Judgment of the General Court (Fourth Chamber) of 16 November 2011 – Low & Bonar and Bonar Technical Fabrics v Commission

(Case T-59/06)

Competition – Agreements, decisions and concerted practices – Plastic industrial bags sector – Decision finding an infringement of Article 81 EC – Single and continuous infringement – Fines – Mitigating circumstances – Passive role – Proportionality – Equal treatment – Unlimited jurisdiction

1.                     Actions for annulment – Admissibility – Decision imposing a fine for infringement of the competition rules – Action seeking to obtain reimbursement of default interest borne by an undertaking by reason of payment of the fine – Inadmissibility (Art. 230 EC) (see paras 23-26)

2.                     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 – Burden of proof (Art. 81(1) EC) (see paras 61-62, 64)

3.                     Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking – Criteria for assessment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 3, first indent) (see paras 73-74, 79)

Re:

APPLICATION for annulment in part of Commission Decision C(2005) 4634 final of 30 November 2005 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.354 – Industrial bags), concerning a cartel on the market for plastic industrial bags, and, in the alternative, for annulment or reduction of the fine imposed on the applicants.

Operative part

The Court:

1.

Sets the amount of the fine imposed by Article 2(l) of Commission Decision C (2005) 4634 final of 30 November 2005 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.354 – Industrial bags) at EUR 9.18 million;

2.

Dismisses the action as to the remainder;

3.

Orders the European Commission, Low & Bonar plc and Bonar Technical Fabrics NV each to bear their own costs.