Contents
Judgment of the General Court (Eighth Chamber)16 June 2011noteIn Joined Cases T-204/08 and T-212/08,Team Relocations NV, established in Zaventem (Belgium), represented by H. Gilliams and J. Bocken, lawyers,Amertranseuro International Holdings Ltd,Trans Euro Ltd,Team Relocations Ltd,established in London (United Kingdom), represented by L. Gyselen, lawyer,vEuropean Commission, represented by A. Bouquet, A. Antoniadis and N. von Lingen, acting as Agents,THE GENERAL COURT (Eighth Chamber),composed of S. Papasavvas, acting for the President, N. Wahl and A. Dittrich (Rapporteur), Judges,Registrar: N. Rosner, Administrator,having regard to the written procedure and further to the hearing on 28 April 2010,gives the following
Judgment
Facts
1.Subject-matter of the dispute
1According to Commission Decision C(2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 — International Removal Services) (‘the Decision’), a summary of which is published in the Official Journal of the European Union of 11 August 2009 (OJ 2009 C 188, p. 16), Team Relocations NV (‘Team Relocations’) participated in a cartel on the international removal services market in Belgium, relating to the direct or indirect fixing of prices, market sharing and the manipulation of the procedure for the submission of tenders. The European Commission states that the cartel operated for almost 19 years (from October 1984 to September 2003). Its members fixed prices, issued false quotes (‘cover quotes’) to customers and compensated each other for rejected offers by means of a financial compensation system (‘commissions’).
2.Applicants
2Team Relocations was founded under the name Transeuro Worldwide Movers NV (Belgium) on 7 May 1993. Its name was changed on 5 September 2002. Since January 1994, the 100 % parent company of Team Relocations has been Team Relocations Ltd, a company which operates in the removal services sector and whose shares are all held by the company Trans Euro Ltd (‘Trans Euro’). Since 8 September 2000, 100 % of the shares in Trans Euro have been held by Amertranseuro International Holdings Ltd (‘Amertranseuro’).
3In the financial year ending 30 September 2006, Amertranseuro achieved a consolidated worldwide turnover of EUR 44352733.
3.Administrative procedure
4According to the Decision, the Commission opened the procedure on its own initiative because it had information that certain Belgian companies operating in the international removals sector were party to agreements that might be caught by the prohibition in Article 81 EC.
5Accordingly, investigations were carried out at the premises of Allied Arthur Pierre NV (‘Allied Arthur Pierre’), Interdean NV (‘Interdean’), Transworld International NV and Ziegler SA in September 2003, under Article 14(3) 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). Following those investigations, Allied Arthur Pierre applied for immunity from fines or a reduction in the fine in accordance with the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’). Allied Arthur Pierre admitted that it had participated in agreements on commissions and cover quotes, listed the competitors involved, inter alia a competitor previously unknown to the Commission’s services, and submitted documents corroborating its oral statements.
6In accordance with Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), several written requests for information were sent to the undertakings involved in the anti-competitive agreements, to some competitors and to a professional organisation. On 18 October 2006, the statement of objections was adopted and notified to several undertakings. All the addressees replied to it. Their representatives, with the exception of Amertranseuro, Stichting Administratiekantoor Portielje, Team Relocations Ltd and Trans Euro, exercised their right of access to the documents contained in the Commission’s file, which were accessible only on the Commission’s premises. They were granted access between 6 and 29 November 2006. The hearing was held on 22 March 2007.
7On 11 March 2008, the Commission adopted the Decision.
4.Decision
8The Commission states that the addressees of the Decision — including Team Relocations, Amertranseuro, Trans Euro and Team Relocations Ltd (‘the applicants’) — participated in a cartel in the international removal services sector in Belgium or are deemed responsible therefor. The participants in the cartel fixed prices, shared customers and manipulated the submission of tenders at least from 1984 to 2003. As a result, they have committed a single, continuous infringement of Article 81 EC.
9According to the Commission, the services concerned include the removal of goods of both natural persons — private individuals or employees of an undertaking or a public institution — and undertakings or public institutions. Such removals are characterised by the fact that Belgium is either the starting place or the destination. Having regard also to the fact that the international removal companies in question are all located in Belgium and that the cartel’s activity takes place in Belgium, the Commission therefore considered that the geographic centre of the cartel was Belgium.
10The combined turnover of the participants in the cartel for international removal services in Belgium in 2002 was estimated by the Commission at EUR 41 million. As it estimated the size of the sector at approximately EUR 83 million, the combined market share of the undertakings involved was considered to be approximately 50 %.
11The Commission states that the aim of the cartel was, inter alia, to establish and maintain high prices and to share the market contemporaneously or successively in various forms: agreements on prices, agreements on sharing the market by means of a system of providing cover (‘cover quotes’) and agreements on a system of financial compensation for rejected offers or for not quoting at all (‘commissions’).
12The Commission considers that, between 1984 and the early 1990s, the cartel operated inter alia on the basis of written price-fixing agreements. At the same time the commissions and cover quotes were introduced. A commission is a hidden element in the final price which the customer had to pay without receiving a corresponding service. It is a sum of money that the removal company winning the contract for an international removal owed to the competitors that did not secure the contract, whether they submitted an estimate or abstained from doing so. It is therefore a sort of financial compensation for the removal companies that did not win the contract. The members of the cartel issued invoices to each other for commissions on the rejected offers or offers not made, referring to fictitious services, and the total for those commissions was invoiced to customers. The Commission states that that practice must be deemed to be indirect fixing of prices for international removal services in Belgium.
13The members of this cartel also cooperated in submitting cover quotes, which led customers, that is to say, employers paying for the removal, into the mistaken belief that they could choose according to competition-based criteria. A cover quote is a fictitious quotation submitted to the customer or the person who was moving by a removal company which did not intend to carry out the removal. Through the submission of cover quotes, the removal company that wanted the contract (‘the requesting firm’) ensured that the institution or undertaking received several quotes, either directly or indirectly via the person who was moving. To that end, the requesting firm indicated to its competitors the price, the rate of insurance and the storage costs that they were to quote. That price, which was higher than the price quoted by the requesting firm, was then indicated in the cover quotes. According to the Commission, since the employer will usually choose the removal company that offers the lowest price, the companies involved in the same international removal as a rule knew in advance which of them would secure the contract for that removal.
14The Commission also observes that the price quoted by the requesting firm could be higher than it might otherwise have been because the other companies involved in that removal would have submitted cover quotes indicating a price stated by the requesting firm. By way of example, the Commission refers, in recital 233 of the Decision, to an internal Allied Arthur Pierre email message dated 11 July 1997 which stated: ‘[T]he customer has asked for two cover quotes, so we can ask for a high price.’ Therefore, the Commission states that the submission of cover quotes to customers was a manipulation of the tendering procedure so that the prices quoted in all the bids were deliberately higher than the price of the requesting firm, and at all events higher than they would have been in a competitive environment.
15The Commission maintains that those arrangements were in place until 2003. Those complex activities had the same object of fixing prices, sharing the market, and thus of distorting competition.
16In conclusion, the Commission adopted the operative part of the Decision, Article 1 of which is worded as follows:‘By directly and indirectly fixing prices for international removal services in Belgium, sharing part of the market, and manipulating the procedure for the submission of tenders, the following undertakings have infringed Article 81(1) [EC] … in the periods indicated:…(g) [Team Relocations], from 20 January 1997 to 10 September 2003; with Trans Euro … and Team Relocations Limited, from 20 January 1997 to 7 September 2000; with [Amertranseuro], Trans Euro … and Team Relocations Limited, from 8 September 2000 to 10 September 2003;…’
17Consequently, in Article 2(i) of the Decision, the Commission imposed a fine of EUR 3.49 million on Team Relocations, of which Trans Euro and Team Relocations Ltd are held jointly and severally liable for the amount of EUR 3 million and Amertranseuro, Trans Euro and Team Relocations Ltd (‘the Amertranseuro group’) are held jointly and severally liable for the amount of EUR 1.3 million.
18For the purposes of calculating the amount of the fines, the Commission applied, in the Decision, the methodology set out in its Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’).
Procedure and forms of order sought by the parties
19By applications lodged at the Court Registry on 4 June 2008, the applicants brought the present actions.
20By order of the President of the Eighth Chamber of the Court of 5 March 2010, Cases T-204/08 and T-212/08 were joined for the purposes of the oral procedure and of the judgment, in accordance with Article 50 of the Rules of Procedure of the Court.
21Upon hearing the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure. The parties presented their oral arguments and their replies to oral questions put by the Court at the hearing on 28 April 2010. By letter lodged at the Registry on 6 August 2010, Team Relocations requested the reopening of the oral procedure. That request was rejected by decision of 23 September 2010.
