Erste Group Bank AG (C-125/07 P), Raiffeisen Zentralbank Österreich AG (C-133/07 P), Bank Austria Creditanstalt AG (C-135/07 P) and Österreichische Volksbanken AG (C-137/07 P) v Commission of the European Communities.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2009:192
• Court: Court of Justice (European Union)
• Date: 26 March 2009
• Docket Number: C-125/07,C-135/07,C-133/07,C-137/07
• Celex Number: 62007CC0125
• Procedure Type: Recurso de casación - infundado

OPINION OF ADVOCATE GENERAL

BOT

delivered on 26 March 2009 (1)

Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P

Erste Bank der österreichischen Sparkassen AG (C‑125/07 P),

Raiffeisen Zentralbank Österreich AG (C‑133/07 P),

Bank Austria Creditanstalt AG (C‑135/07 P),

Österreichische Volksbanken AG (C‑137/07 P),

v

Commission of the European Communities

(Appeals – Competition – National cartel – Austrian market for bank products and services – ‘Lombard Club’ – Article 81 EC – Effect on trade between Member States – Imputability of liability for an infringement – Regulation No 17 – Articles 11 and 15(2) – Guidelines on the method of setting fines – Gravity of the infringement – Obligation for the Commission to demonstrate an actual impact of the infringement on the market – Classification by categories of the members of the cartel – Assessment of the economic capacity of the offenders – Attenuating circumstances – Cooperation during the administrative procedure – Principle of equal treatment – Respect for the rights of the defence)

Table of contents

I – Legal framework

II – Facts

III – The actions before the Court of First Instance and the judgment under appeal

IV – The procedure before the Court of Justice and the forms of order sought by the parties

V – The pleas in law

A – The pleas raised by Erste (Case C‑125/07 P)

B – The pleas raised by RZB (Case C‑133/07 P)

C – The pleas raised by BA‑CA (Case C‑135/07 P)

D – The pleas raised by ÖVAG (Case C‑137/07 P)

VI – Joinder of the appeals and the way in which they are dealt with in the present Opinion

VII – Preliminary observations

A – The extent of the Court’s jurisdiction in the present appeals

B – The legal and factual context of the review of anti-competitive practices and agreements

VIII – The pleas alleging infringement of Article 81(1) EC

A – First plea, alleging incorrect assessment of the condition that there must be an effect on trade between Member States

1. First part of the plea, alleging incorrect assessment of the ability of a cartel covering the entire national territory to have an appreciable effect on trade between Member States

a) Arguments of the parties

b) Assessment

2. Second part of the plea, alleging incorrect assessment by the Court of First Instance owing to an overall examination of the cross-border effects of the cartel

a) Arguments of the parties

b) Assessment

i) First complaint, alleging incorrect application and incorrect assessment of the Community case-law

– Concerning VGB and Others v Commission

– Concerning Bagnasco and Others

ii) The incorrect, insufficient and contradictory nature of the Court of First Instance’s analysis relating to the definition of the relevant market

– The way in which the Court of First Instance evaluated the complaints alleging incorrect definition of the relevant market

– The insufficient and contradictory nature of the reasoning

– The incorrect reference to SPO and Others v Commission

3. Third part of the plea, alleging failure to show that the cartel had an appreciable effect on intra-Community trade

a) Arguments of the parties

b) Assessment

4. Fourth part of the plea, alleging failure to analyse the actual effects of the cartel on the market

a) Arguments of the parties

b) Assessment

B – Second plea, alleging incorrect imputation of liability for the infringement

1. Arguments of the parties

2. Assessment

IX – The pleas alleging breach of Article 15(2) of Regulation No 17 in that the assessment of the gravity of the infringement and of the basic amount of the fine is vitiated by errors of law and reasoning and breaches the rights of the defence

A – First plea, alleging errors of law as regards the assessment of the gravity of the infringement

1. First part of the plea, alleging an assessment inconsistent with the Guidelines

a) Arguments of the parties

b) Assessment

2. Second part of the plea, alleging incorrect assessment of the ‘very nature’ of the infringement

a) Arguments of the parties

b) Assessment

3. Third part of the plea, alleging incorrect assessment with respect to ‘the actual impact [of the infringement] on the market’

a) Arguments of the parties

b) Assessment

i) The Community judicature’s approach

ii) My point of view

4. Fourth part of the plea, alleging incorrect assessment with respect to ‘the scope of the relevant geographic market’

a) Arguments of the parties

b) Assessment

5. Fifth part of the plea, alleging incorrect assessment by the Court of First Instance of the influence of the selective nature of the proceedings and breach of the duty to state reasons

a) Arguments of the parties

b) Assessment

6. Sixth part of the plea, alleging failure to carry out a global assessment of the gravity of the infringement

a) Arguments of the parties

b) Assessment

7. Seventh part of the plea, alleging incorrect assessment with respect to the division of the appellants into categories

a) The complaints raised by the appellants

i) First complaint, alleging that the attribution to the centralised institutions of the market shares of the banks in the decentralised sectors was unlawful

