Bolloré SA and Others v Commission of the European Communities.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2007:115
• Court: General Court (European Union)
• Date: 26 April 2007
• Docket Number: T-128/02,,T-132/02,T-118/02,,T-122/02,,T-126/02,,T-136/02,T-129/02,,T-109/02,,T-125/02,
• Celex Number: 62002TJ0109
• Procedure Type: Recurso de anulación - infundado

Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02

Bolloré SA and Others

v

Commission of the European Communities

(Competition – Cartels − Carbonless paper – Guidelines on the method of setting fines – Duration of the infringement – Gravity of the infringement – Increase for deterrence – Aggravating circumstances – Mitigating circumstances – Leniency Notice)

Judgment of the Court of First Instance (Fifth Chamber), 26 April 2007

Summary of the Judgment

1. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file

(Art. 81(1) EC; Council Regulation No 17)

2. Competition – Administrative procedure – Commission decision finding an infringement – Exclusion of evidence that has not been communicated to the addressee undertaking

(Art. 81(1) EC)

3. Competition – Administrative procedure – Commission decision finding an infringement – Decision not identical to the statement of objections – Infringement of the right to a fair hearing – Condition

(Art. 81(1) EC; Council Regulation No 17)

4. Competition – Administrative procedure – Inapplicability of Article 6 of the European Convention on Human Rights – Applicability of general principles of Community law

(Council Regulation No 17, Art. 19(2))

5. Acts of the Community institutions – Measures adopted when exercising a power of appraisal – Compliance with guarantees afforded to the person subject to the administrative procedure

6. Competition – Community rules – Infringement committed by a subsidiary – Imputation to the parent company – Conditions

(Art. 81(1) EC)

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

(Art. 81 EC; Council Regulation No 17, Art. 11)

8. Competition – Agreements, decisions and concerted practices – An undertaking’s participation in anti-competitive initiatives

(Art. 81(1) EC)

9. Competition – Agreements, decisions and concerted practices – Imputation to an undertaking

(Art. 81(1) EC)

10. Competition – Administrative procedure – Commission decision finding an infringement – Evidence which has to be gathered

(Art. 81(1) EC)

11. Competition – Agreements, decisions and concerted practices – Concerted practice – Definition

(Art. 81(1) EC)

12. Competition – Community rules – Infringements – Fines – Determination – Criteria – Raising of the general level of fines

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2))

13. Competition – Administrative procedure – Statement of objections – Necessary content

(Art. 81(1) EC; Council Regulation No 17)

14. Competition – Administrative procedure – Statement of objections – Necessary content

(Arts 81(1) EC and 229 EC; Council Regulation No 17, Arts 17 and 19(1))

15. Competition – Agreements, decisions and concerted practices – Not allowed – Infringements – Agreements and concerted practices which can be addressed as a single infringement

(Art. 81(1) EC)

16. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

(Art. 81(1) EC; Commission Notice 98/C 9/03)

17. Competition – Fines – Amount – Determination – Criteria – Actual market impact

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

18. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances

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

19. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

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

20. Competition – Fines – Amount – Determination

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

21. Competition – Fines – Amount – Determination

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

22. Competition – Fines – Amount – Determination

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2); Commission Notices 96/C 207/04 and 98/C 9/03)

23. Competition – Fines – Amount – Determination

(Art. 81(1) EC; Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

24. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances

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

25. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 3)

26. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances

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

27. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 3, third dash)

28. Competition – Fines – Amount – Determination – Waiver or reduction of the fine for cooperation of the undertaking concerned

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

29. Competition – Fines – Amount – Determination – Criteria – Reduction in the amount of the fine in exchange for cooperation by the undertaking accused of the infringement

(Council Regulation No 17, Arts 11(4) and (5) and 15(2); Commission Notice 96/C 207/04, Title D, point 2)

30. Procedure – Measures of inquiry – Request for production of documents

(Rules of Procedure of the Court of First Instance, Arts 65 and 66(1))

1. During a procedure under the Community competition rules, in order to allow the undertakings in question to defend themselves effectively against the objections raised against them in the statement of objections, the Commission has an obligation to make available to them the entire investigation file, except for documents containing business secrets of other undertakings, other confidential information and internal documents of the Commission.

In addition, the right of undertakings and associations of undertakings to the protection of their business secrets must be weighed against the safeguarding of the right of access to the entire investigation file.

Therefore, if the Commission takes the view that certain documents in its investigation file contain business secrets or other confidential information, it should prepare non-confidential versions of those documents or have them prepared by the undertakings or associations of undertakings providing the documents in question. If the preparation of non-confidential versions of all the documents proves difficult, it should send the parties concerned a sufficiently precise list of the documents posing problems so as to enable them to ascertain whether it is appropriate to seek access to specific documents.

(see paras 45-46)

2. Since documents that have not been communicated to the parties concerned during the administrative procedure are not admissible evidence, it will be necessary, if it should prove that the Commission relied in the final decision on documents that were not in the investigation file and were not communicated to the applicants, to exclude those documents as evidence.

It follows that, if the Commission intends to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to establish the existence of an infringement in a proceeding under Article 81(1) EC, the other parties involved in that proceeding must be able to comment on such evidence.

(see paras 56-57)

3. 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 basis that the statement of objections can fulfil its function under the Community regulations of giving undertakings and associations of undertakings all the information necessary to enable them properly to defend themselves, before the Commission adopts a final decision.

That requirement is not complied with where the decision attributes liability for the infringement to a parent company by reason, first, of its subsidiary’s participation in the cartel, and, secondly, of the parent company’s direct involvement in the cartel activities, while the statement of objections does not enable the parent company to acquaint itself with the objection based on its direct involvement in the infringement, or even with the facts finally established in the decision in support of that objection.

However, even if the Commission decision contains new allegations of fact or law on which the undertakings concerned have not been given the opportunity to comment, the defect will only entail the annulment of the decision in that respect if the allegations concerned cannot be substantiated to the requisite legal standard on the basis of other evidence in the decision on which the undertakings concerned were given the opportunity to comment.

Moreover, in so far as certain grounds of the decision in themselves provide a sufficient legal basis for that decision, any errors in other grounds of the decision have no effect in any event on its operative part.

(see paras 67, 71, 77, 79-81)

4. Even if the Commission does not constitute a ‘tribunal’ within the meaning of Article 6 of the European Convention on Human Rights and even if the fines imposed by the Commission for breach of competition law are not of a criminal law nature, the Commission is bound to observe the general principles of Community law in the course of the administrative procedure.

However, first, although the Commission may hear natural or legal persons where it deems it necessary to do so, it is not entitled to call witnesses to testify against the undertaking concerned without their agreement, and, secondly, the fact that the provisions of Community competition law do not place the Commission under an...