Page 27 of 54
its
to
obligation
undertakings right to be heard In doing so themselves not only against the finding of an
the
respect
necessary means to defend the
of fines
imposition
ECR 1825
Commission
200
It
follows
the
concerned
undertakings
may
in
201
In
on
Then
that
Court of
the
fine
pursuant
undertakings
the
an
defence
of
they have
that
nature
anti-competitive additional
as
guarantee and jurisdiction
No
17 of Regulation
to Article
fact
has unlimited
Instance
First
and have
of
rights
of the
17
Case T-83/91
235
paragraph
58
practices the
turnover
appropriate
if
and
on
pipes
out
set
and
infringement
reasons for
its
also
the
the
namely
and
substantial
order
in
that
role
deterrent
which
did
not
had
investigations
regards the duration
as
turnover
in
and
district
and
level
of the
effect
the
last
the
each
the
individual
anti-
of their participation their
sector
heating
economic
all
on in
of
power
the
their
total
undertaking
in
circumstances
mitigating
as regards the applicant objections the Commission observed that it was the second largest producer of district heating cartel that role was minor in all the activities of the cartel even though
of the
In
played an active
it
their
take account
to
sufficiently
leading
differences
sector
heating
58 of the statement
played
role
ABSs
with
compared
the
district
ensure
to
page
had
factors
manipulation of the procedures for submitting of the cartel in order to ensure the compliance of all the
circumstances
all
in
it
very serious
stated the fine to be imposed that in assessing place the Commission inter a/ia the role played by each of them it would take into account
importance
that
objections the Commission
of
was
infringement
out
At the same
Then
statement
of the
present
aggressive implementation the agreements and to exclude the only competitor of any importance the fact that the infringement continued after the in the agreements and
carried
question
the elements of fact and of law on set out in the statement of objections doing so the Commission which it would base the calculation of the fine to be imposed on the applicant so that in that regard the applicants right to be heard was duly observed In
Since the
had
it
indicated
elements
against
before
would
franca/se
the
ECR 3461
Nor consequently administrative
In
particular
of
change
the
under
general
It
follows
the
Its
Commission policy
as
Musique
an
level of fines
that
the
to put
invited
policy
to
the
to
to of
level
having no
indications to
submit
its
and
decision
above
inform
was as
base
to
would
it
the
regards
would
and
of
of the
the
fines
allegations
Musique
inappropriate
Case
fines
those
of the
level
on
thus be
21
calculation
Its
use each
observations
paragraph
undertakings Solvay
be heard
in
fines
direct
on
the
mention the
322/81
Michelin
notice
the
not
to
calculate
statement
possibility
of
which
with
the
objections the on
depended
particular
possibility
general
circumstances
of
above paragraph 22 The Commission by warning them of its intention to increase the cited
Commission.cited
did
the concerned during the amount of the fines
undertakings
relationship
Commission
franca/se
right to
it
which
in
new method
use
bound
not
way
19
bound
intended
was
cited
which
on
the
Commissions
paragraph
it
law
To give
fine
has been
the
Case 1-12/89
applicants
the
of
explain
Commission
regards
diffusion
obligation
to
Commission
that
of competition
considerations
these cases
was
procedure
In
of
level
undertaking
and
of fact
no obligation
be to anticipate and Others
Commission
not
elements
the
determining
in
it
diffusion
the
was under
Commission
envisaged
209
the
the
fines
virtue
in
competitive
208
by
duration the gravity
that
the
undertaking
207
and
the
aggravating
participate
been
57
pages
participants
206
the
Moreover
ECR 11-755
Commission
the
it
tenders
205
the
against
sent to regard the Commission explained on pages 53 and 54 of the statement of objections case of the infringement which applicant the duration proposed to find in the applicants
constituting
204
in
reduce
or
Commission
considering
203
cancel
accused
amount
that
the
also
and Others
francaise
the amount of the
of
before
are
diffusion
Musique
with
but
that
the
202
setting
particular
Pak
Tetra
the determination
guaranteed their submissions on
of
103/80
them
provides
infringement
21
are
the opportunity to make of the matters of which they the
to
100/80
paragraph
concerns
so far as
that
regards
Cases
Joined
it
place
the
above
paragraph
Commission
under
311 an obligation
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is
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inform
210
For
as
far
Third
III
intention
its
those reasons
all
so
in
of
It
of
Arguments
211
The
212
The
and
that
intention
that
Protection
of
Human
imposition
of
penalties
it
change
to
the
infringed
the
with
cooperated
its
of non-retroactivity
principle
the
without
Commission
being
the
by applying aware
of
the
on fines
policy
No 17 are of criminal-law provided for in Article 15 of Regulation Convention of the European for the paragraph by Article Fundamental Freedoms the Convention which prohibits the
fines
and
Rights
had
fundamentally
covered
are therefore
therefore
assessing the fine
non-retroactivity
Commission
the
case when
in its
states
applicant
nature
of
in
be rejected
the parties
complains
applicant
new guidelines Commissions
case
its
infringement of general principles and errors of fact
alleging
of the principle
Infringement
in
guidelines
breach of the right to be heard must also complaint relating to the application of the guidelines on the method of setting fines
law
in
plea
the new
apply
the
concerns
it
to
28 of 54
more severe than those
applicable
to
of the
Article
when
offence
the
Convention
to
in
apply
question
retroactively
was committed the new legal
paragraph the determination of the amount of the fine imposed on itself as concerns and binding on the Commission Even if these new rules were not which are of normative character in the Commissions practice of normative character but merely as being change regarded as being is to the principles contained in the application of the norms resulting from such change contrary It
is
which
rules
Human
Court of
The
without
policy
and
prior
The
of
of
Because
The
In
the
and
fines
present case
was
which
therefore
which
the fine
has voluntarily
affects
small
in
entitled the
to give
submitted
to
increase
the
Commission
level of the
fundamentally
warning
prior
general
particularly
evidence
self-incriminating
European
changed
where
its in
as
without
being
the applicants to position systematic increase in the the basis of absolute amounts the guidelines Impose than medium-sized undertakings much more severely
on
and
dependent
or partly
wholly
Is
Is
however
obliged
lead for undertakings the fines are calculated
of calculation
system under concerned
215
on
actually
fines
method
normally the Commission
that
case an undertaking fundamental change
that
guidelines
level
from the case-law of the Convention It follows in particular these principles also apply to changes in case-law
the that
warning
practice
applicants
aware
214
of
Rights
accepts
applicant
fines
the
Commission
paragraph
Article
213
contrary
the
on
turnover
the
of the
undertaking
within which the the new guidelines replies that merely set out the framework 15 of Regulation No 17 and do not alter that framework The to apply Article proposes without ever adopting the new could have imposed precisely the same fine on the applicant
defendant
Commission Commission guidelines
216
the guidelines Furthermore and do not necessarily entail
the guidelines
FindIngs
217
It
is
settled
were
to
an
impose
increase
higher
case-law that
2/94
Court of Justice
First
of
ECR 1-2629
Instance
in
the
penalties
fundamental
law whose observance
Kremzow
in
the
Commissions general
level of the that
would
to setting fines approach Even if the purpose of be entirely compatible with the case-law fine
in
specific
case
Court
of the
Community of the
change
represent
draw
inspiration
28
is
rights
ensured
March
form an
integral
part
by the Community
of the
principles of
general
see
particular Opinion paragraph 33 and Case C-299/95 the Court of Justice and the Court of judicature
in
ECR 1-1759
1996
14
For that paragraph from the constitutional
purpose traditions
common
to
the
Member
States
treaties for the protection of human from the guidelines rights on which supplied by internatIonal The Convention has special Member States have collaborated and to which they are signatories significance
in
that
respect
Kremzow
cited
above
paragraph
14
and
Case
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Page
Mannesmannrhren-Werke Union
shall
common
traditions
to
Member
the
States
as
60 Furthermore paragraph 62 EU provides that the
paragraph
now
of the
constitutional
218
ECR 11-729
Commission
after amendment Union Treaty on European fundamental as rights guaranteed by the respect
of Article
general
Article
and
they result from the
as
law
Community
of
principles
that one shall be held guilty of any criminal of the Convention paragraph provides criminal offence under national or on account of any act or omission which did not constitute and that heavier penalty international law at the time when it was committed not be imposed Article offence
than the
219
The
one
principle
legal orders
Although
under
Such
that
rules
are
which
17
or to
the
which
223
Article
152
undertakings
sum
in
excess
infringe
Article
224
The be
general
Commission
in
able
is
to
thereof
but
..
and
Commission
above
to
is
not
on itself Although it is imposes on the applicant In accordance with
it
Commission
that fines of
undertakings
10%
exceeding
of
from
may by
the turnover
in
decision
000
to
000
the
within
remained
it
000
or
account
year of each
business
preceding
on
impose
units of
the
duration
of the
of
they be had
in
the
rules
of the Community was adopted before the date No empowered to amend Regulation
the infringement where either intentionally or negligently of the Treaty and that fixing the amount of the fine regard shall
to
fines
paragraph
which
..
