IMI and Others v Commission (Competition) [2011] EUECJ T-378/06 (24 March 2011)

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(Competition – Agreements, decisions and concerted practices – Copper and copper alloy fittings sector – Decision finding an infringement of Article 81 EC – Fines – Relevant turnover – Leniency Notice – Guidelines on the method of setting fines – Equal treatment)

Comap SA, formerly Aquatis France SAS, established in La Chapelle-Saint-Mesmin (France),

Simplex Armaturen + Fittings GmbH & Co. KG, established in Argenbühl-Eisenharz (Germany),

European Commission, represented by A. Nijenhuis and V. Bottka, acting as Agents, and by S. Kinsella, Solicitor, and K. Nordlander, lawyer,

1 By Decision C(2006) 4180 of 20 September 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 – Fittings) (summary published in OJ 2007 L 283, p. 63; ‘the contested decision’), the Commission of the European Communities found that a number of undertakings had infringed Article 81(1) EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating, over various periods between 31 December 1988 and 1 April 2004, in a single, complex and continuous infringement of the Community competition rules taking the form of a complex of anti-competitive agreements and concerted practices in the market for copper and copper alloy fittings, which covered the territory of the EEA. The infringement consisted in fixing prices, agreeing on price lists, agreeing on discounts and rebates, agreeing on implementation mechanisms for introducing price increases, allocating national markets, allocating customers and exchanging other commercial information and also in participating in regular meetings and in maintaining other contacts intended to facilitate the infringement.

2 The applicants, IMI plc, IMI Kynoch Ltd, VSH Italia Srl, Yorkshire Fittings Ltd, Comap SA, formerly Aquatis France SAS (‘Aquatis’) and Simplex Armaturen + Fittings GmbH & Co. KG (‘Simplex’), are among the addressees of the contested decision.

3 The applicants are, or were at the material time, manufacturers of copper fittings.

4 In August 2002, the fittings production business of the IMI group, which included Yorkshire Fittings, VSH Italia, Aquatis and Simplex, was sold to Aalberts Industries NV.

5 On 9 January 2001, Mueller Industries Inc., another producer of copper fittings, informed the Commission of the existence of a cartel in the fittings sector and in other related industries in the copper tubes market, and expressed its willingness to cooperate with the Commission under the terms of the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the 1996 Leniency Notice’) (recital 114 to the contested decision).

6 On 22 and 23 March 2001, in the framework of an investigation concerning copper tubes and fittings, the Commission, pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), carried out unannounced inspections at the premises of a number of undertakings (recital 119 to the contested decision).

7 Following those first inspections, the Commission, in April 2001, split the investigation relating to copper tubes into three different proceedings, namely the proceedings relating to Case COMP/E-1/38.069 (Copper Plumbing Tubes), Case COMP/F-1/38.121 (Fittings) and Case COMP/E-1/38.240 (Industrial Tubes), respectively (recital 120 to the contested decision).

8 On 24 and 25 April 2001, the Commission carried out further unannounced inspections at the premises of Delta plc, a company at the head of an international engineering group whose ‘Engineering’ division encompassed a number of fittings manufacturers. Those inspections related solely to fittings (recital 121 to the contested decision).

9 From February/March 2002, the Commission sent the parties concerned a number of requests for information pursuant to Article 11 of Regulation No 17, and then pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) (recital 122 to the contested decision).

10 In September 2003, IMI submitted an application for leniency under the 1996 Leniency Notice. That application was followed by applications from the Delta group (March 2004) and FRA.BO SpA (July 2004). The final leniency application was submitted in May 2005 by Advanced Fluid Connections plc (recitals 115 to 118 to the contested decision).

11 On 22 September 2005, the Commission initiated an infringement proceeding in the framework of Case COMP/F-1/38.121 (Fittings) and adopted a statement of objections, which was then notified to the applicants (recitals 123 and 124 to the contested decision).

13 In Article 1 of the contested decision, the Commission found that the applicants had infringed Article 81 EC and Article 53 of the EEA Agreement during the following periods:

14 For that infringement, the Commission imposed the following fines on the addressees of the contested decision under Article 2(b) of that decision:

15 For the purposes of setting the amount of the fine imposed on each undertaking, the Commission applied, in the contested decision, the method set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3; ‘the 1998 Guidelines’).

