Judgment of the Court of First Instance (Third Chamber) of 8 July 2008 – Knauf Gips v Commission

(Case T-52/03)

Competition – Cartels – Plasterboard market – Decision finding an infringement of Article 81 EC – Access to the file – Single and continuous infringement – Liability – Fine – Guidelines on the method of setting fines – Cooperation during the administrative procedure

1.                     Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Refusal to communicate an incriminating document – Consequences on the level of the burden of proof on the undertaking concerned (Art. 81(1) EC; Council Regulation No 17, Art. 19(1)) (see paras 43-47, 67, 70)

2.                     Competition – Administrative procedure – Hearings – Obligation on the Hearing Officer to draw up a final report on observance of the right to be heard – Scope (Commission Decision 2001/462, Arts 15 and 16) (see paras 122-123, 125-126)

3.                     Competition – Administrative procedure – Observance of the rights of the defence – Infringement by reason of insufficient linguistic knowledge on the part of the officials handling the procedure – Not included (Art. 81(1) EC) (see paras 136-138)

4.                     Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Criteria for assessment – Anti-competitive purpose – Sufficient (Art. 81(1) EC) (see paras 161-162, 172, 175)

5.                     Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Agreement creating an information exchange system – Not permissible in an oligopolistic market – Rebuttable presumption (Art. 81(1) EC) (see paras 187-190, 260-262)

6.                     Competition – Agreements, decisions and concerted practices – Concerted practice – Meaning – Parallel conduct – Presumption that a concerted practice exists – Limits (Art. 81(1) EC) (see paras 216, 222)

7.                     Competition – Agreements, decisions and concerted practices – Concerted practice – Meaning – Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market – Receipt by a trader of information from a competitor about its future market conduct (Art. 81(1) EC) (see paras 275-280)

8.                     Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement – Evidence – Evidence adduced by a certain number of different manifestations of the infringement – Lawfulness (Art. 81(1) EC) (see paras 309-310)

9.                     Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement – Undertakings that may be held responsible for participating in an overall cartel – Criteria (Art. 81(1) EC) (see paras 312, 315-316, 320, 413)

10.                     Competition – Agreements, decisions and concerted practices – Undertaking – Meaning – Economic entity – Attribution of infringements – Group of companies without their own legal personality (Art. 81(1) EC) (see paras 340-342, 350-351)

11.                     Competition – Community rules – Infringements – Attribution – Legal person responsible for the running of the undertaking at the time of the infringement (Art. 81(1) EC) (see paras 354-355)

12.                     Competition – Fines – Decision imposing fines – Obligation to state the reasons on which the decision is based – Scope – Indication of the factors which led the Commission to assess the gravity and the duration of the infringement – Sufficient indication (Art. 253 EC; Council Regulation No 17, Art. 15(2)) (see paras 369, 371, 374, 407)

13.                     Competition – Fines – Amount – Determination – Criteria – Actual impact on the market (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1 A, first para.) (see paras 388, 391-392, 394, 398)

14.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Horizontal cartel concerning prices – Very serious infringement (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1 A) (see paras 407-411, 413)

15.                     Competition – Fines – Amount – Determination – Need to take account of the turnovers of the undertakings involved in an infringement or in similar previous infringements and to ensure the proportionality of the fines with those turnovers – None (Council Regulation No 17, Art. 15(2)) (see paras 421-424)

16.                     Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Infringements of long duration – Automatic 10% increase in the starting amount per year – Discretion of the Commission (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1 B, first para.) (see para. 436)

17.                     Competition – Fines – Amount – Determination – Criteria – Duration of the infringement – Increase in the starting amount of the fine – Taking into account of variations in the intensity of the infringement – Not included (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1 B) (see para. 438)

18.                     Competition – Fines – Amount – Determination – Criteria – Gravity and duration of the infringement – Increase in the starting amount by reason of the duration of the infringement – Gravity of the infringement taken into account twice – Not included (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, points 1 A and B) (see para. 443)

19.                     Competition – Fines – Amount – Determination – Maximum amount – Calculation – Distinction between the final amount and the intermediate amount of the fine – Consequences (Council Regulation No 17, Art. 15(2)) (see paras 452-455)

20.                     Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation of the undertaking concerned – Need for conduct which facilitated the Commission’s finding of an infringement – Answer to a request for information – Not included (Council Regulation No 17, Arts 11(1), (2), (4) and (5) and 15(2); Commission Notice 96/C 207/04) (see para. 464)

21.                     Competition – Fines – Discretion of the Commission – Scope – Power to fix the methods of payment of the fines – Imposition of interest for delay – Fixing by the Commission of an interest rate calculated in relation to that of the European Central Bank – Lawfulness (Council Regulation No 17, Art. 15(2)) (see paras 493, 495-499)

Re:

APPLICATION for annulment of Commission Decision 2005/471/EC of 27 November 2002 relating to a proceeding under Article 81 [EC] against BPB plc, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E-1/37.152 – Plasterboard) (OJ 2005 L 166, p. 8), or, in the alternative, reduction of the fine imposed on the applicant.

Operative part

The Court:

1.

Dismisses the action;

2.

Orders Knauf Gips KG to pay the costs.