infringement
to
in
152
Article
No 17
of Regulation
is to take as the starting point the Commission According to the guidelines the fines an amount determined according to the gravity of the infringement
in
account
must be taken
of
and
size of the
point
In
impact on first
assessing the
the
of the
gravity
market where
can
this
infringement be measured
the
LA
Within that framework Infringements paragraph of Section minor infringements for which the likely fines are between
categories
ECU ECU 20
serious
Infringements
which
the
likely
fines are
between
serious
infringements for which
the
likely
fines are
above
second
paragraph of Section
and
of leading
cited
for infringement
17
No
in the guidelines In doing so 15 of Regulation No 17
17 provides
participating
851
of
procedure capable
out
fines set
No
not
imposing fines for
above paragraph 235 Community law and in
cited
principles
impose
Article
in Article
of
decisions
imposed on an undertaking for infringing the competition time when the infringement was committed
out
or associations
22
Pak
Michelin
by analogy
the
all
by the
ensured
is
to
fundamental
first paragraph of Section of the guidelines that in setting fines the basic amount is to provides determined according to the gravity and duration of the infringement which are the only criteria
referred
225
the
administrative
any
nature which even by rules of general the Commission assessed the fine imposed
of Regulation
both to the gravity
observe in
15 of Regulation was committed The Commission
fines set
the undertakings
nature Tetra
common as
fines
the
ground that the general method for setting of the
Commission
criminal
is
Convention
paragraph
it
common
framework
to
see
at the
defined
infringement
depart from
the
down
laid
the fines
competition
on
that
requires
that
provides
non-retroactivity
on competition
those
with
regard
on
of
rules
observance
No 17
law are not of
which
one
is
of the
law whose observance
of
ECR 2689
the less required
none
is
effect
Article
in
principles
Kirk
was committed
offence
retroactive
enshrined
is
general
of Regulation
principle
the Treaty
correspond
among the Case 63/83
place
of competition
the
and
States
have
not
may
provisions
Member
154
Article
particutar
In
its
Commission
the
222
penal
time the criminal
at the
applicable
judicature
infringement
221
that of the
Community 220
was
takes
it
right
that
very serious apply differential
for
1.A
infringements
treatment
to
are
Within
each
concerned
undertakings
of
these categories
the
proposed
according
to the
scale nature
are to
be
ECU
million
and
its
geographic put
000
actual
market
one
into
ECU
and
ECU 20
of
and
in
of
particular is
to
million
as far
make
it
and
000 very
of the
as serious
possible
the Infringement
three
000
million first to third indents
of fines
of
starting
general
nature
its
relevant
amount
the
calculating
the
to
committed
1.A It is also necessary to take account of the effective economic capacity third paragraph of Section in particular of offenders to cause significant damage to other operators consumers and to set the fine which ensures that it has deterrent effect at level sufficiently fourth paragraph of Section 1.A
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Page
226
Account
may
may be necessary
three
categories
conduct
offending
the
between
to
each
of
be
sizes of the
undertakings
large
aware
some cases
in
that
them more
enable
of the
have
usually
easily to
to
years
of
may be
gravity
The
of the
weight and
specific
on competition
undertaking undertakings
committing
therefore the where
particularly
there
t0h
by
the
18 July
The
on the
1996
comment
further
guidelines
the
once
it
stated
is
list
to
of
increased
which
for
of the
should be
It
adjusted
follows
the
non-imposition or reduction
that
the
amount
final
to
amount and
in
152
and
down
provision
in
that
the
Consequently out
that
in
contrary
with
the
Article
fines
the fines
in
having regard the
latter
Regulation
no
particular
of
the
maximum
the
guidelines
152
specific
economic
characteristics
and
that
of
the
the fines
be calculated
to
each
of
of the
17
Section should be taken
No 17 namely
turnover
of
percentage
10%
No
Regulation
fines continue
of Regulation
method
this
exceed
the
gravity
as
undertaking
of
the
laid
be regarded as going
the
beyond
legal
framework
of the
fines set
No
avail
to
does
gravity
claims
the
not
does the change
be imposed
and
it
in
previous
matters
wide
since
discretion
new method exceed
the
decisions that
to
argue basis
that
of
an
of infringements
not
an
by the guidelines compared
alteration
therefore contrary
which of
if
fines are
set
level
of the
to
according in
fines as
and
to the principle
solely
leaves
which
established
as
serve
No 17
fines
of the legality
itself
defined
is
Regulation
calculating
maximum
amount determined
does not
framework
with retroactive effect aggravation 17 which infringes the principles of
on the
is
about
brought
constitute
practice
the
legal
framework contained
principles
Convention
of the
infringement the Commission the
in
in Article
administrative
can
introduces
but
fines
regarded as an
of
which
competition
fact
is
the
applicant
existing
Second
It
the
Commissions practice
increased
236
what
to
imposed
that
to
cannot
guidelines
paragraph
the
the
1996
03
observed
is
Commissions
determining
First
refer to
cases
provision
Nor
in
duration and
its
to
according
any case
5b
down
laid
referred
criteria
infringement
cartel
in
for
1.8
circumstances
attenuating basic
on the circumstances account that depending been made of certain objective factors such as
method
the
two
the
to
and
paragraph of Section
of fines
calculated
percentage basis may not as laid down by Article
Section
accordingly
under
that
according
235
It
amount determined
the
first
and
aggravating or reduce
increase
50%
by up to
any economic or financial benefit derived by the offenders the specific and their real ability to pay in social context undertakings in question specific
234
disparity
Consequently nature of each
context
233
considerable
is
provide
have
calculations
above
order
in
or reduced on basic amount increased worldwide turnover of the undertakings
232
of the
impact of the
notice
leniency
By way of general
gravity
example
of
into consideration of
for
per year first to third indents
then set out by way notice
207
231
each
within real
same type
of the
infringements
may be more than five years
in general
duration
long
may be taken
Commission
amount determined
the
increased
guidelines
which
which
for
infringements
230
law
competition
of the infringement the guidelines draw distinction As regards the factor relating to the duration between of short duration infringements in general less than one year for which the amount determIned for gravity should not be increased infringements of medium duration in general one five
229
conduct
under
It
amounts determined
to the
weightings
apply
take account
to the specific may be necessary to adapt the general starting point according undertaking the specific starting point sixth paragraph of Section 1.A
228
economic
their
from
stemming
consequences
and
legal that
recognise
1.A
order
in
fact
which
and
paragraph of Section
fifth
It
of the
infrastructures
an infringement
constitutes
227
be taken
also
and
knowledge
by that
legal
in
framework
Regulation
to the
may
legally
legal in
for the
17
Commission
certain
the
lead to cases cannot be
regulation
provided
No
for
by Article
15 of
certainty
method according
described to
the
in
the
gravity
guidelines
in
of the
will then impose fines than previously It is settled case-law that higher has to be determined by reference to numerous factors such as the
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exhaustive
of the
list
Nord
case
ECR 11-813
Commission
has
163. when
paragraph
of discretion
margin
towards compliance
undertakings
context and the dissuasive effect of fines moreover no binding must be applied has been drawn up order in Case C-137/95 ECR 1-1611 in Case C-219/95 paragraph 54 judgment Buchmann ECR 1-4411 paragraph 33 see also Case T-295/94 its
which
Commission
Commission the
the
criteria
Commission
SPO and Others Ferriere
of
circumstances
particular or
with
the
It
also
is
order that
in
Furthermore certain within
the
Solvay
requires
diffusion
Musique
238.
For
the
No
17
ii
89. The proper
may
at
the
in
the
past
mean
not
any
that
conduct
the
ECR
ECR 11-1689
Commission
II-
paragraph
fines of
imposed
from raising that
estopped
of
Commission
Mart/ne/li
Commission
is
it
No 17
Regulation
level
is
Community
of the
application the
of fines to
level
rules
competition
needs
the
of that
in
fact
policy
Commission paragraph 109.
alleging
complaint
that
time adjust
and Others
Iran aise
those reasons
ali
that
does
infringement
Regulation
paragraph Commission
the
fact
under
may direct
necessary to ensure the implementation of policy Commission paragraph 109 Musique diffusion francaise and Others Commission Commission paragraph 309 and Case 1-304/94 Europa Carton in
ECR 11-869 that
the
case-law of
types
competition
T-12/89
the
indicated
limits
Community Case
to
according for certain
level
it
Case T-150/89
ruies
competition
case-law that
settled
fines
fixing
ECR 11-1165 paragraph 59 Case T-49/95 Van Megen Sports Deutsche Bahn Commission 1799 paragraph 53 and Case 1-229/94 127. 237.
of54
31
Page
of the
infringement
principle
must
of non-retroactivity
be
rejected.
Infringement
239.
The
is
was
submitted
of legitimate
expectations
the application
new
of
evidence
self-incriminating
is
policy
in
contrary
the
calculating
to
the
principle
after
fines of
legitimate
it
had
expectations.
alleges entitled to rely on the Commissions practice with regard to the setting of fines which it the Commission. The Commissions discretion was at the time when approached
it
applicable
circumscribed
method
the
of protection
parties
maintains that
applicant
voluntarily It
of the
Arguments
1.
of the principle
these circumstances
in
fines set
of setting
out
by the fact Commission
in
that
the
Decision
with cooperated of 13 July 1994
applicant
94/601/EC
on the
It
basis
relating
of
to
Article 85 of the EC Treaty IV/C/33.833 Cartonboard and in the Draft Commission OJ 1995 341 p. 13 hereinafter non-imposition or the mitigation of fines in cartel cases and the Commission relied at the time. the draft leniency notice upon which both the applicant
proceeding under notice
240.
The
the
on
defendant
have
submit
not give
2.
241.
the
notice
Findings
of the
powers
the
Nor can
fines.
leniency
notice
the
offenders
to find
only
the
against
that
the
policy
fining
competition it
decided
had
been
when
maintain that
applicant
rules to
changed
concerned
an
expectation
as to the
level
of the
fine
rules
the
prior
to
its
reduction
Court
the setting
within
of
Commission
by 30%.
fine
on
from the case-law that
follows
it
level
complied in full with the letter and the spirit of that notice by Since the notice does not deal with the calculation of the basic fine it could
The
undertakings
that
As regards
relied
it
guidelines.
the
reducing
that
particular
documents
by the new
under
contends
right to
no
the
of
limits
fines for infringements of
the
discretion
of the
conferred
on
competition it
by Regulation
No
Commission
17.
