Deltafina SpA v European Commission.

• Jurisdiction: European Union
• Court: General Court (European Union)
• Writing for the Court: O’Higgins
• ECLI: ECLI:EU:T:2010:355
• Docket Number: T-29/05
• Date: 08 September 2010
• Procedure Type: Recours en annulation - irrecevable

Case T-29/05

Deltafina SpA

v

European Commission

(Competition – Agreements, decisions and concerted practices – Spanish market for the purchase and first processing of raw tobacco – Decision finding an infringement of Article 81 EC – Price-fixing and market-sharing – Consistency between the statement of objections and the contested decision – Rights of the defence – Definition of the relevant market – Fines – Gravity of the infringement – Aggravating circumstances – Role as leader – Cooperation)

Summary of the Judgment

1. Competition – Agreements, decisions and concerted practices – Imputation to an undertaking – Commission decision establishing the liability of an undertaking which was active on a market immediately downstream of the relevant market and actively and intentionally contributed to the cartel

(Arts 3(1)(g) EC and 81(1) EC)

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

(Council Regulations Nos 17 and 1/2003)

3. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Effect on trade between Member States – Criteria for assessment

(Art. 81(1) EC)

4. Acts of the institutions – Guidelines on the method of setting fines imposed for infringement of competition rules

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

5. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Assessment – Assessment on a case-by-case basis

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03)

6. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Assessment – Interdependence between the three criteria expressly referred to in the Guidelines adopted by the Commission – Classification of an infringement as very serious – Major role played by the criterion relating to the nature of the infringement

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03)

7. Competition – Fines – Amount – Determination – Criteria – Actual impact on the market

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 1A, first para.)

8. Competition – Fines – Legal context – Determination – Effect of the Commission’s previous decision-making practice – None

(Council Regulations Nos 17 and 1/2003)

9. Acts of the institutions – Statement of reasons – Obligation – Scope

(Art. 253 EC)

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

(Council Regulations Nos 17 and 1/2003; Commission Communication 98/C 9/03, Section 2)

11. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Role as leader of the cartel – Concept

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 2)

12. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Assessment – Need to take separate account of each of the circumstances – No such need – Global assessment

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 3)

13. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Conduct deviating from that agreed within the cartel – Assessment

(Council Regulations Nos 17, Art. 15, and 1/2003, Art. 23; Commission Communication 98/C 9/03, Section 3, second indent)

14. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Termination of the infringement before the Commission's intervention – Excluded

(Council Regulations Nos 17, Art. 15(2), and 1/2003, Art. 23(3); Commission Communication 98/C 9/03, Section 3, third indent)

15. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation on the part of the fined undertaking – Conditions

(Council Regulations Nos 17 and 1/2003; Commission Communication 96/C 207/04)

16. Competition – Community rules – Infringements – Fines – Determination – Criteria – Raising of the general level of fines – Lawfulness – Conditions

(Arts 81(1) EC and 82 EC; Council Regulations Nos 17 and 1/2003)

1. The Commission does not exceed the limits of the prohibition laid down in Article 81(1) EC by establishing that an undertaking is liable for an infringement of that provision where, while active on the market immediately downstream from that on which the anti‑competitive practices were implemented, that undertaking participated actively and intentionally in a cartel among producers active on a different market from that on which it itself operated.

An undertaking may infringe the prohibition laid down in Article 81(1) EC where the purpose of its conduct, as coordinated with that of other undertakings, is to restrict competition on a specific relevant market within the common market, and that does not mean that the undertaking has to be active on that relevant market itself.

Accordingly, an undertaking may participate in the implementation of a restriction of competition even if it does not restrict its own freedom of action on the market on which it is primarily active. Any other interpretation might restrict the scope of the prohibition laid down in Article 81(1) EC to an extent incompatible with its useful effect and its main objective, as read in the light of Article 3(1)(g) EC, which is to ensure that competition in the internal market is not distorted, since proceedings against an undertaking for actively contributing to a restriction of competition could be blocked simply on the ground that that contribution does not come from an economic activity forming part of the relevant market on which that restriction materialises or on which it is intended to materialise.

A reading of the term ‘agreements between undertakings’ in the light of the objectives pursued by Article 81(1) EC and by Article 3(1)(g) EC tends to confirm that the notions of a cartel and of an undertaking which is the perpetrator of an infringement are conceptually independent of any distinction based on the sector or the market on which the undertakings concerned are active.

The attribution of the infringement as a whole to an undertaking which has participated in a cartel is consistent with the requirements of the principle of individual liability where two conditions are met, the first being of an objective and the second a subjective nature.

The first condition is met, as regards the relationship between competitors on the same relevant market and the relationship between such competitors and their clients, where the participating undertaking has contributed to the implementation of the cartel, even in a subsidiary, accessory or passive role, for example by tacitly approving the cartel and by failing to report it to the administrative authorities.

As regards the second condition, the attribution of the infringement as a whole to the participating undertaking also depends on the manifestation of its own intention, which shows that it is in agreement, albeit only tacitly, with the objectives of the cartel.

(see paras 48-49, 51, 57-58, 62)

2. In all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules should contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it.

An infringement of the rights of the defence during the administrative procedure must be examined in the light of the objections established by the Commission in the statement of objections and in the decision concluding the procedure. In those circumstances, the finding of an infringement of the rights of the defence presupposes that the objection – which the undertaking maintains was not raised against it in the statement of objections – has been included by the Commission in its final decision. A mere difference in presentation of the facts, where the intention is to give a more precise account of the facts in the final decision, cannot constitute a substantive alteration of the objections.

(see paras 113-115, 120)

3. For an agreement, decision or practice to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that it might hinder the attainment of a single market between Member States. Moreover, that effect must not be insignificant. Thus, an effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive.

Article 81(1) EC does not require that the arrangements referred to in that provision have actually appreciably affected trade between Member States, but requires that it be established that those arrangements are capable of having that effect.

(see paras 167-169)

4. Although 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 may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an...