22In Case T-204/08, Team Relocations claims that the Court should:— annul Article 1 of the Decision;— annul Article 2 of the Decision, in so far as it imposes on Team Relocations a fine of EUR 3.49 million;— in the alternative, substantially reduce the fine imposed by the Decision;— in any event, order the Commission to pay the costs of the proceedings.
23In addition, Team Relocations requests the Court to order the Commission to disclose the factors which it took into account in awarding Interdean a 70 % reduction in the fine that otherwise would have been imposed on Interdean.
24In Case T-212/08, Amertranseuro, Trans Euro and Team Relocations Ltd claim that the Court should:— annul Article 2(i) of the Decision, in so far as it declares them jointly and severally liable for Team Relocations’ alleged infringement of Article 81 EC and Article 53 of the EEA Agreement in the period between January 1997 and September 2003;— in the alternative, annul Article 2(i) of the Decision, in so far as it does not effectively limit the joint and several liability of Amertranseuro to the amount of EUR 1.3 million;— order the Commission to pay the costs.
25In Cases T-204/08 and T-212/08, the Commission contends that the Court should:— dismiss the applications;— order the applicants to pay the costs.
Law
26Team Relocations puts forward eight pleas for the annulment of the Decision and the cancellation or reduction of the fine. Amertranseuro, Trans Euro and Team Relocations Ltd raise two pleas, alleging that they cannot be held responsible for the infringements committed by Team Relocations and that they are unable to pay the fine. Since those two pleas correspond, respectively, to the first limb of the seventh plea and the eighth plea of Team Relocations, it is appropriate to deal with them in the examination of those complaints.
1.The first plea: Team Relocations was not a party to the single and continuous infringement described in the Decision
27By this plea, Team Relocations claims that it was not party to the single and continuous infringement described in the Decision.
Arguments of the parties
28Team Relocations claims that, in order to be able to hold it liable for the single infringement described in the Decision, the Commission must demonstrate, first, that Team Relocations was aware of the unlawful conduct of the other participants, or could reasonably have foreseen such conduct, and that it was prepared to accept the risk and, secondly, that the different practices described in the Decision pursued common objectives and that Team Relocations by its own conduct intended to contribute to the attainment of these objectives.
29According to Team Relocations, the Commission failed to demonstrate that these two conditions were met. First, Team Relocations was not aware of the existence of a single, continuous infringement. The Decision failed to refer to any documentary evidence to show that Team Relocations, when from 1997 onwards it from time to time agreed to commissions, was aware or should have been aware of the price-fixing agreements and the cover quotes. It was only in February 2002 that Team Relocations for the first time issued or requested a cover quote. Furthermore, it did not participate in any anti-competitive meeting at which such an overall anti-competitive plan was agreed.
30Secondly, Team Relocations maintains that it did not participate either in an overall plan or in a ‘continuous’ infringement. It was not involved in any written price-fixing agreements. The commissions it agreed to were intended to allow individual movers to recover the costs they incurred for a specific move, not to set prices, allocate customers or share the market. These commission arrangements were ad hoc, not generally applicable or automatic. Cover quotes were always obtained at the request of or, in any event, with the approval of the individual making the move and they were issued only after the customer had selected a removal company.
31The Commission contests those assertions and considers that, by taking part in at least two of these agreements, Team Relocations was aware or must have been aware of the overall plan underlying the single infringement. In addition, the Commission takes the view that the allegation that Team Locations did not participate in the written price agreement has no bearing on the imputation of responsibility to Team Relocations for the single and continuous infringement.
Findings of the Court
32By this plea, Team Relocations does not deny having committed infringements of Article 81 EC. On the other hand, it submits that it was not a party to the single and continuous infringement described in the Decision. Consequently, the concept of a single and continuous infringement must, first of all, be considered.
The concept of a single and continuous infringement
33In Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 82, the Court of Justice stated that it would be artificial to split up continuous conduct, characterised by a single purpose, by treating it as consisting of several separate infringements, when what was involved was a single infringement which progressively manifested itself in both agreements and concerted practices.
34Accordingly, an undertaking that has taken part in an infringement through conduct of its own which fell within the scope of an agreement or concerted practice having an anti-competitive object for the purposes of Article 81(1) EC and which was intended to help bring about the infringement as a whole is also responsible, throughout the entire period of its participation in that infringement, for conduct of other undertakings in the context of the same infringement (Commission v Anic Partecipazioni, cited in paragraph 33 above, paragraph 83).
35It follows from that judgment that in order to establish that there has been a single and continuous infringement, the Commission must show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk (Commission v Anic Partecipazioni, cited in paragraph 33 above, paragraph 87).
36Restrictive practices can be regarded as constituent elements of a single anti-competitive agreement only if it is established that they form part of an overall plan pursuing a common objective. In addition, only where the undertaking knew, or ought to have known, when it participated in those practices, that it was taking part in the single agreement, can its participation in them constitute the expression of its accession to that agreement (Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491, paragraphs 4027 and 4112).
37Thus, it is apparent from that case-law that three conditions must be met in order to establish participation in a single and continuous infringement, namely the existence of an overall plan pursuing a common objective, the intentional contribution of the undertaking to that plan, and its awareness (proved or presumed) of the offending conduct of the other participants.
38The present plea must therefore be examined in the light of those conditions.
The characterisation of the offending conduct
—The existence of an overall plan pursuing a common objective
39As regards, first, the existence of an overall plan pursuing a common objective, the Commission submits that the undertakings in question pursued a single economic aim, namely to distort the normal movement of prices.
40However, the concept of a common objective cannot be determined by a general reference to the distortion of competition in the market concerned by the infringement, since an impact on competition, as object or effect, constitutes a constituent element of any conduct covered by Article 81(1) EC. Such a definition of the concept of a common objective is likely to deprive the concept of a single and continuous infringement of a part of its meaning, since it would have the consequence that different types of conduct which relate to a particular economic sector and are prohibited by Article 81(1) EC would have to be systematically characterised as constituent elements of a single infringement. Thus, for the purposes of characterising various instances of misconduct as a single and continuous infringement, it is necessary to take into account any circumstance capable of establishing or casting doubt on a link of complementarity, such as the period of application, the content (including the methods used) and, correlatively, the objective of the various instances of misconduct (see, to that effect, Joined Cases T-101/05 and T-111/05 BASF and UCB v Commission [2007] ECR II-4949, paragraphs 179 to 181).
41In the present case, it is clear from the Decision that the common objective, pursued by different means which formed part of an overall plan, was to establish and maintain a high price level for the provision of international removal services in Belgium and to share this market. That common objective is described in detail in recitals 314 and 322 to 344 of the Decision.
42Team Relocations’ arguments are not such as to call that finding into question.
43In that connection, it should be pointed out that the system of commissions is a compensation system which forms part of customer sharing, and that the establishment of cover quotes is an essential component of customer sharing where customers wish to receive quotes from several cartel participants.
44Contrary to what Team Relocations asserts, the commission and cover quote arrangements were concerned with price. As regards the commissions, their number and level were determined in advance, before the removal companies issued their quotes to the customers. Even supposing, as Team Relocations claims, that their amounts were not added directly to the price of the removal, it is inevitable that they would have to feature in the companies’ calculations and make their services more expensive. As regards the quotes, the price indicated in the ‘false’ quote was determined by the requesting company and accepted by the company drawing up the cover quote, which enabled the former to set its price at a higher level than would have resulted from the free play of competition, close to the ‘false’ price agreed by common accord. In recital 233 of the Decision, the Commission has demonstrated that effect which the cover quotes’ practice had on prices (see paragraph 14 above).
45The two practices, like the written price-fixing agreement, pursued a common objective, namely restricting competition between the cartel participants by establishing a higher level of prices than would have existed in the absence of the agreements. The commissions paid to the competitors that did not secure the contract strongly discouraged them from quoting a competitive price and, by exchanging information on their bids in the context of the cover quotes, the cartel participants restricted price competition. In addition, the agreement on cover quotes enabled the participants to maintain prices at a level higher than would have existed in the absence of that agreement.
46As regards the arguments that the cover quotes were only submitted after the customer had made his selection, it must be emphasised that the person in contact with the supplier, for example, the Commission official, is not the true customer of the removal companies. It is for the undertaking or institution paying for the removal to select a removals company. It is precisely with the aim of securing a choice that many undertakings and public institutions require the submission of several quotes.
—The intentional contribution of Team Relocations to the overall plan
47As regards, second, Team Relocations’ contribution to the infringement, it is not disputed that it participated in two of the three practices described in the Decision, that is the agreements on commissions and cover quotes.
48By contrast, Team Relocations never participated in the written price agreements. Although an undertaking that has taken part in an infringement through conduct of its own may also be held responsible for conduct of other undertakings in the context of the same infringement, that applies only to the period of its participation in that infringement (Commission v Anic Partecipazioni, cited in paragraph 33 above, paragraph 83). Consequently, Team Relocations cannot be held responsible for conduct which had ceased more than five years before its accession to the cartel.
