European Competition Law provides a wide-ranging review of the European rules relating to competition: restrictive agreements, abuse of a dominant position, impact of intellectual property rights, procedure, merger control, State aid.

European Competition Law

An undertaking which discloses the existence of a cartel but does not meet the conditions to benefit from immunity may be eligible to benefit from a reduction in the fine. For such purpose, it must provide the Commission with evidence of the cartel which represents significant added value with respect to the evidence already in the Commission's possession . According to the Court of Justice, the C …

Fine reduction

An undertaking which discloses the existence of a cartel but does not meet the conditions to benefit from immunity may be eligible to benefit from a reduction in the fine. For such purpose, it must provide the Commission with evidence of the cartel which represents significant added value with respect to the evidence already in the Commission's possession . According to the Court of Justice, the Commission's possession of evidence amounts to knowledge of its content, regardless of whether that evidence was actually examined and analysed by its services . 

The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission's ability to prove the alleged cartel . In this assessment, the Commission will generally consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence subsequently established. Incriminating evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance. Similarly, the degree of corroboration from other sources required for the evidence submitted to be relied upon against other undertakings involved in the case will have an impact on the value of that evidence, so that compelling evidence will be attributed a greater value than evidence such as statements which require corroboration if contested . Information, even of a general nature, provided by an undertaking have significant added value in relation to precise and detailed data supplied by another undertaking but which has been contested by several participants, where the information has been objectively instrumental in the finding of the infingment . Nevertheless, the fact that the Commission has cited evidence provided by an undertaking in its decision is not sufficient for that evidence to be considered as representing significant added value . Likewise, the fact of having drawn up documents with a significant added value without providing those documents to the Commission does not justify a fine reduction either .  Finally, when assessing the value of the evidence provided by an undertaking, the Commission does not have to take account of the fact that a reduced contribution to the revelation of the practices may be explained by its more limited involvement in the cartel .

Information provided to the Commission must facilitate its task in the search for evidence and the finding of an infringement. Such is not the case of the general and ambiguous acknowledgment of the alleged facts  or where the undertaking provides information which can be interpreted as the acknowledgment of infringements but denies any participation in the cartel . Likewise, the mere intention to cooperate or the fact of cooperating with the Commission is insufficient : for a reduction in the fine undertakings must spontaneously provide  information, documents or other evidence which materially contribute to establishing the existence of the infringement committed . Thus, the disclosure of documents that do not expose the undertaking to a fine does not justify a reduction of the amount which would have been imposed .  Non-contestation of the facts after the Statement of Objections will not therefore justify a reduction of the fine either when the Commission already had sufficient evidence to prove the facts . The equivocal behavior of an undertaking which, after the submission of the Statement of Objections finding a non-contestation of the facts, subsequently challenges a series of essential facts thus failing to facilitate the Commission's work, cannot benefit from a reduction of the fine . The fact that an undertaking provides significant added value and timely cooperation does not mean it is entitled to a 50% reduction of the fine where at the same time it had tried to minimize the extent of certain exchanges . However, cooperation by an undertaking which supplies far more information than the Commission has required under Article 18 of Regulation No 1/2003  or which, in response to a request for information, discloses incriminating evidence or makes statements which run counter to its interests, justifies a reduction of the fine . Similarly, an undertaking which contests the information disclosed to the Commission by another leniency applicant does not violate its obligation of cooperation, where such a behavior is intended only to demonstrate that the information gathered is insufficient to prove the infringement and where the information it has provided has brought significant added value . Like applications for immunity, undertakings requesting a reduction of the fine must cooperate genuinely, fully, on a continuous basis and expeditiously from the time they submit their application throughout the administrative procedure; they must have ended their involvement in the alleged cartel immediately following the application and not have destroyed, falsified or concealed evidence of the alleged cartel nor disclosed the fact or any of the content of its contemplated application, except to other competition authorities .

The Commission has determined various levels of reduction, which are applied after the fixing of the 10% turnover ceiling provided for in Article 23 of Regulation No 1/2003  in relation to the position of the undertakings in coming forward and the date on which they provided the evidence required :

- reduction of 30-50% for the first undertaking ;

- reduction of 20-30% for the second undertaking,

- maximum reduction of 20% for the others .

An additional reduction may be granted if the added value of information provided so justifies . In the case of a single and complex infringement, the rate by which the fine is reduced should not be divided according to each part of the infringement but applies to the whole of the fine .