It
is
settled
exercises
its
case-law that
altered cannot have that an existing situation which is capable of being legitimate expectation will be maintained see Case 245/81 by the Community institutions in the exercise of their discretion Edeka ECR 2745 paragraph 27 and Case C-350/88 Delacre and Others Commission
traders
ECR 1-395 242.
On the contrary down in Regulation competition
243.
paragraph 33.
It
follows
the
policy
that
Commission
No see
17
is
entitled
to
raise the
general
level
of fines
necessary to ensure the implementation the case-law cited in paragraph 237 above.
undertakings
if
that
is
involved
in
an administrative
procedure which
within of the
may
the
limits
laid
Community
lead to
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fine
cannot
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Page
legitimate
acquire
that
expectation
Commission
the
exceed
not
will
the level of fines previously
applied
244
As regards the expectation which the applicant derived from the Cartonboard decision in allegedly the reduction for cooperating the administrative during procedure the mere fact particular as concerns that
Commission
the
has
in
does not imply that it similar conduct in subsequent Case
245
In
T-374/94
any
1996 the
246
date
that set
criteria
out
that
In
that
regard
concerned
In
It
that
so far as
with
the
be applied
will
the
follows
adopted
368
legitimate
and
now
Is
current
notice
leniency
at
bound
to
time of the
the
on
published
amongst
expectation
therefore
assessing
circumstances
attenuating
paragraph
its
for specific
when
18 July
undertakings
that
them
apply
when
of
applicant
only
effect
must be
rejected
in
taking
as
infringement
did not comply hypothesis that the Commission those based on of the notice misapplication
the
so
in
subject
as
as
far
it
infringement of the principle
alleges
of
expectations
and
of equal treatment
and
proportionality
legality of
the guidelines
parties
number
of
the
starting
the
setting
contention
its
on it thus infringing
fine
for
point
to substantiate
arguments
and discriminatory Imposed an excessive and the principle of proportionality
First
on
the
on
notice
the same
are
forward
puts
based
is
an
of
respect
persons to submit their written draft could have was to warn the undertakings
such
of that
arguments
in
proceedings
interested
all
intended to issue
of the principles
of the
Arguments
Invited
it
or
investigation
preliminary
reasoning
complaint
legitimate
that
would
notice
The
its
notice
Infringement
The
the
applicants
the
that
the
in
Commission
the
leniency
protection
250
since
has created
should be emphasised that the Commission
It
on the draft
observations
249
notice
to
present case the policy
the
in
had
it
relation
in
ECR 11-1751
apply
as
Commission
the
undertakings cooperated and that before adopting
248
not
reduction reduction
the applicant the Commission it had no approached in its draft leniency apply to its case the method described in the which was published Official notice since it was quite clear from that document Journal that it in which the Commission announced that it was draft The draft was accompanied statement by intended to issue notice or mitigation of fines in cases where concerning the non-imposition In
reason to believe
247
could
Cartonboard decision
of
proportionate
see
procedure
Commission
Commission
the
of the
Since
administrative
same
the
rate
certain
granted
to grant
required
is
Mayr-Meinhof
event
adoption
decisions
previous
its
conduct
that
amounts based
fine abstract
Commission
the
both the principle of equal
treatment
on the gravity
solely
of
discriminated small and medium-sized undertakings The against infringement the Commission to size As the specific Commission classified the undertakings concerned in four categories according which it fixed for ABB an undertaking in the first category was less than 10% of its starting point the
the method turnover determination of the the
second
were of
251
so
and
contrary
the
imposed
general
its
infringement
effects
Commissions conduct provides
development
252
Second
the
the
of
152
of
in
Regulation
contrary is
to
small
basic
No 17 The
effect
full
absorbed
and
to
the
than
smaller
were
were
the
all
other
ABB
the
by the need
to
active
are
to
relevant
factors
undertakings specific
go
the
for the to
belonging
starting
below
applicant
medium-sized
essentially in
in
of the
EC Treaty
now
favourable
to
1301
points
10%
of
limit
meant
than the
submits that
undertakings field covered sectors
EC
1571
Article
and
initiative
by the
The which
the
undertakings
Commission
higher
the
numerous
an environment
Article
the
active
simultaneously
encourage and medium-sized
amounts
and
small
against
which
companies
method used by fined
give
No 17
than multinationals also
to
the applicant
For
has discriminated
particular
were
possible
which
those factors
to treat
Commission
calculation
third categories
Is
It
fine
however
of
policy
less severely
that
of the
by Regulation
the Commission
Consequently to
amount
categories
third
that
high
turnover
made
of calculation final
that
limit limit
that of
the
10%
cannot
undertakings of
be
turnover exceeded
in
laid
at
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33
Page
If the Commission were at liberty to calculate the fine on basic amounts exceeding the 10% made to the amount of the fine would be purely illusory and devoid of any adjustment which impact on the final amount of the fine which in any event is equal to 10% of total turnover
calculation limit
any
253
In
it
not
in
254
The
observes
after taking
tine
make allowance and
third
been
for
before
turnover
the
of
the guIdelines
to the
legally
states
or
the
of the
reduced
was
10%
of
of
turnover
when it calculated turnover reduced the amount to
of
before
it
In
the
case
applicants
was ECU 12 700
applied
amount
final
fines for the undertakings
the
level
permissible
10%
of
but
the
on
percentage basis may themselves do not guidelines
The
limit
that
reduced
limit
account
into
Commission
the
of
account
for cooperation
reduction
excess
in
circumstances
highest
increased
the undertakings
of
result
order to take
in
mitigating
cooperation
the
5a
Section
giving
that
the
categories
set
of
calculation
permit
applicant
the
10%
case exceed
any
that
method basic amount
to
according
therefore
adds
the applicant
reply
its
calculated
000
second
the
in
the
fine
which
10%
or exactly
had
of
its
turnover
255
Commission
the
Third
set
the
fines at
which
level
Although the Commissions previous in the products to which the infringement related undertakings
turnover
total
its
turnover
256
On
point
this
situation in
the
which
on
market The
be taken
are to
not
calculate
made on
the
an
as
observes
the
relevant
of the
the
Commission
essentially
market
applicants
represents
to
set
ignored
10%
of
only
the
the
fine
fine
the
of
reality
the
applicants
whereas 36.8% of its overall turnover Owing to was disproportionate to its turnover on in
specialising
situation
method employed
into
account
amount
the
in
of the
Competition
The
Policy
make excessive understand how the other
cannot
claims
the
not
reflect
fine
is
assessing
the notional
need
the
and
also
in
Commission
had
the
the
effect
product
in
question
of discriminating
against
between to the
the
the fines differences
factors
profits
that
gravity to
to
the
take
of
the other
factors
infringement Thus the Commission each of the undertakings concerned had
the
profit
that
permissible
legally
into
factor
the
Commissions own
did
not
has been
account
set
practice
take into consideration
the
out
in
fact
that
in
recognised
the
XXIst
the
the period of the alleged infringement The applicant relied in order to set the fine could on which the Commission
during
profits
in
disproportionate
the
fines according
market although
relevant
did
applicant
Last
that
undertaking
case-law of the Court of Justice
Report on
258
from the
fine to
applicants
the
ceiling
it
the
the amounts of the fines on the basis of amounts above the by calculating Commission itself of the possibility of taking into consideration deprived
Fourth
as
reduced
it
size of the
base fines on turnover
size
their
the
individual
with undertakings in the third category since the difference by comparison is on those undertakings and that imposed on the applicant disproportionate
imposed
did
it
assessment
incorrect relevant
to
is
further
applicant
turnover
its
applicant
in
the
Commission
by classifying
reality
that
257
in
figures
markets
been
case
present
the
reflect
had
obliged when setting the fine to take Into account each of those order to take account of the size and presence of the undertakings concerned on the
The
various
does not practice
made by each
undertaking
Commission
the
failed
to
take into account
the
applicants
level that threatens its survival The Commissions previous pay the fine and thus set it at has frequently been to impose lower fines than normal when the undertakings concerned were practice in financial difficulties In the guidelines expressed its intention to take moreover the Commission ability
to
account
of
undertakings
accordingly
Undertakings
states
applicant
that
it
real
ability
derive
suffered
to
pay
in
legitimate
heavy
losses
specific
social
expectations in
1997
and
context
from that
and
to
intention
adjust In
1998 which combined
that
the
fines
regard
with
the
the
fine have
loss in excess of the net value of its own equity In order to avoid and to obtain the insolvency funds to pay the fine the applicant had to sell the majority of its industrial and commercial activities Even though the applicant still and also the name Lgstr exists as legal person it has therefore been eliminated from the relevant market
caused
Rr
259
The not
applicant
be
liable
relevant
ABSs
states
sector
two
that
the
Commissions aim
in
setting
the
amount
of fines should
be
deterrent
and
in the undertakings from the relevant market thus damaging competition the fines at such from the market Fixing high level may lead to the disappearance and Tarco the applicant competitors
to eliminate
main
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of
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Page
260
In so
far
itself
on
new are
guidelines
they deprive factors
The
observes
amount
EC Treaty
amounts
152
Article
and
excessive
the
now
the
fines
No
Regulation
EC
of
The
the it
so high
are
account
into
based
fine
that
Commission which
the fine
17 to take
of the
claims
applicant
241
Article
for the calculation
of
amount
discriminatory
of the
that
relevant
all
circumstances
the allegation
that
first
used to calculate
that
the fines
it
discriminated
the
against
in
applicant
unfounded
is