49However, in the Decision, the Commission found that Team Relocations had infringed Article 81(1) EC only from 20 January 1997 to 10 September 2003, the period in which Team Relocations participated in all the manifestations of the cartel. Therefore, the Commission correctly took into account the fact that Team Relocations participated in the cartel only as from 1997.
50In addition, Team Relocations’ assertions that the agreements on commissions and cover quotes were not applied at the same time and that the commission arrangements were ad hoc are irrelevant in so far as, contrary to what that applicant contends, both those practices had the same objective.
—Team Relocations’ awareness of the offending conduct
51As regards, third, the issue of whether Team Relocations was aware of the offending conduct of the other cartel participants, it is true that, during Team Relocations’ participation, there were no anti-competitive meetings. However, the fact that Team Relocations never attended such a meeting is not decisive, since the functioning of the cartel shows that its members did not need to participate in meetings to be aware of or involved in the agreements on commissions and cover quotes. Agreements were usually reached over the phone, or by email and/or fax.
52In addition, Team Relocations could not fail to have been aware of the offending conduct of the other participants, since the commission and cover quote practices were based on mutual cooperation, with the partners alternating on each occasion. That system was based on the concept of quid pro quo, in so far as each undertaking which paid a commission or issued a cover quote expected to be able, in the future, to benefit itself from that system and obtain commissions or cover quotes. Therefore, contrary to what Team Relocations claims, those arrangements were not ad hoc but displayed a link of complementarity.
53Team Relocations’ assertion that it was unaware of the written agreements and that it had not been aware of the commission practice until 1997 is irrelevant, since the Decision does not hold Team Relocations responsible for the infringement until that date. In 1997 at the latest, when it accepted its first commission, Team Relocations became aware of the fact that not all the undertakings were competing under the normal terms of competition. It was therefore aware of the offending conduct and of the anticompetitive aim pursued by the other undertakings. Accordingly, it is not credible that Team Relocations became aware of the cover quote practice only in 2002.
54Consequently, the Commission was entitled to conclude that Team Relocations was aware or ought to have been aware of the offending conduct of the other cartel participants.
55It follows from all the foregoing that the Commission was fully entitled to find that Team Relocations had been a party to the single and continuous infringement described in the Decision. The first plea must therefore be rejected.
2.The second plea, relating to calculation of the value of Team Relocations’ sales
Arguments of the parties
56By its second plea, Team Relocations disputes the value of sales taken into account for calculating the basic amount of the fine.
57Principally, Team Relocations maintains that only the value of sales for moves that were actually affected by the infringement — not the aggregate turnover of Team Relocations on the international removal services market in Belgium — may be taken into account for the purposes of determining Team Relocations’ relevant value of sales within the meaning of point 13 of the 2006 Guidelines.
58Alternatively, Team Relocations considers that the relevant value of sales does not include the turnover on moves of private individuals, that is, individuals who personally have to bear the cost of their move. It is not in dispute that, as far as Team Relocations is concerned, neither commissions nor cover quotes were ever agreed or applied with respect to moves of private individuals. Team Relocations points out that, in recital 528 of the Decision, the Commission agreed not to include military removal services in Gosselin’s value of sales since they did not relate to the infringement. Accordingly, sales resulting from moves for private individuals likewise cannot be taken into account for determining Team Relocations’ relevant value of sales.
59The Commission disputes those arguments.
Findings of the Court
60Team Relocations calls in question the calculation of the relevant value of sales and claims, in the alternative, that that value should not include the turnover on moves paid for by private individuals.
The relevant value of sales
61As regards the value of sales to be taken into account for calculating the basic amount of the fine, disputed in the first limb of this plea, point 13 of the 2006 Guidelines provides as follows:‘In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates …’
62Contrary to Team Relocations’ assertions, it does not follow from that provision that only the value of sales for moves actually affected by the infringement may be taken into account for the purposes of determining the relevant value of sales.
63Thus, point 13 of the 2006 Guidelines refers to: ‘sales … to which the infringement directly or indirectly relates’ and not to ‘sales affected by the infringement’. The wording of point 13 therefore relates to sales in the relevant market. That is very clear, moreover, from the German-language version of point 6 of the 2006 Guidelines, which is concerned with the ‘Umsatz auf den vom Verstoß betroffenen Märkten’ (sales in the markets concerned by the infringement). A fortiori, point 13 of the 2006 Guidelines does not relate solely to the cases for which the Commission has documentary evidence of the infringement.
64That interpretation is reinforced by the objective of the Community rules on competition. The interpretation put forward by Team Relocations would mean that, in order to determine the basic amount of the fines to be imposed in cartel cases, the Commission would be obliged in each case to ascertain the individual sales which were affected by the cartel. An obligation of that kind has never been imposed by the Courts of the European Union and there is no indication that the Commission intended to assume such an obligation in the 2006 Guidelines.
65In addition, it is inevitable, in cartel cases, which by their very nature are secret, that some of the documents showing each of the manifestations of anti-competitive practices will not be discovered. In the present case, it would indeed be impossible to find evidence in relation to each of the removals affected. Team Relocations thus confirms in the application that the ‘Cover quotes and commissions left no record in [the a]pplicant’s systems; accordingly, they were not traceable except by the individuals who handled the file’.
66Lastly, it is settled case-law that the proportion of the turnover accounted for by the goods in respect of which the infringement was committed gives a proper indication of the scale of the infringement on the relevant market (Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 121). In particular, the turnover in the products which were the subject of a restrictive practice constitutes an objective criterion giving a proper measure of the harm which that practice does to normal competition (Case T-151/94 British Steel v Commission [1999] ECR II-629, paragraph 643, and judgment of 8 July 2008 in Case T-50/03 Saint-Gobain Gyproc Belgium v Commission, not published in the ECR, paragraph 84). That principle was reproduced in the 2006 Guidelines.
67At the hearing, Team Relocations stated that, unlike the present case, in the ‘Car glass’ case (Case COMP/39.125 — Car glass), a summary of which is published in the Official Journal of 25 July 2009 (OJ 2009 C 173, p. 13), the Commission had taken as relevant sales for the purposes of calculating the fine only sales by carglass suppliers to those car manufacturers for which there was direct evidence that they were subject to cartel arrangements. However, it must be noted that, in recital 663 of the ‘Car glass’ decision, the Commission starts from the principle that the fact that specific evidence is not available for each and every discussion that took place on the ‘car accounts’ does not limit the determination of the relevant value of sales to only those accounts for which such specific evidence is available, since cartel arrangements are by their very nature secret agreements and evidence will in most, if not all cases remain incomplete. Although the Commission proceeded to nuance that principle in recitals 664 to 667 of that decision, clearly it did so only in relation to two exceptional periods at the beginning and end of the infringement period, because it assumed that during those periods the carglass suppliers had rigged their bids only within selected large accounts. Therefore, the approach followed by the Commission in that decision is not contrary to that applied in the Decision.
68In addition, it is settled case-law that decisions in other cases can give only an indication for the purpose of determining whether there might be discrimination, since the facts of those cases, such as markets, products, the undertakings and periods concerned, are not likely to be the same (Case C-167/04 P JCB Service v Commission [2006] ECR I-8935, paragraphs 201 and 205, and Case C-76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I-4405, paragraph 60). In view of the circumstances set out in recitals 664 to 667 of the ‘Car glass’ decision, Team Relocations has failed to adduce sufficient evidence for it to be concluded that this prerequisite for a comparison was fulfilled in the present case.
69Consequently, the first limb of this plea in law must be rejected.
The removals paid for by private individuals
70As regards the alternative argument that the relevant value of sales should not include the turnover on moves of private individuals, that is, those not by paid for by a third party, it should be observed that cover quotes had never been issued for that type of removals, since a private individual would never have agreed to receive several estimates from a single removals company. Cover quotes were used only in respect of removals for which the employer of the person moving sought to obtain estimates from at least one other mover as a precondition of assuming liability for the costs of the removal.
71However, it is apparent from recital 537 of the Decision that some of the other addressees of that decision seem to have agreed to pay commissions in respect of international removals paid for by private individuals. Therefore, unlike the military removals, for which Gosselin acted as a subcontractor to American movers, it cannot be ruled out that certain private moves were affected by the single infringement at issue. The crucial difference between military removals and the removals for private individuals is that, for military removals, the cartel participants did not themselves conduct the commercial negotiations and therefore had no influence on the main contract. There is no such structural guarantee, which precludes any possible adverse influence, in the case of private removals. It follows that, by excluding one category of removals but not another, the Commission did not infringe the principle of equal treatment.
72Admittedly, as regards Team Relocations, the Commission has not proved that commissions were agreed or applied to removals paid for by private individuals. However, if that argument were accepted, the Commission would be obliged to include in the relevant value of sales only the individual sales which were affected by the cartel and for which it has documentary evidence. The existence of an obligation of that kind has already been rejected in the course of examining the first limb of the present plea.
