CELEX: 62009TJ0056
Competition
Agreements, decisions and concerted practices
European market for carglass
Decision finding an infringement of Article 81 EC
Market-sharing agreements and exchanges of commercially sensitive information
Regulation (EC) No 1/2003
Plea of illegality
Fines
Retroactive application of the 2006 Guidelines on the method of setting fines
Value of sales
Repeated infringement
Additional amount
Imputability of the unlawful conduct
Upper limit of the fine
Consolidated group turnover

Background to the dispute
The present actions were brought in order to secure the annulment of Commission Decision C(2008) 6815 final of 12 November 2008 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (COMP/39.125 — Carglass) (‘the contested decision’), a summary of which was published in the
Official Journal of the European Union
(
OJ 2003 C 173, p. 13
). In the contested decision, the Commission of the European Communities, in particular, found that a number of undertakings, including the applicants, had infringed those provisions by participating, for various periods between March 1998 and March 2003, in a set of anti-competitive agreements and concerted practices in the carglass sector of the EEA (Article 1 of the contested decision).
Saint-Gobain Glass France SA, Saint-Gobain Sekurit Deutschland GmbH & Co. KG and Saint-Gobain Sekurit France SAS (together ‘Saint-Gobain’), the applicants in Case T‑56/09, are companies active in the manufacture, processing and distribution of materials, including carglass. They are wholly-owned subsidiaries of Compagnie de Saint-Gobain SA, the applicant in Case T‑73/09. Pilkington Group Ltd consists, inter alia, of Pilkington Automotive Ltd, Pilkington Automotive Deutschland GmbH, Pilkington Holding GmbH and Pilkington Italia SpA (together ‘Pilkington’). Pilkington, which has also brought an action for annulment of the contested decision (Case T‑72/09), is one of largest manufacturers of glass and glazing products in the world, in particular in the automobile sector. Soliver NV, which has brought an action for annulment of the contested decision (Case T‑68/09), is a smaller glass manufacturer, active in, among other areas, the carglass sector.
Asahi Glass Co. Ltd (‘Asahi’) is a manufacturer of glass, chemical products and electronic components, established in Japan. Asahi holds all the shares in the Belgian glass manufacturer Glaverbel SA/NV, which itself holds 100% of AGC Automotive France (‘AGC’). Before 1 January 2004 AGC was known as Splintex Europe SA (‘Splintex’). Asahi, which is one of the addressees of the contested decision, has not brought an action against that decision.
The investigation which led to the adoption of the contested decision was initiated after the Commission received letters from a German lawyer, acting on behalf of an unidentified client, containing information relating to agreements and concerted practices between various undertakings active in the production and distribution of carglass.
In February and March 2005 the Commission carried out inspections at various premises of the applicants and also of Pilkington, Soliver and AGC. The Commission seized several documents and files in the course of those inspections.
Following those inspections, Asahi and Glaverbel and their relevant subsidiaries (together ‘the leniency applicant’) submitted an application for immunity from or a reduction of the amount of the fine, pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (
OJ 2002 C 45, p. 3
; ‘the 2002 Leniency Notice’). The application for conditional immunity from a fine was rejected by the Commission on 19 July 2006, although the Commission informed the leniency applicant that, pursuant to point 26 of the 2002 Leniency Notice, it intended to apply to it a reduction of 30 to 50% of the fine which would normally have been imposed on it.
Between 26 January 2006 and 2 February 2007 the Commission sent various requests for information to the applicants and also to Pilkington, Soliver, Asahi, Glaverbel and AGC, pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (
OJ 2003 L 1, p. 1
). The undertakings concerned replied to those various requests.
In addition, the Commission sent requests for information, on the same basis, to a number of car manufacturers, to an Italian coach manufacturer and also to two glass industry trade associations, which also replied to those requests.
On 18 April 2007 the Commission adopted a statement of objections relating to a single and continuous infringement consisting in agreements or concerted practices between carglass manufacturers with a view to the allocation of contracts for the supplies to car manufacturers. That statement of objections was served on the applicants and also on Pilkington, Soliver, Asahi, Glaverbel and AGC. Each of the undertakings to which that statement of objections was addressed was invited by the Commission to submit comments in that respect. A hearing, in which the addressees of the statement of objections took part, was held at the Commission’s premises on 24 September 2007.
Contested decision
The Commission adopted the contested decision on 12 November 2008. It found, in particular, that Saint-Gobain and Compagnie de Saint-Gobain had participated in the agreements and concerted practices referred to at paragraph 1 above from 10 March 1998 to 11 March 2003 (Article 1(b) of the contested decision) and initially imposed on them, ‘jointly and severally’, a fine of EUR 896 million (Article 2(b) of the contested decision).
The leniency applicant, which was found to have participated in the infringement from 18 May 1998 to 11 March 2003, was ordered to pay a fine of EUR 113.5 million (Article 1(a) and Article 2(a) of the contested decision).
As regards, Pilkington, the Commission decided that that undertaking had participated in the agreements and concerted practices from 10 March 1998 to 3 September 2002 (Article 1(c) of the contested decision). It initially imposed on that undertaking a fine of EUR 370 million (Article 2(c) of the contested decision).
As regards, last, Soliver, the Commission considered that it had participated in the infringement from 19 November 2001 to 11 March 2003 (Article 1(d) of the contested decision). The Commission imposed a fine of EUR 4 396 000 on that undertaking (Article 2(d) of the contested decision).
In the contested decision, the Commission proceeds on the basis that the characteristics of the carglass market, namely, in particular, significant technical requirements and a high degree of innovation, favour large integrated suppliers with a global reach. AGC, Pilkington and Saint-Gobain are among the main carglass manufacturers in the world and, at the time of adoption of the contested decision, covered around 76% of world demand for glass for the original equipment market (carglass fitted in the factory while the vehicle is being assembled). The Commission also found a significant volume of trade in carglass between Member States and the EFTA Member States forming part of the EEA. Furthermore, car manufacturers negotiate contracts for the purchase of carglass at EEA level.
It follows from the contested decision that the carglass suppliers investigated by the Commission maintained their respective market shares during the infringement period, not only per ‘vehicle account’, that is to say, on the basis of the amount of glass per vehicle model, but also globally, all vehicle accounts together.
Pilkington, Saint-Gobain and AGC participated in trilateral meetings, sometimes called ‘club meetings’. Those meetings, organised by each of those undertakings in turn, were held in hotels in various towns in Europe, in the private homes of employees of those undertakings and also at the premises of the trade association Groupement européen de producteurs de verre plat (European Flat Glass Producers’ Group) (GEPVP) and at the premises of the Associazione Nazionale degli Industriali del Vetro ([Italian] National Association of the Glass Industries) (Assovetro).
Bilateral meetings or contacts were also arranged between those competitors, in order to discuss supplies of carglass for current or future models. Those various contacts or meetings concerned the evaluation and monitoring of market shares, the allocation of deliveries of carglass to manufacturers and the exchange of information on prices, as well as the exchange of other commercially sensitive information and the coordination of the pricing and supply strategies of those various competitors.
The first of those bilateral meetings, attended by Saint-Gobain and Pilkington, took place on 10 March 1998 at the Hyatt Regency hotel at Charles de Gaulle Airport, in Paris (France). The first trilateral meeting took place in the spring of 1998, in Königswinter (Germany), at the private home of the account manager of Splintex (AGC). Those meetings were preceded, in 1997, by exploratory contacts between Saint-Gobain and Pilkington, the aim of which was the technical harmonisation of the privacy glass manufactured by those undertakings, in terms of colour, thickness and light transmission. The Commission did not include those contacts in the cartel, however, since they essentially related to an advanced stage in the manufacture of flat glass, before it is transformed into carglass.
The Commission identifies in the contested decision almost 90 meetings and contacts between the spring of 1998 and March 2003. The last trilateral contact took place on 21 January 2003, while the last bilateral contact was during the second fortnight of March 2003, between Saint-Gobain and AGC. The participants used abbreviations or code names to identify themselves at those meetings and contacts.
Soliver’s participation in the cartel did not begin until 19 November 2001 and lasted until 11 March 2003. Soliver was contacted by Saint-Gobain in 2000 in an attempt to involve it in the cartel. The initial participants in the cartel, Saint-Gobain, Pilkington and AGC, exploited, for that purpose, the fact that Soliver was dependent on the producers of the raw material, as it did not produce the flat glass necessary for the manufacture of carglass.
According to the contested decision, the cartel’s overall plan was to allocate supplies of carglass between the participants, with respect to both existing supply contracts and new contracts. That plan was designed to maintain the stability of the participants’ market shares. In order to achieve that objective, the participants, during the meetings and contacts referred to at paragraphs 16 to 20 above, exchanged price information and other sensitive information. In addition, they coordinated their pricing and supply policies. In particular, they co-ordinated their replies to requests for price quotations from car manufacturers, in such a way as to influence the car manufactures’ choice of a glass supplier, or indeed of more than one in the event of multiple supplies. The participants had two means of favouring the award of a supply contract to the agreed manufacturer, namely by not quoting at all or by quoting higher prices than the agreed manufacturer. Where necessary, correcting measures, taking the form of compensation granted to one or more participants, were decided on in order to ensure that the global supply situation at EEA level was in accordance with the agreed allocation. Where correcting measures would affect current supply contracts, the process used by competitors to adjust the balance of market shares consisted in warning car manufacturers that a technical problem or shortage of raw materials would disrupt deliveries of items ordered and suggesting a replacement supplier.
In order to maintain the agreed allocation of contracts, the participants in the cartel agreed on several occasions on price reductions to be granted to car manufacturers by reference to increased productivity, or even on price increases applied to car models where production was lower than forecast. They also agreed, where necessary, to limit the disclosure of information on their actual production costs to car manufacturers, in order to avoid too frequent requests for price reductions from those manufacturers.
The coordination aimed at the stability of market shares was made possible, notably, by the transparency on the carglass supply market. The evolution of market shares was calculated on the basis of production costs and sales forecasts, taking pre-existing supply contracts into consideration.
The Commission states in the contested decision that the leniency applicant confirmed that from 1998 at the latest representatives of Splintex participated, with certain competitors, in activities that were unlawful from the aspect of competition law. In addition, the fact that Saint-Gobain did not substantially contest the facts set out in the statement of objections must be understood to be an endorsement by that undertaking of the Commission’s description of the impugned meetings and contacts.
Last, Pilkington, Saint-Gobain and AGC agreed at a meeting held on 6 December 2001 on a new calculation method for the purpose of allocating and re-allocating supply contracts.
It was on the basis of that body of evidence that the Commission held Saint-Gobain, Compagnie de Saint-Gobain, Pilkington, Soliver and the leniency applicant liable for a single and continuous infringement of Article 81 EC and Article 53 of the EEA Agreement.
The arrangements concluded between those parties constitute, according to the Commission, agreements or concerted practices within the meaning of those provisions which distorted competition on the carglass market. That infringement, moreover, was single and continuous, since the participants in the cartel expressed their joint intention to behave on the market in a certain way and adopted a common plan to limit their individual commercial autonomy by allocating supplies of carglass for cars and light commercial vehicles and also by distorting glass prices with the aim of ensuring overall stability and maintaining artificially high prices on the market. According to the contested decision, the frequency and the uninterrupted nature of those meetings and contacts, over a period of five years, had the consequence that all large manufacturers producing passenger cars and light commercial vehicles in the EEA were affected by the cartel.
The Commission also considered that there was no indication that the agreements and concerted practices between carglass suppliers resulted in efficiency benefits or promoted technical or economic progress in the carglass sector. The Commission therefore precluded the application of Article 81(3) EC in the present case.
As regards the identification of the addressees of the contested decision, the Commission considered, in particular, that Compagnie de Saint-Gobain indirectly held 100% of the shares in Saint-Gobain. In those circumstances, it considered that Compagnie de Saint-Gobain was presumed to have had a decisive influence on Saint-Gobain’s commercial policy. Other factors, such as the business structure of the group controlled directly or indirectly by Compagnie de Saint-Gobain (‘the Saint-Gobain group’) and the composition of Saint-Gobain’s board of directors, confirmed that decisive influence. As Compagnie de Saint-Gobain had not been in a position to rebut that presumption, the Commission concluded that it formed, together with Saint-Gobain, a single undertaking that had participated in the infringement and, accordingly, imposed on Compagnie de Saint-Gobain and Saint-Gobain a fine for which they are jointly and severally liable.
As regards the duration of the infringement, the Commission considered that Saint-Gobain and Compagnie de Saint-Gobain had participated in the infringement from 10 March 1998 to 11 March 2003. Pilkington’s participation was found to have lasted from 10 March 1998 to 3 September 2002, while Soliver was found to have participated in the infringement between 19 November 2001 and 11 March 2003.
As regards the calculation of the fines, the Commission first of all determined the value of each participating undertaking’s carglass sales within the EEA that were directly or indirectly connected with the infringement. In doing so, it drew a distinction between several periods. For the period beginning in March 1998 and ending on 30 June 2000, described as the ‘roll-out’ period, the Commission considered that it had evidence of the infringement for only a proportion of European car manufacturers. It therefore took into account, for that period, only carglass sales to manufacturers for which it had direct proof of the cartel. As regards the period between 1 July 2000 and 3 September 2002, the Commission observed that the accounts having formed the object of the cartel concerned at least 90% of sales within the EEA. It therefore concluded that, for that period, total sales of carglass within the EEA by the addressees of the decision should be taken into consideration. Last, at the end of the infringement period, between 3 September 2002 and March 2003, the cartel’s activities slowed down following the departure of Pilkington. Consequently, the Commission decided to take into account, for that period, only sales to car manufacturers for which it had direct proof of the cartel. A weighted annual average of those figures was then determined for each carglass supplier concerned, by dividing the values of sales referred to above by the number of months during which each of the suppliers had participated in the infringement and multiplying the result of that division by 12.
The Commission then observed that the infringement in question, which consisted in customer allocation, was among the most serious restrictions of competition. In the light of the nature of the infringement, its geographic scope and the combined market share of the undertakings which had participated, the Commission, when calculating the basic amount of the fine, took a proportion of 16% of the value of sales of each undertaking involved, multiplied by the number of years of its participation in the infringement. Furthermore, the basic amount of the fines was increased, for the purposes of deterrence, by an additional amount (or ‘entry fee’) fixed at 16% of the value of sales.
The basic amount of the fine imposed jointly and severally on Saint-Gobain and Compagnie de Saint-Gobain was increased by 60% to reflect the fact that this constituted a repeat infringement. As for the amount of the fine imposed on Soliver, it was reduced to 10% of that undertaking’s turnover, in accordance with Article 23(2) of Regulation No 1/2003. A reduction of 50% of the amount of the fine was granted to the leniency applicant, to take account of the evidence which it had submitted to the Commission and which had enabled the Commission to have a better understanding of the documents collected during the inspections.
On 11 February 2009 the Commission adopted Decision C(2009) 863 final, correcting the contested decision on a small number of points.
