Groupe Danone v Commission of the European Communities.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2005:367
• Court: General Court (European Union)
• Date: 25 October 2005
• Docket Number: T-38/02
• Celex Number: 62002TJ0038
• Procedure Type: Recurso de anulación - infundado

Case T-38/02

Groupe Danone

v

Commission of the European Communities

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

Judgment of the Court of First Instance (Fifth Chamber), 25 October 2005

Summary of the Judgment

1. Competition – Administrative procedure – Access to the file – Purpose – Observance of the rights of the defence – Scope – Inculpatory evidence – Exclusion of evidence that was not disclosed

(Art. 81(1) EC)

2. Competition – Administrative procedure – Access to the file – Documents not included in the investigation file – Documents capable of assisting the defence of the parties – Obligation of the parties to ask for them to be made available

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

(Council Regulation No 17)

4. Competition – Fines – Amount – Determination – Rights of the defence – Judicial review – Unlimited jurisdiction of the Community judicature

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

5. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances – Obligation of the Commission to adhere to its previous decision-making practice – None

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

6. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Inculpatory evidence provided orally by a third party – Obligation to make it available to the undertaking concerned, if necessary by creating a written document

7. Competition – Fines – Amount – Whether appropriate – Judicial review – Information which may be taken into account by the Community judicature – Information not contained in the decision imposing the fine and not required by the duty to state reasons – Included

(Arts 229 EC, 230 EC and 253 EC; Council Regulation No 17, Art. 17)

8. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision imposing fines – Indication of the factors which led the Commission to assess the gravity and the duration of the infringement – Sufficient indication

(Art. 253 EC; Council Regulation No 17, Art. 15(2), second para.; Commission Communications 96/C 207/04 and 98/C 9/03)

9. Competition – Agreements, decisions and concerted practices – Definition of the market – Object – Determination of the effect on trade between Member States

(Art. 81(1) EC)

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

(Council Regulation No 17)

11. Competition – Fines – Amount – Determination – Method of calculation laid down by the guidelines drawn up by the Commission – Obligation of the Commission to comply with them – Consequences – Obligation to state reasons in respect of each infringement

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

12. Competition – Fines – Amount – Determination – Infringements classified as very serious on the basis of their nature alone – No requirement to determine their impact and their geographical extent

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

13. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Taking into account of the overall turnover of the undertaking concerned and the turnover achieved from sales of the goods in respect of which the infringement was committed – Limits

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

14. Competition – Agreements, decisions and concerted practices – Participation in meetings of undertakings having an anti-competitive object – Evidence from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel – 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 17, Art. 3)

15. Competition – Fines – Amount – Determination – Criteria – Gravity of infringements coupled with the taking into account of a deterrent effect

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

16. Competition – Administrative procedure – Commission decision finding an infringement adopted after another Commission decision referring to the same undertaking – No identity of the infringements forming the subject-matter of the two decisions – Breach of the principle ‘ non bis in idem’ – None

17. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Assessment in the light of the absolute value of the sales concerned – Whether permissible

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

18. Competition – Administrative procedure – Commission decision finding an infringement – Evidence which must be gathered – Degree of evidential value required

(Art. 81(1) EC)

19. Community law – Principles – Fundamental rights – Presumption of innocence – Procedure in competition matters – Whether applicable

20. Competition – Fines – Amount – Determination – Criteria – Gravity and duration of the infringement – Infringement committed by several undertakings – Gravity to be assessed individually

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

21. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Threat of reprisals by one undertaking against another

22. Competition – Administrative procedure – Commission decision finding an infringement – Use as evidence of statements of other undertakings which participated in the infringement – Whether permissible – Conditions

(Arts 81 EC and 82 EC)

23. Competition – Fines – Amount – Determination – Introduction of guidelines by the Commission – Method of calculation based on the inherent gravity and the duration of the infringement and complying with the maximum limit based on the turnover of each undertaking – Whether lawful

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

24. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Aggravating circumstances – Recidivism – Meaning

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

25. Competition – Fines – No infringement of the principle of legal certainty where a limitation period has not been laid down

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

26. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Attenuating circumstances – Agreement not implemented in practice – Assessment at the level of the individual conduct of each undertaking

(Council Regulation No 17, Art. 15)

27. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Attenuating circumstances – Absence of measures to monitor the implementation of the cartel – Not included

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

28. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringements – Attenuating circumstances – Financial situation of the undertaking concerned – Not included

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

29. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned – Need for conduct which assisted the Commission to ascertain the infringement – Information concerning acts which could not give rise to fines under Regulation No 17 – Not to be taken into account

(Council Regulation No 17, Arts 11(4), (5), and 15; Commission Communication 96/C 207/04)

30. Competition – Fines – Amount – Determination – Criteria – Attitude of the undertaking during the administrative procedure – Appraisal of the extent of the cooperation shown by each of the undertakings participating in the cartel – Respect for the principle of equal treatment – Different degrees of cooperation justifying different treatment

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

31. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned – Reduction for not disputing the facts – Conditions

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

1. The right of access to the file in competition cases is intended, in particular, to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission’s file so that, on the basis of that evidence, they can express their views effectively on the conclusions reached by the Commission in its statement of objections. Access to the file is thus one of the procedural safeguards intended to protect the rights of the defence and to ensure, in particular, that the right to be heard can be exercised effectively.

The Commission is thus under a duty to make available to the undertakings involved in proceedings under Article 81(1) EC all documents, whether in their favour or otherwise, which it has obtained during the course of the investigation, save where the business secrets of other undertakings, the internal documents of the institution or other confidential information are involved

If the Commission is found to have relied in the contested decision on inculpatory documents that were not in the investigation file and were not disclosed to the applicant, those documents should be excluded as evidence.

(see paras 33-35, 65)

2. In the administrative procedure in competition matters, where documents which might have contained exculpatory evidence are contained in the Commission’s investigation file, any finding of an infringement of the rights of the defence is unconnected with the manner in which...