cannot be regarded ECU 20 million as starting point for all the offenders and the amount was subsequently adjusted depending on the offender The Commission took account of the difference of its in the explicitly infringement gravity participation of the undertakings concerned in particular in size and economic capacity by raising the initial amount fixed at million the instead of being be on ABB The fine of ECU 8.9 on applicant to imposed Imposed No 17 is below the maximum limit authorised the highest level by Regulation permissible use of
single
of
figure since
discriminatory
that
with the applicant that treatment compared since on the applicant imposed person may not rely In the act committed in favour of third party In any event support of his claim on an unlawful As regards Article 130 of the Treaty in view cannot claim to be medium-sized undertaking applicant
even
Furthermore
should
of
its
that
The
10%
No 17
is
figure
denies
the
only
above
sum corresponding
to
the applicant which new argument
far as
that
Where
to
is
the
the
applying
criteria
5a
of Section
its
criteria
in
prevent the Commission
before
limit
that
of the
application to
nothing
482
is
the fines cannot
calculating
at
any time be more
152
reply on the wording inadmissible under Article it
in
for the
there
precisely
relies
on the
of Regulation of the limit laid down in Article purpose not the amounts used when calculating it calculation of the fine lower than 10% of turnover which would have starting point
used
limit
ever be annulled
could
measure
that
provision
amounts used
the
same amount
maximum
the
with
that
have
conceivable
scarcely
result of the
final
could
fine of the
in
fine
What matters
turnover
of
Commission
resulted
seems
it
unduly favourable
of the
Incompatible
defendant further
than
The
was
it
received
reduction
nature
general
had
ABB
if
lead to
not
ground
264
under
mitigating
amounts
the
the
of the basic
guidelines
discretion
any
184
Article
the
in
its
including
Commission
Its
as
263
of
it
determining
262
under
illegal
determined
alleges
261
Commission in order to fix when calculating guidelines
as the its
of the
Rules
the
in
of the
the
it
is
to
amount
the
In
notice
leniency
guidelines
so
submitting
Court of
of the
Procedure
of
leads
guidelines
from reducing
First
Instance
265
the
Furthermore unfounded
since
abnormally
low
with
the
of the
interpretation
would
it
level
that
starting
point
10%
of
limit
of
Commission
the
turnover advocated was
required
to
by the applicant the
begin
that
266
The
guidelines
Commission
turnover starting
was
importance
that
on
The
decision
the
not
stated
manufactured not
incorrect
one
market
that
the
according
the
have
figure
been
made
specialised
description the
also
profits
applicant
to
large
of
10%
turnover
the
was under no number
it
take
turnover
fines
does not exceed
consideration
fines
must single
or to
The
product
since
to since
invariable
relevant
into
of the it
which
fine
impose taken
to
has often
it
the amount of fines
disproportionate practice
entitled
the calculation
for
point
calculating
267
is
Although
at
obligation of factors
of
on the to
world-wide an undertakings relevant market as the
follow
into
be arbitrary
Its
account
former practice and
not
268
The Is
Commission
generally
is
difficult
under to
no obligation what
determine
in
single
the applicant
product as
but
not
did
essentially
say that
single-product
it
take
profits
into
each
account
the
undertaking
profits
derived
has derived
only
company
Itself pre-Insulated provided by the applicant world-wide turnover at the time of the investigation
to
than
by the parties to the Infringement
information
for
In
attach
In any event the Commissions previous determined by reference to turnover other
approximately 80% of Its the applicant relied on that factor solely in order to distinguish the Commission Furthermore and to reduce the starting point for the fine from ECU 20 million to ECU 10 million accounted
an
limit
Using that method Such method would would only become clear at the end of the operation starting point the circumstances of each individual case and would lead the Commission to disregard the
is
calculation
was not exceeded at any point in the calculation set out in with the criteria might be fixed that was not consistent would have to be made backwards and the the entire calculation
order to ensure that
in
result that
mean
Is
pipes
from
ABB
from the infringement
from
its
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participation
in
It
the
4/25/2008
Page 35 of 54
In any event the other infringement and that would have been so particularly in the present case factors retied on by the Commission are deemed to reflect the theoretical profits made by each
Where
undertaking that
infringement
Nor
has been considered
the Commission
is
the amount of the
17
to the
importance
particular
269
there
may be
actual
account
an
of
undertakings
remains below
ft
the
has not shown that present case the applicant that the sale of its business was necessary because of the have been taken for various reasons and cannot therefore In
the
from
undertaking
270
As the of
fine
the
that
way
various
It
should be observed and
184
Treaty
of the
guidelines
272
that
in
in
fixing
No
Regulation
was threatened
existence
by the fine or the fine Such step may
to pay be tantamount to the elimination
obligation
of the
the
has no
applicant
reason to challenge
the
legality
claim
of
with
together the
of
respect itself
of
its
applicant
of the
arguments alleging infringement has submitted an objection of
principles of
under
illegality
equal
Article
guidelines in so far as the Commission In adopting those under Regulation No 17 to take account of the size of the
the
discretion
Its
and
the
which
role
each
them
of
an
in
played
infringement That
of
objection
first
illegality
of the
respect
ri
guidelines
to
was
party
not
entitled
by which it was thus 92/78 Simmenthal
Since
184
Article
measure
of
measure
in
188
and
be
As regards
The
32/65
the
in
discretion
which ..
rules
decision
which
abstractly the
decision
Furthermore accordance
it
and it
with
action
any
or indirectly
to
the issue with
the contested
and Commission ECR 11-1047
the
which
the
applicability
measure
general
the action
individual
is
Case
void
ECR 389
the
and
general
ECR 175
409
at
of any claimed to be
concerned
and
decision
High Authority
Fig/i
those acts
challenging
40
contest
to
party
whatsoever
Dalmas
Macchiorlati
is
under
granted
new method
Joined
at
187
Cases 1-6/92
and
57
paragraph
the
relevant
to
legislation
set
fines within
the
of
limit
fine will adhere to the determining the amount of follows do not constitute the legal basis of the contested that although the guidelines based on Articles and of Regulation No 17 they determine generally and of
152
the
consequently
is
of
action
they be declared
should be
eyes Commission
is
direct
ask that
to
position
here should
method which
the
Treaty to bring in
intended to enable
support
Council
the
It
the
connection between
turnover
following
of
noted that the Commission stated in the opening paragraphs ensure the transparency and impartiality of the Commissions of the undertakings and of the Court of Justice alike while upholding the
guidelines
decisions
of
in
1/64
Italy
principles outlined
10%
not
is
Commission
the
173
having been
ECR 777 paragraphs 39 and
directly
legal
Case
question
Reinarz
T-52/92
Treaty
application
direct
Case
Article
without
Commission
be applicable
must
there
under
affected
of the
general
must
illegal
275
down
laid
settled
is
that
274
limit
case-law that Article 184 of the Treaty expresses general principle conferring upon any decision the annulment of of proceedings the right to challenge for the purpose of obtaining direct and individual concern to that party the validity of previous acts of the institutions which form the legal basis of the decision under challenge If although they are not in the form of regulation It
party
273
to
proportionality
undertakings
objection
its
when
poor financial situation
maximum
cartel
must be examined
illegality
The
of
deprived
individual
Treaty
attach
the Commission bound itself in that by adopting the guidelines took account of any attenuating circumstances or of the role played by the
true
the
the
Court
of the
treatment
it
longer in
participants
Findings
is
no
it
nor discriminatory
excessive
Nor
of
not to
market
relevant
neither
Is
guidelines
such
271
the
85
of Article
Infringement
important for the Commission
profits
that
provided
deliberate
be sufficiently
to take
required
fine
and
serious to
common
the
general
Commission
ensure
ground
that
has bound certainty
legal
the
method which
Commission it
laid
down
itself
on the
assessed for
use
to
itself
in
of the
part
the in
the
assessing
the
fines
imposed
by
undertakings
fine
imposed
guidelines
on
the
applicant
in
see paragraph 222
above
mhtmlfilef/C\Documents%20and%2oSettings\tsniall\Local%2OSettings\Temporary%2OL.
4/25/2008
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Page
276.
the present
In
decision
and
position
to
ask that
In
that
in
publishing
context
278.
of
stated
as
that
method which
the
17 remained
No
connection
legal
between Since
contested individual
the
the
was
applicant
not
in
may form
the guidelines
measure
in
within
the
223
paragraphs to
proposed
it
above the
setting
framework
legal
232
to
in
apply
down
laid
Commission
the
fines
under
imposed
by that
provision.
fines in is not required when assessing Contrary to what the applicant claims the Commission accordance with the gravity and duration of the infringement in question to calculate the fines on fines are imposed on basis of the turnover of the undertakings or to ensure where concerned
number
of
from
calculations
its
the
illegality.
be observed
guidelines
of Regulation
the
in the same infringement that the final amounts of the fines resulting reflect them in terms of undertakings concerned any distinction between or their turnover in the relevant product market.
involved
undertakings
their overall
279.
guidelines
should
it
the
in
152
Article
the
direct
is
represented by the guidelines. be declared void as general
measure
an objection
of
subject-matter
277.
therefore there
case
the general
for the
turnover
must be established in regard it is settled case-law that the gravity of the infringements such as infer a/ia the particular circumstances of the case its accordance with numerous factors and the deterrent nature of the fines although no binding or exhaustive list of criteria which context In that
must
be taken
necessarily
has been
account
into
drawn
see
up
case-law cited
the
paragraph 236
in
above.
280.
