CELEX: 62010TJ0426
Competition
Agreements, decisions and concerted practices
European market for prestressing steel
Price fixing, market sharing and the exchange of commercially sensitive information
Decision finding an infringement of Article 101 TFEU
Economic unit
Direct participation in the infringement
Secondary liability of parent companies
Succession of undertakings
Complex infringement
Single and continuous infringement
2006 Guidelines on the method of setting fines
Principle of non-retroactivity and principle that penalties must be lawful
Mitigating circumstances
Ability to pay
Rights of the defence
Obligation to state reasons
Request for reconsideration
No change in the factual circumstances
Letter of rejection
Inadmissibility

)
…
Law
…
II –
The third set of cases
…
B –
Admissibility of the actions
The Commission disputes the admissibility of the third set of cases, by raising pleas of inadmissibility. Those pleas, which were disputed by the applicants, were joined to the substance.
It should be borne in mind that any expression in writing of an opinion issued by an EU institution cannot constitute a decision against which an action for annulment under the first paragraph of Article 263 TFEU may be brought, since it is not capable of having legal effects or is not intended to have such effects (see, to that effect, judgments of 27 March 1980 in Sucrimex and Westzucker v Commission,
133/79
,
EU:C:1980:104
, paragraphs
to
, and of 27 September 1988 in United Kingdom v Commission,
114/86
,
EU:C:1988:449
, paragraphs
to
).
Likewise, any letter issued by an EU body in response to a request from its addressee does not constitute an act against which an action may be brought under the fourth paragraph of Article 263 TFEU (see, to that effect, order of 27 January 1993 in Miethke v Parliament,
C‑25/92
, ECR,
EU:C:1993:32
, paragraph
).
Conversely, according to settled case-law, any measure the legal effects of which are binding on, and capable of affecting the interests of, third parties by bringing about a distinct change in their legal position is an act against which an action may be brought under Article 263 TFEU (see judgments of 11 November 1981 in IBM v Commission,
60/81
,
EU:C:1981:264
, paragraph
and the case-law cited, and of 17 April 2008 in Cestas v Commission,
T‑260/04
,
EU:T:2008:115
, paragraph
and the case-law cited).
In addition, it is necessary to look to the substance of the measure annulment of which is sought in order to ascertain whether it may be the subject of an action for annulment, the form in which that measure was cast being, in principle, immaterial in that regard (see judgments in IBM v Commission, cited in paragraph
above,
EU:C:1981:264
, paragraph
and the case-law cited, and in Cestas v Commission, cited in paragraph
above,
EU:T:2008:115
, paragraph
and the case-law cited).
Only the act whereby an EU body determines its position unequivocally and definitively, in a form enabling its nature to be identified, constitutes a decision that may form the subject-matter of an action under Article 263 TFEU, on condition, however, that that decision does not merely constitute confirmation of a prior act (see, to that effect, judgment of 26 May 1982 in Germany and Bundesanstalt für Arbeit v Commission,
44/81
,
EU:C:1982:197
, paragraph
).
According to settled case-law, an action for the annulment of a measure which merely confirms a previous decision that has become final is inadmissible. A decision is a mere confirmation of an earlier decision where it contains no new factors as compared with the earlier measure and is not preceded by any reconsideration of the situation of the addressee of the earlier measure (judgments of 7 February 2001 in Inpesca v Commission,
T‑186/98
,
EU:T:2001:42
, paragraph
; of 22 May 2012 in Sviluppo Globale v Commission,
T‑6/10
, not published,
EU:T:2012:245
, paragraph
; and of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission,
T‑199/12
, not published,
EU:T:2014:848
, paragraph
).
However, the confirmatory or other nature of a measure cannot be determined solely by reference to its content as compared with that of the previous decision which it is said to confirm. The nature of the contested measure must also be assessed in the light of the nature of the request to which it constitutes a reply (judgments of 7 February 2001 in Inpesca v Commission,
T‑186/98
,
EU:T:2001:42
, paragraph
; of 22 May 2012 in Sviluppo Globale v Commission,
T‑6/10
, not published,
EU:T:2012:245
, paragraph
; and of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission,
T‑199/12
, not published,
EU:T:2014:848
, paragraph
).
In particular, if the measure constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested to reconsider its previous decision, that measure cannot be regarded as merely confirmatory in nature, since it constitutes a decision taken on the basis of those facts and thus contains a new factor by comparison with the previous decision (judgments of 7 February 2001 in Inpesca v Commission,
T‑186/98
,
EU:T:2001:42
, paragraph
; of 22 May 2012 in Sviluppo Globale v Commission,
T‑6/10
, not published,
EU:T:2012:245
, paragraph
; and of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission,
T‑199/12
, not published,
EU:T:2014:848
, paragraph
).
It is settled case-law that the existence of substantial new facts may justify the submission of a request for reconsideration of a previous decision which has become final. If a request for reconsideration of a decision which has become final is based on substantial new facts, the institution concerned is required to comply with the request. After the reconsideration, the institution must take a new decision, the legality of which may where necessary be challenged before the Courts of the European Union. If, on the other hand, the request for reconsideration is not based on substantial new facts, the institution is not required to comply with it (see judgments of 7 February 2001 in Inpesca v Commission,
