Imperial Chemical Industries Ltd v European Commission.

• Jurisdiction: European Union
• Court: General Court (European Union)
• Writing for the Court: Vadapalas
• ECLI: ECLI:EU:T:2010:255
• Docket Number: T-66/01
• Date: 25 June 2010
• Procedure Type: Recurso contra una sanción - fundado

Case T-66/01

Imperial Chemical Industries Ltd

v

European Commission

(Competition – Abuse of dominant position – Market for soda ash in the United Kingdom – Decision finding an infringement of Article 82 EC – Commission’s power to impose a fine or sanction – Reasonable time – Essential procedural requirements – Res judicata – Existence of the dominant position – Abuse of the dominant position – Effect on trade between Member States – Fine – Gravity and duration of the infringement – Mitigating circumstances)

Summary of the Judgment

1. Competition – Administrative procedure – Limitation period in proceedings – Suspension

(Council Regulation No 2988/74, Art. 3)

2. Community law – Principles – Duty to act within a reasonable time – Scope – Competition – Administrative procedure – Judicial proceedings – Distinction for the purposes of assessing whether action has been taken within a reasonable time

(Council Regulation No 17)

3. Competition – Administrative procedure – Duties of the Commission – Duty to act within a reasonable time

(Council Regulation No 17)

4. Procedure – Duration of proceedings before the General Court – Reasonable time – Criteria for assessment

5. Community law – Principles – Rights of the defence – Scope – Competition – Administrative procedure – Scope of the principle after the annulment of the Commission’s first decision

(Arts 81 EC, 82 EC and 233 EC; Council Regulation No 17)

6. Commission – Principle of collegiality – Scope – Competition decision

7. Actions for annulment – Judgment annulling a measure – Scope – Force of res judicata

8. Actions for annulment – Judgment annulling a measure – Effects

(Arts 82 EC, 230 EC and 233 EC)

9. Competition – Dominant position – Holding of a very large market share an indicator

(Art. 82 EC)

10. Competition – Dominant position – Abuse – Rebates having a foreclosure effect on the market – Fidelity rebate

(Art. 82 EC)

11. Competition – Dominant position – Abuse – Quantity rebate – Lawfulness – Conditions – Abusive nature of the rebate system

(Art. 82 EC)

12. Competition – Dominant position – Abuse – Exclusive supply contracts – Fidelity rebates

(Art. 82 EC)

13. Competition – Fines – Amount – Determination – Discretion of the Commission

(Arts 81 EC and 82 EC; Council Regulation No 2988/74)

14. Competition – Administrative procedure – Commission decision – Decision finding an infringement and imposing a fine – Annulled on account of a procedural defect

(Council Regulation No 17)

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

(Art. 82 EC; Council Regulation No 17, Art. 15(2))

16. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Repeated infringement – Concept of infringements of the same type – Infringements of Article 81 EC, on the one hand, and Article 82 EC, on the other – Not included

(Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2))

17. Competition – Fines – Amount – Determination – Criteria – Obligation to deduct from the amount of the fine costs incurred to guarantee the application of a decision that is subsequently annulled – None

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

18. Competition – Community rules – Infringements – Committed intentionally – Definition

(Council Regulation No 17, Art. 15)

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

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

20. Competition – Fines – Imposition – Requirement that the undertaking benefited from the infringement – None – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Absence of benefit – Not included

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

21. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Concealment of the cartel – Absence of secrecy not constituting a mitigating circumstance

(Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2))

1. Under Article 3 of Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions under the rules relating to competition, the limitation period in proceedings is to be suspended for as long as a decision of the Commission is the subject of ‘proceedings pending before the Court of Justice of the European Communities’. That reference must be understood, after the creation of the General Court, as referring, in the first place, to proceedings pending before it, since actions imposing sanctions or fines in the field of competition law come within its jurisdiction.

The limitation period is also suspended for the duration of appeal proceedings before the Court of Justice. Since Article 60 of the Statute of the Court of Justice and Article 3 of Regulation No 2988/74 are different in scope, the fact that an appeal does not have suspensory effect does not deprive Article 3 of that regulation – which concerns situations in which the Commission must await the decision of the Community judicature – of all effect. Moreover, Article 3 of Regulation No 2988/74 protects the Commission against the effect of the limitation period in situations in which it must await the decision of the Community judicature in proceedings beyond its control before knowing whether the contested act is or is not vitiated by illegality.

The argument that, following the annulment of a Commission decision, the Commission cannot benefit from its own error by imposing a fine after the expiry of the limitation period must be rejected. Any annulment of a measure which the Commission has adopted is necessarily imputable to it, in the sense that it reveals an error on the Commission’s part. Therefore, to exclude suspension of the limitation period where the action leads to recognition of an error imputable to the Commission would deprive Article 3 of Regulation No 2988/74 of all meaning. It is the very fact that an action is pending before the General Court or the Court of Justice which justifies the suspension, and not the conclusions reached by those courts in their judgment.

If the Commission had to adopt a new decision following the annulment of a decision by the General Court without awaiting the judgment of the Court of Justice, there is a risk that there would be two co-existing decisions having the same subject-matter in the event that the Court of Justice were to set aside the judgment of the General Court. It is contrary to the requirements of economy of administrative procedure to require the Commission, with the sole aim of avoiding the lapse of the limitation period, to adopt a new decision before knowing whether the initial decision is or is not vitiated by illegality.

Since the limitation period laid down in Article 3 of Regulation No 2988/74 was suspended for the duration of the proceedings before the General Court and the Court of Justice, the Commission cannot be criticised for breaching the principle that action must be taken within a reasonable time by awaiting the rulings of the General Court and the Court of Justice before adopting the contested decision, it being justified by respect for judicial proceedings and future judgments.

(see paras 73-74, 77, 82, 85-86, 88-89, 132)

2. When a complaint alleging infringement of the principle that action must be taken within a reasonable time is being examined, a distinction must be drawn between the administrative procedure, conducted in competition matters pursuant to Regulation No 17, and judicial proceedings, in the event of an appeal against the Commission’s decision. The period during which the Community judicature examines the legality of the decision and, in the event of an appeal, the validity of the judgment delivered at first instance, cannot be taken into account in determining the duration of the procedure before the Commission.

(see para. 102)

3. A breach of the principle that action must be taken within a reasonable time when a decision following an administrative proceeding in competition matters is adopted would justify the annulment of a decision taken by the Commission only in so far as it also constituted an infringement of the rights of defence of the undertakings concerned. Where it has not been established that the undue delay has adversely affected the ability of the undertakings concerned to defend themselves effectively, failure to comply with the principle that action must be taken within a reasonable time cannot affect the validity of the administrative procedure.

(see para. 109)

4. The general principle of Community law that everyone is entitled to a fair hearing, which is inspired by Article 6(1) of the European Convention for the Protection of Human Rights, and in particular the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law.

The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities.

In that regard, the list of criteria is not exhaustive and the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of the case may be deemed to justify a duration which is prima facie too long.

In the absence of any evidence that the duration of the procedure has had an impact on the outcome of the case, the possibility that the Court may have taken longer than a reasonable time, were that to be established, would have no effect on the lawfulness of...