To benefit from a reduction in the fine, the undertaking must make a formal application to the Commission or, if voluntarily submitting evidence, it must be clearly identified as being part of such an application. Where an undertaking opts to make its leniency application orally , the date taken into account for the purposes of applying the bands of reduction in the fine is not that date when the undertaking contacts the Commission to make an oral statement, but that of the meeting during which it provides evidence with significant added value with respect to the evidence already in the Commission's possession . If the undertaking fulfils the conditions for reduction, the Commission informs it in writing of its intention to reduce the fine and of the reduction band selected. The exact amount is mentioned in the final decision. The undertaking will not benefit from any favorable treatment if it has not met the conditions for a reduction.

The fine reduction granted to a subsidiary will be extended to the parent where the latter was not personally involved in the infringement and its liability is purely derivative, ancillary to and dependent on that of its subsidiary . On the other hand, the sister company of a subsidiary which has obtained a reduction of the fine under the leniency notice, cannot also benefit from the reduction solely on the grounds that they form a single undertaking pursuant to competition law, insofar as its own responsibility does not stem from the relationship but is a result of its material involvement in the infringement, the leniency application has not been filed in its name and it has not personally cooperated with the Commission in the proceedings .  Similarly, a reduction of the fine cannot be extended to an undertaking which, whilst having controlled, in the past, the area of activity involved in the infringement in question, did not itself contribute to detection of the infringement .

 When the Commission grants partial immunity for a specific period, it cannot take that period into account at any stage of the setting of the fine . Similarly, where the Commission has granted partial immunity to an undertaking which has submitted evidence allowing it to establish an additional duration of the infringement, the Commission cannot restrict the duration of the immunity granted on the grounds that it sunsequenty discovered that other anticompetitive contacts had taken place during that period . According to the European Court of Justice, in order to ensure that leniency applicants are not fined for the period of the infringement for which they have provided information to the Commission, partial immunity from fines should not result in a reduction in the final amount of the fine, but in an exemption from the application of the multiplier for duration .

Commission Notice No 2006/C 298/11 of 8 December 2006, at pts 24 and 25. See also Case T-39/06 Transcatab SpA [2011] ECR II-6831 LawLex201200001966JBJ, the Commission does not have to appreciably reduce the amount of the fine where it already had in its possession the information providedand such information is not likely to challenge its assessment as to the duration or seriousness of the infringement.

Case C-617/13 P Repsol Lubricantes y Especialidades SA, Judgment of 9 June  2016, LawLex201600001065JBJ. 

Cooperation in an investigation which is confined to the obligations that undertakings are required to meet, does not justify a reduction in the fine: Case T-213/00 CMA CGM and others v Commission [2003] ECR II-913, LawLex200400003543JBJ.

Joined Cases C-293-93 P and C-294-13 P Fresh Del Monte Produce Inc., Judgment of 24 June 2015, LawLex201500000817JBJ: a response from the undertaking to a request for information on the basis of Article 18(2) of Regulation No 1/2003 does not justify a reduction of the fine.

Commission Decision No 2004/138/EC of 11 June 2002, Austrian banks - “Lombard Club”, LawLex200500004669JBJ: the undertaking must contribute voluntarily, i.e. beyond what was legally required and substantially, to the ascertainment of important facts; Case T-230/00 Daesang Corporation and Sewon Europe v Commission [2003] ECR II-2733, LawLex200500004825JBJ, the undertaking must provide information well in excess of that which the Commission may require under Article 18 of Regulation No 1/2003; Case T-241/01 Scandinavian Airlines System v Commission [2005] ECR II-2917, LawLex200500010189JBJ.

Case T-489/09 Leali SpA, Judgment of 9 December 2014, not available in English.

Case T-372/10 Bolloré, Judgment of 27 June 2012, LawLex201400000107JBJ.

Case T-55/06 RKW, Judgment of 16 November 2011, not available in English.

Case T-84/13 Samsung SDI Co. Ltd., Judgment of 9 September 2015, LawLex201500001111JBJ.

Case T-230/00 Daesang Corp. [2003] ECR II-2733, LawLex200500004825JBJ.

Commission Decision No 39.165 of 28 November 2007, Flat glass, LawLex200900001758JBJ.

Case T-412-10 Roca, Judgment of 16 September 2013, LawLex202000001883JBJ and Case T-496/07 Repsol Lubricantes y Especialidades, SA, not available in English.

Commission Decision No 39125 of 12 November 2008, LawLex202100001753JBJ.

Commission Decision No 39.165, Flat glass, cited above, the two manufacturers that had ended their participation in the infringement and had fully and effectively cooperated with the Commission only a few days after the Commission undertook its first set of inspections and throughout the proceedings, and that were the only undertakings to have provided evidence with significant added value, were entitled to a 50% reduction of the fine. 

Case T-33/05 Cetarsa v Commission, Judgment of 3 February 2011, not avialable in English. 