16 As regards, first of all, the fixing of the starting amount of the fine by reference to the gravity of the infringement, the Commission characterised the infringement as very serious, on account of its nature and its geographic scope (recital 755 to the contested decision).

17 Taking the view that there was considerable disparity between the undertakings concerned, the Commission applied differentiated treatment, taking as its basis their relative importance on the relevant market as determined by their market shares. On that basis, the Commission divided the undertakings concerned into six categories (recital 758 to the contested decision).

18 The applicants were placed in the second category, for which the starting amount of the fine was set at EUR 46 million. A second starting amount of EUR 60 million (in line with the starting amount imposed on undertakings placed in the first category) was imposed on Aquatis and Simplex because of their repeated involvement in the infringement under the control of Aalberts Industries (recital 765 to the contested decision).

19 On account of the duration of IMI’s, IMI Kynoch’s and Yorkshire Fittings’ participation in the infringement (12 years and 2 months), the Commission then increased the fine by 110%, namely 5% per year for each of the first two years and 10% per complete year, with effect from 31 January 1991, for each of the 10 remaining years (recital 775 to the contested decision), which resulted in the basic amount of the fine being set at EUR 96.6 million (recital 777 to the contested decision). The starting amount of VSH Italia’s fine was increased by 70%, giving a basic amount of EUR 78.2 million. Aquatis’s and Simplex’s first starting amount was increased by 100% (for their participation for 10 years under the control of IMI), giving a basic amount of EUR 92 million, while their second starting amount was increased by 5% (for nine months’ participation under the control of Aalberts Industries), giving a basic amount of EUR 63 million.

20 Next, on the basis of aggravating circumstances, the second basic amount of the fine imposed on Aquatis and Simplex was increased by 60% because they had participated in the infringement after the inspections, resulting in a fine of EUR 100.8 million. No other aggravating or attenuating circumstance was applied to the applicants.

21 Last, IMI and IMI Kynoch received a reduction of 50% of the fine imposed on them pursuant to the first and second indents of section D.2 of the 1996 Leniency Notice (recitals 836 to 843 to the contested decision).

22 By application lodged at the Registry of the Court on 14 December 2006, the applicants brought the present action.

23 Upon hearing the Report of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral procedure.

24 The parties presented oral argument and their answers to the questions put by the Court at the hearing on 8 February 2010.

25 At the hearing, the applicants informed the Court that they were withdrawing the fifth plea, alleging breach of the principle non bis in idem as a result of the imposition of the additional fine on Aquatis and Simplex. The Court took formal notice of that partial withdrawal.

28 The Commission raises an objection of lis pendens against the action brought by Aquatis and Simplex. In that regard, the Commission observes that Aquatis and Simplex have challenged the same decision in two different actions for annulment, namely the action in the present case, which was lodged on 15 December 2006, and the action in Case T-385/06 Aalberts Industries and Others v Commission, which was lodged on 14 December 2006, and that in both actions Aquatis and Simplex seek, inter alia, the annulment of Article 2(b)(2) of the contested decision. Since the grounds on which the pleas for annulment are based overlap in both cases (breach of Article 253 EC as regards the additional fine of EUR 2.04 million imposed on them being alleged in both actions), and since the action in the present case is chronologically the second to have been lodged, it should therefore be declared inadmissible so far as Aquatis and Simplex are concerned.

29 It has consistently been held that where two successive actions are identical in terms of the parties, subject-matter and submissions, the second action to have been brought must be dismissed as inadmissible (see, to that effect, Joined Cases 172/83 and 226/83 Hoogovens Groep v Commission [1985] ECR 2831, paragraph 9, and Joined Cases 358/85 and 51/86 France v Parliament [1988] ECR 4821, paragraph 12).

30 In that regard it must be observed that the applicants both in Case T-385/06 and in the present case complain that the Commission infringed its obligation to state reasons pursuant to Article 253 EC when it imposed an additional fine of EUR 2.04 million on Aquatis and Simplex independently of the other fines for which they were held jointly and severally liable with IMI and Aalberts Industries.

31 Consequently, in so far as the action in Case T-385/06 and that in the present case seek annulment of the same provision (Article 2(b)(2) of the contested decision), involve the same opposing parties (Aquatis and Simplex against the Commission) and rely on the same pleas (the fourth plea in each case), there is lis pendens.

