Judgment_paragraph 10 · Commission of the European Communities v SGL Carbon AG (C-301/04)

10As regards the method of setting the fines imposed, the Court of First Instance, in paragraphs 401 to 412 of the judgment under appeal, held as follows:401 Next, the essential reason why the Commission granted SGL a reduction of only 30 % is set out in recital 174 of the [contested decision]: according to the Commission, an undertaking deserves a reduction in its fine only if its cooperation is “voluntary” and is outside the exercise of “any investigatory power”: the Commission considered that “a substantial part of the information provided [by SGL] in fact constitute[d] SGL's reply to the Commission's formal request for information [and that] SGL's statement [would] be regarded as a voluntary contribution within the meaning of the Leniency Notice only where the information provided went beyond that requested under Article 11”. Furthermore, SGL sent its statement of 8 June 1999 only after it had received a reminder in which the Commission reserved the right to adopt a formal decision under Article 11(5) (recital 173 of the [contested] [d]ecision). Relying on the judgment of the Court of Justice in Case 374/87 Orkem v Commission [1989] ECR 3283, paragraphs 27, 28 and 32 to 35, the Commission therefore did not make recompense for the information which it considered that SGL was required to provide in any event in reply to a request for information or to a decision ordering, under threat of penalties, communication of the information requested.402 In that context, it is appropriate to observe that the absolute right to silence on which SGL relies in support of its contention that it was not required to respond to any request for information cannot be recognised. To acknowledge the existence of such a right would be to go beyond what is necessary in order to preserve the rights of defence of undertakings, and would constitute an unjustified hindrance to the Commission's performance of its duty to ensure that the rules on competition within the common market are observed. A right to silence can be recognised only to the extent that the undertaking concerned would be compelled to provide answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove (Case T-112/98 Mannesmannröhren-Werke v Commission [2001] ECR II-729, paragraphs 66 and 67).403 In order to ensure the effectiveness of Article 11 of Regulation No 17, the Commission is therefore entitled to compel the undertakings to provide all necessary information concerning such facts as may be known to them and to disclose to the Commission, if necessary, such documents relating thereto as are in their possession, even if the latter may be used to establish the existence of anti-competitive conduct (see Mannesmannröhren-Werke v Commission, cited at paragraph 402 above, paragraph 65, and the case-law cited there).404 This power of the Commission to obtain information, enshrined in Orkem v Commission and Mannesmannröhren-Werke v Commission, cited at paragraphs 401 and 402 above respectively, does not fall foul of either Article 6(1) and (2) of the ECHR [European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950] (Mannesmannröhren-Werke v Commission, cited above, paragraph 75) or the case-law of the European Court of Human Rights.405 Although the Court of Justice has held ([Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8735; “LVM”], paragraph 274) that after the judgment in Orkem v Commission, cited at paragraph 401 above, the case-law of the European Court of Human Rights, of which the Community Courts must take account, has gone through new developments with the Funke judgment … the Saunders v United Kingdom judgment of 17 December 1996(Reports of Judgments and Decisions 1996-VI, p. 2044, § § 69, 71 and 76), and the J.B. v Switzerland judgment of 3 May 2001(Reports of Judgments and Decisions 2001-III, § § 64 to 71), the Court of Justice did not reverse its previous case-law in LVM.406 In any event, the mere fact of being obliged to answer purely factual questions put by the Commission and to comply with its requests for the production of documents already in existence cannot constitute a breach of the principle of respect for the rights of defence or impair the right to fair legal process, which offer, in the specific field of competition law, protection equivalent to that guaranteed by Article 6 of the Convention. There is nothing to prevent the addressee of a request for information from showing, whether later during the administrative procedure or in proceedings before the Community Courts, when exercising his rights of defence, that the facts set out in his replies or the documents produced by him have a different meaning from that ascribed to them by the Commission (Mannesmannröhren-Werke v Commission, cited at paragraph 402 above, paragraphs 77 and 78).407 As regards, next, the extent to which SGL was required to reply, in accordance with the case-law referred to above, to the request for information of 31 March 1999, it must be observed that, in addition to the purely factual questions and the requests to produce documents already in existence, the Commission requested SGL to describe the object of and what occurred at a number of meetings in which SGL participated and also the results/conclusions of those meetings, when it was clear that the Commission suspected that the object of the meetings was to restrict competition. It follows that a request of that nature was of such a kind as to require SGL to admit its participation in an infringement of the Community competition rules.408 The same applies to the requests for the protocols of those meetings, the working documents and the preparatory documents concerning them, the handwritten notes relating to them, the notes and the conclusions pertaining to the meetings, the planning and discussion documents and also the implementing projects concerning the price increases put into effect between 1992 and 1998.409 As SGL was not required to answer questions of that type in the request for information of 31 March 1999, the fact that it none the less provided information on those points must be regarded as voluntary collaboration on the part of the undertaking apt to justify a reduction in the fine under the Leniency Notice.410 That conclusion cannot be affected by the Commission's argument that the information in question was not provided voluntarily but in reply to a request for information. Section D, paragraph 2, first indent, of the Leniency Notice does not require a voluntary act taken solely on the initiative of the undertaking concerned, but merely requires information which contributes to establishing the existence of the infringement. Even Section C, moreover, which relates to a more substantial reduction in the fine than that referred to in Section D, makes it possible to reward cooperation provided “after the Commission has undertaken an investigation ordered by decision on the premises of the parties to the cartel”. Accordingly, the fact that a request for information was sent to SGL under Article 11(1) of Regulation No 17 cannot minimise the cooperation provided by that undertaking under Section D, paragraph 2, first indent, of the Leniency Notice, especially not as a request for information is a less coercive measure than an investigation ordered by decision.411 It follows that the Commission failed to appreciate the importance of SGL's cooperation in that context.412 In so far as the Commission criticises SGL for having given an incomplete answer to the question as to which undertakings SGL had informed of the forthcoming investigations by the Commission in June 1997, it is true that, by letter of 30 July 1997, SGL admitted only to having informed VAW and another undertaking and failed to state that it had also informed UCAR. However, the Commission itself stated that SGL's warning increased the gravity of the infringement, gave rise to a fine whose deterrent effect was greater than normal and justified being regarded as an aggravating circumstance, as SGL's conduct had created the conditions necessary to keep the cartel active and to prolong its injurious effects. Consequently, SGL was not required to inform the Commission that it had warned other undertakings. That information was likely to increase the penalty which the Commission would impose on SGL. On this point too, therefore, the Commission failed to appreciate SGL's conduct by criticising it for having provided an incomplete reply.’