Trelleborg Industrie SAS and Trelleborg AB v European Commission (T-147/09, T-148/09)

Judgment of 17 May 2013

law://eu/cjeu/2009/t-147-09/para_68@2026-11-14

68The Commission however relies, in its written pleadings, on the case-law (Commission v Anic Partecipazioni, point 50 above, paragraphs 83 et 84) according to which the undertaking must, in order to end its liability, distance itself openly and without equivocation from the cartel, so that the other participants are aware of the fact that it no longer supports the general objectives of the cartel. It concludes that, by not distancing themselves during the intermediate period, the applicants may nevertheless be found to have participated in that infringement period of lower intensity, but that that does not however result in the imposition of a fine for that period. According to that case-law, a party which tacitly approves of an initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery, which constitutes a passive mode of participation in the infringement which is capable of rendering the undertaking concerned liable. Given that (i) it is apparent from the contested decision that the normal functioning of the cartel was interrupted during the intermediate period, which lasted for more than two years, (ii) it has not been proved that the applicants took part in the contacts which took place in the course of the intermediate period with the aim of restarting the cartel or that they were aware of them, and (iii) even if the Commission’s arguments as regards the continuation of the effects of the calls for tenders awarded prior to May 1997 were accepted, those effects continued at most until November or December 1997 – which in any event leaves a period of 18 months before the re-establishment of the cartel during which there were no objective and consistent indicia that the applicants were involved in the contacts which took place during the cartel’s crisis period – the Commission cannot argue that the applicants did not distance themselves, during the intermediate period, from the action which certain cartel members took to revive it.

Trelleborg Industrie SAS and Trelleborg AB v European Commission (T-147/09, T-148/09)

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