The
for assessing
criteria
goods
in
turnover
hand
undertaking
goods
infringement
of the
the
permissible for the purpose of fixing the fine to have regard both to the of the undertaking which gives an indication albeit approximate and imperfect of the
on the one
the
gravity
the
and consequently
undertaking
and value of the infringement may include the volume was committed the size and economic power of the influence which it was able to exert on the market. It follows that
the
which
of
respect
in
It
and
of
of
which
respect
On
power and to the proportion was committed which infringement
the
the
follows
it
is
that
an
gives
in
disproportionate
relation
based
simple calculation
on
to
the
on
other
one
or the
and
size of
for
of the
factors
turnover
total
accounted
indication
important not to confer
is
it
turnover
of that
economic
its
other hand those figures an importance which of the fine cannot be the result of infringement.
total
is
by the of the
scale
other that
of
the
Musique Diffusion Parker Pen T-77/92
and Others Commission cited above paragraphs 120 and 121 Case ECR SCA Holding Commission Commission 11-549 paragraph 94 and T-327/94 Fran caise
11-1373
281.
It
the
among
3369
follows
judicatures
283.
In
that
the
they do in
284.
It
order
so
when need is
not to
to
taken
such
preclude
with
comply
that under economic
ensure that of the
infrastructures
fact
the that
which and
turnover
the
actual
infringement
in
the
did
No
not
method whereby
concerned
the fines
which
depart from
that
joined
ECR
Commission
their
role
market share during
of setting
gravity
then divides
and
sector
the
undertakings
calculation
IAZ and Others
average
15 of Regulation
Article
of the
the
the
in
cartel
reference
is
based
not
and
period.
on
the
Community
17.
turnover
happens the
of
activities
110/82
Commission
the
of
to
according
be imposed
of their participation
method
guidelines
its
concerned
of
fine figures
do not provide that the fines are to be calculated to according although the guidelines of the undertakings concerned or their turnover on the relevant product market
regard
overall
in
undertakings
calculate turnover
fines to
their
and level
on the basis
calculated
interpretation
to the
of the to
108/82
105/82
to
various
has upheld the lawfulness
according
or according
by setting out
of the
of the
amount
overall
concerned
entitled
is
account
judicature the
104/82
53
market
the
that
turnover
Community
to
Commission
taking
determines
102/82
to
on
without
undertakings
paragraphs 48
their size
It
the first
the
Cases 96/82
282.
and
Thus
Commission
total
the
from the case-law that
infringement
concerned.
ECR
176.
paragraph
follows
of the
fixing
see
general
the
large
taken of
principles
guidelines
the
turnover
offenders
has sufficient
deterrent
undertakings
usually
enable them more easily
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of the
into
consequences
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account
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in
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Community
of the
capacity
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from being
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the
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undertakings
cause
significant
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consideration
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have recognise
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The turnover
above
paragraph 226
of
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is
the offenders
or of other
be taken
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Contrary to what
to the
any event
exceed certain
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cases have
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of the
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152
Article
to
calculation
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of Regulation
an
10%
should exceed
intended
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Consequently
The
make
guidelines to
according
case where
In
10%
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its
17
so
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in
longer
aggravating
or
turnover independently of the intermediate and duration of the infringement into account
the
gravity
No
17 does not
The
In
turnover
refers of
of
turnover
5a
Commission
in
10%
down
turnover
that
such
submits that
fine
or
principle
of equal
the
is
settled
in
are
with
case-law that treated
treatment
C-174/89
is
the
affect
of
final
down
in
the
not
fine
of
Regulation
in
certain
since
No 17 on exceeding
light
any
of
amount
because
of the
in
152
Article
criticised
amount
Regulation
unlawful
by
intermediate
an be
imposed
the
fine
on
as
it
imposed
on
on the other
ABB
did
small
and
No
that
is
10%
of
17
its
medium-sized
take sufficient
not
ECR 11-1129
In
the
present case
the
differently
principle
of equal
or different
treatment
situations
are
is
Infringed
treated
justified Case 106/83 Sermide ECR 1-2681 paragraph 25 and Case T-311/94
objectively
Hoche
Commission
the
to
calculated
basis may
treatment
Commission
which compared
situations
difference
laid
cannot
it
152
are
guidelines
as
amount
final
account
of
size
its
it
not
Article
the
does not
be rejected
complains that
regard
Case
of the
the
in
that
percentage
calculation
its
undertaking
on the undertaking
state
on
from referring of the
turnover
of the
imposed
concerned
do
calculation
its
the Commission
prohibit
undertakings
course of
the
in
the
the undertakings
laid
the applicant
applicant
comparable
28
the
of the
must therefore
undertakings its
worldwide
consequence prohibition turnover of the undertaking concerned
so far as
In
of the
into consideration
Infringement
nilitmi
which
fine
or mitigating
provision moreover where they amount increased or reduced
of the
objection
294
the
No
basic
No 17 Section
Regulation
293
if
fine
amount exceeding
intermediate
similar
method
this
10%
exceed
case
292
to
paragraph of Section
seventh
undertaking
that the amount of the fine eventually concerned provided exceed that maximum limit
291
may need
for in beyond what is provided the Commission to impose depending
go
as duration
level
by
acquired
allow
Regulation
turnover
of
factors
effect
of
the
Likewise
benefit
on the circumstances
calculation
for setting
point
or financial
imposed
guidelines
152
to Article of
do
above
paragraph 227
152
during
290
the
the be observed that ArtIcle of Regulation No 17 in providing that that regard it should business Commission year for each may Impose fines of up to 10% of turnover during the preceding in the infringement that the fine eventually requires imposed on an undertaking which participated
undertaking
289
when
relevant
for the same conduct may punishment on the undertakings concerned
equal
by arithmetical
that
alleges
other
for
any
fines being
the guidelines
claims
maximum
of
principle
governed
according
still
the
different
In
stages
288
be
also
may
economic
above
infringement
the
of
paragraph 230
that
being
applicant
that
fact
indication
which depending
lead to
applicant
of the
on the gravity regard
the
No 17 The
an
characteristics
state
warrant
so
this differentiation
Regulation
287
see
guidelines
circumstances
the
286
the
Furthermore
specific
same type see
of the
undertakings committing infringements turnover of the undertakings may give
285
concerned
undertakings
the
conduct of each undertaking on therefore the real impact of the offending is considerable the sizes of the there disparity between determined particularly where
weight and
specific
paragraph
Commission
in
only
where
same way unless CR 4209 paragraph BPB de Eendracht the
309
considered that
the
present infringement
constituted
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4/25/2008
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serious
which
for
infringement
the
be at least ECU
would
fine
likely
20
million
165
point
the
of
decision
295
In order
take account
to
of the
difference
size
in
of the
which
undertakings
took part
the
in
four categories to their relative divided the undertakings into according infringement the Commission where appropriate to adjustment to take account subject importance in the market in the Community of the need to ensure effective deterrence second to fourth paragraphs of point 166 of the decision
from points
follows
168
183
to
the decision
of
imposed on the four categories and ECU million
fines
were
that
the
specific
starting
order of size ECU 20
in
ECU
million
calculation
for the
points
of
It
the
ECU
10 million
million
296
As regards question Insulated cartel
the
determination
of
put
by the Court
that
the
quotas by the results obtained and
and
by
into
the members
which
importance
allocated
within
the
forecast
the Commission category stated following Importance of each undertaking in the pre and in the context of the with ABB weight compared account not only their turnover on the relevant
set
cartel
1995
in
the
reflect
and
took
each
for
points
size
its
purpose
market but also the relative evidenced
starting
these amounts
having regard to the Commission
sector
pipe
For that
the
set
of the
out
out
cartel ascribed
annexes
in
each
to
60 to the statement
annex
in
169
171
to
of of
them
statement
of the
as
objections of
objections
297
In
298
the
addition
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industrial
In
context
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the
fixing
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that
the
299
on
ABB
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objectively
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so
ABB
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the
prohibition
concerned
301
It
that
increase
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the
of the
infringement
Commission
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starting
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as
Europs
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of
far
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undertaking
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above
fines according
applicant
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to
Commission
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fine
factors
imposed
No
of Regulation
17
the
every because
than the fine
amount
the
in determining on the relevant
market
is
paragraph 184 the total turnover
forf
for
of the series
and
of
in
of the fines
on
from that
distinguished
objectively
is
certain
reflect
turnover
present case where it chose to take and duration of the infringement calculation
applicant
ensure that
to
lead
gravity for the
in
for the
infringement the relationship between by the goods which are the subject-
of the
cited
required
the
criticise
consideration
chosen
calculations
its
so
in
not
is
into
point
taken
ABB
Into
since
on exceeding
consideration that
is
10%
the
of the
chosen
for
in its
of consequence turnover of the
the lesser gravity of the role as regards above Moreover with ABB it is clear from point 171 of the infringement by comparison role of ABB was taken into account as an aggravating circumstance in order
paragraph 290
of the
fine to
be
imposed
has not established
fine
imposed
undertakings
principle
of the not
for the
152
of
gravity
the
as the
the
points
amount
Commission
turnover
set
which
percentage
In
Commission
starting
cannot
applicant
turnover
the
the
criticised
Article
the
to
taken
factors
the
Commission
the
higher
the
such
assessing
be
that
to
for the
point
position
its
the
applicant
by comparison and medium-sized
As regards
in
particular
small
302
the
see
amount
with
Infringement
situation
point
down
by the applicant
decision to
laid
obliged
cannot
do not affect
undertaking played
starting
Commission
calculation
not
the
determining
in
particular
Ho/ding
account
into
factors
and
SCA is
Since
the
assessing
undertaking
infringement
relevant
between
concerned
fine
in
case on
in
the
all
difference
justified
held
the present
in
to
regard
undertakings