32 It must be pointed out that, contrary to the Commission’s assertion, the two actions were brought on 14 December 2006, not on two different dates. Given that the action in Case T-385/06 was the first to be lodged at the Registry of the Court (by fax and by email), the objection of lis pendens is well founded. The case number was actually allocated on the basis of the date on which the original of the application was lodged.

33 Following the withdrawal of the applicants’ fifth plea at the hearing, and given that the fourth plea is inadmissible on the grounds of lis pendens, it is necessary to consider the substance of only three pleas, alleging, respectively:

First plea: breach of the principles of proportionality and equal treatment in setting the starting amount of the fine

34 The applicants maintain that the Commission breached the principle of proportionality and also the principle of equal treatment by imposing on them a fine which is ‘excessive’ by reference to their size and to the size of the relevant market, as is apparent from a comparison with the Commission’s approach in its previous decisions.

35 In that regard, the applicants observe that the possibility of drawing comparisons with other Commission decisions on fines was recognised by this Court in Case T-59/02 Archer Daniels Midland v Commission [2006] ECR II-3627 in accordance with the principle of equal treatment. In the applicants’ submission, such a ‘comparative analysis’ is also justified by virtue of the principle of proportionality for the purpose of assessing whether the amount of the fine that was considered appropriate and deterrent in the case under consideration corresponds to the amounts of the fines that were considered appropriate and deterrent in ‘cases contemporaneous to it’ the facts of which are comparable.

36 In that context, in order to demonstrate that there has been a breach of the principles of equal treatment and proportionality, the applicants refer to a number of Commission decisions, including Decision 2006/485/EC of 3 September 2004 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement against Boliden AB, Boliden Fabrication AB and Boliden Cuivre & Zinc SA, Austria Buntmetall AG and Buntmetall Amstetten GmbH, Halcor SA, HME Nederland BV, IMI, IMI Kynoch and IMI Yorkshire Copper Tube Ltd, KM Europa Metal AG, Tréfimétaux SA and Europa Metalli SpA, Mueller Industries, WTC Holding Company, Inc., Mueller Europe Ltd, DENO Holding Company, Inc. and DENO Acquisition EURL, Outokumpu Oyj and Outokumpu Copper Products OY and Wieland-Werke AG (Case C.38.069 – Copper plumbing tubes) (summary published in OJ 2006 L 192, p. 21); Decision 2004/421/EC of 16 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Wieland-Werke, Outokumpu Copper Products, Outokumpu Oyj, KM Europa Metal, Tréfimétaux and Europa Metalli (Case COMP/E-1/38.240 – Industrial tubes) (summary published in OJ 2004 L 125, p. 50); Decision 2005/349/EC of 10 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.857 – Organic peroxides) (summary published in OJ 2005 L 110, p. 44); and Decision 2006/460/EC of 17 December 2002 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against SGL Carbon AG, Le Carbone-Lorraine SA, Ibiden Co. Ltd, Tokai Carbon Co. Ltd, Toyo Tanso Co. Ltd, GrafTech International Ltd, NSCC Techno Carbon Co. Ltd, Nippon Steel Chemical Co. Ltd, Intech EDM BV and Intech EDM AG (Case C.37.667 – Specialty Graphite) (summary published in OJ 2006 L 180, p. 20).

37 The applicants claim that the cases which gave rise to those four decisions are comparable from the aspect of the nature and duration of the infringement, its impact on the market and the size of the relevant geographic market. In their submission, the infringements at issue in those cases were, like that at issue in the present case, characterised as being among ‘the most serious’ infringements of Article 81 EC, had an object restrictive of competition which was implemented, covered the whole of the common market or the EEA and – with the exception of the infringement at issue in the ‘Specialty Graphite’ case, which was of shorter duration – were of long duration. Furthermore, those infringements related to a large extent to the same period. The applicants state that the ‘Copper plumbing tubes’ case is ‘particularly pertinent’ for the purpose of comparison with the present case, since it initially formed part of the same investigation as that which was undertaken in the present case, it concerned a number of companies which are also involved in the present case, the products concerned are from the same sector as the products at issue in the present case, the relevant geographic market is the same as that at issue in the present case, the period of the infringement corresponds with that established in the present case and it concerns an infringement of the same nature as the infringement at issue in the present case. The applicants observe that the starting amount of the fine imposed on a participant placed in the second category in the ‘Copper plumbing tubes’ case, where the turnover on the relevant market was twice as high as in the present case, represents only a fraction of the starting amount adopted in the present case. In addition, the disproportionate nature of the fines imposed in the present case is even more ‘striking’ if the levels of the starting amounts of the fine are compared per million of turnover. Such a comparison shows that the starting amount per million of turnover is more than 75% higher in the present case than in the ‘Copper plumbing tubes’ case. In the applicants’ submission, a comparison with the starting amount of the fines for participants placed in the second category in the other three cases leads to a similar conclusion.