– The principle of the attribution of market shares and the assessment criteria used for that purpose

– The breach of Article 15(2) of Regulation No 17, of the principle of the proportionality of the penalty, of the principle of personal liability for infringements of competition law and of the principle of equality

ii) Second complaint, alleging breach of the rights of the defence

iii) Third complaint, alleging incorrect assessment of the role and functions of the central institutions within the bank groupings

iv) Fourth complaint, alleging incorrect determination of the market shares of Erste and the savings banks grouping

v) Fifth complaint, alleging distortion of the facts and the evidence

b) Assessment

First complaint, alleging that the attribution to the central institutions of the market shares of the banks in the decentralised sectors was unlawful

B – Second plea, alleging errors of law, failure to state reasons and distortion of the evidence with respect to the existence of attenuating circumstances

a) First part of the plea, alleging incorrect assessment by the Court of First Instance of ÖVAG’s passive conduct

i) Arguments of the parties

– First complaint, alleging incorrect exercise of the Court of First Instance’s power of review

– Second complaint, alleging use of an incorrect assessment criterion

– Third complaint, alleging distortion of the evidence submitted to the Court of First Instance

– Fourth complaint, alleging a contradiction in the grounds of the judgment

ii) Assessment

b) Second part of the plea, alleging incorrect assessment by the Court of First Instance with respect to the participation of the public authorities in the meetings of the banking committees

i) Arguments of the parties

ii) Assessment

c) Third part of the plea, alleging incorrect assessment by the Court of First Instance with respect to the public nature of the meetings

i) Arguments of the parties

ii) Assessment

C – Third plea, alleging errors of law, breach of the principles of equal treatment, protection of legitimate expectations and the rights of defence, and insufficient and contradictory reasoning with respect to the application of Section D of the Leniency Notice

1. First part of the plea, alleging incorrect assessment by the Court of First Instance with respect to the Commission’s power of assessment and the exercise of its own power of review

a) Arguments of the parties

b) Assessment

2. Second part of the plea, alleging errors of law in the application of the Leniency Notice

a) First complaint, alleging use of an incorrect assessment criterion and breach of the principle of equal treatment

i) Arguments of the parties

ii) Assessment

b) Second complaint, alleging errors of law with respect to the examination of the extent of the undertakings’ cooperation, breach of the principles of equal treatment, protection of legitimate expectations and respect for the rights of the defence, and insufficient and contradictory reasoning

i) RZB’s first argument, alleging incorrect assessment of the voluntary nature of the responses to the requests for information and breach of the rights of the defence

– Arguments of the parties

– Assessment

ii) Second argument, alleging errors of law in relation to the assessment of the joint exposition of the facts

– Arguments of the parties

– Assessment

iii) Third argument, alleging incorrect assessment with respect to RZB’s recognition of the anti-competitive aim of the infringement and breach of the principle of equal treatment

– Arguments of the parties

– Assessment

iv) Fourth argument, alleging reversal of the burden of proof concerning the value of RZB’s cooperation and breach of the principle of protection of legitimate expectations

– Arguments of the parties

– Assessment

v) Fifth argument, alleging errors of law and contradictory reasoning in the Court of First Instance’s analysis of the value of the additional documents submitted by BA‑CA

– Arguments of the parties

– Assessment

vi) Sixth argument, alleging failure to take BA-CA’s responses to the statement of objections into consideration

– Arguments of the parties

– Assessment

3. Third part of the plea, alleging failure to respect the rights of the defence in that they include the right to be heard

a) Arguments of the parties

b) Assessment

D – Fourth plea, alleging breach of the rights of the defence in that they include the right to be heard and of the Court of First Instance’s duty to state reasons with respect to its findings on the requests for a reduction in the fines

1. Arguments of the parties

2. Assessment

X – The consequences of the judgment under appeal being set aside

A – First plea, alleging incorrect assessment of the gravity of the infringement and of...