resulted
it
starting
of
decision
the
the
the
take account
to
million
terms of turnover
in
for
therefore the Commission in undertakings concerned relevant
the
for
Court has already
the
Furthermore of the
ABB
for
point
imposed
points that
of the fines
starting
of
of
adjustment
upward
ECU 50
168
point
starting
between
difference
further to
must be held having
it
chosen
ABB
on
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specific
amounts
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made
Commission
be Imposed
fine to
on ABB
on
ft
that
the
Commission
imposed
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the
Commission
discriminated
compared
with
large
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ABB
of proportionality
principle
take sufficient
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the applicant complains that the on the relevant market and
turnover
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303
consequently
imposed
undertakings
in
In that
regard
account
the
turnover
on the to
relating
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Commission
In
on
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starting
point
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starting
The
statement
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as
high
chosen
point
306
In
it
so far as the
market
ABB The
for
can
incorrect
is
17
No
it
must be understood
17
an
gives
the did
Commission
Although the which
to
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by the goods
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as
that
It
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has
applicant not
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point
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the
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context that
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well-established
accordance and
plead its
the
of
in
175
of the
such
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applicants
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profit line
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least
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decision
relation
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the
on
relevant
Article
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152
in Article
of the
turnover
total
take
not
turnover
of
referred
turnover
152
of
No
of Regulation
which
concerned
alone
and influence on Musique diffusion franca/se Cockerill-Sambre Commission paragraph 119 Case T-144/89 Case T-43/92 ECR IIDunlop Slazengerv Commission
down
in
turnover
of
choice
principle
of proportionality
limit
of the
infringement fine according
undertakings
numerous
with the
other
disproportionate since used in
is
laid
Its
152
Article
No
of Regulation
terms of geographical
in
have
to
been
the
able to
it
profit
derive
had
made on
the
on
the
in
into its
objective
can
the
of decisions
such
factors nature
account
guidelines factors
set
from their practices
is
that
as
the in
such
gravity
particular
that
market
among
the
diffusion
Commission
Is capable of it follows they exceed such profit of infringements in must be established
level
the
it
that
particular
circumstances
of the
case
its
fines although no binding and exhaustive list of the criteria has been drawn up see paragraph 236 above The Commission has of the
that
that
fines at
ground
relevant
of the gravity of the infringement Musique may count in the assessment and Others franca/se Commission cited above paragraph 129 and Deutsche Bahn to which cited above paragraph 127 and even though the Commission to the extent
from
to the
Commission
justified
the third
explaining
size
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above
calculate
which
profit
that
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respect
it
case-law that
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in
Commission
the
succeeded
not
was
Commission
clear
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starting
applying
cited
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factors
estimating
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relation
in
disproportionate
is
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that
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is
products
can
Nor second the
accounted
undertakings
it
307
lead
case-law that
criteria
of the
light
on
the fact
in
harmed
when
Commission
relevant
on the
turnover
including
took
of factors
basis solely the context take as other factors but took into consideration
which
ECR 11-947 paragraph 98 and that 441 paragraph 160 Provided complies with the set the fine on the basis of the the Commission 17 may area and
series
that
in
imposed
fine
objections the imposed
the lower
indication
approximate
and Others
explanation
Commission
market Having regard to the undertakings on the relevant 60 the cartel and to the forecast results as set out in annexes
company
settled
is
from the
the
of
fines
sector
pipe
not
turnover
Its
the
the
in
complains that
into consideration
Regulation
of
that
applicant
have
applicant
of the
from the
follows
It
importance
that
within
single-product
intended solely to distinguish
that
on
imposed
of the
support
find
calculation
did
and
decision
undertakings on that market cannot
on
or
an
justified
each
of
applicant
as
it
is
to the
cannot
applicant
classified
fine
turnover
of the
twice
point
of the
be concluded
importance
quota allocated and 169 to 171
fines
above
fine
its
the
by the Court that
put
pre-insulated
undertakings
total
question
Commission
was committed
for
the
in
the
disproportionate
cannot
it
the
of
paragraph 280
context
that
from the
apparent
is
for the
points
market of each
relevant
undertakings
see
that
fact
it
written
undertaking
importance
imposed
assessing
305
each
of
that
starting
specific
the infringement
factors
the
size
observe
to
following
market The mere
relevant
confer
the
with
compared
category
sufficient
is
setting
In
reflecting
304
it
on the applicant
fine
discriminatory
third
by the Commission
provided
which
the
any economic
must depending
or financial
on
the
advantage
circumstances
acquired
be taken
by the offenders Into
consideration
is
in
order to adjust the amount of the fines envisaged since the see paragraph 230 above In any event series of Commission set the starting point for the fine to be imposed on the applicant on the basis of be maintained that it ignored the factors reflecting the applicants importance on the market it cannot advantages
308
which
the
applicant
to
line
of
decisions
take into account
able
to
derive
from the
infringement
in
question
it is to to pay the fine sufficient to observe that according Commission is not required when determining the amount of the fine since recognition of such the poor financial situation of an undertaking concerned
As regards the applicants consistent
was
ability
the
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Page 40 of 54
to undertakings least would be tantamount to giving an unjustified competitive advantage IAZ and Others Commission cited above paragraphs 54 and adapted to the market conditions Commission ECR 11-1331 paragraphs 75 and 76 and Case 55 Case T-319/94 Fiskeby Soard CommIssion ECR 11-1875 paragraph 316 Likewise where the Enso Espaflola T-348/94 social context and state that account should be taken of the real ability to pay in guidelines specific
an
obligation
well
the
309
In
of the
by 1.4 on
cartel
ABB
the
which
an
in
outside
fact
Danish
the
of the
Commission
brief cartel
few months
only
see
arguments
its
treatment
and
proportIonalIty
Infringement
that
in
not
entitled
lasted
to
for
which
Denmark
before
cooperation
It
left
is
of
in
relevance
to
the
down
of the
only
wider
short-lived
broke
completely
no
amount
the applicant
and
1993
in
it
intermediate
since
years
within
infringement
the
multiply
five
The
fact
calculation
of
that
the
applicant
the
early
should
also
in
market
is
continuous
of
of the
respect
the
Furthermore
of proportionality
infringement of the principles of equal must be rejected in its entirety
the cartel allegedly
the existence
recognised
infringement of the principle
duration
the
that
relatively
lasted
infringement
on the circumstances
proviso
parties
ground
one
in
participated
of the
maintains that
applicant
fine
the
rejected
assessment
Arguments
312
be
also
the complaint alleging Accordingly and unlawfulness Of the guidelines
The
to
subject
is
on
relies
applicant
therefore
Incorrect
311
this
above
so far as the
must
310
accordingly
fines adjusted
paragraph 230
the
period
have
been
arrangements were taken into account
incomplete in
and
of limited
the
assessing
duration
effect of the
infringement
313
The
defendant observes cartel
continuous
the decision
Denmark
the
in
As stated
in
infringement
315
As
effect
The
The
applicant
into
account
that
must
the
takes the
calculated
the
duration
of
the
arrangements within the cartel were incomplete in the early days and of Danish market the Commission took sufficient account of those factors when infringement
of the
in
respect
of
which
the
applicant
is
accused
be rejected
therefore
of the aggravating
application
of
correctly
the
the
duration
Arguments
317
fact
complaint
Incorrect
days
Court
outside
the
assessing
316
early
paragraphs 99 to 109 above the Commission is accused in respect of which the applicant
the
regards
limited
the
event
any Commission
of the
Findings
314
the
its participation in applicants argument is tantamount to disputing of the infringement at five by fixing the duration years in point 170 of took account of the incomplete nature of the arrangements outside
that
In
circumstances
parties
issue
with
the
fact
factors
aggravating
that
which
the Commission identified
it
in
Increased particular
the the
basic
fact
that
fine
by
30%
to
take
the applicant
in the infringement after the investigations carried out by the continued to participate and the active role which the applicant Powerpipe allegedly played in the sanctions against also failed to demonstrate the existence of any of the aggravating so the Commission
deliberately
Commission In
doing
circumstances
318
The Commission
listed
in
Section
was wrong
to
of
its
increase
own guidelines
the
fine
on
the
ground
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the
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The
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As regards
the
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is
there
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no
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investigation
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list
the
Powerpipe
against
reiterates
applicant
that
did
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not
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circumstances
aggravating
continuation
were
of the
infringement
so serious
that
the
in
an
as
guidelines
by stating that the applicants was demonstrated in the decision
responsibility
It
circumstance
right-minded person could
rio
concludes
exhaustive
not
is
aggravating
believe
possibly
concerted
for the
Court
the
the
list
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list
circumstances
aggravating
given
is
by way
purely
set
out
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the
guidelines the
guidelines
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the
in
it
Commission an
was
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find
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active
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major role played by ABB
in
that
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the
Second
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role
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does
applicant
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not
deny
having continued
the infringement
after
had
Commission
the
investigation
its