39 Under the first plea, the applicants complain, in essence, that the Commission breached the principles of proportionality and equal treatment by imposing on them a fine which is ‘excessive’ by reference to their size and to the size of the relevant market, as is apparent from a comparison with the Commission’s approach in its previous decisions, specifically its approach concerning the starting amount of the fines for undertakings placed in the second category. In that regard it must be observed that, apart from a general reference to Article 5 EC concerning the principle of proportionality, the applicants rely in their reasoning exclusively on a comparison with other decisions, without challenging in itself the proportionality of the fine that was imposed on them, in relation to the infringement found.

40 As regards the Commission’s practice in previous decisions, it must be borne in mind that this does not serve as a legal framework for the setting of fines in competition matters, since the Commission enjoys a wide discretion in that area, in the exercise of which it is not bound by assessments made by it in the past (Joined Cases C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P Erste Bank der österreichischen Sparkassen v Commission [2009] ECR I-8681, paragraph 123).

41 However, it must be pointed out that the Commission must observe general principles of law, including the principle of equal treatment, which means that the Commission cannot treat comparable situations differently or different situations in the same way, unless such treatment is objectively justified (see Case C-174/89 Hoche [1990] ECR I-2681, paragraph 25 and the case-law cited).

42 It is apparent from the case-law that the comparisons drawn with other Commission decisions imposing fines can be relevant from the point of view of observance of the principle of equal treatment only where it is demonstrated that the facts of the cases in those other decisions, such as the markets, products, countries, undertakings and periods concerned, are comparable to those of the present case. It is also apparent from the case-law that it is important to refer to contemporaneous decisions for the purposes of comparison (see, to that effect, Archer Daniels Midland v Commission, cited in paragraph 35 above, paragraph 317 and the case-law cited).

43 In the present case, in referring to other cases for the purposes of comparison, the applicants seek to challenge the starting amount set for the second category of participants in the infringement at issue, an amount which they say is disproportionate by comparison with the starting amount for undertakings placed in the second category in the Commission’s decisions in relation to those cases. In that regard, it must be noted that it is clear from the 1998 Guidelines that the method of setting fines follows certain rules, under which the gravity and duration of the infringement and any aggravating or attenuating circumstances are taken into account. Where there is considerable disparity between the undertakings concerned, the Commission may, in setting the starting amount, treat the participants in the infringement differently. However, that does not necessarily entail setting a fine that is predetermined by category, as that would have the effect of reducing the Commission’s discretion. In addition, the data underlying differential treatment can vary considerably from one case to another. The fact that an addressee is placed in the category of second-category addressees for the purposes of a particular decision does not mean that it must therefore be treated in the same way as the second-category addressees of a different decision with different shares on other markets.

44 It appears that the circumstances of the cartel covered by the contested decision differ from those of the cartel covered by the decision adopted in the ‘Copper plumbing tubes’ case and of the cartel covered by the decision adopted in the ‘Industrial tubes’ case. The size of the markets differs, as do the market shares of the participants in the infringement. In that regard, it must be noted that the second-category participants in the ‘Copper plumbing tubes’ case had smaller market shares (between 9 and 10%) than the second-category participants in the present case (between 19 and 22%), and that they were therefore less likely to exert an influence on the market than the applicants. Furthermore, the combined market share of the members of the cartel in the present case represents 95% of the total market, whereas, in the ‘Copper plumbing tubes’ case, the combined market share of the members of the cartel was only 82.5% and, in the ‘Industrial tubes’ case, only 75%. In the light of these differences, it must be concluded that the applicants have not demonstrated that the decisions to which they refer were adopted in respect of cases the circumstances of which were sufficiently similar to those of the present case to be used for the purposes of comparison.

