Judgment_paragraph 49 · Kuwait Petroleum Corp. and Others v European Commission (T-370/06)

49It is apparent from settled case-law concerning the 1996 Leniency Notice that cooperation in an investigation which does not go beyond that which undertakings are already obliged to provide under Article 11(4) and (5) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition, 1959-1962, p. 87) does not warrant a reduction in the fine (Case T-308/94 Cascades v Commission [1998] ECR II-925, paragraph 260, and Case T-12/89 Solvay v Commission [1992] ECR II-907, paragraphs 341 and 342). On the other hand, such a reduction is warranted where the undertaking has provided information well in excess of that which the Commission may require under Article 11 of Regulation No 17 (Cascades v Commission, paragraphs 261 and 262, and Case T-230/00 Daesang and Sewon Europe v Commission [2003] ECR II-2733, paragraph 137). In order to justify reduction of a fine on grounds of cooperation, the conduct of an undertaking must facilitate the Commission’s task of finding and bringing to an end infringements of the European Union competition rules and reveal a true spirit of cooperation. Therefore, the Court must first consider whether the Commission disregarded the extent to which the cooperation of the undertakings in question exceeded what was required under Article 11 of Regulation No 17. In that connection, the Court undertakes a comprehensive review concerning, in particular, the extent to which the undertakings’ rights of defence limit their obligation to reply to requests for information. Second, the Court should verify, as in the present case, whether the Commission correctly appraised, in the light of the 1996 Leniency Notice, the extent to which the cooperation provided helped to establish the infringement. Within the limits laid down by that notice, the Commission has a discretion in assessing whether the information or documents voluntarily provided by the undertakings have facilitated its task and whether it is appropriate to grant a reduction to an undertaking under that notice. That assessment is the subject of limited review by the Court (Case C-511/06 P Archer Daniels Midland v Commission [2009] ECR I-5843, paragraph 152; Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich and Others v Commission [2006] ECR II-5169, paragraphs 529 to 532, confirmed in Joined Cases C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P Erste Group Bank and Others v Commission [2009] ECR I-8681, paragraph 249).