Judgment of the General Court (Sixth Chamber) of 13 September 2010 – Trioplast Wittenheim v Commission

(Case T-26/06)

Competition – Agreements, decisions and concerted practices – Market for industrial plastic sacks – Decision finding an infringement of Article 81 EC – Duration of the infringement – Fines – Gravity of the infringement – Mitigating circumstances – Cooperation during the administrative procedure – Proportionality

1.                     Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Scope of the evidential burden – Burden of proof on the undertaking as regards distance taken from decisions taken during meetings (Art. 81(1) EC) (see paras 39-42, 47-48)

2.                     Competition – Fines – Joint and several liability for payment – Determination of the amount of fine having to be paid by the undertaking jointly and severally liable – Undertaking transferred several times during the infringement – Succession of several parent companies (Council Regulation No 1/2003; Commission Communication 98/C 9/03) (see paras 69-72)

3.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Assessment – Economic reality at the time the infringement was committed to be taken into account (Council Regulation No 1/2003, Art. 23(3); Commission Communication 98/C 9/03) (see paras 80-82)

4.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking – Criteria for assessment (Council Regulation No 1/2003, Art. 23(3); Commission Communication 98/C 9/03, para. 3) (see paras 92-94)

5.                     Competition – Fines – Amount – Determination – Maximum amount – Calculation – Turnover to be taken into consideration – Cumulative turnover of all the companies constituting the economic unit acting as an undertaking (Council Regulation No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, para. 5) (see paras 112-113, 115, 145)

6.                     Competition – Fines – Amount – Determination – Discretion of the Commission – Total amount of fines exceeding the overall volume of the relevant market – Breach of principle of proportionality – None (Council Regulation No 1/2003, Art. 23(2)) (see paras 143-145)

Re:

APPLICATION for partial annulment of Commission Decision C(2005) 4634 final of 30 November 2005 relating to a procedure under Article 81 [EC] (Case COMP/F/38.354 – Industrial sacks) concerning an agreement in the market for plastic industrial sacks and, in the alternative, an application for reduction of the amount of the fine imposed on the applicant.

Operative part

The Court:

1.

Dismisses the action;

2.

Orders Trioplast Witteheim SA to pay the costs.