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Judgment of the General Court (Seventh Chamber) of 2 February 2012.#Denki Kagaku Kogyo Kabushiki Kaisha and Denka Chemicals GmbH v European Commission.#Competition — Agreements, decisions and concerted practices — Market for chloroprene rubber — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Price-fixing — Market-sharing — Proof of participation in the cartel − Proof of distancing from the cartel − Duration of the infringement — Rights of the defence — Access to the file − Guidelines on the method of setting fines − Non-retroactivity — Legitimate expectations — Principle of proportionality — Mitigating circumstances.#Case T‑83/08.
ECLI:EU:T:2012:48
62008TJ0083
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4. Competition — Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Operator receiving information from a competitor concerning its future market conduct (Art. 81(1) EC) (see para. 67)
6. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Refusal to communicate a document — Consequences — Need to make a distinction, at the level of the burden of proof on the undertaking concerned, between inculpatory and exculpatory documents (Art. 81(1) EC; Council Regulation No 1/2003, Art. 27(2)) (see paras 82‑84)
7. Community law — Principles — Non-retroactivity of penal provisions — Scope — Fines imposed for breach of the competition rules — Included — Whether breach by applying guidelines for the calculation of fines to an infringement prior to their introduction — Foreseeability of the modifications introduced by the Guidelines — No infringement (Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notices 98/C 9/03 and 2006/C 210/02) (see paras 115‑124)
9. Competition — Fines — Amount — Determination — Turnover taken into consideration — Reference year — Last full year of the infringement (Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02) (see paras 134, 135)
10. Competition — Agreements, decisions and concerted practices — Concerted practice — Evidence of the infringement — Burden of proof (Art. 81(1) EC) (see paras 173‑178)
11. Competition — Administrative procedure — Commission decision finding an infringement — Use as evidence of statements of other undertakings which participated in the infringement — Lawfulness — Conditions (Arts 81 EC and 82 EC) (see para. 179)
13. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Global assessment (Council Regulation No 1/2003; Commission Notice 2006/C 210/02) (see paras 237‑239, 242‑256)
Re:
APPLICATION for, principally, annulment of Commission Decision C(2007) 5910 final of 5 December 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.629 — Chloroprene Rubber), in so far as it concerns the applicants and, in the alternative, a reduction in the amount of the fine imposed jointly and severally on the applicants by that decision.
Operative part
The Court:
1.Dismisses the action;
2.Orders Denki Kagaku Kogyo Kabushiki Kaisha and Denka Chemicals GmbH to pay the costs.