T‑186/98
,
EU:T:2001:42
, paragraphs
and
and the case-law cited, and of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission,
T‑199/12
, not published,
EU:T:2014:848
, paragraph
).
An action brought against a decision refusing to reconsider a decision which has become final will be declared admissible if it appears that the request was actually based on substantial new facts. On the other hand, if it appears that the request was not based on such facts, an action against the decision refusing to reconsider it will be declared inadmissible (see judgments of 7 February 2001 in Inpesca v Commission,
T‑186/98
,
EU:T:2001:42
, paragraph
and the case-law cited, and of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission,
T‑199/12
, not published,
EU:T:2014:848
, paragraph
).
As regards the question of the criteria which determine whether facts are to be classified as ‘substantial new’ facts, it is clear from the case-law that, in order for a fact to be ‘new’, it is essential that neither the applicant nor the administration was aware of, or in a position to be aware of, the fact in question when the previous decision was adopted (see judgments of 7 February 2001 in Inpesca v Commission,
T‑186/98
,
EU:T:2001:42
, paragraph
and the case-law cited, and of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission,
T‑199/12
, not published,
EU:T:2014:848
, paragraph
).
In order to be ‘substantial’, the fact concerned must be capable of substantially altering the applicant’s situation forming the basis of the initial request that gave rise to the previous decision which has become final (see judgments of 7 February 2001 in Inpesca v Commission,
T‑186/98
,
EU:T:2001:42
, paragraph
and the case-law cited, and of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission,
T‑199/12
, not published,
EU:T:2014:848
, paragraph
).
It is in the light of that case-law that the admissibility of the present action, in so far as it is directed against the letter of 25 July 2012, must be examined.
It must be observed at the outset that, in rejecting the second requests, the Director-General relied, in the letter of 25 July 2012, on the same grounds as those which the College of Members of the Commission had taken into consideration in the contested decision.
Thus, in the present case, the Director-General considered that the material which the applicants had submitted since the adoption of the contested decision showed that their financial situation had improved by comparison with that which the Commission had taken into account when it considered that they were able to pay the fine, having recourse, if necessary, to credit institutions.
As regards the second ground taken into consideration in the contested decision, namely the possibility of having recourse to shareholders, both legal and natural persons, the Director-General repeated it in identical terms, taking the view that the death of Mr Rub., which occurred while the second requests were under consideration, was not substantial, since his estate had been transferred to his heirs.
Although the Commission is not correct to maintain that it is only where an undertaking’s financial situation has deteriorated that it can properly request a reconsideration of its ability to pay, it must nonetheless be considered that where the only change by comparison with the factual situation examined by the Commission at the time when it assessed an undertaking’s ability to pay consists in an improvement in its financial situation, the undertaking in question is not entitled to request the Commission to reconsider the position which it previously adopted. In such a situation, therefore, the Commission’s rejection of that request for reconsideration does not constitute an act against which an action may be brought.
A distinction must thus be drawn, when the administration receives a request to reconsider a decision which it has previously adopted, between the question of the examination of the factual and legal situation of the person concerned and the question of the reconsideration of the earlier situation. It is only where, following the examination of the situation of the person concerned, the administration finds that there has been a substantial change, in fact or in law, of the situation of the person concerned that it is then required to reconsider its decision. Conversely, where there has been no substantial change in the factual or legal circumstances, the administration cannot be required to reconsider its decisions and the position which it adopts when rejecting a request for a reconsideration submitted in those circumstances is not in the nature of a decision, so that an action brought against such a position must be rejected as inadmissible, as it is directed against an act against which an action cannot be brought. However, the assessment on the basis of which the administration finds that the person concerned has presented no new fact and has not established that there has been a substantial change in his factual and legal situation is amenable to review by the Courts of the European Union.
It is therefore appropriate to examine whether, as the Commission claims, the applicants’ financial situation improved by comparison with the situation which it had taken into consideration in the contested decision, which the applicants deny.
