22With regard to the applicability of Article 65(5) CS, the Commission expressed the following opinion in recitals 515 to 518 of the contested decision:515 In accordance with Article 65(5) CS, the Commission may impose fines on any undertaking which has entered into an agreement which is automatically void, or has enforced or attempted to enforce an agreement or a decision of an association of undertakings which is automatically void or has engaged in practices prohibited by Article 65(1) CS. The Commission may impose fines not exceeding twice the turnover on the products which were the subject of the agreement, decision or practice prohibited by Article 65(1) CS; if, however, the purpose is to limit production, technical development or investment, the maximum may be raised to 10% of the annual turnover of the undertakings in question.516 The problem concerning the involvement of an association [of undertakings] in a procedure relating to the infringement of the competition rules established by the ECSC Treaty was already tackled by the Court of First Instance in the Eurofer case (Case T-136/94 Eurofer v Commission [1999] ECR II-263): “Article 65(1) CS prohibits ‘All agreements between undertakings, decisions by associations of undertakings and concerted practices tending directly or indirectly to prevent, restrict or distort normal competition within the common market’. Article 65(4) CS provides that: Any agreement or decision prohibited by paragraph 1 of this Article shall be automatically void and may not be relied upon before any court or tribunal in the Member States. The Commission shall have sole jurisdiction, subject to the right to bring actions before the Court, to rule whether any such agreement or decision is compatible with this Article'. Article 65(5) CS provides that: ‘On any undertaking which has entered into an agreement which is automatically void, or has enforced or attempted to enforce ... an agreement or decision which is automatically void ... or has engaged in practices prohibited by paragraph 1 of this Article, the Commission may impose fines or periodic penalty payments ...’ Although it does indeed follow from Article 65(5) CS that an association of undertakings cannot be made the subject of a fine or a periodic penalty payment, there is nothing in the wording of Article 65(1) CS to support the view that an association which has adopted a decision tending to prevent, restrict or distort normal competition is not itself covered by the prohibition laid down in that provision. That interpretation is confirmed both by Article 65(4) CS, which also refers to such decisions, and by the judgment in Case 67/63 Sorema v High Authority [1964] ECR 151, in which the Court of Justice held that Article 65(1) of the Treaty also [applied] to associations to the extent to which their own activity or that of their member undertakings tends to produce the effects referred to therein (at p. 162). That finding is also confirmed, according to the Court of Justice, by Article 48 CS, which allows associations to engage in any activity not contrary to the Treaty. Contrary to what the applicant contends, it also follows from the judgment in Sorema v High Authority that an association of undertakings within the meaning of Article 65(1) of the Treaty may be the addressee of a decision authorising an agreement pursuant to Article 65(2) CS (pp. 161-165). The applicants argument that an association of undertakings within the meaning of Article 65(1) CS cannot infringe the prohibition laid down in that provision must therefore be rejected.”517 It can therefore be concluded that if it is true that the Commission cannot inflict a fine on an association of undertakings, the same association can nevertheless be the addressee of a decision whenever it is certain that it has been involved in the infringement ...518 Concerning the undertakings, the elements to be taken into account for the calculation of fines are in particular the gravity of the infringement, the duration and the mitigating and aggravating circumstances.’
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