«(Competition – Regulation (EEC) No 4056/86 – Investigations carried out at company premises other than those of the company to which the investigation decision is addressed – Article 85(1) of the EC Treaty (now Article 81(1) EC) – Price-fixing – Proof of infringement – Error of assessment as to the facts – Fines – Proportionality – Mitigating circumstances)»

1.. Competition – Administrative procedure – Commission decision – Identification of sanctioned infringements – Operative part taking priority over the statement of reasons (EC Treaty, Arts 85 and 86 (now Arts 81 EC and 82 EC))

2.. Competition – Agreements, decisions and concerted practices – Agreements between undertakings – Meaning – Common intention regarding conduct to be adopted on the market (EC Treaty, Art. 85(1) (now Art. 81(1) EC))

3.. Competition – Community rules – Infringements – Committed intentionally – Meaning (EC Treaty, Art. 85(1) (now Art. 81(1) EC))

4.. Community law – Principles – Rights of the defence – Compliance during administrative procedure (Council Regulations Nos 17, Art. 14, and 4056/86, Art. 18)

5.. Competition – Administrative procedure – Powers of the Commission in investigations – Limits – Protection against arbitrary or disproportionate intervention by the public authority (Council Regulations Nos 17, Art. 14, and 4056/86, Art. 18)

6.. Competition – Administrative procedure – Powers of the Commission in investigations – Scope – Access to the premises of undertakings – Limits – Indication of the subject-matter and purpose of the investigation – Right to bring an action before the Community judicature (Council Regulations Nos 17, Art. 14, and 4056/86, Art. 18)

7.. Competition – Administrative procedure – Powers of the Commission in investigations – Access to premises of undertakings – Undertaking not referred to in the investigation decision – Conditions for access (Council Regulation No 4056/86, Art. 18)

8.. Competition – Administrative procedure – Powers of the Commission in investigations – Voluntary cooperation of an undertaking – Consequences for the possibility of arguing undue interference by a public authority (Council Regulation No 4056/86, Art. 18)

9.. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision applying the competition rules (EC Treaty, Art. 190 (now Art. 253 EC))

10.. Competition – Agreements, decisions and concerted practices – Prohibition – Cartels continuing to produce effects after they have formally ceased to be in force – Application of Article 85 of the Treaty (now Article 81 EC) (EC Treaty, Art. 85 (now Art. 81 EC))

11.. Competition – Fines – Amount – Determination – Criteria – Seriousness of the infringements – Application in the context of an infringement committed by several undertakings (Council Regulation No 17, Art. 15)

12.. Competition – Fines – Amount – Determination – Criteria – Seriousness of the infringements – Compliance with the principles of proportionality and equity (Council Regulation No 4056/86, Art. 19(2))

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber) 11 December 2003 (1)

((Competition – Regulation (EEC) No 4056/86 – Investigations carried out at company premises other than those of the company to which the investigation decision is addressed – Article 85(1) of the EC Treaty (now Article 81(1) EC) – Price-fixing – Proof of infringement – Error of assessment of the facts – Fines – Proportionality – Mitigating circumstances))

In Case T-59/99,

applicant,

v

defendant,

APPLICATION for annulment of Commission Decision 1999/271/EC of 9 December 1998 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/34.466 ─ Greek Ferries) (OJ 1999 L 109, p. 24),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of: P. Lindh, President, R. García-Valdecasas and J.D. Cooke, Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 2 July 2002,

gives the following

The duration of these infringements is as follows:

The duration of these infringements is as follows:

...

The first plea: error of assessment of the facts in that the Commission treated as established the applicant's participation in an agreement to fix prices on the route between Patras and Bari

A ─ Preliminary remarks

Arguments of the parties

Findings of the Court

B ─ The merits of the plea

1. The facsimile of 8 December 1989

─ Arguments of the parties

─ Findings of the Court

2. The facsimile of 30 October 1990

─ Arguments of the parties

─ Findings of the Court

3. The facsimile of 25 February 1992

─ Arguments of the parties

─ Findings of the Court

4. The telex of 24 November 1993 and the meeting of that date

─ Arguments of the parties

─ Findings of the Court

5. The arguments relating to the telex of 7 January 1993

6. The argument drawn from the legislative framework and the policy of the Greek authorities

...Regular, uninterrupted sailings, throughout the year, between Greek and Italian ports, are a factor of decisive importance in enabling and ensuring the development of Greek import and export trade and thus, in a wider sense, Community trade as a whole.The policy of the Greek Government and, more specifically, of the Ministry of Merchant Shipping, which is responsible for defining national policy for maritime transport, is thus directed toward preserving the smooth operation of the route between Greece and Italy.The services offered on this route are regarded by us as services of public interest for our country. Given that, you will understand that it is of fundamental concern to the Greek Government to ensure the viability of this route and the prevention by all possible means of a price war which could hinder the smooth progression of import and export trade or the transport of vehicles and passengers. I would reiterate that our principal concern is to ensure operation of the route throughout the year and to avoid interruptions due to a price war.

Care is also taken to keep very strictly to shipping route plans, so as to avoid delays, but also so that issues can be dealt with such as the presence of appropriate receiving facilities at ports of destination, which are needed to ensure the safety of and improve the service provided to the passengers and vehicles carried.

Moreover, as regards the tariffs for journeys abroad ─ which are freely fixed, as I said ─ the Ministry of Merchant Shipping encourages the shipping companies to keep them low and competitive and in any event to keep annual increases within the level of inflation. Our national interests in fact demand that our export trade is kept competitive and that our imports remain as cheap as possible. Other than that, the companies are free to fix their tariff rates according to their own commercial and economic criteria.That freedom is restricted by Greek legislation if it leads to unfair competition. More specifically, Law No 4195/1929 (a copy of which is attached) seeks to prevent unfair competition between shipping lines operating on routes between Greece and destinations abroad, inter alia, by prohibiting derisory tariff rates, the simultaneous departure from the same port of two or more ships serving the same line and failure to operate the published service (except in certain cases of

The second plea in law: the unlawfulness of the inspection which the Commission carried out at ETA's offices

Arguments of the parties

Findings of the Court

A ─ The Commission's powers of investigation

To this end the officials authorised by the Commission are empowered:

B ─ The merits of the plea

1. Relevant facts agreed between the parties

2. Compliance with the principles defining the extent of the Commission's powers of investigation

3. The rights of the defence and the question whether there was excessive interference on the part of the public authorities in the sphere of ETA's activities

C ─ Conclusion

The third plea, put forward in the alternative: the Commission wrongly applied Article 85(1) of the Treaty to the facts of the case, because the agreement in question was one of minor importance

Arguments of the parties

Findings of the Court

The fourth plea: inadequacy of the statement of reasons

Findings of the Court

A ─ The first limb: error of assessment of the duration of the infringement

Arguments of the parties

Findings of the Court

B ─ The second limb: the assessment of the gravity of the infringement and the applicant's part in it

Arguments of the parties

Findings of the Court

1. The Commission's assessment of the gravity of the infringement

2. The failure to take other mitigating circumstances into account

3. The proportionality of the fine by comparison with the applicant's involvement in the infringement

On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber)

hereby:

Lindh

García-Valdecasas

Cooke

Delivered in open court in Luxembourg on 11 December 2003.

H. Jung

P. Lindh

Registrar

President