73Consequently, the second plea must be rejected.
3.The third plea, concerning the application of a percentage of 17 % of the value of Team Relocations’ sales in calculating the basic amount of its fine
74This plea is divided into four limbs. The first two limbs allege, respectively, infringement of the requirement that the amount of the fine is to be determined on the basis of Team Relocations’ individual role in the infringement, and infringement of the principle of equal treatment. By the third limb, Team Relocations claims that setting the percentage at 17 % infringes the principle of proportionality. The fourth limb of this plea alleges failure to state the reasons.
Arguments of the parties
75First, Team Relocations submits that, according to settled case-law, a fine should correctly reflect the gravity of the infringement actually committed by an individual undertaking (Case T-15/02 BASF v Commission [2006] ECR II-497, paragraph 280; Joined Cases T-109/02, T-118/02, T-122/02, T-125/02, T-126/02, T-128/02, T-129/02, T-132/02 and T-136/02 Bolloré and Others v Commission [2007] ECR II-947, paragraph 429; and judgment of 12 September 2007 in Case T-36/05 Coats Holdings and Coats v Commission, not published in the ECR, paragraphs 207 and 209). In the present case, a number of specific or unusual circumstances should have been considered for the purposes of assessing the gravity of Team Relocations’ infringement. In particular, it did not issue or request cover quotes prior to 2002 and was never involved in the written agreements setting the prices and other terms for the provision of international removal services in Belgium. The Commission therefore failed to assess Team Relocations’ individual role in the practices discussed in the Decision. As a result of that mis-assessment, the percentage applied to the value of sales (17 %) and, therefore, the fine imposed on Team Relocations, are manifestly excessive.
76Secondly, Team Relocations considers that, by comparison with the general written agreements on prices concluded between some of the other addressees of the Decision, the infringement committed by Team Relocations was of a totally different and much less serious nature. In applying the same percentage of the value of sales (17 %) for the purposes of calculating both the fine imposed on Team Relocations and the fines imposed on the other addressees of the Decision, the Commission therefore infringed its obligation to compute fine levels in a non-discriminatory manner.
77Thirdly, Team Relocations maintains that taking 17 % of the value of sales inevitably results in a fine level that is, in several respects, manifestly disproportionate to the real gravity of Team Relocations’ conduct, namely its actual responsibility and the limited gravity and economic importance of the infringement it committed.
78Fourthly, Team Relocations states that the Decision fails to provide any reason for the Commission’s not taking account of the fact that Team Relocations did not take part in all the aspects of the infringement. The reasoning with respect to the setting of the percentage of the value of sales is insufficient and contradictory.
79The Commission considers that it was justified in applying, in respect of Team Relocations, the same percentage of the value of sales of 17 % as for the other cartel participants, since Team Relocations participated in a single and continuous infringement, which could be characterised as a very serious infringement of Article 81 EC. The individual role of an undertaking in an infringement is not taken into consideration for assessing the gravity of the infringement, but for adjusting the fine to take into account mitigating and/or aggravating circumstances. Lastly, the Commission maintains that it fulfilled its obligation to state reasons when it indicated in the Decision the factors which enabled it to measure the gravity of the offence.
Findings of the Court
80In this plea, Team Relocations challenges, in essence, the application of a single percentage of 17 % to all the undertakings in question in the context of assessing the gravity of the infringement. In that connection, two different issues, in particular, must be distinguished: first, whether the treatment of Team Relocations was appropriate compared to that of the other cartel participants (first and second limbs), and, second, whether, if taken separately, the percentage applied by the Commission was proportionate to Team Relocations’ conduct (third limb).
The obligation to determine the basic amount of the fine on the basis of Team Relocations’ individual role
81As regards the first two limbs of this plea, which should be examined together because they are closely related, it is appropriate to recall the settled case-law according to which the principle of non-discrimination or equal treatment, which constitutes a fundamental principle of Community law, prohibits not only comparable situations from being treated differently but also different situations from being treated in the same way, unless such difference in treatment is objectively justified (see, to that effect, Case 91/85 Christ-Clemen and Others v Commission [1986] ECR 2853, paragraph 10, and Case C-174/89 Hoche [1990] ECR I-2681, paragraph 25 and the case-law cited).
82Clearly, when assessing the gravity of the infringement, the Commission did not in fact treat the participants differently in the percentage applied to the value of sales, but applied a uniform percentage of 17 % to all the undertakings concerned. The Commission justifies that approach by the fact that the infringement was a single and continuous one.
83The question therefore arises whether, in the light of the case-law relied on by Team Locations, it was open to the Commission to abandon any distinction between the participants in the infringement and any consideration of the specific circumstances of the case in order to assess the gravity of the infringement committed by Team Relocations.
84In that connection, as is apparent from the case-law, where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 623, and Commission v Anic Partecipazioni, cited in paragraph 33 above, paragraph 150). That conclusion follows logically from the principle that penalties must be specific to the offender and to the offence, so that an undertaking may be penalised only for acts imputed to it individually, a principle applying in any administrative procedure that may lead to the imposition of sanctions under Community competition law (Case T-62/02 Union Pigments v Commission [2005] ECR II-5057, paragraph 119).
85In addition, it is clear from a large number of judgments of the General Court and of the Court of Justice that the gravity of the infringement is to be assessed on an individual basis by taking into account numerous factors, such as the particular circumstances of the case, its context and the deterrent effect of fines (see Cour Musique Diffusion française and Others v Commission, cited in paragraph 66 above, paragraph 106; Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 33; and Case T-241/01 Scandinavian Airlines System v Commission [2005] ECR II-2917, paragraphs 83 et seq.). Thus, the Court of Justice has held that the fact that an undertaking has not taken part in all aspects of an anti-competitive scheme or that it played only a minor role in the aspects in which it had participated must be taken into consideration when the gravity of the infringement is assessed and, as appropriate, when the fine is determined (see Commission v Anic Partecipazioni, cited in paragraph 33 above, paragraph 90, and Bolloré and Others v Commission, cited in paragraph 75 above, paragraph 429 and the case-law cited).
86However, the General Court’s practice is to assess individual circumstances not in the context of the assessment of the gravity of the infringement, that is, when the basic amount of the fine is set, but in the context of the adjustment to the basic amount to reflect mitigating or aggravating circumstances (Case T-73/04 Carbone-Lorraine v Commission [2008] ECR II-2661, paragraphs 100 et seq., upheld on appeal in the judgment of 12 November 2009 in Case C-554/08 P Carbone-Lorraine v Commission, not published in the ECR). Thus, even though in the passages in BASF v Commission and Coats Holdings and Coats v Commission, cited in paragraph 75 above, quoted by Team Relocations, the word ‘gravity’ is referred to, it does not relate to the determination of the basic amount of the fine, but in fact to whether the Commission was entitled to take into account the role of leader as an aggravating circumstance (BASF v Commission, cited in paragraph 75 above, paragraph 280) and a minor role, more akin to that of a mediator, as a mitigating circumstance (Coats Holdings and Coats v Commission, cited in paragraph 75 above, paragraph 214).
87That case-law is, however, consistent with the case-law referred to in paragraphs 84 and 85 above. In those judgments, the word ‘gravity’ was used in a general manner to describe the intensity of the infringement, and not in the technical meaning of the Guidelines on the method of setting fines. Consequently, the Commission was at liberty to take into account certain aspects of ‘gravity’ within the meaning of Article 23 of Regulation No 1/2003 in the context of mitigating and aggravating circumstances and not in the context of ‘gravity’ within the meaning of its Guidelines on the method of setting fines.
88This applies, in particular, to the assessment of the relative gravity of the participation in a single and continuous infringement committed by several undertakings. In that connection, the Court of Justice has confirmed, as regards the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3; ‘the 1998 Guidelines’), that the relative gravity of the participation in the infringement of each of the undertakings concerned has to be examined in the context of a possible application of aggravating or mitigating circumstances (Carbone-Lorraine v Commission, cited in paragraph 86 above, paragraph 27). In the case of a single and continuous infringement, the concept of ‘infringement’, as used in the 1998 Guidelines, refers therefore to the overall infringement involving several undertakings and the ‘gravity’ of that single infringement is the same for all the participants.
89Case C-554/08 Carbone-Lorraine v Commission, cited in paragraph 86 above, is, however, concerned with the 1998 Guidelines. The 2006 Guidelines have brought about a fundamental change in the methodology for calculating fines. First, the three-fold categorisation of infringements (‘minor’, ‘serious’ and ‘very serious’) has been abolished. The current system, comprising a scale from 0 % to 30 %, enables finer distinctions to be made according to the gravity of the infringements.