Second plea: a manifest error of assessment and breach of the principle of proportionality owing to the inclusion of sales of press fittings in the definition of the relevant market for the entire duration of the cartel for the purpose of determining the level of the fine imposed on the applicants

46 The applicants maintain, in essence, that copper fittings of a particular type, namely press fittings, were covered by the infringement only from the years beginning 1999/2000. The Commission therefore made a manifest error of assessment in including sales of press fittings in the definition of the relevant market, thus rendering the fine disproportionate by reference to the gravity of the infringement in respect of which it was imposed.

47 The applicants state that they do not deny that, from a technical viewpoint, press fittings can be substitutable for other types of copper fittings, but that does not suffice to show that press fittings are substitutable for those other fittings from an economic viewpoint. In the applicants’ submission, the Commission did not explain in recital 635 to the contested decision how, given the competitive conditions relating to press fittings, the prices for the other types of fittings agreed by the cartel had influenced the prices for press fittings before 1999/2000. Nor does the Commission take any account of the fact that Viega GmbH & Co. KG had a ‘de facto monopoly’ on the press fittings market until 1999/2000. Furthermore, in the applicants’ submission, the answers given by Viega and Sanha Kaimer GmbH & Co. KG at the hearing held on 26 and 27 January 2006 in the context of the administrative procedure concerning substitutability relate to the period after 1999. Moreover, the statement made by IMI in its leniency application of 30 September 2003, in which it described developments in the fittings industry over the last 10 years, was misinterpreted by the Commission. In the context of the substitutability of press fittings, the applicants express the view that the principle established in Case C-199/92 P Hüls v Commission [1999] ECR I-4287 is not applicable to the present case and in any event is irrelevant.

48 Given the more limited size of the market covered by the cartel during the initial 10-year infringement period, that is to say, until 1999/2000, it would have been more appropriate for the Commission to increase the amount of the fine on account of the duration of the infringement by 5% instead of 10% for the period of the infringement before 1999/2000, as it did for the first two years, during which the cartel was limited to the United Kingdom.

50 In the context of this plea the applicants claim, in essence, that, when setting the starting amount of the fine, the Commission made a manifest error of assessment and infringed the principle of proportionality by deciding to include sales of press fittings in the relevant market.

51 According to the case-law, the market covered by a Commission decision finding an infringement of Article 81 EC is determined by the arrangements and activities of the cartel (see, to that effect, judgment of 15 June 2005 in Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraph 90). According to recital 634 to the contested decision, the Commission’s investigation showed that, at various times during the lifetime of the cartel, all kinds and sizes of fittings, including press fittings, had been the subject of anti-competitive discussions.

52 It must be noted in that regard that, since the markets and technology relating to the products at issue tend to change over time, it is to be expected, when a cartel is established, that the products covered by the cartel will also change to adapt to the new features of the market.

53 In the present case, it is common ground that press fittings and traditional copper fittings have the same function, namely the assembly of tubes in copper fittings and press fittings systems. In addition, as the applicants themselves submit, press fittings were developed to replace copper fittings.

54 It is also common ground that Viega, another member of the fittings cartel, which participated in that cartel from 1991 until the Commission’s inspections in 2001, began to market press fittings in 1995. It was the only supplier of press fittings in the period between 1995/96 and 1999/2000, since the other fittings manufacturers did not begin to market press fittings until 1999/2000. Furthermore, it is apparent from the administrative file that press fittings were discussed by members of the cartel as soon as all the members of the cartel had begun to produce them; this, too, is not denied by the applicants.

55 Admittedly, press fittings were covered by the cartel at a late stage in its operation, but that does not affect the conclusion that press fittings were the object of anti-competitive discussions from 1999/2000. Furthermore, the applicants do not call in question the choice of the year 2000 as the reference year for the calculation of the fine.

56 Therefore, the Commission was entitled to take into consideration the turnover achieved in 2000 with all types and sizes of fittings – including press fittings – when it set the starting amount of the fine, given that press fittings are part of the relevant market. Consequently, the argument alleging breach of the principle of proportionality, owing to the inclusion of sales of press fittings in the definition of the relevant market, must be rejected.

