Judgment_paragraph 23 · KME Germany AG, KME France SAS and KME Italy SpA v European Commission (C-272/09 P)

23Paragraphs 60 to 74 of the judgment under appeal are worded as follows:60 As for whether the present plea is well founded, it should be noted that, by that plea, the applicants challenge both the Commission’s assessment of the seriousness of the infringement... and the differentiated treatment which it carried out on the basis of the market shares of the undertakings concerned...61 Concerning, first, the differentiated treatment of the undertakings in question, the reasoning provided by the Commission in the [decision at issue] on that subject refers in particular to a concern to take account of the “specific weight and therefore the real impact of the offending conduct of each undertaking on competition” (recital 322 of the [decision at issue]). It should, however, be emphasised that, even without proof of actual impact of the infringement on the market, the Commission is entitled to carry out differentiated treatment, by reference to the shares held in the market concerned, such as that set out in recitals 326 to 329 of the [decision at issue].62 The case-law shows that the market share of each of the undertakings concerned in the market which formed the subject-matter of a restrictive practice constitutes an objective factor which gives a fair measure of the responsibility of each of them as regards the potential harmfulness of that practice for the normal operation of competition (see, to that effect, 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 197).63 Similarly, concerning the assessment of the seriousness of the infringement, it should also be noted that, even if the Commission had not proved that the cartel had had an actual effect on the market, that would have been irrelevant to the classification of the infringement as “very serious” and thus to the amount of the fine.64 In that regard, it should be noted that the Community system of penalties for infringement of the competition rules, as established by Regulation No 17 and interpreted by the case-law, shows that, by reason of their very nature, cartels merit the severest fines. Their possible concrete impact on the market, particularly the question to what extent the restriction of competition resulted in a market price higher than would have obtained without the cartel, is not a decisive factor for determining the level of fines (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraphs 120 and 129; Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 33; Case C-286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I-9925, paragraphs 68 to 77; Case C-407/04 P Dalmine v Commission [2007] ECR I-829, paragraphs 129 and 130; Tokai Carbon [and Others v Commission]…, at paragraph 225; Opinion of Advocate General Mischo in Case C-283/98 P Mo och Domsjö v Commission [2000] ECR I-9855, I-9858, points 95 to 101).65 Moreover, it follows from the Guidelines that agreements or concerted practices involving in particular, as in the present case, price-fixing and customer-sharing may be classified as “very serious” on the basis of their nature alone, without it being necessary for such conduct to have a particular impact or cover a particular geographic area. That conclusion is supported by the fact that, whilst the description of “serious” infringements expressly mentions market impact and effects over extensive areas of the common market, the description of “very serious” infringements makes no mention of a requirement that there be an impact or that there be effects in a particular geographic area (Case T-38/02 Groupe Danone v Commission [2005] ECR II-4407, paragraph 150).66 In any event, and for the sake of completeness, the Court considers that the Commission has demonstrated to a sufficient legal standard that the cartel did have an actual impact on the market concerned.67 In that context, it should be emphasised that the applicants’ premiss, to the effect that, if the Commission relied on concrete impact of the cartel in determining the amount of the fine, it was under a duty scientifically to demonstrate the existence of a tangible economic effect on the market and a link of cause and effect between the impact and the infringement, has been rejected by the case-law.68 The Court of First Instance has held on numerous occasions that actual impact of a cartel on the market must be regarded as sufficiently demonstrated if the Commission is able to provide specific and credible evidence indicating with reasonable probability that the cartel had an impact on the market (see, in particular, [Case T-241/01] Scandinavian Airlines System [v Commission [2005] ECR II-2917], at paragraph 122; Case T-59/02 Archer Daniels Midland v Commission [2006] ECR II-3627, paragraphs 159 to 161; Case T-43/02 Jungbunzlauer v Commission [2006] ECR II-3435, paragraphs 153 to 155; Case T-329/01 Archer Daniels Midland v Commission [2006] ECR II-3255, paragraphs 176 to 178; Case T-322/01 Roquette Frères v Commission [2006] ECR II-3137, paragraphs 73 to 75).69 It should be noted in that regard that the applicants have not challenged the accuracy of the facts, set out in paragraph 13 above, on which the Commission relied in concluding that the cartel had an actual impact on the market, namely the fact that prices fell during periods when the collusive agreement was not strictly complied with and rose strongly in other periods, the implementation of a system for exchanging information concerning sales volumes and price levels, the major share of the market held by the cartel participants as a whole, and the fact that the respective market shares of the cartel participants remained relatively stable throughout the duration of the infringement. The applicants have merely argued that those facts were not capable of demonstrating that the infringement in question had an actual effect on the market.70 On that point, however, the case-law shows that it is legitimate for the Commission to deduce, on the basis of the indicators referred to in the previous paragraph, that the infringement had an actual effect on the market (see, to that effect, [Jungbunzlauer v Commission, paragraph 159; Roquette Frères v Commission, paragraph 78; Case T-59/02 Archer Daniels Midland v Commission, paragraph 165; Case T-329/01 Archer Daniels Midland v Commission, paragraph 181]; and 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 285 to 287).71 As for the applicants’ argument that the file contains examples of non-compliance with the collusive agreements, the fact that cartel members did not always comply with the agreements is not sufficient to exclude their having had a market impact (see, to that effect, Groupe Danone [v Commission]…, at paragraph 148).72 Nor can this Court accept the arguments which the applicants make based on their own conduct. The actual conduct which an undertaking claims to have adopted is irrelevant for the purposes of evaluating a cartel’s effect on the market; account must be taken only of effects resulting from the infringement taken as a whole (Case T-224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II-2597, paragraph 167). Nor can the Commission be blamed for finding, in recital 303 of the [decision at issue], that the initial report was not sufficient to refute the Commission’s conclusions concerning the actual effects of the cartel on the market. The econometric analysis contained therein deals only with detailed figures relating to the applicants.73 Therefore, having regard to the above considerations as a whole, this plea must be dismissed as unfounded.74 The Court further considers, in the context of its unlimited jurisdiction and in the light of the above considerations, that there is no cause to call into question the assessment of the starting amount of the fine determined by reference to seriousness, as carried out by the Commission.’

KME Germany AG, KME France SAS and KME Italy SpA v European Commission (C-272/09 P)

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