On 28 February 2013 the Commission adopted Decision C(2013) 1118 final, amending the contested decision with respect, inter alia, to the way in which Saint-Gobain’s sales to [confidential] before 31 May 1999 had been taken into account (‘the amending decision of 28 February 2013’). By that decision, the Commission amended the fine imposed on the applicants and set it at EUR 880 million.
Procedure and forms of order sought
By application lodged at the Court Registry on 13 February 2009, Saint-Gobain brought an action in Case T‑56/09. By application lodged at the Court Registry on 18 February 2009, Compagnie de Saint-Gobain brought an action in Case T‑73/09.
After the written procedure had been closed, and following a request from Compagnie de Saint-Gobain in Case T‑73/09 that the written procedure be re-opened, Compagnie de Saint-Gobain submitted an additional pleading, which arrived at the Registry on 6 September 2010. By a document received at the Registry on 22 October 2010, the Commission submitted its comments on that additional pleading.
The composition of the chambers of the Court was altered and the Judge-Rapporteur was assigned to the Second Chamber, to which this case was, consequently, assigned.
By order of 23 April 2012, the President of the Second Chamber, after hearing the parties, decided to join Cases T‑56/09 and T‑73/09 for the purposes of the oral procedure.
The parties presented oral argument and answered the questions put to them by the Court at the hearing on 11 December 2012. The parties were asked on that occasion to submit their comments on the possible joinder of Cases T‑56/09 and T‑73/09 for the purposes of the judgment and stated that they had no comments in that regard.
In Case T‑56/09, Saint-Gobain claims that the Court should:
—
annul the contested decision in so far as it concerns Saint-Gobain;
—
in the alternative, annul Article 2 of the contested decision in so far as it concerns Saint-Gobain;
—
further in the alternative, reduce the fine imposed on it in the contested decision to an appropriate amount;
—
order the Commission to pay the costs.
The Commission contends that the Court should:
—
dismiss the action in Case T‑56/09 as unfounded;
—
order Saint-Gobain to pay the costs.
By letter received at the Court Registry on 19 February 2009, Saint-Gobain adjusted its claim for annulment, in order to seek, first, annulment of the version of the contested decision as amended by Decision C(2009) 863 final of 11 February 2009 and, second, and in the alternative, a reduction of the amount of the fine imposed in Article 2 of the amended decision.
By document lodged at the Court Registry on 7 May 2009, the Council of the European Union applied for leave to intervene in support of the form of order sought by the Commission in Case T‑56/09. The President of the Seventh Chamber of the Court granted that application by order of 7 July 2009.
The Council claims that the Court should:
—
dismiss the action in Case T‑56/09 as unfounded;
—
make the appropriate order as to costs.
In Case T‑73/09, Compagnie de Saint-Gobain claims that the Court should:
—
annul the contested decision, in so far as it concerns Compagnie de Saint-Gobain, and draw all the necessary inferences as regards the amount of the fine;
—
in the alternative, reduce the amount of the fine imposed on it, jointly and severally with Saint-Gobain, in the contested decision;
—
order the Commission to pay the costs.
The Commission contends that the Court should:
—
dismiss the action in Case T‑73/09 as unfounded;
—
order Compagnie de Saint-Gobain to pay the costs.
Following the adoption of the amending decision of 28 February 2013, the Commission, by letter dated 7 March 2013, asked the Court to re-open the oral procedure.
After hearing the parties’ views on the matter, the Second Chamber of the Court, by order of 23 April 2013, decided to re-open the oral procedure.
By letter dated 30 July 2013, Saint-Gobain informed the Court, in particular, that it had adjusted the form of order sought in order to take account of the amending decision of 28 February 2013. Saint-Gobain, claiming that its action for annulment continued to be well founded and confirming its request that the Commission be ordered to pay the costs, submitted, however, in the alternative, a request that the Commission be ordered to pay part of its costs. The Commission submitted its comments on that amending decision and also on Saint-Gobain’s withdrawal of one part of one of its pleas, in a letter dated 30 July 2013. By letters dated 22 July and 1 August 2013 respectively, the Council and Compagnie de Saint-Gobain informed the Court that they had no comments in that regard.
The oral procedure was then closed on 11 September 2013.
Law
It is appropriate, after hearing the parties, to join the present cases for the purposes of the judgment, in application of Article 50 of the Rules of Procedure of the Court.
I –
The subject-matter of the action
In accordance with the comments submitted by the applicants both at the hearing and following the re-opening of the oral procedure, and also with the comments submitted by Saint-Gobain in its letter to the Court of 11 March 2013, the present actions must be deemed to have been brought against the contested decision as amended most recently by the amending decision of 28 February 2013, both in so far as the actions seek annulment of the contested decision and also in so far as they ask the Court to reduce the fine imposed jointly and severally on the applicants.
II –
The principal claims, seeking annulment of the contested decision
It is appropriate, in the first place, to examine the pleas for annulment raised in Case T‑56/09. As some of the pleas and arguments put forward by Saint-Gobain coincide with those put forward by Compagnie de Saint-Gobain in Case T‑73/09, they will be examined together. It is appropriate, in the second case, to examine the specific arguments in the pleas for annulment put forward by Compagnie de Saint-Gobain which do not relate to any of the pleas put forward by Saint-Gobain.
A –
Case T‑56/09
Saint-Gobain relies, in essence, on six pleas, alleging, first, illegality of Regulation No 1/2003; second, breach of the rights of the defence; third, insufficiency of the reasons on which the contested decision is based and an error in the calculation of the fine; fourth, an error of law in the imputation to Compagnie de Saint-Gobain of liability for the unlawful conduct of Saint-Gobain, breach of the principle that penalties should be applied solely to the offender and the principle of the presumption of innocence, and also misuse of powers; fifth, breach of the principles of non-retroactivity of penalties and protection of legitimate expectations; and, sixth and last, the disproportionate nature of the fine imposed on Saint-Gobain.
1. First plea: illegality of Regulation No 1/2003
By its first plea, Saint-Gobain raises a plea of illegality against Regulation No 1/2003, in that it entrusts the Commission with the power to conduct investigations and the power to impose penalties for infringements of Article 81 EC. As this plea is, in essence, identical to the plea raised by Compagnie de Saint-Gobain in Case T‑73/09, it is appropriate to examine the two pleas together.
This plea is divided into two parts. In the first place, the applicants submit that such a combination of functions on the Commission’s part constitutes a breach of the right to an independent and impartial tribunal. In the second place, they maintain that the power conferred on the Commission to adopt decisions imposing penalties pursuant to Article 81 EC is not consistent with the principle of the presumption of innocence.
a) First part: breach of the right to an independent and impartial tribunal
Arguments of the parties
Saint-Gobain and Compagnie de Saint-Gobain maintain, in essence, that the fact that the Commission combines the functions of investigation and imposition of penalties in the implementation of Article 81 EC, as organised by Regulation No 1/2003, constitutes a breach of the right to an independent and impartial tribunal, which is an essential guarantee of the right to a fair hearing laid down in Article 6(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and also in Article 47(2) of the Charter of Fundamental Rights of the European Union.
Saint-Gobain claims, first of all, that the penalties imposed by the Commission in that context are criminal in nature, not only because the prohibition in Article 81 EC is addressed to every undertaking and not to a specific category of undertakings, but also on account of the deterrent and punitive objective of such penalties. The statement by the legislature, in Article 23(5) of Regulation No 1/2003, that those penalties are not of a criminal law nature is irrelevant in that regard. The right to an independent and impartial tribunal therefore applies without restriction in the present case.
In Saint-Gobain’s submission, it follows from the case-law that the Commission cannot be described as an independent and impartial tribunal.
The ensuing invalidity of Regulation No 1/2003 is not contradicted by the fact that the addressee of a decision imposing a penalty adopted by the Commission under that regulation has the option to bring an action for annulment of that decision before the General Court. It follows from the case-law of the European Court of Human Rights that the principles of independence and impartiality must be respected at the actual stage at which the penalty is ordered.
On the latter point, Saint-Gobain observes that it is only in exceptional circumstances, characterised by particular requirements of efficiency and by the insignificant nature of the infringements, that the power to take a decision on the merits of a criminal charge falling within the scope of Article 6(1) of the ECHR may be delegated to an administrative authority whose decisions are amenable to appeal before a tribunal exercising unlimited jurisdiction. Those circumstances do not apply in this case.
Even if the penalties at issue had to be regarded as not coming within the ‘hard core’ of criminal law, the limitation placed on the right to an independent and impartial tribunal by the system for the prosecution and penalising of infringements of European Union competition law would have to be found to constitute a breach of the principles of legitimacy and proportionality. Thus, there is no risk of overloading the judicial system that would justify the combination of functions organised by that system. In addition, the limitation of the right to an independent and impartial tribunal is disproportionate by reference not only to the gravity of the penalties imposed on the basis of Article 81 EC and Regulation No 1/2003, but also to the characteristics of the review carried out by the General Court where an action is brought.
In that regard, Saint-Gobain and Compagnie de Saint-Gobain maintain that when the Court adjudicates on an action for annulment of a decision imposing a penalty adopted by the Commission pursuant to Article 81 EC, it does not undertake a review involving the exercise of unlimited jurisdiction within the meaning of Article 6(1) of the ECHR. When carrying out such a review, the Court, as a general rule, confines itself to ascertaining whether there have been any manifest errors of assessment or misuse of powers. It should also be borne in mind that an action brought before the Court does not have suspensory effect vis-à-vis the contested decision.
Saint-Gobain further objects to the Commission’s argument that the plea of illegality raised against Regulation No 1/2003 amounts to calling into question the validity of Article 83(2) EC. That provision of the Treaty does not state that the Commission is to combine the functions of investigating and penalising infringements of the competition rules, as that choice was made by the legislature.
Last, Compagnie de Saint-Gobain maintains that the problem posed by the combination, on the part of the Commission, of the functions of prosecuting and penalising infringements of competition law is confirmed by the judgment of the European Court of Human Rights
Dubus S.A. v. France
, no. 5242/04, 11 June 2009.
The Commission and the Council reject that analysis.
While it does not deny that undertakings involved in an administrative procedure relating to competition matters law are entitled to an independent and impartial tribunal, the Commission disputes the viewpoint that Article 6(1) of the ECHR applies in the same way in respect of criminal law in the strict sense and in respect of administrative penalties.
The Commission observes in that regard that, as stated in Article 23(5) of Regulation No 1/2003, penalties adopted pursuant to Article 81 EC are not of a criminal law nature. It also claims that, as is clear from the case-law of the Courts of the European Union, the Commission cannot be regarded as a ‘tribunal’ which imposes criminal penalties. It follows that Article 6 of the ECHR does not apply to the Commission when it adopts decisions pursuant to Article 81(1) EC. In its judgment of 8 July 2008 in Case T‑54/03
Lafarge
v
Commission
, not published in the ECR, the General Court thus held that the combination by the Commission of functions of investigation and the imposition of penalties in competition matters was not contrary to the protection of fundamental rights.
Saint-Gobain was wrong, moreover, to believe that it could infer from the case-law of the European Court of Human Rights three cumulative conditions for the delegation of the power to impose penalties to an administrative authority in matters falling outside the ‘hard core’ of criminal law. First, even fines of a high amount might fall outside the ‘hard core’ of criminal law. Second, the guarantees afforded by Article 6 of the ECHR do not prevent an administrative authority from being able to exercise the power to impose penalties in areas which are not characterised by a large number of infringements, provided that the objective pursued is lawful. It is clear that the efficiency of the prosecution and penalising of infringements of the competition rules is a lawful objective.
The Commission claims, furthermore, that the judicial review exercised by the Court has all the characteristics of review involving the exercise of unlimited jurisdiction within the meaning of the case-law of the European Court of Human Rights. That is the case, a fortiori, in relation to fines imposed in connection with cartels, the appropriate nature of which the Court may ascertain pursuant to Article 31 of Regulation No 1/2003. It is immaterial, in that regard, that the Court has thus far made only limited use of its unlimited jurisdiction to reduce the amount of fines imposed by the Commission.
Last, since this plea implies that it must be recognised that Commission decisions finding and penalising infringements of competition law are neither binding nor enforceable, it is contrary to the principle that Commission decisions benefit from a presumption of validity so long as they have not been annulled or withdrawn and also to the principle laid down in Article 242 EC that an action for annulment is not in principle to have suspensory effect vis-à-vis the contested measure.
The Council develops a line of argument which is essentially similar to the Commission’s. It claims, in particular, that the system of penalties established by Regulation No 1/2003 does not come within criminal law and that, accordingly, Article 6(1) of the ECHR is not applicable in the present case. The Council contends, moreover, that, by its plea of illegality, Saint-Gobain seeks in reality to call into question the validity of Article 83(2) EC, in that that provision states that it is for the legislature to define the respective roles of the Commission and the Court of Justice of the European Union in prosecuting and penalising infringements of the competition rules; and the Courts of the European Union do not have jurisdiction to rule on the validity of a provision of primary law.
Last, as regards the argument which Compagnie de Saint-Gobain derives from the judgment of the European Court of Human Rights in
Dubus SA v. France
, paragraph 66 above, the circumstances that gave rise to that judgment are different from those of the present case. That judgment concerned the exercise of the functions of prosecution and the imposition of penalties by the Banking Commission in France, whose decisions are in the nature of judicial decisions. However, the Commission cannot be considered to be a ‘tribunal’ within the meaning of Article 6 of the ECHR.
Findings of the Court
The Court considers, without there even being any need to rule on the plea of inadmissibility of the present plea submitted by the Commission in Case
T-73/09, that the first part of the first plea is unfounded, as follows, by analogy, from the case-law in which, in essence, the validity of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87) was challenged (see, to that effect, Case T-348/94
Enso Española
v
Commission
[1998] ECR II-1875
, paragraphs 55 to 65; Case
T-156/94
Aristrain
v
Commission
[1999] ECR II-645
, paragraphs 23 to 40; and
Lafarge
v
Commission
, paragraph 69 above, paragraphs 36 to 47).
It should be borne in mind, first of all, that the right to a fair hearing, guaranteed in Article 6(1) of the ECHR, is a general principle of EU law, now enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights.
Furthermore, according to consistent case-law, the Commission is not a ‘tribunal’ within the meaning of Article 6 of the ECHR (Joined Cases
209/78 to 215/78 and 218/78
Van Landewyck and Others
v
Commission
[1980] ECR 3125
, paragraph 81, and Joined Cases
100/80 to 103/80
Musique Diffusion française and Others
v
Commission
[1983] ECR 1825
, paragraph 7) or within the meaning of the second paragraph of Article 47 of the Charter of Fundamental Rights. In addition, Article 23(5) of Regulation No 1/2003 expressly states that Commission decisions imposing fines for infringements of competition law are not to be of a criminal law nature.
Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the right to a fair hearing applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (Case
C-185/95 P
Baustahlgewebe
v
Commission
[1998] ECR I-8417
, paragraphs 20 and 21, and Joined Cases
C-322/07 P, C-327/07 P and C-338/07 P
Papierfabrik August Koehler and Others
v
Commission
[2009] ECR I-7191
, paragraph 143).
Thus, the European Court of Human Rights had occasion to state, in
A. Menarini Diagnostics S.R.L. v. Italy
, no. 43509/08, 27 September 2011, the conditions in which a fine which, taking into account the amount of the fine and the preventive and punitive objective which it pursues, constitutes a criminal matter may be imposed by an administrative authority which does not satisfy all the requirements of Article 6(1) of the ECHR. That case concerned the Italian system of penalising infringements of competition law. The European Court of Human Rights stated, in essence, that compliance with Article 6(1) of the ECHR did not preclude a ‘penalty’ from being imposed by an administrative authority with the power to impose penalties in competition law matters, provided that the decision adopted by that authority is amenable to subsequent review by a judicial body exercising unlimited jurisdiction. Among the characteristics of a judicial body of that type is the power to vary in all respects, in fact and in law, the decision taken by the body below. Thus, review by the court or tribunal, in such cases, cannot be limited to verifying the ‘procedural’ legality of the decision for review, as it must be in a position to assess the proportionality of the choices of the competition authority and to verify its technical assessments.
It must be held that judicial review by this Court of decisions whereby the Commission imposes infringements in the event of infringement of EU competition law satisfies those requirements.
It should first of all be emphasised, in that regard, that EU law confers on the Commission a supervisory role which includes the task of investigating infringements of Article 81(1) EC and Article 82 EC, while the Commission is required, in the context of that administrative procedure, to observe the procedural guarantees provided for by EU law. Furthermore, Regulation No 1/2003 empowers the Commission to impose, by decision, fines on undertakings and associations of undertakings which have infringed those provisions either intentionally or negligently.
In addition, the requirement for effective judicial review of any Commission decision that finds and punishes an infringement of the competition rules is a general principle of EU law which follows from the common constitutional traditions of the Member States (
Enso Española
v
Commission
, paragraph 75 above, paragraph 60). That principle is now enshrined in Article 47 of the Charter of Fundamental Rights (Case
C-279/09
DEB
[2010] ECR I-13849
, paragraphs 30 and 31, and Case
C-69/10
Samba Diouf
[2011] ECR I-7151
, paragraph 49).
It follows from the case-law that the judicial review of the decisions adopted by the Commission in order to penalise infringements of competition law that is provided for in the Treaties and supplemented by Regulation No 1/2003 is consistent with that principle (see, to that effect, Case
C-272/09 P
KME Germany and Others
v
Commission
[2011] ECR I-12789
, paragraph 106, and Case
C-386/10 P
Chalkor
v
Commission
[2011] ECR I-13085
, paragraph 67).
In the first place, the General Court is an independent and impartial court, established by Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (
OJ 1988 L 319, p. 1
, corrected version in
OJ 1989 L 241, p. 4
). As is apparent from the third recital in the preamble to that decision, the General Court was established in order particularly to improve the judicial protection of individual interests in respect of actions requiring close examination of complex facts.
In the second place, the General Court has jurisdiction, under Article 3(1)(c) of Decision 88/591, to exercise the jurisdiction conferred on the Court of Justice by the Treaties and the acts adopted in implementation thereof in, inter alia, ‘actions brought against an institution by natural or legal persons pursuant to the second paragraph of Article [230 EC] relating to the implementation of the competition rules applicable to undertakings’. In the context of actions based on Article 230 EC, the review of the legality of a Commission decision finding an infringement of the competition rules and imposing a fine in that respect on the natural or legal person concerned must be regarded as effective judicial review of the measure in question. The pleas on which the natural or legal person concerned may rely in support of his application for annulment are of such a nature as to allow the General Court to assess the correctness in law and in fact of any accusation made by the Commission in competition proceedings.
In the third place, in accordance with Article 31 of Regulation No
1/2003, the review of legality provided for in Article 230 EC is supplemented by unlimited jurisdiction to review decisions, which enables the Courts, in addition to reviewing the legality of the penalty, to substitute their assessment for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (see, to that effect, Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P
Limburgse Vinyl Maatschappij and Others
v
Commission
[2002] ECR I-8375
, paragraph 692).
It follows that the argument put forward by Saint-Gobain and Compagnie de Saint-Gobain that the contested decision is unlawful on the sole ground that it was adopted in the context of a system under which the Commission combines the functions of investigating and imposing penalties in respect of infringements of Article 81 EC is unfounded and that, accordingly, the first part of the plea must be rejected.
b) Second part, alleging breach of the principle of the presumption of innocence
Arguments of the parties
In the second part of this plea, Saint-Gobain and Compagnie de Saint-Gobain maintain that the contested decision fails to have regard to the principle of the presumption of innocence, enshrined in Article 6(2) of the ECHR and also in Article 48 of the Charter of Fundamental Rights, since it was adopted by an administrative authority which does not have the quality of an independent and impartial tribunal and since, in addition, any action brought against that decision before this Court does not have suspensory effect.
In Saint-Gobain’s submission, that breach, the source of which lies in an illegality in Regulation No 1/2003, cannot be disregarded solely because the General Court concludes, wrongly, that that regulation does not breach the right to an independent and impartial tribunal owing to the possibility afforded to addressees of a Commission decision finding an infringement of Article 81 EC to challenge that decision before the Court. Even in such a situation, the guilt of the addressees is established in law, if at all, only from the date on which that decision is upheld by the Court in an action for annulment.
Last, the Commission is wrong to rely on the right of the addressees of a decision finding an infringement of competition law who seek annulment of that decision to provide a bank guarantee to the Commission instead of making immediate payment of the fine. Apart from the fact that it is wholly a matter for the Commission’s discretion, such a possibility does not in any way alter the fact that the decision begins to produce its effects before the Court has determined the matter.
In those circumstances, the Commission has not lawfully established an infringement of competition law by Saint-Gobain and Compagnie de Saint-Gobain and the contested decision should therefore be annulled in so far as it concerns those undertakings.
The Commission and the Council reject that analysis.
The Commission observes that, according to well-established case-law, an undertaking which is investigated for infringing the EU competition rules is presumed to be innocent until the Commission demonstrates its involvement in such an infringement. The Council adds that there cannot be a breach of the presumption of innocence in the present case, since there is no final decision as to the existence of the infringement and its imputability to Saint-Gobain until the Court has determined the matter.
In addition, in the Commission’s submission, Saint-Gobain’s argument amounts to raising a plea of illegality in respect of Article 242 EC, which provides that actions brought before the Court of Justice are not to have suspensory effect; and the Courts of the EU do not have jurisdiction to adjudicate on the validity of a provision of primary law.
The Commission relies, last, on the fact that, notwithstanding that the present action does not have the effect of suspending the contested decision, the applicant was in a position to lodge a bank guarantee instead of making provisional payment of the fine. That option derives, inter alia, from the fact that the existence of an infringement of the competition rules has not yet been established by an independent and impartial tribunal before the decision of the Court marking the end of the proceedings is taken and that the amount of the fine cannot be taken to be definitively fixed before the judicial proceedings have been closed.
Findings of the Court
By this second part of the plea, Saint-Gobain and Compagnie de Saint-Gobain maintain, in essence, that since the Commission is not an independent and impartial tribunal it cannot lawfully establish the guilt of the undertakings which it has found to have participated in an infringement of Article 81 EC. The penalties which it imposes on the basis of Article 81(1) EC are therefore adopted in breach of the principle of the presumption of innocence.
It has consistently been held that, given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence, now enshrined in Article 48(1) of the Charter of Fundamental Rights, applies, in particular, to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, Case
C-199/92 P
Hüls
v
Commission
[1999] ECR I-4287
, paragraphs 149 and 150; Case
C-235/92 P
Montecatini
v
Commission
[1999] ECR I-4539
, paragraphs 175 and 176; and Case
T-38/02
Groupe Danone
v
Commission
[2005] ECR II-4407
, paragraph 216).
A well-established line of cases has defined the scope of that principle.
The presumption of innocence implies that every person accused is presumed to be innocent until his guilt has been established according to law. It thus precludes any formal finding and even any allusion to the liability of an accused person for a particular infringement in a final decision unless that person has enjoyed all the usual guarantees accorded for the exercise of the rights of the defence in the normal course of proceedings resulting in a decision on the merits of the case (Joined Cases
T-22/02 and T-23/02
Sumitomo Chemical and Sumika Fine Chemicals
v
Commission
[2005] ECR II-4065
, paragraph 106).
Accordingly, the Commission must prove the infringements which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the facts constituting an infringement (see Joined Cases T‑44/02 OP, T‑54/02 OP, T 56/02 OP, T‑60/02 OP and
T-61/02 OP
Dresdner Bank and Others
v
Commission
[2006] ECR II-3567
, paragraph 59 and the case-law cited). The Commission must produce precise and consistent evidence to support the firm conviction that the infringement was committed (Case
T-62/98
Volkswagen
v
Commission
[2000] ECR II-2707
, paragraphs 43 and 72 and the case-law cited, and Case
T-11/06
Romana Tabacchi
v
Commission
[2011] ECR II-6681
, paragraph 129)
The requirements relating to respect for the presumption of innocence must also guide the action of the Courts of the EU where they are required to review the decisions whereby the Commission finds an infringement of Article 81 EC. Thus, any doubt on the Court’s part must benefit the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine (
Dresdner Bank and Others
v
Commission
, paragraph 100 above, paragraph 60).
It thus follows from paragraphs 99 to 101 above that the principle of the presumption of innocence does not preclude the liability of a person accused of a given infringement of EU competition law being established following a procedure carried out wholly in accordance with the procedures laid down in the provisions arising from Article 81 EC, Regulation No 1/2003 and also Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (
OJ 2004 L 123, p. 18
) and in the context of which the rights of the defence could thus be fully exercised.
Since the power to impose sanctions conferred on the Commission in the event of an infringement of Article 81 EC does not, as a matter of principle, breach the presumption of innocence, the complaint based on the fact that an action before the Court against a decision penalising an infringement of EU competition law does not have suspensory effect is ineffective. In those circumstances, there is no further need to adjudicate on whether, as the Council maintains, such a complaint amounts to a plea of illegality raised against Article 242 EC.
In any event, it should be observed that the European Court of Human Rights, in
Janosevic v. Sweden
, no. 34619/97, §§ 106 to 110, ECHR 2002-VII, p. 1), held that the right to the presumption of innocence did not preclude, in principle, penalties of a criminal nature adopted by an administrative authority being enforceable before they had become final following an appeal before a court, provided that such enforcement remains within reasonable limits that strike a fair balance between the interests involved and that the person on whom the penalty is imposed can be reinstated in his initial situation where his appeal is successful. In fact, the applicants have put forward no argument from which it might be concluded that the system of prosecution and penalising of infringements of EU competition law, as organised by Regulation No 1/2003 and implemented initially by the Commission, is not consistent with those requirements.
In the light of the foregoing analysis, and without prejudice to a review of compliance with the requirements referred to at paragraphs 97 to 101 above in the present case in the context of other pleas, the second part and, accordingly, the first plea, based on a plea of illegality, in its entirety must be rejected, without there being any need to adjudicate on its admissibility.
2. Second plea, alleging breach of the rights of the defence
a) Arguments of the parties
By its second plea, Saint-Gobain maintains that its rights of defence were breached by the Commission, since the Commission adopted the contested decision without providing Saint-Gobain with the opportunity to submit its comments on the method of calculating the fine that was eventually applied. When calculating the fine, the Commission thus used a number of factors which had not been brought to Saint-Gobain’s attention, in particular the value of sales relating to the infringement. The information in the statement of objections did not enable Saint-Gobain properly to make known its viewpoint in that regard, even though the value of sales is a decisive factor in the calculation of the fine, on which, in accordance with Article 6(1) of the ECHR, the parties concerned must be given the opportunity to make known their views. The statement of objections contained no information relating to the sales applied in calculating the basic amount of the fine and the method which the Commission intended to use in order to identify the relevant sales. Nor did the statement of objections contain any indication as to the degree of gravity that the Commission would apply or of the way in which repeated infringement might be taken into account.
None of the supplementary requests for information sent to Saint-Gobain at a later stage, relating to the determination of the value of sales, made up for those shortcomings. As for the reference in the statement of objections to the fact that the sales affected would be determined in application of point 13 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (
OJ 2006 C 210, p. 2
; ‘the 2006 Guidelines’), it is irrelevant in the present case, since the calculation method was still uncertain at the time when the contested decision was drafted. Those uncertainties are reflected, in particular, in the lack of consistency in the various requests for information which the Commission sent to Saint-Gobain concerning the matter.
In those circumstances, Saint-Gobain maintains that it was not in a position properly to put forward its point of view on the method of calculating the fine before the contested decision was adopted.
Saint-Gobain also criticises the case-law in which it has been held that the Commission, in the context of proceedings for the purpose of investigating infringements of competition law and imposing penalties, is required only to inform the addressees of its decisions of the main elements of fact and law capable of leading to the imposition of a fine, without those addressees being able to claim a right to anticipate such decisions. In Saint-Gobain’s submission, such case-law cannot ensure respect for fundamental rights. In addition, it is necessary to take account of the fact that the communication of more precise information during the investigation procedure would not necessarily enable the undertakings concerned to anticipate the Commission’s decision, since the Commission would not be bound by such indications when adopting the decision.
Saint-Gobain further claims that, by adopting the 2006 Guidelines, the Commission limited its discretion in relation to the basis of the calculation of the fine, as the concept of ‘affected sales’ is an objective and verifiable factor. It follows that the Commission cannot in any event rely in the present case on the case-law which seeks to preclude the risk of an inappropriate anticipation of future decisions of the College of Commissioners.
The Commission observes, first of all, that, in accordance with well-established case-law, to give an indication as to the level of proposed fines, at the stage of the statement of objections, would amount to anticipating its decisions in an inappropriate manner. Undertakings do not need to be in a position to foresee precisely the level of fines in order to exercise their rights of defence. Accordingly, the right to be heard is observed provided that the Commission indicates, in the statement of objections, that it will consider whether it is appropriate to impose fines on the undertakings concerned and that it sets out therein the principle elements of fact and of law capable of leading to the adoption of a decision imposing such fines.
The Commission emphasises, next, that the statement of objections sent to Saint-Gobain stated clearly that the calculation method set out in the 2006 Guidelines would be applied in this case. It also claims that it sent the undertakings concerned various requests for information about the value of sales of relevance for the calculation of the fine. Given the discretion which it enjoys when calculating fines in the event of an infringement of Article 81 EC, the Commission therefore maintains that Saint-Gobain’s rights of defence were fully respected in the contested decision.
