(Case T-54/03)

Competition – Agreements, decisions and concerted practices – Plasterboard market – Decision finding an infringement of Article 81 EC – Liability – Deterrence – Repeat infringement – Fine – Guidelines on the method of setting fines

6. Competition – Agreements, decisions and concerted practices – Adverse effect on competition – Agreement creating an information exchange system – Not permissible in an oligopolistic market – Rebuttable presumption (Art. 81(1) EC) (see paras 256-259, 397)

7. Competition – Agreements, decisions and concerted practices – Concerted practice – Meaning – Parallel conduct – Presumption of the existence of a concerted practice – Limits (Art. 81(1) EC) (see paras 318, 324)

9. Competition – Agreements, decisions and concerted practices – Concerted practice – Meaning – Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market – Receipt by an operator of information emanating from a competitor concerning its future market conduct (Art. 81(1) EC (see paras 458-463)

10. Competition – Agreements, decisions and concerted practices – Agreements and concerted practices constituting a single infringement – Undertakings that may be held responsible for participating in an overall cartel – Criteria (Art. 81(1) EC) (see paras 479, 482-487, 490, 613-616)

11. Competition – Community rules – Infringement committed by a subsidiary – Imputation to the parent company – Conditions – Separate legal personality of the subsidiary not relevant – Relevance of the fact that the subsidiary is wholly owned – Obligation of the parent company to rebut the presumption that management power was actually exercised over its subsidiary (Art. 81(1) EC) (see paras 539-541, 545, 557-558)

12. Competition – Fines – Amount – Determination – Criteria – Actual impact on the market (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1 A, first para.) (see paras 580-585)

13. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Horizontal cartel concerning prices – Very serious infringement (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1 A) (see paras 618-624)

14. Competition – Fines – Amount – Determination – Need to take account of the turnover of undertakings in the same infringement or similar previous infringements and to ensure the proportionality of the fines to those turnovers – None – Judicial review – Unlimited jurisdiction (Council Regulation No 17, Art. 15(2)) (see paras 634-639)

15. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Discretion of the Commission – Taking into account of repeat offences – Infringement of the principles that penalties must have a legal basis, of legal certainty, and ne bis in idem – None (Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) (see paras 716-730)

16. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Recidivism – Meaning (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 2) (see paras 733-739)

17. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Passive or ‘follow-my-leader’ role of the undertaking – Criteria for assessment (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 3, first indent) (see paras 763-767)

18. Competition – Fines – Amount – Determination – Criteria – Mitigating circumstances – Termination of the infringement after the Commission’s intervention – Conditions (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 3) (see paras 780-784)

19. Competition – Fines – Amount – Determination – Criteria – Reduction of the fine for cooperation of the fined undertaking – Conditions (Council Regulation No 17, Art. 15(2); Commission Notice 96/C 207/04, title D, point 2) (see paras 791-794)

Re:

APPLICATION for annulment of Commission Decision 2005/471/EC of 27 November 2002 relating to proceedings under Article 81 [EC] against BPB plc, Gebrüder Knauf Westdeutsche Gipswerke KG, Société Lafarge SA and Gyproc Benelux NV (Case No COMP/E-1/37.152 – Plasterboard) (OJ 2005 L 166, p. 8), or, in the alternative, an application for the annulment of or a reduction in the fine imposed on the applicant.

Operative part

The Court:

1.Dismisses the action;

2.Orders Lafarge SA to bear its own costs and to pay those incurred by the Commission;

3.Orders the Council to bear its own costs.