Justice, Art. 51; Council Regulation No 17, Art. 15)

15. Competition – Guidelines on the method of setting fines – Calculation method taking into account various elements of flexibility to the detriment of the turnover of the hitherto privileged undertaking — Conformity with Article 15(2) of Regulation No 17

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

16. Competition – Fines – Amount – Determination – Maximum amount – Calculation – Distinction between the final amount and the intermediate amount of the fine – Consequences

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

17. Competition – Fines – Amount – Determination – Criteria – Financial situation of the undertaking concerned – Whether taken into consideration – Obligation – None

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

18. Competition – Fines – Amount – Determination – Criteria – Reduction in the amount of the fine in exchange for the cooperation of the undertaking involved – Conditions – Discretionary power of the Commission

(Council Regulation No 17, Art. 15(2); Commission Notice 96/C 207/04, Section D, points 1 and 2)

19. Competition – Administrative procedure – Respect for the rights of the defence – Statement of objections – Necessary content – Indication of the criteria for calculating the contemplated fine – Premature indication – Absence of obligation to indicate a possible change of policy concerning the level of the amount of fines

(Council Regulation No 17)

20. Appeals – Pleas in law – Inadequate statement of reasons – Jurisdiction of the Court of Justice – Taking into consideration of the facts found by the Court of First Instance – Included

(EC Treaty, Art. 190 (now Art. 253 EC))

21. Acts of the institutions – Statement of reasons – Obligation – Scope – Decisions – Remedy of a failure to state reasons during the administrative procedure – Not permissible

(EC Treaty, Art. 190 (now Art. 253 EC))

1. Even where a request for the examination of witnesses, made in the application, states precisely about what facts and for what reasons the witness or witnesses should be examined, it falls to the Court of First Instance to assess the relevance of the application to the subject-matter of the dispute and the need to examine the witnesses named.

The existence of a discretion in that regard on the part of the Court of First Instance cannot be challenged on the basis of the general principle of Community law inspired by Article 6(1) of the European Convention on Human Rights, which provides that everyone is entitled to a fair hearing, and, more particularly, the principle laid down in paragraph 3(d) of that article, which provides that everyone charged with a criminal offence has the right to obtain the attendance and examination of witnesses on his behalf on the same conditions as witnesses against him, a principle that constitutes a particular aspect of the right to a fair hearing.

In practice, that latter provision does not confer on the accused an absolute right to obtain the attendance of witnesses before a court and it is in principle for the national court to determine whether it is necessary or appropriate to call a witness.

Article 6(3) of that Convention does not therefore require that every witness be called but is aimed at full equality of arms, ensuring that the procedure in issue, considered in its entirety, gave the accused an adequate and proper opportunity to challenge the suspicions concerning him.

(see paras 68-71)

2. It follows from Article 44(1)(c) of the Rules of Procedure of the Court of First Instance that the essential facts and law on which an application is based must be apparent from the text of the application itself, even if only stated briefly, and that a reference in the application to such elements in an annex to the application is therefore not sufficient.

Likewise, it is not for the Court of First Instance to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and ancillary purpose.

(see paras 94, 97, 100)

3. In the field of competition law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. It does not require that the economic unit concerned have legal personality.

(see paras 112-113)

4. The anti-competitive conduct of an undertaking can be attributed to another undertaking where it has not decided independently upon its own conduct on the market but carried out, in all material respects, the instructions given to it by that other undertaking, having regard in particular to the economic and legal links between them.

In that regard, the fact that the share capital of two separate commercial companies is held by the same person or the same family is insufficient, in itself, to establish that those companies are a single economic unit with the result that, under Community competition law, the actions of one company can be attributed to the other and that one can be held liable to pay the fine for the other.

(see paras 117-118)

5. It is sufficient for the Commission to show that an undertaking participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been...