The Commission also disputes Saint-Gobain’s argument that that undertaking was not in a position properly to make known its viewpoint on the fact that repeated infringement would be taken into account as an aggravating circumstance. The Commission claims, in that regard, that it specifically drew Saint-Gobain’s attention, in the statement of objections, to the aggravating circumstance of repeated infringement and also to various earlier findings of infringement of Article 81 EC. The Commission thus went even further than it was required to do in accordance with
Groupe Danone
v
Commission
, paragraph 97 above (paragraph 50). The fact that Saint-Gobain received sufficient information in the statement of objections with respect to repeated infringement is borne out by the arguments put forward by that undertaking in order to dispute that aggravating circumstance in its reply to the statement of objections.
b) Findings of the Court
Saint-Gobain’s argument contains two separate complaints, alleging breach of its rights of defence.
By its first complaint, Saint-Gobain takes issue with the Commission for not having informed it, before adopting the contested decision, of the value of sales that it would take into account when calculating the fine imposed on Saint-Gobain, of the calculation method used for that purpose and also of the rate of gravity that would be applied.
It should be borne in mind, in that regard, that, according to well-established case-law, at the stage of the statement of objections, to give indications of the level of the contemplated fines, when the undertakings have not been in a position to put forward their observations on the objections against them, would be tantamount to anticipating inappropriately the Commission’s decision (see
Musique Diffusion française and Others
v
Commission
, paragraph 77 above, paragraph 21, and Joined Cases
C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P
Dansk Rørindustri and Others
v
Commission
[2005] ECR I-5425
, paragraph 434 and the case-law cited).
The fact that a trader cannot, in advance, know precisely the level of the fines which the Commission will impose in each individual case appears to be justified in the light of the objectives of punishment and deterrence pursued by the policy of penalties in competition matters. Those objectives would be jeopardised if the undertakings concerned were in a position to assess the benefits which they would derive from their participation in an infringement by taking account, in advance, of the amount of the fine which would be imposed on them on account of that unlawful conduct (Case
T-279/02
Degussa
v
Commission
[2006] ECR II-897
, paragraph 83).
Thus, provided that the Commission indicates expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and that it sets out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and the fact that it has been committed ‘intentionally or negligently’, it fulfils its obligation to respect the undertakings’ right to be heard. In doing so, it provides them with the necessary elements to defend themselves not only against a finding of infringement but also against the fact of being fined (see
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above, paragraph 428 and the case-law cited, and Joined Cases
C-125/07 P, C-133/07 P, C-135/07 P and C-137/07 P
Erste Group Bank and Others
v
Commission
[2009] ECR I-8681
, paragraph 181).
Furthermore, the Commission is not required to inform the undertakings which are the subject of proceedings for infringement of Article 81 EC, in the statement of objections, of the extent of any increase in the fine in order to ensure that it would act as a deterrent (Case
T-15/02
BASF
v
Commission
[2006] ECR II-497
, paragraph 62).
It follows that, as regards the determination of the amount of the fines, the rights of defence of the undertakings concerned are guaranteed before the Commission through the possibility of presenting their observations on the duration, the gravity and the anti-competitive nature of the impugned acts, but, on the other hand, do not require that that possibility cover the way in which the Commission proposes to employ the imperative criteria of gravity and duration when making that determination (
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above, paragraph 439). The undertakings concerned have, in that regard, an additional guarantee, as regards the setting of the amount of the fines, in that the Court has unlimited jurisdiction and may in particular cancel or reduce the fine (see Case
T-23/99
LR AF 1998
v
Commission
[2002] ECR II-1705
, paragraph 200 and the case-law cited).
In the present case, it should be stated, first of all, that the Commission presented in detail, in the statement of objections, of which Saint-Gobain was an addressee, the factual framework on which it proposed to rely in order to find an infringement of Article 81(1) EC. It set out, moreover, at pages 129 to 131 and also at pages 132 to 135 of the statement of objections, the reasons why it considered that the contacts in which Saint-Gobain had participated constituted agreements or concerted practices within the meaning of that provision.
Next, the Commission also set out, at pages 132 to 135 and 152 to 155, the evidence on which it had relied in order to assess, inter alia, the duration of Saint-Gobain’s participation in the infringement. It also described, at pages 156 and 157 of the statement of objections, the main factors which it would take into account in order to assess the gravity of the infringement, namely, in particular, the fact that collusive arrangements of the type of those at the heart of the present case are among the most serious infringements of Article 81(1) EC, that those arrangements had repercussions throughout the entire carglass sector, to the detriment not only of car manufacturers but also of the general public, that the cartel participants were aware of the unlawful nature of their actions and that the cartel activities covered the whole of the EEA.
At paragraph 489 of the statement of objections, the Commission, moreover, stated that it proposed to take account of Saint-Gobain’s role as a potential ringleader in the cartel, since it had, on various occasions, represented the interests of other undertakings at the club meetings and had, in addition, convened most of the meetings of that club. The Commission added that it would also calculate the amount of the fines by reference to the duration of the participation of each of the undertakings concerned in the cartel and also of any aggravating or mitigating circumstances.
Since it had thus indicated the main elements of fact and of law on which it would base its calculation of the amount of the fines, the Commission, as is clear from the case-law cited at paragraph 120 above, was not required to specify the way in which it would use each of those elements in determining the level of the fine. It is immaterial, in that regard, that the Commission eventually departed to some extent in the contested decision from the method of calculating the value of the relevant sales prescribed at point 13 of the 2006 Guidelines.
In any event, it should be observed that the Commission stated, at page 156 of the statement of objections, that the fine which it would impose in the present case would be calculated by reference to the principles laid down in the 2006 Guidelines. Although, as is apparent from recitals 664 to 667 to the contested decision, the Commission decided in the present case to derogate in part from that method of calculation with respect to the sales of flat glass taken into account, it did so specifically in order to respond to certain of the objections raised by the addressees of the statement of objections with respect to the method of calculating relevant sales prescribed at point 13 of those guidelines, in their observations on the statement of objections and also in their replies to various requests for information which had been sent to them by the Commission.
It follows that the Commission sufficiently informed Saint-Gobain, before adopting the contested decision, of the elements of fact and law on which it proposed to rely for the purposes of establishing Saint-Gobain’s participation in an infringement of Article 81 EC and that Saint-Gobain’s rights of defence were to that extent observed. Accordingly, the first complaint cannot succeed.
By its second complaint, Saint-Gobain maintains that the Commission did not put it in a position, during the administrative procedure, properly to put forward its point of view as regards the fact that repeated infringement would be taken into account as an aggravating circumstance.
In that regard, it is sufficient to state, without prejudice to consideration of the first part of the sixth plea, below, that at pages 157 and 158 of the statement of objections the Commission not only drew the attention of the undertakings concerned to the fact that it might apply the provisions relating to repeated infringement as an aggravating circumstance, but also identified, in the case of Saint-Gobain and Compagnie de Saint-Gobain, the three earlier decisions imposing penalties for infringements of Article 81(1) EC on which it proposed to rely in order to establish the aggravating circumstance of repeated infringement with respect to them. It is apparent from Saint-Gobain’s reply to the statement of objections, moreover, that it put forward various arguments against any increase in the fine for repeated infringement, based on any of those decisions.
The second complaint cannot therefore be upheld. Consequently, the second plea must be rejected as unfounded.
3. Third plea, alleging insufficient reasoning and an error in the calculation of the fine
It is appropriate to examine as a single plea the pleas which Saint-Gobain presents in the application as its third and fourth plea, in so far as they constitute two parts of the same plea, relating to the sales figures used by the Commission in calculating the basic amount of the fine imposed on Saint-Gobain.
a) First part, alleging insufficient reasoning
Arguments of the parties
In the first part of the present plea, Saint-Gobain maintains that the contested decision is vitiated by a failure to state reasons within the meaning of Article 253 EC and Article 41(2)(c) of the Charter of Fundamental Rights, since it does not specifically state the different sales figures on the basis of which the fine was calculated, in application of point 13 of the 2006 Guidelines. The obligation to state the reasons on which the contested decision is based on this point is all the more pressing since it is an area in which the Commission has discretion to impose heavy fines.
Saint-Gobain takes issue with the Commission more particularly for having provided no evidence of such a kind as to establish whether the sales figures used in its case are the result of an accurate and consistent calculation or whether, on the other hand, the calculation is flawed. The contested decision does not make it possible to identify the manufacturers which were taken into account during the ‘roll-out’ periods and the final period of the infringement, in respect of which the Commission claims to have direct evidence that they were the subject-matter of the impugned cartel. It also follows that Saint-Gobain is not in a position to ascertain whether such evidence exists. Nor does the decision state the amounts of sales per manufacturer during the three phases of the infringement. Last, the decision does not reveal the precise number of months of participation taken into account by the Commission for the purpose of calculating the annual average of the value of affected sales. In those circumstances, the Court is not in a position to carry out an appropriate judicial review and the contested decision is vitiated by flawed or insufficient reasoning.
The Commission’s obligation to state reasons is increased by the fact that in the contested decision it departed from the rules laid down in the 2006 Guidelines as concerns the sales that ought to serve as a basis for the calculation of the fine. Although those guidelines state that the value of the sale of the goods concerned during the last full year of the undertaking’s participation in the infringement is to be taken into account, in the present case the Commission used a figure representing a weighted annual average of sales throughout the entire infringement period.
Saint-Gobain adds that the insufficiency of the reasoning on which the contested decision is based, with regard to the value of sales used, cannot be made good by the information communicated during the judicial proceedings before the Court. In any event, the additional information put forward by the Commission in its pleadings in defence is not of such a kind as to constitute sufficient reasoning, since important questions remain unanswered.
The Commission rejects that analysis. It submits that the contested decision contains an explanation of the method which it used when determining the basic amount of the fine. It follows, in particular, from Case
C-196/99 P
Aristrain
v
Commission
[2003] ECR I-11005
, paragraph 56, that statements of figures are not essential in order for the reasoning on which a decision imposing a fine is based to appear to be sufficient.
In the Commission’s submission, the further explanations which it provided in its pleadings in defence could already be inferred from an attentive examination of the contested decision or at least were foreseeable.
Thus, contrary to Saint-Gobain’s assertion, the car manufacturers taken into account during the ‘roll-out’ and ‘run-down’ phases of the cartel are identified in the contested decision, in the presentation of the factual framework. The same applies to the fact that a manufacturer which was the subject of collusion during a specific year was also taken into account for the following years. The number of months concerned, for each participant in the infringement and for each period, could also be inferred from the grounds of the contested decision.
As for the turnover used for 1998, the Commission stated that, in the absence of sufficient information supplied by the undertakings concerned on that subject, it had been effectively forced to make an estimate on the basis of the figures for 1999, but taking into consideration only the manufacturers which had been the subject of collusion in 1998.
Furthermore, the Commission duly explained in the contested decision the reasons which led it to derogate in the present case from the principle that sales for the last full year of participation in the infringement are to be taken into account, as provided for in the 2006 Guidelines. That derogation is justified by the characteristics of the cartel forming the subject-matter of the contested decision, relating to contracts for the supply of carglass concluded after a tender procedure and intended to remain in force for long periods. That context made it necessary to take separate phases into account, reflecting in particular the ‘roll-out’ of the cartel and the ‘run-down’ period preceding its termination. That derogation was also favourable to the undertakings to which the decision was addressed, since, in the Commission’s submission, the fine would have been much higher if total turnover during the last year of the infringement had been used.
The Commission further submits that it was unable to disclose more precise turnovers in the contested decision, as they constitute business secrets.
Findings of the Court
By the first part of the third plea, Saint-Gobain takes issue with the Commission, in essence, first, for not having provided details in the contested decision of the calculation following which it established vis-à-vis Saint-Gobain a relevant turnover of EUR [confidential] million and, second, for not having explained the reasons that led it to derogate in the present case from the method of calculation set out at point 13 of the 2006 Guidelines.
Neither of those complaints can be upheld, however.
It should be borne in mind in that regard that, in accordance with Article 253 EC, now supplemented by Article 41(2)(c) of the Charter of Fundamental Rights, the Commission is required to state the reasons for the decisions which it adopts.
The purpose of the obligation to state reasons is to enable the Courts of the EU to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested (see, to that effect, Case C‑196/99 P
Aristrain
v
Commission
, paragraph 135 above, paragraph 52 and the case-law cited).
The statement of reasons must therefore in principle be notified to the person concerned at the same time as the act adversely affecting him and a failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the decision during the proceedings before the Court (Case
195/80
Michel
v
Parliament
[1981] ECR 2861
, paragraph 22).
The requirement to state reasons must be assessed according to the circumstances of the case. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to the wording of the measure in question but also to the context in which the measure was adopted (Case
C-367/95 P
Commission
v
Sytraval and Brink’s France
[1998] ECR I-1719
, paragraph 63).
As regards the indication of figures relating to the calculation of the fines, it should be observed that the Commission did not in fact provide details in the contested decision of the specific Saint-Gobain sales figures which it took into account in order to calculate the fine imposed on that undertaking.
As regards the determination of fines for infringements of competition law, however, the Commission fulfils its obligation to state reasons where it indicates, in its decision, the factors on the basis of which the gravity and duration of the infringement were assessed, without being required to include in it a more detailed account or the figures relating to the method of calculating the fines (Case
C-286/98 P
Stora Kopparbergs Bergslags
v
Commission
[2000] ECR I-9925
, paragraph 66; see Case
T-110/07
Siemens
v
Commission
[2011] ECR II-477
, paragraph 311 and the case-law cited, and Case
T-138/07
Schindler Holding and Others
v
Commission
[2011] ECR II-4819
, paragraph 243 and the case-law cited).
Thus, however useful statements of figures relating to the calculation of fines may be, they are not essential to compliance with the duty to state reasons (Case
C-291/98 P
Sarrió
v
Commission
[2000] ECR I-9991
, paragraphs 75 to 77, and Joined Cases
T-259/02 to T-264/02 and T-271/02
Raiffeisen Zentralbank Österreich and Others
v
Commission
[2006] ECR II-5169
, paragraph 414).
As regards the reasons underlying the setting of the amount of fines in absolute terms, it must be borne in mind that, in providing, in particular, that the fine imposed on an undertaking which infringes the EU competition rules is to be set having regard to the duration and the gravity of the infringement, and that that fine is not to exceed 10% of the undertaking’s total turnover during the preceding business year, Article 23 of Regulation No 1/2003 confers a discretion on the Commission when it fixes the amount of fines in order that it may channel the conduct of undertakings towards compliance with the competition rules (see Case
T-53/03
BPB
v
Commission
[2008] ECR II-1333
, paragraph 335 and the case-law cited).
Moreover, it is important to ensure that fines are not easily foreseeable by economic operators. If the Commission were required to indicate in its decision the figures relating to the method of calculating the amount of fines, the deterrent effect of those fines would be undermined. If the amount of the fine were the result of a calculation which followed a simple arithmetical formula, undertakings would be able to predict the possible penalty and to compare it with the profit that they would derive from the infringement of the competition rules (
BPB
v
Commission
, paragraph 150 above, paragraph 336, and
Degussa
v
Commission
, paragraph 117 above, paragraph 83).
