Judgment of the Court of First Instance (Third Chamber) of 8 July 2008 - Lafarge v Commission (Case T-54/03) Competition - Agreements, decisions and concerted practices - Plasterboard market - Decision finding an infringement of Article 81 EC - Liability - Deterrence - Repeat infringement - Fine - Guidelines on the method of setting fines 1. Competition - Administrative procedure - Article 6 of the European Convention on Human Rights not applicable - Compliance by the Commission with procedural guarantees (Arts 81 EC and 82 EC; Council Regulation No 17, Art. 17; Council Decision 88/591) (see paras 36-47) 2. Competition - Administrative procedure - Commission decision finding an infringement - Use as evidence of statements of other undertakings which participated in the infringement - Lawfulness - Conditions (Arts 81 EC and 82 EC) (see paras 57-59, 293-294) 3. Competition - Administrative procedure - Hearings - Hearing of other participants in the same infringement in camera - Infringement of the defence rights - None (Commission Regulation No 2842/98, Art. 9) (see paras 142-149) 4. Competition - Administrative procedure - Observance of the rights of the defence - Incriminating document - Meaning - Commission document summarising the factual data supplied by the participants in the infringement - Not included (Art. 81(1) EC) (see paras 156-157) 5. Actions for annulment - Pleas in law - Challenge to the factual findings underlying a decision imposing penalties for breach of the competition rules - Challenge concerning a meeting between competitors by an undertaking which did not take part - Admissibility - Conditions (Art. 230 EC) (see paras 212-214) 6. 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 256-259, 397) 7. Competition - Agreements, decisions and concerted practices - Concerted practice - Meaning - Parallel conduct - Presumption of the existence of a concerted practice - Limits (Art. 81(1) EC) (see paras 318, 324) 8. Competition - Agreements, decisions and concerted practices - Agreements between undertakings - Burden of proving the infringement borne by the Commission - Degree of probative value required for the evidence on which the Commission relies (Art. 81(1) EC) (see paras 426, 452) 9. 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 an operator of information emanating from a competitor concerning its future market conduct (Art. 81(1) EC (see paras 458-463) 10. 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 479, 482-487, 490, 613-616) 11. Competition - Community rules - Infringement committed by a subsidiary - Imputation to the parent company - Conditions - Separate legal personality of the subsidiary not relevant - Relevance of the fact that the subsidiary is wholly owned - Obligation of the parent company to rebut the presumption that management power was actually exercised over its subsidiary (Art. 81(1) EC) (see paras 539-541, 545, 557-558) 12. 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 580-585) 13. 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 618-624) 14. Competition - Fines - Amount - Determination - Need to take account of the turnover of undertakings in the same infringement or similar previous infringements and to ensure the proportionality of the fines to those turnovers - None - Judicial review - Unlimited jurisdiction (Council Regulation No 17, Art. 15(2)) (see paras 634-639) 15. Competition - Fines - Amount - Determination - Deterrent effect - Account taken of the size and global resources of the fined undertaking (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1 A) (see paras 663-673, 678-684) 16. Competition - Fines - Amount - Determination - Criteria - Gravity of the infringement - Aggravating circumstances - Discretion of the Commission - Taking into account of repeat offences - Infringement of the principles that penalties must have a legal basis, of legal certainty, and ne bis in idem - None (Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) (see paras 716-730) 17. Competition - Fines - Amount - Determination - Criteria - Gravity of the infringement - Aggravating circumstances - Recidivism - Meaning (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 2) (see paras 733-739) 18. 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 17, Art. 15(2); Commission Notice 98/C 9/03, point 3, first indent) (see paras 763-767) 19. Competition - Fines - Amount - Determination - Criteria - Mitigating circumstances - Termination of the infringement after the Commission's intervention - Conditions (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 3) (see paras 780-784) 20. Competition - Fines - Amount - Determination - Criteria - Reduction of the fine for cooperation of the fined undertaking - Conditions (Council Regulation No 17, Art. 15(2); Commission Notice 96/C 207/04, title D, point 2) (see paras 791-794) Re: APPLICATION for annulment of Commission Decision 2005 / : 471 / : EC of 27 November 2002 relating to proceedings 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, an application for the annulment of or a reduction in the fine imposed on the applicant. Operative part The Court: 1. Dismisses the action; 2. Orders Lafarge SA to bear its own costs and to pay those incurred by the Commission; 3. Orders the Council to bear its own costs.