Judgment of the Court (Seventh Chamber) of 14 May 2020.NKT Verwaltungs GmbH and NKT A/S v European Commission.Appeal – Competition – Agreements, decisions and concerted practices – European market for underground and submarine power cables – Market allocation in connection with projects – Fines – Rights of the defence – Regulation (EC) No 1/2003 – Article 27(1) – Consistency between the statement of objections and the decision at issue – Access to the file – Single and continuous infringement – Burden of proof – Distortion of arguments and evidence.Case C-607/18 P.

Judgment // 14/05/2020 // 5 min read
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Judgment of the Court (Seventh Chamber) of 14 May 2020 – NKT Verwaltungs and NKT v Commission

(Case C‑607/18 P) ( 1 )

(Appeal – Competition – Agreements, decisions and concerted practices – European market for underground and submarine power cables – Market allocation in connection with projects – Fines – Rights of the defence – Regulation (EC) No 1/2003 – Article 27(1) – Consistency between the statement of objections and the decision at issue – Access to the file – Single and continuous infringement – Burden of proof – Distortion of arguments and evidence)

  1. Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence – Indication of the main factual and legal elements likely to entail a fine – Sufficient indication in relation to the right to be heard – Absence

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 27(1))

(see paras. 49-58)

  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 – Contribution to the single objective of the infringement – Knowledge or foreseeability of the overall plan of the agreement, decision or concerted practice and of its key elements

(Art. 101 TFEU)

(see paras 138-141, 164-170)

  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 181, 182)

  1. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – No systematic communication of replies to a statement of objections

(Commission Regulation No 773/2004, Art. 15(1); Commission Communication 2005/C 325/07, point 27)

(see paras 261-270)

  1. Actions for annulment – Judgment annulling a measure – Scope – Partial annulment of an EU legal act – Condition – Severability of the annullable elements from the contested act

(Arts 101(1) and 264, first para., TFEU)

(see paras 290-295, 298-301)

  1. Competition – Fines – Amount – Judicial review – Unlimited jurisdiction of the EU judicature – Reduction of the amount of the fine

(Art. 261 TFEU; Council Regulation No 1/2003, Art. 31)

(see paras 302-306)

Operative part

The Court:

  1. Sets aside point 1 of the operative part of the judgment of the General Court of the European Union of 12 July 2018, NKT Verwaltungs and NKT v Commission (T‑447/14, not published, EU:T:2018:443) to the extent that the General Court thereby dismissed the action brought by NKT Verwaltungs GmbH and NKT A/S for annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 – Power cables) in so far as that decision finds those companies liable for an infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992, and in so far as that infringement concerns, first, conduct related to sales in countries that are not members of the European Union or the European Economic Area (EEA); second, a collective refusal to supply accessories and technical assistance to competitors not participating in the cartel at issue; and, third, as regards the period from 3 July 2002 to 21 November 2002, the allocation of underground power cable projects in the EEA;

  2. Sets aside point 1 of the operative part of the judgment of the General Court of the European Union of 12 July 2018, NKT Verwaltungs and NKT v Commission (T‑447/14, not published, EU:T:2018:443) also to the extent that the General Court thereby dismissed the application of NKT Verwaltungs GmbH and NKT A/S for a reduction in the amount of the fine imposed on them, and point 2 of the operative part of that judgment;

  3. Dismisses the appeal as to the remainder;

  4. Annuls Decision C(2014) 2139 final in so far as it finds NKT Verwaltungs GmbH, formerly nkt cables GmbH, and NKT A/S, formerly NKT Holding A/S, liable for an infringement of Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992, and in so far as that infringement concerns, first, conduct related to sales in countries that are not members of the European Union or the European Economic Area (EEA); second, a collective refusal to supply accessories and technical assistance to competitors not participating in the cartel at issue; and, third, as regards the period from 3 July 2002 to 21 November 2002, the allocation of underground power cable projects in the EEA;

  5. Fixes the amount of the fine imposed on NKT Verwaltungs GmbH, formerly nkt cables GmbH, and on NKT A/S, formerly NKT Holding A/S, in Article 2(e) of Decision C(2014) 2139 final at EUR 3687000;

  6. Orders NKT Verwaltungs GmbH, NKT A/S and the European Commission to bear their own costs of the proceedings at first instance and of the appeal.

( 1 ) OJ C 427, 26.11.2018.

Competition