90Second, flat-rate amounts have been abolished. Now, the basic amount is calculated on the basis of each individual undertaking’s value of sales to which the infringement directly or indirectly relates. That new methodology therefore makes it easier to take into account the extent of the individual participation of each undertaking in the infringement when the gravity of that infringement is assessed. It also makes it possible to take into account any reduction in the gravity of a single infringement over time.
91Third, at the hearing, the Commission confirmed that its decisional practice is no longer necessarily to apply a single percentage to all the participants in such an infringement. In Decision C(2008) 5476 of 1 October 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/C.39.181 — Candle Waxes), a summary of which is published in the Official Journal of 4 December 2009 (OJ 2009 C 295, p. 17), and Decision C(2009) 8682 of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.589 — Heat Stabilisers), a summary of which is published in the Official Journal of 12 November 2010 (OJ 2010 C 307, p. 9), the Commission applied different percentages to different categories of participant in the cartels at issue according to the relative gravity of their participation in the infringement. In particular, in the latter case, a higher percentage was set for the undertakings which had participated not only in price fixing but also in customer sharing and/or market sharing.
92However, the new methodology does not impose such an approach. Although the case-law referred to in paragraphs 84 and 85 above states that the relative gravity of the participation in the infringement and the particular circumstances of the case must be taken into account, it remains open to the Commission, pursuant to the 2006 Guidelines, to take such factors into account when assessing the gravity of the infringement or adjusting the basic amount according to the mitigating and/or aggravating circumstances. Where the Commission follows the latter approach, the assessment of mitigating and aggravating circumstances must, however, enable sufficient account to be taken of the relative gravity of the participation in a single infringement, and any variation in that gravity over time.
93In the present case, the Commission set a single percentage of 17 % for all the undertakings concerned. In so far as Team Relocations submits that the relative gravity of its participation is less significant than that of other undertakings involved and that a number of specific or unusual circumstances should have been considered, its arguments developed in support of that contention will therefore be examined in the context of the complaints alleging that the Commission incorrectly assessed the mitigating circumstances. Team Relocations participated in all the aspects of the cartel carried on while it participated in it and contends only that its involvement was less intense. Therefore, the first and second limbs of the present plea must be rejected and Team Relocations’ arguments considered when the sixth plea is examined (paragraphs 125 et seq. below).
The alleged infringement of the principle of proportionality
94As regards the alleged infringement of the principle of proportionality, the Court considers that, taken separately, a rate of 17 % is not disproportionate in relation to Team Relocations’ actual responsibility for the infringement, which consisted, inter alia, in market sharing and manipulating the procedure for the submission of tenders. Point 23 of the 2006 Guidelines states clearly that the proportion of the value of sales taken into account for horizontal price fixing and market sharing agreements will generally be set ‘at the higher end of the scale’. The Commission was therefore entitled to set a rate of 17 %, which is in the lower part of the ‘higher end of the scale’.
The alleged failure to state reasons
95As regards the fourth limb of the present plea, it must be stated that the reasoning with respect to the setting of the basic amount of the fine is indeed not very detailed. However, the Court of Justice has held that the Commission fulfilled its obligation to state reasons when it indicates in its decision the factors which enabled it to measure the gravity of the offence and that it is not required to set out a more detailed account or the figures relating to the method of calculating the fine (see Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission [2004] ECR II-1181, paragraph 252 and the case-law cited).
96In the present case, in recital 542 of the Decision, the Commission set out the reasons which had led it to conclude that the infringement was very serious, namely the very nature of the obvious restrictions of competition identified. In addition, it explained, in the same recital, why it had not examined the geographical area and the impact of the infringement, referring to case-law which states that in the case of flagrant restrictions, the infringement may be classified as very serious without it being necessary for such conduct to cover a particular geographical area or have a particular impact (Scandinavian Airlines System v Commission, cited in paragraph 85 above, paragraphs 84 and 85, and Joined Cases T-49/02 to T-51/02 Brasserie nationale and Others v Commission [2005] ECR II-3033, paragraphs 178 and 179). It follows that, in the light of that case-law, the Commission gave sufficient reasons for classifying the infringement as ‘very serious’.
97However, first, it is desirable for the Commission to augment its reasoning as to the calculation of fines in order to enable undertakings to acquire a detailed knowledge of the method of calculating the fine imposed on them. More generally, such a course of action may serve to render the administrative act more transparent and facilitate the exercise by the General Court of its unlimited jurisdiction, which enables it to review not only the legality of the contested decision but also the appropriateness of the fine imposed (Case C-248/98 P KNP BT v Commission [2000] ECR I-9641, paragraph 46).
98Second, it should be observed that the case-law cited by the Commission refers to the 1998 Guidelines and that it goes back to a time before the adoption of guidelines. The 2006 Guidelines have, however, brought about a fundamental change in the methodology for setting fines. In particular, the three-fold categorisation of infringements (‘minor’, ‘serious’ and ‘very serious’) has been abolished, and a scale from 0 % to 30 % introduced in order to enable finer distinctions to be made. In addition, the basic amount of the fine is now ‘related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement’ (point 19 of the 2006 Guidelines). As a general rule, ‘the proportion of the value of sales taken into account will be set at a level of up to 30 % of the value of sales’ (point 21). As regards horizontal price-fixing, market-sharing and output-limitation agreements ‘which … are, by their very nature, among the most harmful restrictions of competition’, the proportion of the value of sales taken into account must generally be set ‘at the higher end of the scale’ (point 23).
99In those circumstances, the Commission may no longer, as a rule, simply state reasons only for the classification of an infringement as ‘very serious’ and not for the choice of the proportion of sales taken into account. As stated above, the corollary of the Commission’s margin of discretion in the area of fines is an obligation to state reasons which enables the person concerned to ascertain the reasons for the measure adopted and the Court to exercise its review.
100In the present case, in recital 543 of the Decision, the Commission set the percentage at a level scarcely above the mid-point of the scale, namely at 17 %, basing its choice solely on the ‘very serious’ nature of the infringement. However, the Commission has failed to explain in a more detailed manner how the classification of the infringement as ‘very serious’ has led it to set the percentage at 17 % and not at a percentage considerably more ‘at the higher end of the scale’. That reasoning can be sufficient only where the Commission applies a percentage very close to the lower end of the scale laid down for the most serious restrictions, that being, moreover, highly favourable to the applicant. In that case, supplementary reasons going beyond the reasoning inherent in the guidelines are not necessary. By contrast, had the Commission wished to apply a higher percentage, it would have had to provide more detailed reasons, as it did in the ‘Car glass’ (recitals 669 to 678), ‘Heat Stabilisers’ and ‘Candle Waxes’ decisions (recitals 641 to 653).
101As regards the reasoning concerning the setting of an undifferentiated percentage at 17 %, it may be inferred from the Decision that the Commission proceeds from the principle that the finding of a single and continuous infringement justifies the application of a single percentage. That finding is sufficiently reasoned and well founded (see paragraphs 39 et seq. above).
102Therefore, the fourth limb of the plea must be rejected.
103It follows from all the foregoing that the third plea must be rejected in its entirety.
4.Fourth plea in law, alleging that there are no grounds for multiplying the amount determined on the basis of the value of sales by the number of years of participation in the infringement
Arguments of the parties
104Team Relocations claims that point 24 of the 2006 Guidelines, which provides for the automatic multiplication of the amount determined on the basis of the value of sales by the number of years of an undertaking’s participation in the infringement, confers on the alleged duration of the infringement an importance disproportionate in relation to the other relevant factors and in particular to the gravity of the infringement. That provision therefore fails to take sufficiently into account the requirement that the fine for each undertaking concerned be adapted individually and provides for a fine computation formula that attaches a manifestly disproportionate importance to the duration of the infringement.
105In the alternative, Team Relocations claims that the Court should apply a multiplier that does not exceed two. In any event, if the Court were to confirm a multiplication by seven, Team Relocations submits that in its own case the percentage of the value of sales should be reduced for the first five years (1997-2001) to not more than 5 %, since during these years Team Relocations did not engage in cover quotes, and for the last two years (2002-2003) to not more than 12 %.
106The Commission contends that these heads of claim should be dismissed.
Findings of the Court
107Although Team Relocations argues that there are no grounds for multiplying the amount determined on the basis of the value of sales by the number of years of participation in the infringement, it does not dispute that that methodology is based on the provisions of the 2006 Guidelines. Therefore, the present plea alleges, rather, that point 24 of the 2006 Guidelines is disproportionate to the extent that it provides for such a multiplication.
108In that connection, Article 23(3) of Regulation No 1/2003 simply states that ‘[i]n fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement’, without, however, specifying the specific manner in which the duration should be taken into account. That general provision has been clarified in the various guidelines on the method of setting fines. More specifically, for infringements of long duration (in general, more than five years), the 1998 Guidelines provided for an increase of up to 10 % per year in the amount determined for gravity. On the other hand, multiplication by the number of years of participation in the infringement, provided for in the 2006 Guidelines, is equivalent to increasing the amount by 100 % per year.