Contrary to Saint-Gobain’s contention, the mere fact that the method of calculating fines was adjusted in the context of the 2006 Guidelines is not such as to call those findings into question.
It follows from point 13 of those guidelines that, in determining the basic amount of the fine, the Commission is to take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA and that it will normally take into account the sales made by the undertaking during the last full business year of its participation in the infringement. Furthermore, in adopting such rules of conduct and announcing by publishing guidelines that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above, paragraph 211).
It follows that the Court must ascertain whether, on perusing the contested decision, Saint-Gobain was able to understand that the calculation of the amount of the fine imposed on it had been made on the basis of an alternative method to that set out at point 13 of the 2006 Guidelines and was aware of the Commission’s reasons for departing in this case from the course of conduct which it had set for itself in that provision.
It should first of all be observed, in that regard, that the Commission indicated, both in the statement of objections and in the contested decision, that the fine would be calculated by reference to the principles set out in the 2006 Guidelines. It referred, at recital 658 to the contested decision, to the rule on the calculation of relevant sales set out at point 13 of those guidelines. The Commission also stated the reasons why, in its view, the calculation of the value of relevant sales could not be made in this case solely by reference to the contracts in respect of which the Commission had direct evidence of an agreement or a concerted practice. In order to justify that approach, the Commission claimed, in particular, at recitals 660 to 662 to the contested decision, not only that agreements or concerted practices had been able to be established with regard to all main car manufacturers in the EEA, during the infringement period, but also that that cartel was intended to maintain the global stability of the participants’ market shares and that that stability was pursued, inter alia, by means of a compensation mechanism based on all individual accounts and involving all elements of glass.
The Commission then stated that it would depart in the present case from the calculation method consisting in taking only sales during the last full year of participation in the infringement into account. At recitals 664 to 667 to the contested decision, the Commission justified that derogation from the rule laid down at point 13 of the 2006 Guidelines, in essence, by the fact that the cartel in question had the particular feature of having been of variable intensity between March 1998 and March 2003. During an initial period, between March 1998 and the first half of 2000, described as the ‘roll-out’ period, the Commission had direct evidence of the infringement for only a part of European car manufacturers. During the period 1 July 2000 to 3 September 2002, on the other hand, the agreements or concerted practices affected at least 90% of original equipment carglass sales within the EEA. Last, the period between 3 September 2002 and the end of the infringement period, described as the ‘run-down’ period, was characterised by a slowing down of the cartel activities following Pilkington’s departure.
In the light of those circumstances, the Commission stated that it had taken a ‘more calibrated’ approach, consisting in reducing the weight of the ‘roll-out’ period, and also that of the ‘run-down’ period, when calculating the basic fine, by taking into account in that context only the value of sales to car manufacturers for which it had direct evidence that they had been the subject of collusion. On the other hand, the Commission stated that all EEA sales had been taken into account for the period 1 July 2000 to 3 September 2002. As noted at paragraph 155 above, the Commission justified that approach, in particular, at recitals 660 to 662 to the contested decision, by observing that agreements or concerted practices had been able to be established with respect to all large car manufacturers in the EEA, during the infringement period, but also that the cartel was intended to maintain the global stability of the participants’ market shares and that that stability was pursued, in particular, by means of a compensation mechanism based on all individual accounts and involving all elements of glass.
According to recital 667 to the contested decision, the sales taken into account for the purposes of calculating the fine were determined, for each participant in the cartel, on the basis of total sales weighted in the manner just explained, divided by the number of months of participation in the infringement and multiplied by 12 to obtain a weighted annual average. The Commission then stated that those calculations had been made on the basis of the figures supplied by the undertakings concerned in answer to the request for information which had been sent to them on 25 July 2008.
As the Commission rightly emphasises in its written pleadings, those explanations must be read in the light of other parts of the contested decision, relating in particular to the functioning of the cartel (recitals 120 to 428 to the contested decision), in which the Commission systematically identified the manufacturers which were the subject of illegal contacts during the various periods of the infringement.
In addition, the Commission provided various items of information, in the contested decision, on the method which it followed in order to calculate the fines which it imposed on each of the undertakings concerned in the present case, in particular the relevant sales figures, the proportion of the value of sales taken into account, the additional amount and also the adjustments of the basic amount of the fines.
Last, while it is true that the contested decision provides no explanation for the sales figures which were not taken into account for 1998, it must be observed that Saint-Gobain provided no sales figures per manufacturer for that year during the investigation. It follows that, as the Commission rightly claims, it was lawful and foreseeable, in that context, that the Commission should use the sales figures for the nearest year, in this instance 1999, in order to calculate the fine imposed on Saint-Gobain.
In the light of the foregoing, it must be concluded that the information in the contested decision enabled Saint-Gobain to understand not only the reasons that induced the Commission to derogate in part from the rules of conduct laid down at point 13 of the 2006 Guidelines in the present case, but also the evidence on the basis of which the Commission examined the gravity and duration of the infringement, and likewise the method of calculating the fine. Therefore, in spite of the fact that the details of that calculation do not appear in the contested decision, that decision is not vitiated by flawed or insufficient reasoning in that regard.
The first part of the plea is therefore unfounded.
b) Second part, alleging an error in the calculation
Arguments of the parties
Saint-Gobain, which maintains that it discovered on perusing the Commission’s defence that the Commission made a manifest error of assessment consisting in an error in calculating the fine, raises in that regard a new plea in its reply.
Saint-Gobain observes that the figure for affected sales initially taken into account by the Commission with respect to Saint-Gobain was EUR [confidential]. However, in scrupulously applying the calculation method recommended by the Commission, Saint-Gobain arrived at a figure of EUR [confidential], or an amount EUR [confidential] less than the amount taken into account by the Commission. That difference might be explained, in Saint-Gobain’s submission, by the fact that the basis for the calculation of the fines included figures corresponding to sales outside the EEA. In accordance with point 13 of the Guidelines, such figures cannot be taken into account in the calculation of a fine for an infringement of Article 81(1) EC.
The Commission expresses doubts as to the admissibility of this part of the plea and contends that Saint-Gobain could already have put this complaint forward in its application, since it is apparent from the contested decision that it was the sales figures supplied by Saint-Gobain that served as a basis for the calculation of the fine imposed on that undertaking.
As for the substance, the Commission claims that it took into account the sales figures supplied to it by Saint-Gobain. Admittedly, Saint-Gobain stated during the investigation that part of the sales corresponding to those figures was not affected by the cartel and that some of the sales concerned had been made outside the EEA. However, it did not specify the type of sales made outside the EEA, or the customers to which they were made, or even the amount of the turnover which they represented. In addition, the figures supplied by Saint-Gobain on that point were not certified.
The Commission puts forward several other circumstances which, it maintains, preclude the reduction of the relevant turnover sought by Saint-Gobain in respect of sales outside the EEA. First of all, Saint-Gobain has not explained whether any supplies made outside the EEA had been the subject of centralised discussions by the manufacturers or whether they were outside the scope of centralised management. Next, it could not be precluded, in the Commission’s submission, that those supplies were delivered to manufacturers’ warehouses in the EU, in order to be used by approved resellers outside the EEA. Furthermore, any reduction of sales figures in that sense would have required, for certain periods of the infringement, a precise breakdown of sales to each manufacturer concerned, which was not supplied by Saint-Gobain. Last, the Commission observes that Saint-Gobain has put forward no reliable evidence to show that sales had been made outside the EEA. It is apparent from the file relating to the investigation, moreover, that Saint-Gobain itself declined to undertake a detailed breakdown of that type, in the light of the small amount of the sales concerned.
Findings of the Court
The Court emphasises, as a preliminary point, that the Commission has confirmed Saint-Gobain’s theory that the fine imposed on it was calculated without deduction from the sales figures supplied of any amounts corresponding to sales alleged to have been made outside the EEA.
It should next be observed that, in the requests for information which it had sent to Saint-Gobain on 10 December 2007 and 25 July 2008, the Commission had asked Saint-Gobain to supply its turnover achieved in the EEA during a number of successive years. In each of those requests, the Commission had asked Saint-Gobain to supply, if possible, certified figures and to distinguish the turnover relating to each car manufacturer concerned.
In the replies which it sent to the Commission on 28 January and 22 August 2008, Saint-Gobain supplied the information relating to its overall turnover and for each manufacturer for the years 1999 to 2004, which were taken from its international business database. Conversely, Saint-Gobain stated in those replies that the figures supplied also included sales of carglass to customers outside the EEA, namely in Poland, the Czech Republic and Slovakia. Taking the view, however, that those sales accounted for a relatively low turnover and that it would have been difficult to extract them from the international business database, Saint-Gobain informed the Commission that it did not propose to adjust the database in that sense. However, it deducted from the overall turnover, for each year concerned, a percentage that was supposed to reflect sales outside the EEA.
Thus, it must be stated that the replies referred to in the preceding paragraph did not contain a specific calculation, for each manufacturer and each year, of sales to customers outside the EEA, in spite of the requests for information sent by the Commission to Saint-Gobain for that purpose. It is apparent from recital 667 to the contested decision that the Commission, with respect to the ‘roll-out’ and ‘run-down’ periods of the cartel, took into account only figures for sales to manufacturers in respect of which it was able to show that contracts for the supply of carglass had been the subject of agreements or concerted practices. It follows that the Commission could not determine, on the basis of the information supplied to it by Saint-Gobain, whether, and if so to what extent, the percentages of sales which Saint-Gobain claimed to have made outside the EEA related to those manufacturers.
More generally, it should be held that, as the Commission contends, Saint-Gobain did not submit during the investigation any evidence of such a kind as to show that the percentages of turnover which it would have deducted from the basis for the calculation of the fine did indeed correspond to sales outside the EEA.
Accordingly, even on the assumption that the present part of the plea is admissible even though it was submitted only at the stage of the reply, the Court considers that the Commission did not err in taking into account as turnover, for the calculation of the fine imposed on Saint-Gobain, the total turnover and turnover for each manufacturer communicated by Saint-Gobain, without deducting from those turnovers a flat-rate percentage alleged to correspond to sales outside the EEA.
It follows that the second part of the plea, in that it supports the claim for annulment of the contested decision, must be rejected as unfounded and, with it, the third plea in its entirety. It must be made clear, however, that this part is also examined at paragraphs 463 to 477 below, in so far as it supports the claim for variation of the contested decision.
4. Fourth plea, alleging an error in the imputation to Compagnie de Saint-Gobain of liability for Saint-Gobain’s unlawful conduct, a breach of the principle that penalties should be applied solely to the offender and the principle of the presumption of innocence, and misuse of powers
The present plea essentially corresponds to one of the pleas raised by Compagnie de Saint-Gobain in Case T‑73/09. They should therefore be examined together.
The third plea raised by Compagnie de Saint-Gobain in Case T‑73/09 contains an alternative plea, however, also alleging that the upper limit referred to in Article 23(2) of Regulation No 1/2003 was exceeded, but based on a different line of argument. Compagnie de Saint-Gobain maintains that, even if it must be held that the Commission was correct to hold Compagnie de Saint-Gobain liable for the actions of its subsidiary Saint-Gobain Glass France, it none the less erred in taking the total turnover of the Saint-Gobain group into account for the purposes of calculating the upper limit of the fine referred to in Article 23(2) of Regulation No 1/2003. As that complaint is separate from the complaint forming the subject-matter of the present plea, it is examined separately (see paragraphs 442 to 458 below).
a) Arguments of the parties
Saint-Gobain and Compagnie de Saint-Gobain take issue with the Commission for having imputed to Compagnie de Saint-Gobain the actions of Saint-Gobain Glass France, which it wholly owns, although it had not been shown that Compagnie de Saint-Gobain had exercised decisive influence over Saint-Gobain’s commercial policy.
Compagnie de Saint-Gobain claims in that regard that, owing both to the nature of the infringements of the competition rules and to the nature and the degree of severity of the penalties imposed, a legal person should not be penalised in that respect unless the Commission is able to adduce positive proof of its involvement in such an infringement. The imputation to a parent company of liability for an infringement, on account of the actions of one of its subsidiaries, is possible where it is established that the subsidiary did not act autonomously or merely applied the parent company’s instructions. Compagnie de Saint-Gobain maintains, on the other hand, that the Commission errs in law when, as in the present case, it imputes liability without having ascertained whether the parent company did in fact exercise decisive influence on its subsidiary’s commercial policy. The imputation of unlawful conduct in such circumstances is tantamount to confusing the concepts of legal person and undertaking and, accordingly, to failing to have regard to the principle that penalties should be applied solely to the offender.
In Compagnie de Saint-Gobain’s submission, although the element relating to ownership of all the capital of a subsidiary is a strong indication of the existence, on the part of the parent company, of a decisive power to influence the subsidiary’s conduct on the market, such a circumstance is not in itself sufficient to allow liability for the conduct of a subsidiary to be imputed to the parent company. A further body of evidence is necessary for that purpose, in spite of the case-law of the EU which has already decided to the contrary.
The Commission breached that principle, which is recognised in other legal orders, and also the principle of the presumption of innocence when it imputed to Compagnie de Saint-Gobain the infringement committed by Saint-Gobain Glass France, even though there is no evidence to show that the latter merely followed its parent company’s instructions when implementing its commercial policy. In particular, general directions given to a subsidiary or the fact that a senior employee of a subsidiary exercises non-executive functions within the parent company are not of such a kind as to establish the existence of such control. The Commission has thus established an irrebuttable presumption of decisive influence on the part of Compagnie de Saint-Gobain, in breach of the principles identified in Case
C-97/08 P
Akzo Nobel and Others
v
Commission
[2009] ECR I-8237
.
Compagnie de Saint-Gobain maintains that all that it should be required to do is to show that the group which it heads is not organised in such a way that Compagnie de Saint-Gobain has sufficient human and material resources to be regularly and heavily involved in the management of the commercial policy of its subsidiaries. That, in its submission, has indeed been demonstrated.
First of all, the mere fact that there is a strategy common to the entire Saint-Gobain group, published on the group’s website, is not of such a kind as to demonstrate that Compagnie de Saint-Gobain exercised decisive influence on Saint-Gobain’s commercial policy, as the principles that go to make up that strategy bear no relationship to the commercial policy of the various centres of activity within the group. In addition, the limited human resources available to Compagnie de Saint-Gobain, like the exclusively functional mission of the various departments of which it is made up, demonstrate that it would be impossible in practice to exercise even general influence on the commercial policy of its hundreds of subsidiaries. Compagnie de Saint-Gobain thus gives no instructions on the commercial techniques which its subsidiaries must employ in order to achieve their objectives. The communication of a limited amount of information to Compagnie de Saint-Gobain, such as budgets and financial reports, moreover, is organised according to a ‘bottom-up’ system characteristic of decentralised management and of the very diversified nature of the Saint-Gobain group’s activities. Nor has the Commission succeeded in demonstrating that specific reports on the activities of Saint-Gobain’s ‘Flat Glass’ sector were sent to Compagnie de Saint-Gobain.