after the Commission claims the fact that terminating an infringement Contrary to what the applicant has first intervened circumstance does not mean that continuing an mitigating may be regarded as
reaction the
the
to
context
either
regard
to
of
termination
termination
such
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319
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41
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1997 The
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Mayr-Melnhof
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1993
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continuation
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notice
its
did
not
commencing of
respect
in
support of
Commission
after the
which
the
initiation
applicant
of
in
the
law
not
err
had
the
in
of the
be
an aspect that cannot be considered as whole when
not satisfy
of
to
fact
the
conditions
be assessed
that
the
law
for the
under
in
fact
the of
application
Section
infringement continued after the
the
infringement
or
above
provided
cartel constitutes only
his
cited
334
paragraph
in
rely
Holding
but
also
as
further
in
applying
its
particularly
ieniency
notice
and
be rejected
therefore
plea
did
20%
by
Commission
the
SCA
above
could
conduct
assessing
above
was reduced
fine
mere
for specific
when
reduction
person may
period
of the
infringement
Commission
the
received
the
practice
reduction
since such conduct showed that the parties to the cartel were aggravating circumstance determined to continue their Infringement in spite of the risk of fines
370
it
granted too high the principle of equal treatment must be
third party
Commission
of
244
paragraph
Ke Kelits
that
for
rate
proportionate
which
to
according
was entitled to take account of when it calculated the duration
Commission
the
Since
certain
supposing that
Even
infringement continued and
Since
or Section
investigations
in
infringement the
was applied
Section
it
Commissions previous
the
procedure see
undertaking
higher
Commission
from the
facts
of legality
the
before
the Commission
granted
from the fact
argument
other
claim
which
out
to
grant the same
to
required
Mayr-Melnhofv
during
decisions
previous
alleged
and
present case
the
its
committed
act
applicant
to
dissociated
that
principle
unlawful
investigation
evidence
to
fine
the
documents
the
administrative
an
sent
Commission
is
the
contest
160 and
paragraph
Nor can
not
of the
reconciled
in
it
derive
applicant
did
it
reduction
369
has
subsequent
in
sent
applicant the
between
does not imply that
Nor can
either
the
from
comparison Commission
conduct
because
368
that
ground
the
for information
requests
for information
As regards fact
367
detailed
common
is
request
366
the
until
been
Section
cooperated third and fourth was not prepared to reduce the fine by 50% paragraphs of point 174 It follows that the Commission when the undertaking concerned did not provide information before receiving request for information wait
had
the
of the
that in respect of ABBs cooperation be accorded the full 50% reduction available
not
its
but of
higher
decision
could
bases
suspected
reduction
it
177
point
in
the occasion
that
the
have
should
the Commission
prove that the Commission having recognised that the applicant voluntarily evidence which contributed substantially to establishing important aspects
the
particular
decision
on which
facts
documentary
investigation
applicant the
the
alleging
breach
of the
obligation
to state
reasons when setting
the
fine
parties
breached the obligation to state reasons by failing to applicant complains that the Commission ensure the transparency of the method used to set the fine The Commission has not provided an of the fact that the fine was fixed on the basis of starting points explanation expressed in absolute
The
the turnover of the undertakings and higher than the maximum legally has not explained how it assessed the gravity of the infringement with regard to the small and medium-sized undertakings involved In particuiar it has not explained how it could from its previous of determining the amount of the fines in proportion to turnover on practice depart
amounts
unrelated
permissible
372
the
relevant
The
appilcant
level
to
It
market
alleges
that
the
defendant also
breached
the obligation
to state
reasons by retroactively
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Page 47 of 54
applying
373
was
There
leniency
breach
further
and
different
consideration
its
set
method
the
of
from
policy
of
obligation leniency
notice
which
the
version
of
out
in
final
that
any justification
departed from
Commission
that draft
in
without
fines
setting
the
expressed
the
that
precisely
previous
its
and
practice
instead
notice
leniency
all the mitigating breached its obligation to state reasons by ignoring Even if the Commission was not required to take into by the applicant the circumstances listed by the applicant it should have why it had ignored explained
Commission
the
Furthermore circumstances
on
guidelines
practice
applied
374
new
its
forward
put
them 375
376
The
defendant observes presenting
alleged
discrimination
In
any
as
regards
the
event
the
that
under
merely
retroactive
the
guise
argument
applicants
both the
in its
applicant
another
in
relation
to
of the
new
application
notice Last since departed from its draft leniency circumstances as mitigating circumstances certain
377
It
case-law that
settled
is
EC
253
must
disclose
authority
which
ascertain
the
which
the
and
Commission
was
not
already
to state reasons Is In relation put forward
reasons
to state
failure
alleged
guidelines
the it
obligation
has
it
the
fact
that
was under
unfounded
is
Commission
the
no obligation reasons
to state
required
to
in
to
treat
that
regard
Court
of the
Findings
the
regarding
plea
arguments
in
statement
the
reasons required
of
unequivocal fashion the measure in question in such
190
by Article
the
and
clear
of the
reasoning followed
EC Treaty now Article by the Community
to way as to enable the persons concerned competent Community Court to exercise its on the power of review The requirements to be satisfied by the statement of reasons depend in question the nature of the circumstances of each case in particular the content of the measure
and
reasons given and
direct
378
adopted
reasons for the
the
measure
interest
individual
Sytraval
concern and Brinks France
Where
decision
light
of the
fact
such
as
particular
in
that
the
379
fines
In
the
the
number
present case of the
gravity
the
or
exhaustive
Commission
in
must
first
of
all
and
question
the
of
list
cited
be
case
its
context
which
criteria
above
by reference
determined
of the
paragraph
sets
out
In
also
the
particular
and
must
be
numerous
to
the
factors
element
dissuasive
has been
applied
drawn
54
decision
its
of
is
Infringement of the Community be determined inter alia in the
undertakings for an reasons must
to state
circumstances
Commission
infringement
of
infringements
particular
moreover no binding up order in SPO and Others of
enable the
obligation
of
gravity
the
to
which the addressees of the measure or other parties to whom it Commission may have in obtaining explanations Case C-367/95 ECR 1-1719 paragraph 63
imposes fines on rules the scope of the
competition
and
general
its
elements
of
concerning which
findings
the cartel
on
it
present case constituted very grave Infringement for which the fine It then states that this would normally be at least ECU 20 million points 164 and 165 of the decision amount must be adjusted to take account of the actual economic capacity of the offending undertakings based
to
its
cause
it
point took
undertaking
380
166
into in
of the
account
relation
As regards
the
applicants
importance
reflect
Its
adjusted
fine to
situation to
the
damage
significant
deterrent fines
that
conclusion
ECU 10
as
any
to
the
the
leniency
owing
of the
need
Commission or
notice
ensure that
167
European
of
the
gravity
of
the
the
were sufficiently
fines
the
determining
in
and
also
the
of the
level
of
position
each
decision
then states
that
producer of pre-insulated
company
single-product to the
that
circumstances
mitigating
point
to
then states
on the applicant the Commission
second-largest
essentially
million
The
aggravating
be imposed as
and
to competition
decision
the
starting
infringement
in
its
point
case
In
pipes for
its
first
view and
fine
and
of
in
will
the
order to be
second
The Commission then states that the fine to be imposed paragraphs of point 175 of the decision will be weighted to reflect the duration of the infringement third paragraph of point applicant
the
of the
381
The
on 175
decision
Commission
particularly
goes on
aggravating
to
state
that
circumstance
the of
basis
its
of the
deliberate
applicants continuation
fine
must be
of the
increased
infringement
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because after
of the
the
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and
investigations
the
measures
retaliatory
176
of point
paragraphs
circumstances
further
of the the
although
although The
decision.
of that
was
it
represented
by the
not
par
with
A8B
states
that
there
Commission
may have
applicant
extent
exaggerates the
greatly
circumstance
aggravating Powerpipe
against
on
also
come under in
pressure
that
claiming
was dragged
it
at various
into the
unwillingly
The Commission further states that by ABB third paragraph of point 176 of the decision. the final amount calculated to that method may not in any case exceed 10% of the according in Article No 17 the fine will be worldwide turnover as laid down applicants 152 of Regulation
since
cartel
ECU 12 700
000
so
as
not
exceed
to
the permissible
fourth
limit
176
of point
paragraph
the
In
second
no extenuating times it
are
from ABB
pressure
and
first
role
active
applicants
set
at
of the
decision.
382.
Commission
Last the because
under
that
states
the
the
notice
leniency
fine
applicants
be reduced
will
30%
by
evidence which contributed to establishing documentary important to continue ft after the particular the fact that the members of the cartel decided
provided
voluntarily
it
aspects of the case in which the
Commission
investigation
but
suspected
which
of
no
possessed
it
the
of
177
point
proof
decision.
383.
of
the
in
Interpreted
taken
criteria
into
In
rate
levels
Even
Nor can
the
dealt
Since
the
in
know whether
Although
Article
to it
190
the
does
not
the administrative Board
In
any the
event decision
circumstance
the
as
be
fine
of the fine the decision Commission quite explicitly
see
level
Case
ECR 1491
Commission
Commission it
for not
stated
taking
information
it
into
the Treaty requires the
the
procedure
basis
Commission
and
decision
to
discuss
Commission
Michelin
above
Commission
the
of the
paragraph
all
cited
to
reduction
justified
cannot
particular
the
be
de papiers
calculation
its
of the
fine
which
mitigating
any the
needed
applicant
by an
error
to
the
allowing
the
above
regard
of
not only
all
the
its
of law
with
to
it
dealt
15
14 and
paragraphs
in
the
that
the
having explained
the new
adopt with
and
the
during
Fiskeby
third
paragraph of point into account as
176
pressure
facts
meets
wording
the
legal
or of the
guidelines
relevant
measure to
and
led
fine.
for not
criticised
of fact
points
decisions
its
which
considerations
127.
of the
application
to go into necessary for the reasoning whether the statement of reasons for with
the
fixing
fabricants
reasons for
state
the
regards the pressure experienced by the applicant Commission its reasons for not taking explained
must be assessed
increase
significant
account
might be vitiated
the
In
notice.
leniency
reasons for
its
reasons for
the
it
point the decision
last
of the
circumstances.
not
that
the
paragraph 31.
was
decision
paragraph 43.
constitutes
applicant it provided all was well founded or whether
the
the
imposed
having given
put forward as mitigating
of
committed
infringement
Groupement des
73/74
each
against
statement
having given more precise reasons on the applicant or of the
for not
of the
level
the
such
at
in
forming
Commission
of the
ECR 1-9641
criticised
amount
final
the
require
which
present case
cannot the
fact
sufficient
validity.