109That approach represents a fundamental change in methodology as to how the duration of a cartel is taken into consideration. Article 23(3) of Regulation No 1/2003 does not, however, preclude such a development. Admittedly, the French-language version of the provision (‘il y a lieu de prendre en considération, outre la gravité de l’infraction, la durée de celle-ci’) seems to attach less importance to duration than to gravity for the purposes of fixing the amount of the fines. By contrast, other language versions, such as the English-language version, (‘… regard shall be had both to the gravity and to the duration of the infringement’), and the German-language version (‘… ist sowohl die Schwere der Zuwiderhandlung als auch deren Dauer zu berücksichtigen’) indicate that that provision attaches equal weight to the gravity and the duration of the infringement.
110As regards the alternative claims, it is sufficient to note that, although, in the past, the Commission has sometimes taken into account changes in an infringement over time, when increasing the amount of the fine for duration, none of the provisions of the 2006 Guidelines obliges it to apply to such a case a multiplier that does not exceed two, or to reduce the percentage of the value of sales taken into account for gravity. The Court considers, in the exercise of its unlimited jurisdiction, that it is not appropriate to grant the reduction which is the subject of Team Relocations’ first claim. As regards the second claim, this will be examined in paragraphs 125 et seq. below.
111Without prejudice to this last point, the fourth plea must be rejected.
5.The fifth plea, alleging that there is no basis for imposing an additional amount
112In this plea, Team Relocations alleges infringement of the principle of equal treatment and of the principle of proportionality.
Arguments of the parties
113First, Team Relocations claims that the inclusion of an additional amount pursuant to point 25 of the 2006 Guidelines infringes the principle of equal treatment since, unlike some other addressees of the Decision, it did not conclude both price-fixing and market-sharing agreements. Furthermore, the practices engaged in by Team Relocations do not fall within the categories of infringement that may warrant including an additional amount in the basic amount of the fine.
114Secondly, Team Relocations considers that, in the light of the limited gravity of the infringement it committed, the Decision infringes the principle of proportionality in setting the additional amount at 17 % of the value of sales.
115The Commission contends that the imposition of an additional amount of 17 % was justified.
Findings of the Court
116Team Relocations alleges infringement of the principle of equal treatment (first limb) and of the principle of proportionality (second limb) as regards the calculation of the additional amount. In that connection, point 25 of the 2006 Guidelines provides:‘[I]rrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum of between 15 % and 25 % of the value of sales …, in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements.’
117As regards the first limb of the plea, it must be noted that the principle of equal treatment has not been infringed, since the Commission applied the same additional amount to all the addressees of the Decision on the ground that they all participated in the single and continuous infringement which included price fixing and/or market sharing. The wording of point 25 of the 2006 Guidelines (‘inclura’, ‘will include’ and ‘fügt hinzu’) shows, moreover, that, as regards flagrant infringements, the imposition of an additional amount is automatic and does not depend on the existence of other factors. As to the remainder, reference should be made to paragraphs 81 et seq. above, the reasoning in those paragraphs being applicable mutatis mutandis to the imposition of an additional amount.
118As regards the second limb of the plea, reference should be made to paragraph 94 above, where the Court found that, taken separately, a level of 17 % was proportionate to Team Relocations’ actual responsibility for the infringement. Those considerations apply equally to the additional amount, which was also set at 17 %. In addition, the Court considers that a level of 17 % is appropriate to ensure a sufficient deterrent effect. The fact that the scale provided for by the 2006 Guidelines, in respect of the additional amount, ranges from 15 % to 25 % and not from 0 % to 30 % has no effect in that regard.
119Consequently, the fifth plea must be rejected.
6.The sixth plea, relating to the existence of mitigating circumstances
Arguments of the parties
120The applicant maintains that there are several mitigating circumstances that, under points 20 and 29 of the 2006 Guidelines, justify a substantial reduction of its fine. The limited involvement of an undertaking in the infringement is one of these mitigating circumstances. Team Relocations states that, in the present case, it was not actively involved in the creation of any anti-competitive arrangement; that it never attended any anti-competitive meeting; that it was never involved in the most serious aspects of the infringement, namely the written price-fixing agreements and the commission agreements concluded with regard to office moves; that it only occasionally agreed to commissions and issued or requested cover quotes on an ad hoc basis and with respect to a very limited number of clients and moves; and that prior to 2002 it did not issue or request cover quotes. However, Team Relocations’ limited involvement in the infringement was not taken into consideration at all — whether in assessing the gravity or duration of the infringement or in examining the mitigating circumstances.
121In addition, Team Relocations maintains that a number of cover quotes were requested by officials of the Commission. The declarations of Allied Arthur Pierre clearly confirm that cover quotes were widely known among and even requested by Commission officials at every level. The Commission cannot disclaim liability for the cover quotes practices that were committed with the approval, or at the request, of its own officials.
122The Commission claims that the arguments put forward by Team Relocations are irrelevant, ineffective and/or misleading. In particular, the Commission does not consider that the arrangements in which Team Relocations participated are of a less serious nature than the written price agreements.
Findings of the Court
123It is apparent from the Decision that the Commission did not find any mitigating circumstances. However, Team Relocations claims that there are several circumstances which distinguish the infringement that it committed from that committed by other undertakings concerned, and which demonstrate the limited nature of its involvement or which are related to the Commission’s conduct.
Involvement in the creation of the anti-competitive arrangements
124First, as regards the assertion that Team Relocations was not actively involved in the creation of the anti-competitive arrangements at issue, it should be noted that its first documented involvement in the implementation of the agreement on commissions was indeed in 1997, whereas those practices were set up in the 1980s. However, that factor is relevant only in the context of ascertaining whether an undertaking has played a role of leader or instigator, which may be considered an aggravating circumstance under point 28 of the 2006 Guidelines. Moreover, the fact that an undertaking was not actively involved in the creation of the anti-competitive arrangements at issue is not, in itself, a mitigating circumstance.
The allegedly limited nature of Team Relocations’ involvement in the infringement
125Second, as regards the allegedly very limited nature of its involvement in the infringement, it is common ground that Team Relocations was never involved in the written price fixing agreements, the meetings with an anti-competitive object, the ad hoc fixing of prices for a specific move or the commission arrangements concluded for the office moves. Furthermore, Team Relocations was involved in the practices concerning cover quotes only between February 2002 and September 2003.
126In that connection, it should be noted that, under the third indent of point 29 of the 2006 Guidelines, in order to benefit from a reduction in the fine on account of mitigating circumstances, the undertaking concerned must ‘[provide] evidence that its involvement in the infringement is substantially limited’ and ‘thus [demonstrate] that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market’. Those conditions are not met in the present case.
127However, the use of the expression ‘such as’ shows that the list of circumstances set out in point 29 of the 2006 Guidelines is not exhaustive. In addition, as was noted in the context of the third plea, the specific circumstances of the case, in particular whether the undertaking participated in all the aspects of the infringement, must be taken into account, if not in assessing the gravity of the infringement, at least in the course of adjusting the basic amount for mitigating or aggravating circumstances. That obligation was one of the reasons why the Court of Justice stated that the concept of a single and continuous infringement is not contrary to the principle that responsibility for infringements of competition law is personal in nature (Commission v Anic Partecipazioni, cited in paragraph 33 above, paragraph 84). The criteria laid down in the third indent of point 29 are not capable on their own of ensuring this. Consequently, the specific circumstances of the case must be assessed.
128In that connection, it is common ground that the infringement at issue changed over time. The written agreements were applied during the first stage of the infringement from 1984 until the beginning of the 1990s and were subsequently abandoned. The second stage of the infringement is characterised by the use of cover quotes and commissions. Consequently, the proportion of the value of sales to be taken into account under point 19 of the 2006 Guidelines could, in principle, be adjusted over time. That fact could also justify a reduction in the fine on account of mitigating circumstances.
129However, it must be found that the conduct in which Team Relocations participated does not amount to a less serious infringement than the written price-fixing agreements or the ad hoc fixing of prices for specific moves. Contrary to what Team Relocations asserts, the cover quotes and commissions had also had effects on prices (see paragraph 44 above). Similarly, in the circumstances of the present case, the fact that Team Relocations did not participate in the commission arrangements concluded for the office moves or in the system of cover quotes before February 2002 is rather insignificant for assessing the gravity of the infringement. This also applies to the non-participation in the anti-competitive meetings, since the cartel operated through mechanisms which rendered such meetings pointless.
130It follows that it was open to the Commission to set a single percentage for the entire duration of the single and continuous infringement and not to take into account as a mitigating circumstance the changes in the infringement over time.
The alleged authorisation of the conduct
131Third, as regards the allegation that the Commission authorised or encouraged the practice of cover notes, it should be noted that point 29, last indent, of the 2006 Guidelines provides that ‘[t]he basic amount may be reduced … where the anti-competitive conduct of the undertaking has been authorised or encouraged by public authorities or by legislation’.