Commission Notice No 2006-C 298-11 of 8 December 2006, pt 26. In determining the level of fine reduction granted under leniency, account is taken of the timing of cooperation with the Commission, the degree of spontaneity of that cooperation and the completeness of the information disclosed in terms of the duration and continuity of the infringement: Commission Notice No 2004-421 of 16 December 2003, Wieland Werke AG, Outokumpu Copper Products Oy, LawLex200500004583JBJ. See on the essential nature of the date of the contribution, Case T-347/06 Nynäs Petroleum AB, Judgment of 27 September 2012, LawLex202100001707JBJ; Case T-496/07 Repsol Lubricantes y Especialidades, SA, Judgment of 16 September 2013, not available in English.

Commission Decision No 2006/460/EC of 17 December 2002, Specialty Graphite, LawLex200700001784JBJ; No 2004/420/EC of 3 December 2003, C. Conradty Nürnberg GmbH, Hoffmann & Co. Elektrokohle AG, Le Carbone Lorraine SA, Morgan Crucible Company Plc, Schunk GmbH and Schunk Kohlenstofftechnik GmbH, jointly and severally, and SGL Carbon AG ; Electrical and mechanical carbon and graphite products, LawLex200500004582JBJ; Case T-109/02 Bolloré v Commission [2007] ECR II-947, LawLex200700000583JBJ.

Case T-109/02 Bolloré v Commission [2007] ECR II-947, LawLex200700000583JBJ, 15% reduction for the undertaking which was a party to an overall price-fixing and market-sharing agreement, but which did not participate in the constituent elements of the market-sharing practices having led to fix the final amount of the fine; Case T-101/05 BASF and UCB v Commission [2007] ECR II-4949, LawLex200800000271JBJ: fine reduction of 20% for an undertaking which reported a little under two thirds of the meetings and provided information at a time when it was aware that the Commission had initiated action against the cartel in question.

Case T-53-03 BPB plc, Judgment of 8 July 2008, LawLex200900000079JBJ: an additional reduction of 10% of the fine must be granted to the first participant in the cartel to have communicated, subsequent to a request for information from the Commission, but going beyond it, additional elements to those discovered during the inspections which, by substantially reinforcing the Commission's argumentation, made it possible to substantially increase the amount of the fines in respect of the gravity of the infringement; Case T-344/18 Rubycon Corp, Judgment of 29 September 2021, LawLex202100005428JBJ, stressing that for the application of paragraph 26, third subparagraph, of the 2006 Leniency Notice, it is necessary not only for the evidence provided by the undertaking to be decisive, but also for it to enable the Commission to establish additional factual elements of such a nature as to reinforce the gravity or duration of the infringement.

Case T-406/09 Donau Chemie AG, Judgment of 14 May 2014, LawLex201500000635JBJ.

Case T-15/02 BASF v Commission [2003] ECR II-213, LawLex200600001226JBJ.

Case T-186/06 Solvay [2011] ECR II-2839 LawLex201200000057JBJ.

Case T-408/10 Roca Sanitario SA, Judgment of 16 September 2013, not available in English.

Commission Notice No 2006/C 298/11, pt 25

Case T-411/10 Laufen Austria AG, Judgment of 16 September 2013, not available in English.

Case C-238/12 P FLSmodth & Co. A/S, Judgment of 30 April 2014, LawLex201400000642JBJ; Case T-436/10 HIT Groep BV, Judgment of 15 July 2015, LawLex202000002038JBJ.

Case T-128/11 LG Display Co., Judgment of 27 February 2014, LawLex201400000369JBJ.

Case T-267/12 Deutsche Bahn AG, Judgment of 29 February 2016, LawLex201600000459JBJ.

Case T-344/18 Rubycon Corp., Judgment of 29 September 2021, LawLex202100005428JBJ, cited above.

Case T-412/10 Roca, Judgment of 16 September 2013, LawLex202000001883JBJ.

Case T-214/06 Imperial Chemical Industries Ltd, Judgment of 5 June 2012, LawLex201200002008JBJ; Case T-423/10 Redaelli Tecna SpA, Judgment of 15 July 2015, LawLex202000001984JBJ.

Case T-406/10 Emesa-Trefileria SA, Judgment of 15 July 2015, LawLex201500000941JBJ.

Case T-558/08 Eni SpA, Judgment of 12 December 2014, LawLex201700001077JBJ.

Case T-279/02 Degussa v Commission [2006] ECR II-897, LawLex200700001980JBJ. See also Case T-45/98 Krupp Thyssen Stainless v Commission [2001] ECR II-3757, LawLex200400003567JBJ: the undertaking must, by an express statement, indicate that it is not contesting the Commission's allegation as to the existence of the infringement merely not contesting the allegation is insufficient.

Case T-48/02 Brouwerij Haacht v Commission [2005] ECR II-5259, LawLex200500010316JBJ.

European Competition Law

269. Fine reduction

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269. Fine reduction

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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