Judgment of the General Court (Sixth Chamber) of 13 September 2010 – Trioplast Wittenheim v Commission

(Case T-26/06)

Competition – Agreements, decisions and concerted practices – Market for industrial plastic sacks – Decision finding an infringement of Article 81 EC – Duration of the infringement – Fines – Gravity of the infringement – Mitigating circumstances – Cooperation during the administrative procedure – Proportionality

1. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Scope of the evidential burden – Burden of proof on the undertaking as regards distance taken from decisions taken during meetings (Art. 81(1) EC) (see paras 39-42, 47-48)

2. Competition – Fines – Joint and several liability for payment – Determination of the amount of fine having to be paid by the undertaking jointly and severally liable – Undertaking transferred several times during the infringement – Succession of several parent companies (Council Regulation No 1/2003; Commission Communication 98/C 9/03) (see paras 69-72)

3. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Assessment – Economic reality at the time the infringement was committed to be taken into account (Council Regulation No 1/2003, Art. 23(3); Commission Communication 98/C 9/03) (see paras 80-82)

4. 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 1/2003, Art. 23(3); Commission Communication 98/C 9/03, para. 3) (see paras 92-94)

5. Competition – Fines – Amount – Determination – Maximum amount – Calculation – Turnover to be taken into consideration – Cumulative turnover of all the companies constituting the economic unit acting as an undertaking (Council Regulation No 1/2003, Art. 23(2); Commission Communication 98/C 9/03, para. 5) (see paras 112-113, 115, 145)

6. Competition – Fines – Amount – Determination – Discretion of the Commission – Total amount of fines exceeding the overall volume of the relevant market – Breach of principle of proportionality – None (Council Regulation No 1/2003, Art. 23(2)) (see paras 143-145)

Re:

Operative part

The Court:

1.Dismisses the action;

2.Orders Trioplast Witteheim SA to pay the costs.