132However, there is nothing in the documents before the Court which shows that the Commission, as an institution, authorised, encouraged or requested the cover quotes. In point of fact, the Commission would have had no interest in encouraging or tolerating the system of cover notes, since it adversely affected its interests. The fact that certain employees might have requested cover notes for a move ultimately reimbursed by the Commission does not mean that the institution was aware of that practice, nor that it took part in it, since a distinction must be drawn between the officials of the Commission and the Commission as an institution.
133Even if an official of an institution did request cover quotes, Team Relocations ought to have known that such requests could not be formulated on behalf of or at the instigation of the institutions, since they were clearly contrary to their financial interests. The requirement to provide two or three estimates is intended precisely to ensure a minimum level of competition and to prevent a single removals company from being able to set unilaterally the price of a move.
134In addition, mere knowledge of anti-competitive conduct does not imply that that conduct was implicitly ‘authorised or encouraged’ by the Commission within the meaning of point 29, last indent, of the 2006 Guidelines. Alleged inaction cannot be treated in the same way as a positive act such as an authorisation or encouragement.
135In any event, Team Relocations’ arguments relate only to the cover quotes. The practice of cover quotes is only one element of a single and continuous infringement. The arguments raised cannot possibly justify the payment of commissions.
136Therefore, those arguments and, accordingly, the sixth plea in its entirety must be rejected.
7.The seventh plea of Team Relocations and the first plea of the Amertranseuro group, alleging that the infringements committed by Team Relocations cannot be attributed to Amertranseuro
137By its seventh plea, Team Relocations claims, in essence, that the Commission erred in taking into account Amertranseuro’s turnover for the purposes of determining the 10 % ceiling provided for in the second subparagraph of Article 23(2) of Regulation No 1/2003, on the ground that Amertranseuro was not aware of the anti-competitive practices of its subsidiary. The Amertranseuro group contends, more generally, that the infringements committed by Team Relocations cannot be attributed to the group.
Arguments of the parties
138Team Relocations maintains that it is the only legal person that can be considered responsible for the behaviour that was committed by certain of its employees. However, the fine amounts to more than 60 % of its overall turnover. Amertranseuro, Trans Euro and Team Relocations Ltd are not responsible for these practices. Its parent companies were never aware of these occasional agreements on commissions and cover quotes, nor had they any reason to suspect their existence. Even if the Court were to consider that the Commission was correct to hold Team Relocations’ parent companies responsible for part of Team Relocations’ infringement, Team Relocations nevertheless submits that, in the specific circumstances of this case, it is incompatible with the principle of proportionality to assess the 10 % upper limit by reference to Amertranseuro’s consolidated turnover.
139The Amertranseuro group observes, first, that the Commission justified the applicants’ joint and several liability on the ground that all three parent companies were in a position to exercise a decisive influence over Team Relocations’ commercial policy. However, the Court of Justice and the General Court have often described the scope of the power to exert decisive influence in terms that are considerably narrower than those used by the Commission in recital 394 of the Decision
140Secondly, the Amertranseuro group submits that too narrow a scope of the parent companies’ power to exert decisive influence over their subsidiaries leads to a virtually irrefutable presumption of liability. In fact, their liability would become strict liability. Only pure financial investors with no interest in determining the strategic course of the companies in which they have invested would escape this liability.
141Thirdly, the Amertranseuro group submits that Team Relocations enjoyed full managerial autonomy and none of the three parent companies was aware of the practices under investigation. They have therefore not failed to comply with their duty of care.
142Fourthly, the Amertranseuro group complains that the Commission adopted an ‘asymmetric’ approach towards the liability of parent companies in this case. For the period prior to 8 September 2000, it held Team Relocations’ two intermediate parent companies liable (namely, Team Relocations Ltd. and Trans Euro), but not Mr E., the ultimate owner of that group. In contrast, for the period from 8 September 2000 onwards, the Commission found liability not only for these two intermediate parent companies but also for Amertranseuro, the new owner of Trans Euro. Since Amertranseuro fully owns the capital of the two intermediate parent companies, this means that its shareholders are de facto liable for the whole of the infringement.
143The Commission disputes those arguments.
Findings of the Court
144By this plea, Team Relocations submits that the Commission has infringed Article 23 of Regulation No 1/2003 (first limb) and the principle of proportionality (second limb) by imposing a fine which amounts to more than 10 % of its turnover. Since the validity of the first limb depends on whether Amertranseuro’s turnover can be taken into account for the purposes of determining the 10 % ceiling provided for in the second subparagraph of Article 23(2) of Regulation No 1/2003, the present complaint and Amertranseuro group’s first plea, alleging that the infringements committed by Team Relocations cannot be attributed to members of the Amertranseuro group, should be examined together.
Attribution of the infringements committed by Team Relocations to the members of the Amertranseuro group
145EU competition law recognises that different companies belonging to the same group form an economic unit and therefore an undertaking within the meaning of Articles 81 EC and 82 EC if the companies concerned do not determine independently their own conduct on the market (Case 48/69 ICI v Commission [1972] ECR 619, paragraphs 132 and 133, and Case T-203/01 Michelin v Commission [2003] ECR II-4071, paragraph 290). An undertaking’s anti-competitive conduct can therefore be attributed to another undertaking where it has not decided independently upon its own conduct on the market, but carried out, in all material respects, the instructions given to it by that other undertaking, having regard in particular to the economic and legal links between them (Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 117).
146The question therefore arises as to when an undertaking does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by its parent company.
147In that connection, it has been held that that two cumulative conditions must be met: firstly, the parent company must be in a position to exert decisive influence over its subsidiary and, secondly, it must also actually exert that influence (ICI v Commission, cited in paragraph 145 above, paragraph 137).
148As regards the first condition, a parent company may undoubtedly exert decisive influence over its subsidiary when, like Amertranseuro in the present case, it owns the whole of its share capital, either directly or indirectly through its shareholdings in other companies.
149As regards the requirements to be met in order to prove the actual exercise of decisive influence by the parent company over its subsidiary, the applicants are of the opinion that responsibility for the infringement may be attributed to the parent company only if, in addition to the 100 % shareholding, the parent company was aware of the practices in question or had failed to comply with its duty of diligence.
150The Commission, for its part, in recital 386 of the Decision, bases its reasoning on the case-law which states that in the specific case of a parent company having a 100 % shareholding in a subsidiary which has committed the infringement, as in the present case, there is a rebuttable presumption that the parent company does in fact exercise decisive influence over the commercial policy of its subsidiary (see, to that effect, Case 107/82 AEG-Telefunken v Commission [1983] ECR 3151, paragraph 50; Case C-286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I-9925, paragraph 29; Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II-931, paragraphs 961 and 984; and Case T-112/05 Akzo Nobel and Others v Commission [2007] ECR II-5049, paragraph 62).
151That case-law was confirmed by the Court of Justice in its judgment in Case C-97/08 P Akzo Nobel and Others v Commission [2009] ECR I-8237. The Court of Justice stated, inter alia, that while at paragraphs 28 and 29 of Stora Kopparbergs Bergslags v Commission, cited in paragraph 150 above, it had referred not only to the fact that the parent company owned 100 % of the capital of the subsidiary but also to other circumstances, such as the fact that it was not disputed that the parent company exercised influence over the commercial policy of its subsidiary or that both companies were jointly represented during the administrative procedure, the fact remains that those circumstances were mentioned for the sole purpose of identifying all the elements on which the General Court had based its reasoning and not to make the application of the presumption mentioned above subject to the production of additional indicia relating to the actual exercise of influence by the parent company (paragraph 62 of Akzo Nobel and Others v Commission).
152In the present case, the applicants have failed to rebut the presumption that decisive influence has been exercised, since their argument is based on policy considerations and mere assertions, such as Team Relocations’ alleged managerial autonomy. In any event, it is apparent from recitals 490 and 491 of the Decision that, in attributing responsibility for Team Relocations’ participation in the cartel to Amertranseuro, the Commission did not rely exclusively on the — undisputed — fact that Amertranseuro owned the whole of Team Locations’ capital, but also on other facts serving to establish that Amertranseuro exercised decisive influence over Team Relocations’ commercial policy.
153Thus, between 1994 and September 2001, monthly meetings took place between the management of Team Relocations and the representatives of Trans Euro responsible for the Belgian subsidiary’s operational and financial management and with the owner of the Trans Euro group at the time, who was Group Managing Director with overall responsibility for the Belgian subsidiary. From 6 September 2001 to September 2003, informal meetings were also held between Team Relocations and the representative of Amertranseuro, who was Group Continental Director with overall responsibility for the Belgian subsidiary. The Commission also noted that Team Relocations had to submit a number of reports, including the yearly management accounts, to Team Relocations Ltd from 1 January 1994 to 7 September 2000 and to Amertranseuro after 8 September 2000, that is during the period of its participation in the infringement.