57 As regards the argument that the Commission should have increased the fine by 5% instead of by 10% for the period before 1999/2000, in order to take into account the reduced size of the fittings market during that period, it must be observed that the Commission, in accordance with the 1998 Guidelines, characterised the infringement as very serious on account of its nature (in particular the price fixing) and the importance of the relevant geographic market. In that regard, the Commission applied Section 1 B of the 1998 Guidelines, which, for ‘infringements of long duration (in general, more than five years)’, provides for an increase ‘of up to 10% per year in the amount determined for gravity’. Furthermore, so long as variations in the intensity of the effects of the infringements during the infringement period do not alter the classification of the infringement on the basis of its gravity, the Commission may apply the same rate of increase (see, to that effect, judgment of 12 September 2007 in Case T-30/05 Prym and Prym Consumer v Commission, not published in the ECR, paragraph 196). In the present case, since the infringement was ‘very serious’ throughout the period at issue, the Commission was therefore entitled to apply the same rate of increase for the whole period of the infringement.

58 The fact that the Commission, exceptionally, applied a reduced rate in respect of the first two years does not alter that conclusion. It must be borne in mind that the gravity of the infringement is assessed on the basis of a whole series of criteria, including the size of the relevant geographic market. In the present case, in order to take account of the more limited size of the relevant geographic market at the beginning of the infringement, the Commission decided to apply a reduced rate for that period. That approach does not in any way mean that the Commission is obliged to do likewise in respect of an infringement of long duration with a pan-European dimension and in which the participants’ collusion increased over time, particularly since the fact that press fittings were brought within the scope of the cartel does not mean that it was less serious or that its scope was less extensive in the years before 2000.

Third plea: a manifest error of assessment and breach of the obligation to state reasons and of the principle of equal treatment with regard to the Commission’s failure to take into account, outside the scope of application of the 1996 Leniency Notice, the applicants’ cooperation in providing evidence of the link between arrangements made on the United Kingdom fittings market and the ‘pan-European cartel’

60 The applicants contend that in the context of IMI’s leniency application they provided factual information concerning the link between the arrangements in the United Kingdom and the pan-European cartel. They do not dispute that the Commission was already in possession of information concerning the United Kingdom part of the infringement, but they maintain that, without the information which they supplied, the Commission would have been unable to establish the link between the period during which the cartel had operated at United Kingdom level and the period during which it had operated at European level. That information enabled the Commission to regard the anti-competitive conduct after 1988 as constituting a single continuous infringement.

61 The applicants maintain that the evidence which they provided and which enabled the Commission to initiate proceedings in respect of the arrangements in the United Kingdom as forming an integral part of the pan-European cartel, and, consequently, to extend its findings as to the scope of the infringement, both in temporal and in geographic terms, was crucial to the determination of the gravity and duration of the infringement. Therefore, they should have been given favourable treatment outside the scope of the 1996 Leniency Notice.

62 In the reply the applicants emphasise that, without the information which they supplied concerning the link between the arrangements made in the United Kingdom and the pan-European cartel, the Commission would have encountered the obstacle represented by the limitation periods provided for in Article 25 of Regulation No 1/2003, and would have been unable to impose penalties for the infringements committed in the United Kingdom between 1988 and 1991.

63 The applicants also claim that the statement of reasons was inadequate in that regard. In recital 827 to the contested decision, the Commission did not clearly state its reasons for taking the view that IMI had not provided the evidence of a link between the arrangements made in the United Kingdom and the pan-European cartel.

64 Last, the applicants maintain that they have been subject to unequal treatment by comparison with FRA.BO. The applicants observe that, owing to the fact that FRA.BO had alerted the Commission to the continuation of the cartel during the period from March 2001 to April 2004, FRA.BO was granted a reduction in the amount of its fine on the ground that it had cooperated outside the scope of the 1996 Leniency Notice. In that context, the applicants emphasise that their situation was the same as FRA.BO’s.

66 In the context of this plea, the applicants submit, in essence, that they were entitled to a reduction in the amount of their fine outside the scope of the 1996 Leniency Notice because they provided the Commission with evidence enabling it to demonstrate a link between the arrangements made in the United Kingdom and the pan-European cartel.