Next, the individual role within Compagnie de Saint-Gobain played by Mr A., the former manager of the Saint-Gobain group’s ‘Flat Glass’ sector, does not prove that that sector did not have commercial autonomy. Thus, Compagnie de Saint-Gobain claims that Mr A.’s functions within it were not of an executive nature, as his title of Senior Vice-President of Compagnie de Saint-Gobain was purely honorary. Mr A. was not at any time a member of Compagnie de Saint-Gobain’s Executive Committee, which, subject to the powers of the Board of Directors, alone takes the decisions which come within the competence of Compagnie de Saint-Gobain within the group. Furthermore, Mr A. exercised functions within Compagnie de Saint-Gobain only from 15 October 2001, or almost four years after the beginning of the infringement, and was responsible for innovation in the group only from 1 May 2004, or more than one year after the end of the cartel at issue. As for the general management committee, although the matters which it deals with are indeed of common interest to the whole group, the information exchanged there is too general for it to be possible to infer the existence of decisive influence on the commercial policy of the Saint-Gobain group’s ‘Flat Glass’ sector.
As regards the presence of two of Compagnie de Saint-Gobain’s employees on the Board of Directors of Saint-Gobain Glass France, contrary to the Commission’s assertion, it is of no relevance in the present case. It is normal for a 100% shareholder in a company to have a number of seats on that company’s Board of Directors. It follows that the fact that that factor was taken into account in order to impute the infringement to Compagnie de Saint-Gobain, like the mere exchanges of general information with Saint-Gobain Glass France, helps to render irrebuttable the presumption of decisive influence identified in the case-law.
In a separate complaint, Saint-Gobain and Compagnie de Saint-Gobain maintain, moreover, that the contested decision is vitiated by a misuse of powers, as the sole purpose of imputing the infringement to Compagnie de Saint-Gobain was, in their view, to ensure that the very high fine imposed on them did not exceed the upper limit of 10% of the turnover of each ‘undertaking and association of undertakings participating in the infringement’ fixed in Article 23 of Regulation No 1/2003. It follows that, even independently of the other pleas put forward in the action, the fine imposed on them ought not to have exceeded 10% of Saint-Gobain’s turnover during the preceding business year, or EUR [confidential] million.
The Commission raises, as a preliminary issue, a plea of inadmissibility against this plea, in that it is raised by Saint-Gobain, in so far as it merely refers in this instance to certain arguments put forward by Compagnie de Saint-Gobain during the investigation and summarised in the contested decision.
As regards the substance, the Commission contends first of all that Compagnie de Saint-Gobain is wrong to take issue with it for having amalgamated the concepts of ‘undertaking’ and ‘legal person’ in the contested decision. The Commission imputed Saint-Gobain’s unlawful conduct to Compagnie de Saint-Gobain only after establishing that those companies formed one and the same undertaking for the purposes of Article 81 EC.
The Commission recalls, next, that, according to a consistent line of decisions, a parent company which holds 100% of the capital of a subsidiary is presumed to have exercised decisive influence on the subsidiary’s commercial policy and may therefore have the infringements of competition law committed by the subsidiary imputed to it. That presumption is justified by the fact that, in the great majority of cases, a subsidiary that is wholly owned by a parent company does not conduct its commercial policy autonomously. Contrary to Compagnie de Saint-Gobain’s contention, it is therefore unnecessary for the Commission to adduce positive proof that the parent company did in fact exercise such influence in the present case.
The Commission submits, moreover, that although it mentioned in the contested decision certain additional matters in order to support that presumption, it cannot be inferred that it considered that those matters were essential in order to hold Compagnie de Saint-Gobain liable for Saint-Gobain’s unlawful conduct.
In the Commission’s submission, there is no reason to depart from the presumption referred to at paragraph 189 above. First of all, it is irrelevant that the legal orders of non-member States do not recognise a form of rebuttable presumption comparable to the one just described. Next, that presumption is not contrary to the principle of equal treatment of parent companies which own the entire capital of a subsidiary and those which own only a smaller part of the capital, since those companies are not in comparable situations. Last, in any event, in previous decisions the Commission has already held liable a parent company that owns only part of the capital of one of its subsidiaries.
As regards what Compagnie de Saint-Gobain believes it has identified as previous administrative practice, the Commission states not only that such a practice cannot result from a single precedent, but also that, in any event, any practice of that kind would not establish an obligation to make the same appraisals in subsequent decisions. In any event, the Commission denies that there is any contradiction between its previous decisions, cited by Compagnie de Saint-Gobain, and the contested decision, which was adopted in a different factual framework.
Furthermore, as the Court of Justice confirmed in
Akzo Nobel and Others
v
Commission
, paragraph 181 above, the mere fact that the presumption of decisive influence is difficult to rebut does not mean that it is irrebuttable. In the present case, Compagnie de Saint-Gobain has not adduced evidence that would allow the presumption against it to be rebutted. Compagnie de Saint-Gobain forms a single undertaking with Saint-Gobain Glass France for the purposes of competition law. It also follows that the complaint that the contested decision fails to have regard, in that sense, to the principle that penalties should be applied solely to the offender or the principle of the presumption of innocence should be rejected as unfounded.
That conclusion is confirmed by various matters.
First of all, the business structure of the Saint-Gobain group, which is put in place by Compagnie de Saint-Gobain, tends to show that Compagnie de Saint-Gobain exercised decisive influence on the commercial conduct of Saint-Gobain France. Compagnie de Saint-Gobain devised the group’s strategy and divided its activities into specific sectors. This factor shows that Compagnie de Saint-Gobain wished to retain ultimate control of the structure and conduct of the group, so that Compagnie de Saint-Gobain’s knowledge of the infringement is irrelevant for the purpose of applying the presumption. It is normal, moreover, in that context, that the various tasks of the undertaking penalised in the contested decision should be divided between Compagnie de Saint-Gobain and its subsidiaries in the ‘Flat Glass’ sector and that Compagnie de Saint-Gobain should have more limited human resources than those subsidiaries.
Nor is Compagnie de Saint-Gobain’s assertion that it gave no specific instruction to its subsidiaries supported by any evidence whatsoever. It should be noted, on the latter point, that there is, within Compagnie de Saint-Gobain, a department devoted to research and development and also innovation, and likewise a post as lawyer specialising in intellectual property rights and a post as head of international contracts.
The Commission maintains, next, that the duties carried out by Mr A. both within Saint-Gobain Glass France and within Compagnie de Saint-Gobain help to show the decisive influence that Compagnie de Saint-Gobain had on the subsidiary’s commercial policy. Mr A. was employed by Saint-Gobain Glass France and was the director of the ‘Flat Glass’ sector within the Saint-Gobain group, in charge of all the operating companies producing and marketing flat glass. Contrary to Compagnie de Saint-Gobain’s assertion, Mr A. acted as director of the ‘Flat Glass’ sector within the group between October 1996 and October 2001, before carrying out the duties of Senior Vice-President. On several occasions, in those various roles, Mr A. reported the ‘Flat Glass’ sector’s activities to Compagnie de Saint-Gobain and Compagnie de Saint-Gobain has not demonstrated that those duties did not involve any executive role.
Nor is it disputed that Mr A. was a member of the general management committee, whose task, according to Compagnie de Saint-Gobain’s replies to the statement of objections, is to share general information likely to be of interest for group management and to examine, on an ongoing monthly basis, the consolidated results of the Saint-Gobain group and also the evolution of its global assets. That committee, together with the Executive Committee, forms the management team of the Saint-Gobain group.
As for the presence of a number of members of the management of Compagnie de Saint-Gobain at the head of Saint-Gobain Glass France, it shows the importance of the parent company’s involvement in the activities of the ‘Flat Glass’ sector of the Saint-Gobain group.
Furthermore, neither the ‘Flat Glass’ sector’s budget for 2001 nor its strategic plan for the period 2002-2006, which Compagnie de Saint-Gobain annexed to its reply, is of such a kind as to call those conclusions into question. Even on the assumption that those documents were drawn up within the ‘Flat Glass’ sector and only subsequently communicated to Compagnie de Saint-Gobain, it has not been demonstrated that Compagnie de Saint-Gobain was not in a position to alter them, reject them or monitor their application. It is hard to imagine, moreover, that the ‘Flat Glass’ sector is wholly autonomous in the Saint-Gobain group, given the significant part which it represents in the group in terms of turnover and results.
Last, the Commission contends that the argument alleging breach of the presumption of innocence, on which Compagnie de Saint-Gobain relies in its additional pleading, is out of time and therefore inadmissible. In the alternative, it claims that presumptions of guilt are possible in criminal matters, provided that they do not exceed a certain threshold. It should be noted, first, that the fight against anti-competitive practices is an important issue and, second, that Compagnie de Saint-Gobain’s rights of defence were fully respected in this case, as Compagnie de Saint-Gobain was in a position, after the statement of objections was issued, to rebut the presumption that it exercised decisive influence on Saint-Gobain Glass France’s commercial policy.
b) Findings of the Court
Admissibility of the plea in so far as it is raised by Saint-Gobain
Before examining the substance of the plea, it is appropriate to consider the plea of inadmissibility raised by the Commission against the plea, in so far as it is put forward by Saint-Gobain. Relying on Article 44(1)(c) of the Rules of Procedure, the Commission claims that Saint-Gobain merely referred in its application to arguments put forward by Compagnie de Saint-Gobain during the investigation and summarised at recitals 606 and 607 to the contested decision, but without developing them.
Under Article 44(1)(c) of the Rules of Procedure, an application must state the subject-matter of the proceedings and a summary of the pleas in law on which the application is based. The information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to give a ruling, if appropriate, without recourse to other information (Joined Cases
T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94
Limburgse Vinyl Maatschappij and Others
v
Commission
(‘
PVC II
’) [1999] ECR II-931
, paragraph 39). Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provision, must appear in the application (order of 27 March 2009 in Case T‑184/04
Alves dos Santos
v
Commission
, not published in the ECR, paragraph 19).
In the present case, the Court finds that the passages in Saint-Gobain’s application that deal with the present plea satisfy those requirements. As the Commission itself acknowledges in its pleadings, Saint-Gobain did not confine itself in the present case to simply referring to an argument contained in other documents. The application contains several arguments in support of the plea alleging breach of the principle that penalties should be applied solely to the offender, owing to the imputation to Compagnie de Saint-Gobain of Saint-Gobain’s unlawful conduct, and also alleging that the fine exceeded the upper level referred to in Article 23(2) of Regulation No 1/2003 and a misuse of powers.
It follows that the plea of inadmissibility raised by the Commission against the present plea, in so far is it is raised by Saint-Gobain, must be rejected.
Substance
As regards the substance, it should be observed, as a preliminary point, that EU competition law refers to the activities of ‘undertakings’ (Joined Cases
C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P
Aalborg Portland and Others
v Commission [2004] ECR I-123
, paragraph 59) and that the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed (see Case
C-222/04
Cassa di Risparmio di Firenze and Others
[2006] ECR I-289
, paragraph 107).
The Court of Justice has also stated that the concept of an undertaking, in that same context, must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (see
Akzo Nobel and Others
v
Commission
, paragraph 181 above, paragraphs 54 and 55 and the case-law cited).
When such an economic entity infringes the competition rules, it falls to that entity to answer for that infringement, which must be imputed unequivocally to a legal person on whom fines may be imposed. The statement of objections must also be addressed to that person and must indicate in which capacity the latter is called on to answer the allegations (see
Akzo Nobel and Others
v
Commission
, paragraph 181 above, paragraphs 56 and 57 and the case-law cited).
It is settled case-law, moreover, that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities. That is the case because, in such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of the case-law referred to at paragraphs 206 and 207 above. Thus, the fact that a parent company and its subsidiary constitute a single undertaking within the meaning of Article 81 EC enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see
Akzo Nobel and Others
v
Commission
, paragraph 181 above, paragraphs 58 and 59 and the case-law cited).
It is not because of a relationship between the parent company and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because they constitute a single undertaking in the sense described above that the Commission is able to address the decision imposing fines to the parent company of a group of companies (Case
T-112/05
Akzo Nobel and Others
v
Commission
[2007] ECR II-5049
, paragraph 58).
In the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the EU competition rules, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, second, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary (see Case C‑97/08 P
Akzo Nobel and Others
v
Commission
, paragraph 181 above, paragraph 60 and the case-law cited).
Thus, while it is the case that the Court of Justice referred, at paragraphs 28 and 29 of Case
C-286/98 P
Stora Kopparbergs Bergslags
v
Commission
, paragraph 148 above, in addition to referring to a 100% shareholding in the capital of the subsidiary, referred to other circumstances, such as the fact that the parent company had not disputed that it exerted a decisive influence on its subsidiary’s commercial policy and the fact that the two companies had been jointly represented during the administrative procedure, the fact none the less remains that those circumstances were mentioned by the Court of Justice in that case solely in order to explain all the factors on which the General Court had based its reasoning before concluding that the General Court had not relied solely on the parent company’s 100% shareholding of the capital of the subsidiary. Accordingly, the fact that the Court of Justice upheld the findings of the General Court in that case cannot be taken to imply any change in the conditions in which the presumption of decisive influence referred to in the preceding paragraph will apply (Case T-112/05
Akzo Nobel and Others
v
Commission
, paragraph 210 above, paragraph 62, and Case T-12/03
Itochu
v
Commission
[2009] ECR II-883
, paragraph 50).
In those circumstances, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent exercises a decisive influence over the commercial policy of the subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless that parent company, which bears the burden of rebutting that presumption, adduces evidence to establish that its subsidiary acts independently on the market (Case C‑97/08 P
Akzo Nobel and Others
v
Commission
, paragraph 181 above, paragraph 61, and Case
C-521/09 P
Elf Aquitaine
v
Commission
[2011] ECR I-8947
, paragraph 57).
In order to determine whether a subsidiary determines its conduct on the market independently, it is not appropriate to take account solely of the fact that the parent company influences pricing policy, production and distribution activities, sales objectives, gross margins, sales costs, cash flow, stocks and marketing. It is also necessary to take into consideration, as pointed out at paragraph 209 above, all the relevant elements relating to organisational, economic and legal links between the subsidiary and the parent company, which may vary depending on the case and which cannot therefore be the subject of an exhaustive list (see, to that effect, Case C‑97/08 P
Akzo Nobel and Others
v
Commission
, paragraph 181 above, paragraph 65, and Case T‑112/05
Akzo Nobel and Others
v
Commission
, paragraph 210 above, paragraphs 64 and 65).