154Accordingly, it was open to the Commission to hold Amertranseuro responsible for the infringements committed by Team Relocations, because the applicants form an economic unit and therefore an undertaking for the purposes of Community competition law. Consequently, Amertranseuro’s turnover may be taken into account for the purposes of determining the 10 % ceiling provided for in the second subparagraph of Article 23(2) of Regulation No 1/2003. It follows that the complaints relating to the fact that that turnover was taken into account must be rejected.
The Commission’s alleged asymmetric approach
155The Amertranseuro group complains that the Commission adopted an ‘asymmetric’ approach by holding Amertranseuro liable as from the date of its acquisition of the Trans Euro group, namely 8 September 2000, whereas it did not hold the previous owner of the Trans Euro group, Mr E., liable for the period prior to 8 September 2000.
156In so far as the Amertranseuro group submits that the Commission ought also to have held Mr E. liable for the infringement until 7 September 2000, it should be emphasised that, even if the Commission had been able to do this, the fact that it did not do so cannot be relied on by the applicants in order to prove that the Decision was unlawful. According to case-law, the Commission has a margin of discretion as to whether to extend the responsibility for an infringement to a parent company, in addition to the company directly involved in the anti-competitive conduct (see, to that effect, 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 331 and 332). That margin of discretion also implies that the Commission may choose to address the decision only to the current parent companies of the undertaking in question and not to the former owners of the group.
157Moreover, the Commission did not extend responsibility for the infringement at issue to Zenic International Holdings Ltd either, the applicants’ current holding company. Therefore, the Decision cannot be considered ‘asymmetrical’.
158This complaint must therefore be rejected.
The arguments relating to the Amertranseuro group’s second head of claim
159In its heads of claim and in the course of its first plea, the Amertranseuro group seems to assert that, although Amertranseuro was held liable only for an amount of EUR 1.3 million, which reflects its responsibility for a limited period, namely from 8 September 2000, it has effectively been held liable for the full amount of the fine, in so far as it is the owner and shareholder of Trans Euro and Team Relocations Ltd.
160That assertion cannot call in question the lawfulness of the Decision, since it merely describes certain consequences for Amertranseuro that follow from that decision. That head of claim must therefore be rejected.
The allegedly disproportionate nature of the fine
161As regards the second limb of Team Relocations’ plea, it is sufficient to refer to the observations made in paragraph 94 above, according to which the rate of 17 % applied is proportionate to Team Relocations’ actual responsibility in the infringement. The fact that the amount of the fine imposed on Team Relocations exceeds 10 % of its turnover is irrelevant since that amount is still well below the 10 % ceiling of the Amertranseuro group’s turnover.
162It follows from all the foregoing that the seventh plea of Team Relocations and the first plea of the Amertranseuro group must be rejected.
8.The eighth plea of Team Relocations and second plea of the Amertranseuro group, concerning the applicants’ inability to pay and alleging misuse of powers
Arguments of the parties
163Team Relocations maintains that it is apparent from its draft accounts for the financial year ended 30 September 2007 that the amount of its net equity, regardless of any fine payable to the Commission, is negative; that the financial year resulted in a loss of EUR 363432; and that its cash flow was negative. The assets of the company have been fully pledged. It is unable to secure additional funding, and, accordingly, it is unable to pay the fine as imposed by the Commission.
164According to Team Relocations, the Commission was familiar with its weak financial situation and therefore abused its powers in imposing a fine in an amount that it was clearly unable to pay and that would result in its disappearance from the market. In addition, the Commission infringed the principle of equal treatment. In that regard, Team Relocations requests the Court to reduce the fine by an amount that reflects the same principles as those applied by the Commission with respect to Interdean, and contends that the Court should order the Commission, pursuant to Articles 58 and 65 of the Rules of Procedure, to disclose the factors which it has taken into account in awarding Interdean a 70 % reduction of the fine.
165The Amertranseuro group claims that the fine imposed on Team Relocations — which amounts to almost two thirds of its annual turnover in 2006 and even approaches the absolute 10 % ceiling set forth in Regulation No l/2003 — is totally disproportionate. According to Amertranseuro’s consolidated financial statements of 30 September 2006, the group’s total debt was GBP 35 million; Amertranseuro has also reported a loss on ordinary activities after taxation; its tangible net assets are negative; and all of its assets are fully pledged. As a consequence, the group is unable to pay the fine of EUR 3.49 million or to obtain a bank guarantee for such payment later.
166In the reply, the Amertranseuro group adds that, with regard to the need to submit a request for the application of point 35 of the 2006 Guidelines, the Commission should revert to the approach adopted in the 1998 Guidelines and consider inability to pay as a ground for a reduction of the fine on its own initiative, as it has done in the past. Also, it stresses the fact that the group’s financial health deteriorated further during the financial year which ended on 30 September 2007.
167The Commission disputes those arguments.
Findings of the Court
168By their last plea, the applicants submit that in imposing a fine on them in excess of their ability to pay, the Commission misused its powers, infringed point 35 of the 2006 Guidelines and infringed the principle of equal treatment.
169As regards the alleged misuse of powers, it must be recalled that it is settled case-law that a decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 24 and the case-law cited).
170However, the applicants do not claim that the Commission has imposed on them a fine with the purpose of achieving an end other than that stated, namely implementing Community competition law, or evading a procedure specifically prescribed by the Treaty. Consequently, the Decision does not amount to a misuse of powers.
171As regards the reduction of a fine pursuant to point 35 of the 2006 Guidelines, it should be noted that such a reduction is subject to three cumulative conditions, namely:— the submission of a request during the administrative procedure;— the existence of a specific social and economic context; and— the inability to pay of the undertaking, the latter having to provide objective evidence showing that the imposition of the fine would irretrievably jeopardise its economic viability and cause its assets to lose all their value.
172Clearly at least two of those conditions have not been met. First, unlike other undertakings concerned, the applicants did not submit a request during the administrative procedure for the fine to be reduced on account of their inability to pay, although the 2006 Guidelines provide that such a request must be submitted. In that context, the argument based on the fact that, under the 1998 Guidelines, the Commission could have considered inability to pay as a ground for a reduction of the fine on its own initiative is irrelevant, since it is incapable of providing grounds for the assertion that the 2006 Guidelines have been infringed. In so far as that argument is relied on in order to assert that, irrespective of point 35 of the 2006 Guidelines, the Commission is obliged to examine on its own initiative the inability to pay of the undertakings concerned, it should be observed that an obligation of that kind does not follow from the case-law.
173In a letter lodged at the Registry on 6 August 2010, Team Relocations requested the reopening of the oral procedure on the ground that the Commission had changed its practice concerning the need to submit a request under point 35 of the 2006 Guidelines during the administrative procedure. That request was rejected by decision of 23 September 2010, since, contrary to that applicant’s assertions, in the cases cited by it the requests had indeed been submitted during the administrative procedure. Although it appears from a press article that the Commission ‘is considering formally modifying its fining guidelines’ in order to be able to take account of developments after the adoption of a decision, that change has not yet been adopted. In any event, a change in the interpretation of the 2006 Guidelines could not render unlawful a decision taken before that change.
174Second, the applicants have not disputed the Commission’s finding, in recital 651 of the Decision, that a ‘specific social and economic context’, within the meaning of the point 35 of the 2006 Guidelines, is lacking in the present case.
175In those circumstances, and without there being any need to examine whether the third condition, that is the applicants’ alleged inability to pay, is met in the present case, the Commission was fully entitled to find that the conditions for the application of point 35 of the 2006 Guidelines were not met.
176As regards the complaint alleging infringement of the principle of equal treatment, it is sufficient to note that, unlike Interdean, the applicants did not raise the issue of their ability to pay at the administrative procedure stage and they did not submit a request to obtain a reduction of their fines on that ground. Therefore, their position is not comparable to that of Interdean. In that context, it should be noted that the submission of a request to obtain a reduction of a fine is not merely a procedural requirement, but one which if not satisfied would preclude any valid assessment of the economic position from being carried out, since the Commission would not then possess relevant information, such as data internal to the undertaking concerned, in order to be able to assess the economic viability of that undertaking.
177Consequently, the applicants’ final plea and Team Relocations’ request to order the Commission to disclose the factors which it took into account in awarding Interdean a 70 % reduction in the fine must be rejected.
178As all of the applicants’ pleas in law have been rejected, it is necessary therefore to dismiss the actions in their entirety.
Costs
179Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
Operative part
On those grounds,THE GENERAL COURT (Eighth Chamber)hereby:
1.Dismisses the actions;
2.Orders Team Relocations NV, Amertranseuro International Holdings Ltd, Trans Euro Ltd and Team Relocations Ltd to pay the costs.
Delivered in open court in Luxembourg on 16 June 2011.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.