Judgment_paragraph 14 · European Commission v Verhuizingen Coppens NV (C-441/11 P)

14By the judgment under appeal, the General Court upheld the first part of the first plea raised by Coppens. In paragraphs 28 to 32 of the judgment under appeal, the General Court held as follows:28 As regards the first limb of the plea, it is common ground that the … active participation [of Coppens] in the cartel was limited to issuing cover quotes (see recitals 173 and 296 of the [contested decision]). According to the Commission’s findings, Coppens is the only company not to have participated in the agreement on commissions.29 [Coppens] denies, however, that it took part in a single and continuous infringement. In that connection, it should be observed that, according to the case-law, an undertaking which has participated in a multiform infringement of the competition rules by its own conduct, which met the definition of an agreement or concerted practice having an anti-competitive object within the meaning of Article 81(1) EC and was intended to help bring about the infringement as a whole, may also be responsible for the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement, where it is proved that the undertaking in question was aware of the unlawful conduct of the other participants, or could reasonably foresee such conduct, and was prepared to accept the risk (Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraphs 87 and 203). Thus, in order to hold a company liable for a single and continuous infringement, awareness (proved or presumed) of the offending conduct of the other participants in the cartel is required.30 In addition, the mere fact that there is identity of object between an agreement in which an undertaking participated and a global cartel does not suffice to render that undertaking responsible for the global cartel. It is only if the undertaking knew or should have known when it participated in the agreement that in doing so it was joining in the global cartel that its participation in the agreement concerned can constitute the expression of its accession to that global cartel (Case T-28/99 Sigma Tecnologie v Commission [2002] ECR II-1845, paragraph 45).31 It must be stated that the Commission has not shown that, when [Coppens] participated in the agreement on cover quotes, it was aware of the other companies’ anti-competitive conduct concerning the commissions, or that it could reasonably have foreseen such conduct. The Commission expressly acknowledges that, as regards [Coppens’] awareness of the other participants’ offending conduct, the [contested decision] is not based upon specific evidence. It contends that [Coppens] does not deny that it was aware of the agreement on commissions and that it failed to state to what extent it knew of the conduct of the other participants in the infringement. However, [Coppens] is in no way required to state, on its own initiative, the extent to which it knew of the conduct of the other participants in the infringement, since the burden of proof is borne by the Commission. The Commission must first adduce proof of a fact before [Coppens] can dispute this. Moreover, at the hearing, [Coppens] expressly stated, at the request of the Court, that it was not aware of the [agreement] on commissions. Therefore, the Commission has not discharged the burden of proof.32 Accordingly, the Commission was not entitled to find that [Coppens] had participated in a single and continuous infringement.’