A presumption, even where it is difficult to rebut, remains within acceptable limits so long as it is proportionate to the legitimate aim pursued, it is possible to adduce evidence to the contrary and the rights of the defence are safeguarded (see, by analogy, Case
C-45/08
Spector Photo Group and Van Raemdonck
[2009] ECR I-12073
, paragraphs 43 and 44, and Eur. Court H.R.,
Janosevic v. Sweden
, paragraph 104 above, §§ 101 to 110).
The presumption that decisive influence is exercised over a subsidiary wholly or almost wholly owned by its parent company is intended, in particular, to strike a balance between, on the one hand, the importance of the objective of combating conduct contrary to the competition rules, in particular to Article 81 EC, and of preventing a repetition of such conduct and, on the other hand, the requirements flowing from certain general principles of EU law such as the principle of the presumption of innocence, the principle that penalties should be applied solely to the offender and the principle of legal certainty as well as the rights of the defence, including the principle of equality of arms (
Elf Aquitaine
v
Commission
, paragraph 213 above, paragraph 59).
It follows that such a presumption is proportionate to the legitimate aim pursued.
Furthermore, the presumption referred to at paragraph 211 above is based on the fact that, save in exceptional circumstances, a company holding all the capital of a subsidiary can, by dint of that shareholding alone, exercise decisive influence over that subsidiary’s conduct and that it is within the sphere of operations of those entities against whom the presumption operates that evidence of the lack of actual exercise of that power to influence is generally apt to be found. In those circumstances, if, in order to rebut that presumption, it were sufficient for a party concerned to put forward mere unsubstantiated assertions, the presumption would be largely deprived of its usefulness. That presumption is rebuttable, however, and the entities which seek to rebut it may adduce any evidence relating to the economic, organisational and legal links between the subsidiary and the parent company which they consider to be apt to show that the subsidiary and the parent company do not constitute a single economic entity, but that the subsidiary acts independently on the market (
Elf Aquitaine
v
Commission
, paragraph 213 above, paragraphs 60 and 61; see, to that effect,
Stora Kopparbergs Bergslags
v
Commission
, paragraph 148 above, paragraph 29).
Last, the parent company must be heard by the Commission before it adopts a decision against it and that decision may be subject to review by the Courts of the EU, which must respect the rights of the defence (
Schindler Holding and Others
v
Commission
, paragraph 80 above, paragraph 110).
In the present case, it is common ground that Compagnie de Saint-Gobain held 100% of the capital of Saint-Gobain Glass France at the time of the infringement.
Furthermore, it follows from the case-law referred to in particular at paragraphs 213 to 215 above that, when the Commission relies on the presumption of the exercise of decisive influence in order to impute liability for an infringement to a parent company, it is for the parent company to rebut that presumption by adducing sufficient evidence apt to show that its subsidiary acts independently on the market. In that regard, it is incumbent on the parent company to adduce any evidence relating to the organisational, economic and legal links between it and the subsidiary that would show that they are not a single economic entity.
The Court must therefore consider whether the Commission was correct to conclude that it could not be established on the evidence adduced by Compagnie de Saint-Gobain during the investigation that Saint-Gobain Glass France enjoyed commercial independence on the market and, accordingly, that it and Compagnie de Saint-Gobain did not form a single economic entity for the purposes of EU competition law.
As is apparent from recital 600 et seq. to the contested decision, the Commission relies essentially on three types of considerations in order to substantiate the presumption that Compagnie de Saint-Gobain exercised decisive influence on Saint-Gobain Glass France’s commercial policy at the time of the infringement.
The Commission puts forward, in the first place, a number of arguments relating to the commercial organisation of the Saint-Gobain group. Thus, referring to various Compagnie de Saint-Gobain annual reports, the Commission observes that, although the various sectors of activity of the Saint-Gobain group manage their own operations and define and implement the commercial and marketing strategies linked with their own activities, those sectors are none the less part of a basic operational direction framework, established by Compagnie de Saint-Gobain and designed to implement the group’s business model. The Commission refers in that regard to a letter sent to it by Saint-Gobain Glass France on 4 October 2006, in reply to a request for information which it had sent to that undertaking, from which it is apparent that the initiatives adopted and results obtained by the group’s ‘Flat Glass’ sector were consistent with the priorities and the objectives set for all the activities of the group, as defined by the group’s general management. In the Commission’s submission, that letter states that, although the commercial directions, such as operational plans and budgets and also important operational commercial decisions, are drawn up at the level of the commercial units, they are ultimately adopted by the director of Saint-Gobain’s ‘Flat Glass’ sector.
In the second place, the Commission puts forward elements of a structural nature. It thus emphasises, first of all, the links between the management of Compagnie de Saint-Gobain and the management of the ‘Flat Glass’ sector of the Saint-Gobain group. Thus, Mr A. occupied the post of Senior Vice-President of Compagnie de Saint-Gobain and in that capacity reported to the Deputy President of the group. Mr A. was also president of the ‘Flat Glass’ sector of the Saint-Gobain group and also of Saint-Gobain Glass France and Saint-Gobain Sekurit France. He was also president of Saint-Gobain Sekurit International until 2001. Mr A. participated in the meetings of the operational committee and the general management committee of Compagnie de Saint-Gobain and, in addition, was responsible for innovation within the Saint-Gobain group. Next, it is necessary to take account of the fact that three members of Saint-Gobain Glass France’s Board of Directors at the same time had management posts within Compagnie de Saint-Gobain.
The Commission further observes that Mr A. is a member of the group’s management team, like the Deputy President of the group, and that the latter is also a member of the Executive Committee of Compagnie de Saint-Gobain. It is not plausible that members of the management team who lead a commercial sector, like Mr A., communicate only among themselves and therefore assume the management of the group without the involvement of the Executive Committee of Compagnie de Saint-Gobain.
In the third, and last, place, the Commission observes that Compagnie de Saint-Gobain and Saint-Gobain Glass France have their headquarters at the same address. That, in its submission, facilitates the development of a uniform commercial policy within that undertaking.
Compagnie de Saint-Gobain and Saint-Gobain dispute that viewpoint.
In that regard, while it is true that certain evidence adduced by Compagnie de Saint-Gobain indicates that Saint-Gobain Glass France enjoyed significant autonomy, the fact none the less remains that Compagnie de Saint-Gobain has not succeeded in rebutting the presumption of which it bears the burden in the present case.
In the first place, Compagnie de Saint-Gobain’s assertion that Saint-Gobain’s independence is evidenced by the decentralised management of the Saint-Gobain group and by the fact that Compagnie de Saint-Gobain is only a holding company which has no operational responsibilities and does not interfere in the operational management of its subsidiaries cannot be upheld.
First of all, Compagnie de Saint-Gobain asserts that its ‘ethical charter’ merely lays down general principles having no connection with the commercial policy of its subsidiaries and maintains that, although it sets the general strategy of the Saint-Gobain group, it leaves the activity sectors free to define and implement their commercial policies. It must be stated, however, that Compagnie de Saint-Gobain has not produced either its ‘ethical charter’ or any document capable of substantiating those claims.
Next, in the context of a group of companies, a holding company’s task is to consolidate the shareholdings in various companies and its function is to ensure unity of direction (see, to that effect, Case
T-69/04
Schunk and Schunk Kohlenstoff-Technik
v
Commission
[2008] ECR II-2567
, paragraph 63, and Case
T-360/09
E.ON Ruhrgas and E.ON
v
Commission
[2012] ECR, paragraph 283). Accordingly, in the absence of any indication to the contrary, it must be considered that the links between Compagnie de Saint-Gobain and Saint-Gobain Glass France are such as to imply that Compagnie de Saint-Gobain exercised decisive influence over its subsidiary’s conduct at the time when the infringement was committed, by coordinating, in particular, financial investments within the Saint-Gobain group (see, by analogy, Case T-299/08
Elf Aquitaine
v
Commission
[2011] ECR II-2149
, paragraph 99). It should also be noted in that regard, first, that Compagnie de Saint-Gobain acknowledges that it sets profitability objectives for its subsidiaries, ensures their financial equilibrium and reputation and contributes to the financing of the investments which they make and, second, that according to the figures supplied by Compagnie de Saint-Gobain itself almost half of its staff deal with financial matters.
As for the internal allocation of Compagnie de Saint-Gobain’s different activities, having characteristics of decentralised management, between different divisions or departments, it is a normal phenomenon within groups of companies such as that headed by Compagnie de Saint-Gobain and is therefore not capable of rebutting the resumption that Compagnie de Saint-Gobain and Saint-Gobain constituted a single undertaking for the purposes of Article 81 EC (see, to that effect, Case T‑299/08
Elf Aquitaine
v
Commission
, paragraph 232 above, paragraph 99).
In the second place, Compagnie de Saint-Gobain’s assertion, first, that Saint-Gobain Glass France has always defined its commercial strategy independently, since Compagnie de Saint-Gobain never adopted or approved its activity plans and its budgets and Saint-Gobain Glass France was in practice capable of acting independently on the market and, second, that Saint-Gobain Glass France enjoyed full financial independence, since the control exercised over it by Compagnie de Saint-Gobain was very general, cannot be upheld.
Apart from the fact that Compagnie de Saint-Gobain adduces no evidence capable of substantiating such assertions, it should be observed that, according to a letter sent to the Commission by Saint-Gobain Glass France on 4 October 2006, in answer to a request for information sent to it by the Commission, Compagnie de Saint-Gobain approved the investments and budgets of each of the activity sectors of the Saint-Gobain group and regularly checked the results achieved by those various sectors. That evidence tends to support the conclusion that Compagnie de Saint-Gobain exercised decisive influence over its subsidiary’s conduct by coordinating, in particular, financial investments within the Saint-Gobain group (see, to that effect, Case T‑299/08
Elf Aquitaine
v
Commission
, paragraph 232 above, paragraph 102).
In any event, even on the assumption that the activity plans were approved by the management of the ‘Flat Glass’ sector before then being communicated to Compagnie de Saint-Gobain, it could not be inferred that Compagnie de Saint-Gobain could not amend them, reject them or monitor their application.
In the third place, Compagnie de Saint-Gobain’s argument that Saint-Gobain Glass France supplied it with information according to a ‘bottom-up’ system and that the transmission of that information did not result in instructions subsequently being sent to its subsidiary is irrelevant. Even on the assumption that that were so, that method of communicating information from a subsidiary to its parent company is without prejudice to the parent company’s ability to exercise decisive influence over the conduct of the subsidiary in question on the market. In the present case, Compagnie de Saint-Gobain’s confirmation that the information contained in its subsidiaries’ budgets and financial reports was communicated to it tends, on the contrary, to confirm that the parent company was entirely capable of exercising decisive influence over the conduct of the subsidiary in question on the market by monitoring profitability and, depending on the results obtained, directing its strategic commercial choices. That conclusion is further supported by the information provided during the administrative procedure by Mr A., the director of the ‘Flat Glass’ sector within the Saint-Gobain group, that he submitted the activities of the ‘Carglass’ department of the group to the Deputy President of Compagnie de Saint-Gobain.
In the fourth place, it is also appropriate to reject the arguments that, first, Compagnie de Saint-Gobain never participated in the infringement and was not even aware of it, since the decisions on sales prices, the submission of specific tenders to car manufacturers and the rebate policy were taken solely by the subsidiaries forming part of the ‘Flat Glass’ sector of the Saint-Gobain group and, second, the carglass market was a specific sector among the five activity sectors of the Saint-Gobain group, only remotely connected, moreover, with the other divisions within the ‘Flat Glass’ sector.
None of those arguments is capable of establishing that Saint-Gobain Glass France determined its commercial policy independently on the market.
First of all, it must be borne in mind that, in accordance with settled case-law, it is not because of a relationship between the parent company and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because they constitute a single undertaking that the Commission is able to address the decision imposing fines to the parent company of a group of companies (Case T‑112/05
Akzo Nobel and Others
v
Commission
, paragraph 210 above, paragraph 58; see, to that effect, judgment of 16 November 2011 in Case T‑72/06
Groupe Gascogne
v
Commission
, not published in the ECR, paragraph 74). Thus, the organisational, economic and legal links between the parent company and its subsidiary may establish that the parent exercises an influence over the subsidiary’s strategy and therefore that they can be viewed as a single economic entity (Case T‑112/05
Akzo Nobel and Others
v
Commission
, paragraph 210 above, paragraph 83).
Next, the fact that the activities of Saint-Gobain Glass France concerned by the contested decision relate to only one of the many markets on which the Saint-Gobain group is active is irrelevant in the present case. It is not unusual for groups such as that headed by Compagnie de Saint-Gobain to be present on several markets and to entrust responsibility for the activities associated with those markets to different subsidiaries or groups of subsidiaries; however, that does not preclude the parent company from exercising decisive influence over the commercial policy of its various subsidiaries.
Accordingly, Compagnie de Saint-Gobain’s argument that, in essence, the Commission was wrong to consider that the matters not brought to its knowledge during the investigation did not establish that Compagnie de Saint-Gobain did not exercise decisive influence over Saint-Gobain Glass France’s commercial policy must be rejected.
As regards the complaint alleging that the standard of proof required by the Commission in the present case in order to rebut the presumption is tantamount to transforming the presumption of the exercise of decisive influence into an irrebuttable presumption, it cannot be upheld. In accordance with the case-law referred to at paragraphs 213 to 215 above, Compagnie de Saint-Gobain was not required to adduce evidence that it was not involved in the management of its subsidiary, but only to adduce sufficient evidence to prove that its subsidiary acted independently on the relevant market (see, to that effect, Case T‑299/08
Elf Aquitaine
v
Commission
, paragraph 232 above, paragraph 120). The mere fact that an entity does not provide, in a given case, evidence capable of rebutting the presumption of actual exercise of decisive influence does not mean that that presumption cannot, in any event, be rebutted (Case C‑521/09 P
Elf Aquitaine
v
Commission
, paragraph 213 above, paragraphs 65 and 66).
It should therefore also be considered, in the light of the foregoing developments, that the approach taken by the Commission in the contested decision to the evidence adduced by Compagnie de Saint-Gobain in order to rebut the presumption which operates against it does not, taken as a whole, amount to a
probatio diabolica
.
As regards the various references which Compagnie de Saint-Gobain makes to certain decisions previously adopted by the Commission, in which it did not impute to parent companies the unlawful conduct of their wholly-owned subsidiaries, it is sufficient to recall that the Commission’s practice in taking decisions does not in itself serve as a legal framework for fines for infringements of the competition rules, since that is defined solely in Regulation No 1/2003, as applied in the light of the Guidelines, and that the Commission is not bound by assessments which it has made in the past (see, to that effect, Case
C-510/06 P
Archer Daniels Midland
v
Commission
[2009] ECR I-1843
, paragraph 82, and
Erste Group Bank and Others
v
Commission
, paragraph 118 above, paragraph 123).
It is likewise irrelevant, for the purposes of the examination of the lawfulness of the contested decision, that different rules on the imputability of infringements of competition law are applied in other legal orders.
It follows from the foregoing developments that the complaint alleging an error of law in the imputation to Compagnie de Saint-Gobain of the unlawful conduct of Saint-Gobain Glass France cannot succeed.
