Judgment of the General Court (Seventh Chamber) of 11 July 2019.Silver Plastics GmbH & Co. KG and Johannes Reifenhäuser Holding GmbH & Co. KG v European Commission.Competition — Cartels — Retail food packaging market — Decision finding an infringement of Article 101 TFEU — Evidence of involvement in a cartel — Single and continuous infringement — Principle of equality of arms — ‘Right to confront’ — 2006 Leniency Notice — Significant added value — Attributability of unlawful conduct — 2006 Guidelines for calculating the amount of fines — Proportionality — Equal treatment — Upper limit of the fine.Case T-582/15.

Judgment // 11/07/2019 // 5 min read
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Judgment of the General Court (Seventh Chamber) of 11 July 2019 –Silver Plastics et Johannes Reifenhäuser v Commission

(Case T‑582/15)

(Competition — Cartels — Retail food packaging market — Decision finding an infringement of Article 101 TFEU — Evidence of involvement in a cartel — Single and continuous infringement — Principle of equality of arms — ‘Right to confront’ — 2006 Leniency Notice — Significant added value — Attributability of unlawful conduct — 2006 Guidelines for calculating the amount of fines — Proportionality — Equal treatment — Upper limit of the fine)

  1. Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation — Permissibility of an overall assessment of a body of evidence

(Art. 101(1) TFEU)

(see paras 25-27)

  1. Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Exchange of information between competitors — Anti competitive object or effect — Presumption — Conditions

(Art. 101(1) TFEU)

(see paras 28-32)

  1. Competition — Administrative procedure — Commission decision finding an infringement — Use as evidence of statements of other undertakings which participated in the infringement — Whether permissible — Probative value of voluntary statements by the main participants in a cartel with a view to benefiting from application of the leniency notice

(Art. 101 TFEU; Commission notice 2006/C 298/11)

(see paras 49-52)

  1. Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Documentary proof — Assessment of the probative value of a document — Criteria — Handwritten notes provided by a cartel participant in the framework of the leniency notice

(Art. 101(1) TFEU; Commission notice 2006/C 298/11)

(see paras 55-57)

  1. Competition — Fines — Assessment by reference to the individual conduct of the undertaking — Irrelevant that no sanction brought against another economic operator — None

(Art. 101(1) TFEU)

(see para. 111)

  1. Agreements, decisions and concerted practices — Complex infringement comprising elements both of an agreement and of a concerted practice — Single classification as an ‘agreement and/or concerted practice’ — Whether permissible

(Art. 101(1) TFEU)

(see paras 155, 156)

  1. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability for the entire infringement to a single undertaking — Conditions — Unlawful practices and conduct forming part of an overall plan — Assessment — Criteria — Common objective pursued by all the participants — Requirement for a link of complementarity between the practices complained of — None

(Art. 101(1) TFEU)

(see paras 169-172)

  1. Competition — Administrative procedure — Commission decision finding an infringement — Obligation to define the market in question — Scope

(Art. 101(1) TFEU)

(see paras 182, 183)

  1. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Abstract statement — Inadmissibility

(Rules of Procedure of the General Court, Art. 76(d))

(see para. 196)

  1. Competition — Administrative procedure — Hearings — Hearing of certain persons — Discretion of the Commission — Limit — Observance of the rights of the defence

(Art. 101 TFEU; Commission Regulation No 773/2004, Arts 10(3) and 13)

(see para. 202)

  1. Competition — Administrative procedure — Observance of the rights of the defence — Scope of the principle — Limits — Right of the undertaking to cross-examine the witnesses — Not included

(Art. 101(1) TFEU)

(see paras 216, 217)

  1. Judicial proceedings — Measures of inquiry — Hearing of witnesses — Discretion of the General Court — Relevance of the principle of the right to a fair process

(Rules of Procedure of the General Court, Art. 91)

(see paras 226-230)

  1. Competition — Fines — Amount — Determination — Leniency rules — Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned — Conditions

(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission notice 2006/C 298/11)

(see paras 241, 245)

  1. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of dominant influence exercised by parent company over its wholly owned or almost wholly owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption — Factors insufficient to rebut the presumption

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2))

(see paras 255-264, 272, 276)

  1. Competition — Fines — Amount — Determination — Adjustment of the basic amount — Maximum amount — Calculation — Turnover to be taken into consideration — Turnover for the business year immediately preceding the date on which the fine was imposed

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2))

(see paras 287-294)

  1. Competition — Fines — Amount — Determination — Determination of the basic amount — Gravity of the infringement — Entry fee — Factors to be taken into consideration

(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission notice 2006/C 210/02, points 20 to 23 and 25)

(see paras 322-325, 338, 341, 344, 345)

  1. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope

(Arts 261 and 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Art. 31)

(see paras 361, 362)

Re:

Action under Article 263 TFEU seeking, principally, the annulment in part of Commission Decision C(2015) 4336 final of 24 June 2015 relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39563 — Retail Food Packaging) and, in the alternative, the reduction of the fines imposed on the applicants.

Operative part

The Court:

  1. Dismisses the action;

  2. Orders Silver Plastics GmbH & Co. KG and Johannes Reifenhäuser Holding GmbH & Co. KG to pay the costs.

Competition