As a preliminary point, it should be borne in mind that the Commission was correct to take into account, when it adopted the contested decision, the applicants’ situation as it appeared in the last available annual accounts, which related to the business year 2009 (see paragraph 518 above). Furthermore, the applicants put forward a considerable amount of material relating to their financial situation in support of the second requests (see paragraph 532 above). The first material was submitted on the date of those requests, that is to say, in July 2011, and related to the beginning of 2011. The examination of the second requests lasted almost one year, during which the Commission requested and obtained information, so that, in the letter of 25 July 2012, the Director-General relied on the financial data existing at the end of 2011.
In support of their assertion that their situation deteriorated after the adoption of the contested decision, the applicants do not compare the data relating to the end of 2011 — namely, the most recent data available when the Director-General determined the matter — with those for 2009 — namely, the data which the Commission took into consideration in the contested decision –, but compare the data from the beginning of 2011 with the data for 2008, the year when the economic crisis was at its height.
It must be stated, however, that the comparison between the applicants’ situation as apparent in July 2012 with the situation, relating to 2009, which the Commission took into account in the contested decision shows a significant improvement; and the data which the Commission submits in that regard are not disputed by the applicants.
Thus, while the total amount of the fines, including interest, was EUR 54.26 million in 2010, and amounted to EUR 58.6 million at the end of 2011, GSW’s worldwide turnover during the same period increased from EUR 543 million to EUR 823 million. The ratio between the amount of the fines and GSW’s turnover thus fell from 10%, on the date of adoption of the contested decision, to 7.1%, on the date on which the Director-General made his determination.
It should be noted that during that period the ratio between the amount of the fines and the value of the combined assets of GSW and TQ remained stable, at between 6 and 7%.
While it is the case that the applicants’ own funds declined between 2009 and 2011, from EUR 212 million to EUR 196 million, so that the ratio between the total amount of the fines and the applicants’ own funds also worsened slightly, going from 26 to 30%, it is necessary, however, to consider the projections submitted by the applicants to the Commission, which indicate that the level of own funds expected in 2015 was EUR 244 million, higher than that recorded for 2009.
During the same period, GSW’s prospects of profitability also substantially improved. Thus, in 2009, GSW recorded losses after five consecutive years of positive results. The results forecasts for 2010 and 2011 drawn up at the end of 2009 predicted losses of EUR 6 million and EUR 5 million respectively. In fact, the results achieved were higher than forecast, namely a profit of EUR 1 million in 2010 and of EUR 25 million in 2011. Likewise, although ‘earnings before interest, taxes, depreciation, and amortization’ (EBITDA) were EUR ‑20 million in 2009, they reached EUR 51 million in 2010 and EUR 90 million in 2011. GSW’s risk profile, made up of the ratio between its net debt, with or without the fine, and its EBITDA thus considerably improved between 2009 and 2011.
In addition, the availability of liquid assets also improved between 2009 and 2011, working capital going from EUR ‑51 million in 2010 to EUR ‑42 million in 2011. Although the result of the Altmann Z-score test, an indicator of the probability of bankruptcy based on retrospective data, gave rise to concern in 2009 (0.59 without a fine and 0.44 including the fines), it no longer did so in 2011 (1.35 without a fine and 1.29 including the fines), the threshold for the industry being 1.23.
Last, although in 2009 GSW had available a total amount of bank credits of more than EUR 160 million, EUR 22 million of which was not used in 2011, its bank debts had been successfully negotiated for an amount of EUR 3000 million, of which the fines represented around 2%.
The applicants do not dispute the accuracy of those financial data. They merely propose other comparisons, of figures relating to different years. In that regard, for the reasons stated in paragraph 559 above, the Commission is correct to maintain that, for the purpose of assessing whether there had been a change in the applicants’ situation at the date of the letter of 25 July 2012, what must be compared are, on the one hand, the situation prevailing at the end of 2009, which was taken into consideration in the contested decision, and, on the other, the situation existing on the date on which the Director-General adopted the letter of 25 July 2012. It is quite clear that the applicants’ situation significantly improved between those two dates.
In the light of the considerations set out in paragraphs 556 and 557 above, it follows that the facts alleged by the applicants in the second requests were not capable of substantially altering the assessment of their ability to pay made in the contested decision. Accordingly, the letter of 25 July 2012 is not in the nature of a decision and the actions constituting the third set of cases (Cases T‑438/12 to T‑441/12), which are directed against that letter, must be dismissed as inadmissible.
It follows from all of the foregoing that the present actions must all be dismissed.

On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:

1.
Dismisses the actions;

2.
Orders Moreda-Riviere Trefilerías, SA, Trefilerías Quijano, SA, Trenzas y Cables de Acero PSC, SL and Global Steel Wire, SA to pay the costs.

Frimodt Nielsen
Dehousse
Collins
Delivered in open court in Luxembourg on 2 June 2016.
[Signatures]
(
*1
)	Language of the case: Spanish.
(
)	Only the paragraphs of this judgment which the Court considers it appropriate to publish are reproduced here.