Commission cited
of
Last
to
of
facts
duration
KNP BTv Commission
the
stated
its
and
of
allegations
and
relevant
its cooperation particularly since as regards under Section terms of importance as falling
fine
decision
the
to challenge
decision
390.
gravity
regards the
relation
applicant
reference
389.
the
matters which
the
Commission
circumstance
388.
order to determine
criticise
applicant with
of the
decision
contain
for in
the applicants
which
the
177
decisions
previous
175
in
to
de Belgique and Others
peints
387.
accorded
as
and
amount and
cooperation
with of
167
Commission
the
basic
supposing that
amount
386.
of the
its
compared
in
statement
detailed to
Case C-248/98
of reduction
classified
385.
account
those circumstances
for the
the
164
points
by the applicant
384.
of
light
addressees
its
and
points
of
law
requirements
but also
to
its
framework
context
since
of Article
and
applying
notice.
leniency
to
It
is
to
the
not
the question
190 all
of the
the
Treaty
legal rules
cited above paragraph Commission Sytra vat and Brinks France Commissions undertaking when publishing the guidelines and the leniency fine for an Infringement of the competition notice to adhere to them when determining the amount of rules see paragraphs 245 and 274 above it was not required to state whether and on what grounds
governing
63. Having
the
matter
regard
to
in
question
the
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it
Page
was
391
them when determining
applying
the
consequently
The
fifth
of the
The
states
applicant
of the
breach
alleging
law
in
plea
Arguments
392
plea
of the
of Interest
on the
imposed
fine
to
obligation
the rate
that
alleging
amount
the
state
applicant
reasons must be
on the fine
49 of 54
rejected
excessive
is
parties
that
the
rate
of default
fixed
interest
of the
in Article
decision
at
7.5%
the
rate
Central Bank on the first working day of the month in on its ECU transactions charged by the European unreasonable which the decision was adopted plus 3.5 percentage points is abnormally high It places believes that it has good to pay the fines quickly legal on the applicant although the applicant pressure
grounds
for
decision
the
challenging
the
Accordingly
interest
should be
rate
reduced
reasonable
to
level
393
In
General Fennelly in Joined Cases Crefers to the Opinion of Advocate regard the applicant Commission ECR 1-1365 at and C-396/96 Compagrle Maritime Be/ge and Others General states that the interest rate must not be so high as to oblige where the Advocate
that
395/96 1-1371
394
to
rate without
any
The
defendant observes on the
reasonable and
well
The
within
of default
85
Article
Commissions
the
it
was
the
of
addition
three
and
half
percentage
to
points
an
already
high
acceptable
entitled
Having
interest
of the
of
limits
to
rate
fix
its
to
high
sufficiently
commercial
to current
regard
bank
dissuade the undertakings rate
rates
of
7.5% was
wholly
discretion
rules
fines
on
it
on
carries
out
the
task
its
are
competition
on
Imposed
Treaty ensures that
when
power
that
ensuring
that fine
the
not
is
Court
of the
charging
Infringe
that
explanation
from defaulting
Findings
395
pay fines and
undertakings
which
undertakings
deliberately
or negligently
the
Default interest increases Treaty is effective under Article 89 of the EC Treaty now Article
and
applied
ensures that
the
rules of the
85
Treaty are
EC
of
not
applied unilaterally by undertakings which delay paying fines imposed by practices the power to charge default interest on fines undertakings Commission did not have over those which paid their fines within the delayed paying their fines would enjoy an advantage CB CommIssion ECR 11-2169 paragraphs 48 and laid down Case T-275/94
rendered ineffective on
them
which period
396
If
the
49
Community law
with
did
from delaying
derive
397
If
the
sole object
not
permit measures
payment
of
of delaying
fine
payment
designed
that
would
AEG
to offset the
that an undertaking might advantage unfounded actions brought
manifestly
encourage
Commission
cited
above
paragraph
141
rate of interest of 7.5% fixed at the rate charged by the European context by charging Bank on its ECU transactions on the first working day of the month in which the decision was which it clearly did not exceed the discretion adopted plus 3.5 percentage points the Commission In
that
Central
enjoys when
398
regard
Others
for
default
interest
it
to
Commission
As the Commission plea
400
rate
not be so high as to oblige is to be noted that although the interest rate must for challenging the they consider that they have good grounds pay fines even though the Commission the less of reference of the Commission none adopt point decision may validity to an extent necessary to than the applicable market rate offered to the average borrower higher General Fennelly in Compagnie Maritime Beige and discourage dilatory behaviour Opinion of Advocate In that
undertakings
399
fixing
It
alleging
follows
that
from
at
did
cited
above
not commit any
the rate
was
the foregoing
excessive
that
190
paragraph
the
error
of
must
assessment be
application
in
setting
the
rate
of default
interest
the
rejected
must be dismissed
in
its
entirety
Costs
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..
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401
Under
872
Article
of
the
Rules
of
Procedure
Court of
of the
First Instance the unsuccessful is to party has been for Since the applicant unsuccessful It
be ordered to pay the costs if they have been applied must be ordered to pay the costs in accordance with
form of order sought by the Commission
the
On those grounds THE
COURT
OF FIRST
INSTANCE
Chamber
Fourth
hereby
Dismisses
the
application
Orders the applicant
to
pay the costs
Mengozzi Thu
Ramos
Moura
Delivered
I-I
in
open
in
court
Luxembourg
on
20
2002
March
Jung Mengozzi
Registrar President
Table
Facts
of
contents
case
of the
II
Procedure
and
forms of order
sought by the
parties II
Substance II
First
plea
in
law
alleging
factual
errors
in
applying
Article
851
of the
Treaty 11
The
compensation
scheme
in
the
framework
of the
Danish
cartel II
Arguments
of the
parties II
Findings
of the
Court II
The
existence
of
continuous
cartel
from
1990
until
1996 II
The
apphicants
participation
In
the
cartel
outside
the
Danish
market
during
the
period
1990-1993 II
Arguments
of
the parties
mhtmlfile/IC\Documents%2Oand%2OSettings\tsmall\Local%2OSettings\Temporary%201..
4/25/2008
Page
51
of54
-8
Findings
The
of
suspension of participation
of the
Arguments
Findings
The
Court
the
Findings
and
in
Participation
Findings
continuous
the
of the
Concerted
and
participation
in
the
cartel
II
16
II
16
II
17
from 1994
of the
infringement of which
the
applicant
is
accused TI
22
II
22
II
22
cartel
as
II
24
II
24
II
25
II
25
II
25
Ii
26
regards the Italian market
parties
Court
of the
of the
nature
European
Cooperation on quality
Findings
1993
parties
of the
Arguments
in
Court
of the
Arguments
cartel
parties
of the
Arguments
the
10
Court
of the
duration
In
II
norms
parties
Court
action
against
Powerpipe 27
Arguments
Findings
The
of the
of the
pressure
Arguments
parties II
27
II
29
II
34
Court
brought
of the
to
bear by ABB
parties II
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34
Page
Court
of the
Findings
52 of 54
34
II
II
Second
Access
plea
to
Arguments
in
the
Infringement
infringement of the
alleging
rights
of
defence II
35
II
35
II
35
II
35
tile
of the
of the
Findings
law
parties
Court
of the
be heard
right to
in
relation
to
the
of fresh
production
evidence 39
Arguments
of the
of the
Findings
Infringement
parties II
39
II
39
Court
of the
be
right to
heard
as
concerns
the
application
of the
guidelines
for calculating
fines
40
II
Arguments
of the
parties
40
II
Findings
of the
Court 41
III
Third
plea
in
Infringement
Arguments
FIndings
law
of the
of the
of the
alleging
infringement
principle
of
of
general principles and
errors of
fact
in
assessing
the
tine
II
43
II
43
II
43
non-retroactivity
parties
Court 44
Infringement
of the
principle
of
protection
of legitimate
expectations II
Arguments
of the
48
parties
48
Findings
of the
Court II
Infringement
of the
principles
of
equal treatment
and
proportionality
and
legality
of the
guidelines II
nihtmlfile//C\Documents%2Oancl%2OSettings\tsmall\Local%2OSettings\Temporary%201..
48
4/25/2008
49
Page
of the
Arguments
of 54
53
parties II
Findings
of
the
50
Court 54
The
of
objection
in
illegality
of the
respect
guidelines II
of the
Infringement
principle
of
eciual
54
treatment 58
of the
Infringement
principle
assessment
Incorrect
of the
Arguments
of
of the
proportionality
duration
of
II
59
II
61
the infringement
parties
61
Findings
of the
Court II
Incorrect
of
application
the
aggravating
62
circumstances 62
of the
Arguments
parties
62
Findings
of the
Court II
Failure to
take
circumstances
mitigating
into
63
account 64
of the
Arguments
Findings
of the
Incorrect
parties II
64
II
65
Court
of the
application
leniency
notice
67
of
Arguments
Findings
IV
The
of
fourth
Arguments
the parties
the
II
67
II
69
II
71
II
71
Court
plea
in
of the
law
alleging
breach
of the
obligation
to
state
reasons when
setting
the
fine
parties
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Findings
Court
of the
II
The
fifth
Arguments
Findings
plea
in
law
of the
of the
alleging
that
the
rate
of
interest
on
the
fine
is
72
excessive II
75
II
75
II
75
parties
Court
Costs II
iLLanguage
of the
case
English.
/F-ITML
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