67 As regards, in the first place, the allegation that inadequate reasons were given, it has consistently been held that the reasoning for an individual decision must show, in a clear and unequivocal fashion, the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review. The requirement to state reasons must be assessed by reference to the circumstances of the case. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see Case C-367/95 P Commission v Sytraval and Brink’s France [1998] ECR I-1719, paragraph 63 and the case-law cited).

68 In the present case, the Commission indicated in recital 827 to the contested decision that the applicant had not, in its statements, demonstrated the link between the arrangements made in the United Kingdom and the European cartel, nor had it drawn a distinction between those arrangements. In that regard the Commission refers to recital 132, from which it follows that the applicant provided the key features of the cartel but without distinguishing between the initial period, limited to the United Kingdom territory, and the continuation of the cartel at pan-European level. The fact that that finding might be erroneous cannot call into question the sufficiency of the reasoning for the contested decision, since determination of the existence of such an error falls within the review of the legality of that decision on the substance.

69 It follows that the plea that the statement of reasons was inadequate must be rejected.

70 In the second place, as regards the substance, it must be observed first of all that the 1996 Leniency Notice is applicable in the present case. It must also be noted that that notice does not provide for a specific reduction in the amount of the fine for undertakings which disclose facts relating to the gravity or duration of a cartel of which the Commission was previously unaware. In such cases, the Commission has the possibility of granting, to an undertaking which has cooperated with it during proceedings for the application of the competition rules, a reduction in the amount of the fine outside the framework laid down by the 1996 Leniency Notice, pursuant to the sixth indent of Section 3 of the 1998 Guidelines, which provides for account to be taken, as an attenuating circumstance, of the ‘effective cooperation by the undertaking in the proceedings, outside the scope of the [1996 Leniency Notice]’. Although the Commission has rewarded the disclosure of facts outside the 1996 Leniency Notice in previous decisions, it has done so in exceptional circumstances.

71 In this instance, it is common ground that the Commission already had the evidence obtained, on the one hand, from the unannounced inspections at the premises of Delta and of IMI (see recitals 183 and 185 to the contested decision) and, on the other hand, the information provided by Mueller Industries in 2001 in connection with its leniency application, that is to say, some time before the applicants submitted their application for leniency. Moreover, the Commission was already aware of the fact that the applicants and Delta, as well as other undertakings, had participated both in the arrangements made in the United Kingdom and in the pan-European cartel, which concerned the same product. It was also aware that the arrangements made in the United Kingdom were based on the same principle of price fixing as the pan-European cartel (see recital 135 to the contested decision). Therefore, it cannot be accepted that the Commission was unable to prove the link between the two parts of the infringement without the information provided by the applicants.

72 It follows from this that the Commission was entitled to take the view that the applicants had not disclosed any facts relating to the gravity or duration of the cartel which it did not already know and to assess their cooperation solely in the framework of the provisions set out in Section D.2 of the 1996 Leniency Notice.

73 As regards the allegedly unequal treatment of IMI and IMI Kynoch, on the one hand, and FRA.BO, on the other, it is sufficient to note that they were not in a comparable situation since, without the information provided by FRA.BO relating to the continuation of the infringement during the period from March 2001 to April 2004, the Commission would not have been able to prove that period of the infringement, not least because it was not even aware of it. In that regard, the evidence provided by IMI in relation to the period between 1988 and 1991 did not enable the Commission’s attention to be drawn to the operation of the cartel during that period. The Commission, moreover, already had sufficient evidence concerning that period and made the connection between that period and the period beginning in 1991. Therefore, the Commission did not infringe the principle of equal treatment by treating FRA.BO and the applicants differently.

75 It follows from all the foregoing considerations that the application must be dismissed in its entirety.

76 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

2. Orders IMI plc, IMI Kynoch Ltd, Yorkshire Fittings Ltd, VSH Italia Srl, Comap SA and Simplex Armaturen + Fittings GmbH & Co. KG to pay the costs.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> IMI and Others v Commission (Competition) [2011] EUECJ T-378/06 (24 March 2011) URL: http://www.bailii.org/eu/cases/EUECJ/2011/T37806.html Cite as: [2011] EUECJ T-378/06, [2011] EUECJ T-378/6

Court of Justice of the European Communities (including Court of First Instance Decisions)