Since the Commission was correct to consider that Compagnie de Saint-Gobain and Saint-Gobain Glass France constituted a single undertaking for the purposes of Article 81 EC, Compagnie de Saint-Gobain’s argument that, in essence, the presumption of the exercise of decisive influence applied by the Commission in the contested decision and the lawfulness of which the Court of Justice recognised, in principle, in Case C‑97/08 P
Akzo Nobel and Others
v
Commission
, paragraph 181 above, is contrary to the principle that penalties should be applied solely to the offender, must be rejected. Likewise, the complaint which Compagnie de Saint-Gobain derives from a breach of the principle of the presumption of innocence enshrined in Article 48 of the Charter of Fundamental Rights and Article 6 of the ECHR, even on the assumption that it is admissible when it was submitted only at the stage of the further pleading, cannot succeed (see, to that effect, judgment of 16 November 2011 in Case T‑78/06
Álvarez
v
Commission
, not published in the ECR, paragraphs 31 to 41).
Last, in the light of the conclusion set out at paragraph 247 above, the complaint alleging a misuse of powers, in that the imputation to Compagnie de Saint-Gobain of the unlawful conduct of Saint-Gobain was justified solely by the Commission’s desire to impose on Saint-Gobain a fine in excess of the upper limit of 10% referred to in Article 23(2) of Regulation No 1/2003, must be rejected.
The present plea is therefore unfounded and must be rejected.
5. Fifth plea, alleging breach of the principles of non-retroactivity of penalties and legitimate expectations
This plea is essentially similar to one of the pleas raised by Compagnie de Saint-Gobain in Case T‑73/09. They should therefore be examined together.
a) Arguments of the parties
Saint-Gobain and Compagnie de Saint-Gobain maintain that the contested decision breaches the principle of non-retroactivity of penalties, enshrined in Article 7 of the ECHR and Article 49 of the Charter of Fundamental Rights, and also the principle of legitimate expectations, in so far as the Commission applied the 2006 Guidelines although they were not adopted until after the infringement at issue had ceased. That retroactive application of the Guidelines led to a significant increase in the level of fines that could be foreseen at the material time, in application of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (
OJ 1998 C 9, p. 3
; ‘the 1998 Guidelines’).
In accordance with the case-law, the principle of non-retroactivity of penalties precludes the retroactive application of a new interpretation of a rule establishing an infringement which has an aggravating effect on the level of the fines imposed if that development was not reasonably foreseeable at the time when the infringement was committed and if it is not necessary in order to ensure the implementation of the EU competition policy. Those two conditions are satisfied in the present case. First, as the level of fines imposed since the application of the 2006 Guidelines has nothing in common with the level of fines previously imposed, the development resulting from the application of those guidelines must be considered not to have been reasonably foreseeable. That is on account, in particular, of the significance placed on the factor of the duration of the infringement in the calculation of the fine in the context of the 2006 Guidelines, which is much greater than under the 1998 Guidelines. Second, the very high level of the fines imposed by the Commission in application of the 2006 Guidelines is not necessary in order to ensure the implementation of the EU competition policy.
In Compagnie de Saint-Gobain’s submission, even if the Commission must be considered to have applied Regulation No 17 in this case, the 2006 Guidelines are tantamount to a change in the course of conduct that the Commission had clearly established in the 1998 Guidelines, towards increased severity. The 2006 Guidelines can therefore be applied only to situations arising after their publication.
Those conclusions are not called into question by
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above, since in that judgment the Court merely ruled on the retroactive application of the 1998 Guidelines. Thus, that judgment concerned the application of guidelines to facts that had taken place in an era when such guidelines had not yet been published. It follows that, unlike in the situation giving rise to the present dispute, the infringement at issue in that case had been committed in an era characterised by great legal uncertainty as to the calculation of fines and during which the undertakings concerned had therefore been unable to acquire any legitimate expectation in that respect. In the present case, on the other hand, the undertakings to which the contested decision was addressed had every reason to expect that their future conduct would be penalised in application of the 1998 Guidelines, a fortiori since the Court of Justice had acknowledged the normative character of those guidelines in
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above.
Compagnie de Saint-Gobain also refers to a number of speeches made before 2006 by European Commissioners responsible for competition policy in the EU, from which it is apparent that the adoption of new guidelines on the calculation of fines was not foreseeable at the time of the relevant facts.
It follows, according to Saint-Gobain and Compagnie de Saint-Gobain, that the fine ought to have been calculated on the basis of the 1998 Guidelines.
The Commission observes that the legal basis of fines imposed for infringements of the competition rules laid down in Article 81 EC is Article 23 of Regulation No 1/2003, while the 2006 Guidelines merely describe the method according to which those fines are calculated. Thus, both under the 1998 Guidelines and the 2006 Guidelines, fines are to be calculated by reference to the gravity and duration of the infringements, as provided for in Article 23 of Regulation No 1/2003. Since the 2006 Guidelines reflect an adjusted method for the application of a legal provision that remains unaltered, the Commission contends that the reasoning followed by the Court of Justice in
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above, can be transposed to the present case, a fortiori because in that judgment the Court of Justice established general principles with respect to the scope of the Guidelines on the method of setting fines.
Although greater weight is indeed placed on the criterion of duration under the 2006 Guidelines, that development was, in the Commission’s submission, foreseeable at the time when the infringement was committed, as was the fact that the value of affected sales could be taken into account in future in the calculation of the fines, rather than a fixed amount. Thus, even before the 2006 Guidelines were adopted, the Court of Justice had already expressed a certain preference for taking the value of affected sales rather than a fixed amount into account when calculating a fine. Furthermore, according to the Commission, the additional amount now imposed for deterrence was already included in the fixed amount applied at the time when the 1998 Guidelines were in force, by reference to the gravity of the infringement. Last, there is no basis for Compagnie de Saint-Gobain’s assertion that, at the time of the facts at issue, it was foreseeable that the Commission was precluded from retroactively applying any new guidelines that it might adopt. The Commission refers to the principle that it is free to adjust the Guidelines according to requirements, provided that such adjustments comply with the legal framework laid down in Regulation No 1/2003.
The Commission submits, moreover, that, first, the 1998 Guidelines did not state that they would be applicable to decisions relating to infringements committed while they were applicable and that, second, the 2006 Guidelines, from which the Commission cannot depart without justification, state that they are to apply in all cases where the statement of objections was issued after 1 September 2006: and in this case the statement of objections was issued on 18 April 2007.
It has recently been held, moreover, that the objective of the 1998 Guidelines was to ensure the transparency and impartiality, but not the foreseeability, of the amount of fines. Such foreseeability is not desirable, since it might undermine the deterrent effect of fines by putting the undertakings concerned in a position to compare precisely any fine that might be imposed on them should they infringe the competition rules with the advantages that they might derive from such an infringement.
Those conclusions cannot, in the Commission’s submission, be called into question by the principle of non-retroactivity of penalties. Admittedly, the adoption of guidelines capable of altering the general policy on setting fines in competition matters may, in principle, fall within the scope of that principle. It follows that the principle is capable of precluding the retroactive application of new guidelines, in so far as the rules in those guidelines were not reasonably foreseeable at the time of the infringement. The Commission claims, however, that the mere fact that the 2006 Guidelines may lead to higher fines than those imposed on the basis of the 1998 Guidelines cannot entail a breach of the principle of non-retroactivity since, first, a comparison of the fines imposed in different cases is not a reliable method in that respect and, second, Compagnie de Saint-Gobain and Saint-Gobain could not foresee the precise level of the fine that would have been imposed on them under the 1998 Guidelines.
The Commission also disputes the relevance, in the context of the present proceedings, of Compagnie de Saint-Gobain’s reference to the speeches of European Commissioners responsible for competition policy in the EU delivered after the end of the infringement. Apart from the fact that the discretion of the College of Commissioners cannot be limited by such speeches, those speeches are not in any event capable of showing that the adjustment of the 1998 Guidelines was not reasonably foreseeable at the time when the infringement was committed.
b) Findings of the Court
By the present plea, Saint-Gobain and Compagnie de Saint-Gobain take issue with the Commission, in essence, for having failed to respect the principles of legitimate expectations and non-retroactivity of penalties by applying the 2006 Guidelines in the present case although at the time when the infringement was committed the 1998 Guidelines were applicable. They submit that the application of the 2006 Guidelines meant a significant increase in the amount of the fine by comparison with the fine that would have been imposed had the 1998 Guidelines been applied, mainly because the value of sales of goods affected by the infringement was multiplied by the duration of the infringement.
In that regard, the Court observes, as a preliminary point, that the argument that the increase in the level of fines to which the application of the 2006 Guidelines gave rise is manifestly disproportionate by reference to the objective pursued by EU competition policy is essentially indissociable from the argument put forward in the context of the second part of the sixth plea raised in Case T‑56/09. It is therefore examined at paragraphs 353 to 391 below.
It should be borne in mind, next, that the fines that the Commission imposed in the present case are governed by Article 23 of Regulation No 1/2003, which corresponds to Article 15 of Regulation No 17, in force when the infringement was committed. According to Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine to be imposed on undertakings guilty of infringements of the competition rules, regard is to be had both to the gravity and to the duration of the infringement. In order to determine the amount of the fine, the Commission applied the 2006 Guidelines, which were published before the statement of objections was sent to the applicant on 18 April 2007.
It is settled case-law that the principle of non-retroactivity of criminal laws, enshrined in Article 7 of the ECHR and now in Article 49(1) of the Charter of Fundamental Rights, constitutes a general principle of EU law which must be observed when fines are imposed for infringement of the competition rules. That principle requires that the penalties imposed correspond with those fixed at the time when the infringement was committed (
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above, paragraph 202;
LR AF 1998
v
Commission
, paragraph 120 above, paragraphs 218 to 221; and Case
T-224/00
Archer Daniels Midland and Archer Daniels Midland Ingredients
v
Commission
[2003] ECR II-2597
, point 39).
Thus, Article 7(1) of the ECHR, which must be interpreted and applied in such a way as to ensure effective protection against arbitrary prosecution, convictions and penalties (see Eur. Court H.R.,
S.W. v. the United Kingdom
, 22 November 1995, § 35, Series A no. 335-B), requires that it be verified that at the time when an accused person performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision (see Eur. Court H.R.,
Coëme and Others v. Belgium
, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000-VII;
Achour v. France
[GC], no. 67335/01, § 43, ECHR 2006-IV; and
Gurguchiani v. Spain
, no. 16012/06, § 30, 15 December 2009).
Furthermore, the Guidelines are capable of producing legal effects. Those effects stem not from any attribute of the Guidelines as rules of law in themselves, but from their adoption and publication by the Commission. By adopting and publishing the Guidelines, the Commission imposes a limit on its own discretion; it cannot depart from those rules under pain of being found, where appropriate, to be in breach of the general principles of law, such as equal treatment, the protection of legitimate expectations and legal certainty (see, to that effect,
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above, paragraphs 209 to 212).
The Guidelines, as an instrument of competition policy, therefore fall within the scope of the principle of non-retroactivity, like the new judicial interpretation of a rule creating an infringement, as is clear from the case-law of the European Court of Human Rights on Article 7(1) of the ECHR (see Eur. Court H.R., judgments of 22 November 1995 in
S.W. v. the United Kingdom
and
C.R v. the United Kingdom
Series A nos 335-B and 335-C, §§ 34 to 36 and §§ 32 to 34;
Cantoni v. France
, 15 November 1996, §§ 29 to 32,
Reports of Judgments and Decisions
1996-V; and
Coëme and others v. Belgium
, paragraph 268 above, § 45). According to that case-law, failure to have regard to that provision is likely to result in a judicial interpretation the result of which was not reasonably foreseeable at the time when the offence was committed, having regard in particular to the way in which the rule was interpreted in the case-law at the material time.
However, the scope of what is foreseeable depends to a considerable degree on the content of the text at issue, the field which it covers and the number and status of those to whom it is addressed. Thus, a law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation and who can be expected to take special care in evaluating the risk that such an activity entails (
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above, paragraphs 215 to 223; Case
T-59/02
Archer Daniels Midland
v
Commission
[2006] ECR II-3627
, paragraph 44; see Eur. Cour H.R.,
Cantoni v. France
, paragraph 270 above, § 35, and
Sud Fondi srl and Others v. Italy
, no. 75909/01, § 109, 20 January 2009).
In addition, the guarantees afforded by Article 7(1) of the ECHR cannot be interpreted as precluding the gradual clarification of the rules on criminal liability, in particular in order to adapt to changing circumstances, provided that the result is consistent with the essence of the offence and could reasonably be foreseen (see Eur. Court H.R.,
Jorgic v. Germany
, no. 74613/01, § 101 and the case-law cited, ECHR 2007-III,).
In the light of those references to the case-law, it is therefore necessary, in order to review observance of the principle of non-retroactivity in the present case, to ascertain whether the changes in the method of calculating the fine, following the adoption of the 2006 Guidelines, were reasonably foreseeable at the time when the infringements were committed (see, to that effect,
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above, paragraph 224).
It should be observed, in that regard, that the main reason for adopting the 2006 Guidelines was, on the basis of the information gathered from previous practice, to amend the policy on proceedings in relation to infringements of Articles 81 EC and 82 EC in order to ensure that the fines imposed in respect of such infringements would have sufficient deterrence. That objective was reflected in three main innovations: first, the reference to the value of sales of goods to which the infringement relates as a basis for the setting of the fine, instead of a system of tariffs; second, the inclusion in the basic amount of the fine of an additional amount intended to deter undertakings from participating in the most serious infringements of competition law; and, third, the placing of greater weight on the duration of the infringement when calculating the fine.
On this last point, the Commission considers that, in view of the impact which the duration of an infringement inevitably has on its potential consequences on the market, it is important that the fine should also reflect the number of years during which the undertaking participated in the infringement. Multiplying the value of sales to which the infringement relates by the duration of participation in the infringement is thus supposed to contribute to the setting of a fine that reflects not only the economic significance of the infringement but also the relative weight of each undertaking that has participated in it.
It is settled case-law, and was already at the time when the cartel at issue commenced, that the fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level, even to a significant degree, within the limits indicated in Regulation No 17 and Regulation No 1/2003 if it is necessary to do so in order to ensure the implementation of EU competition policy. The proper application of the European Union’s competition rules requires that the Commission be able at any time to adjust the level of fines to the needs of that policy (see, to that effect,
Musique Diffusion française and Others
v
Commission
, paragraph 77 above, paragraph 109; Case 196/99 P
Aristrain
v
Commission
, paragraph 135 above, paragraph 81; and
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above, paragraph 227). That room for manoeuvre is justified, in particular, by the fact that if the amount of the fine were the result of a calculation which followed a simple arithmetical formula, undertakings would be able to predict the possible penalty and to compare it with the profit that they would derive from the infringement of the rules of competition law (
BPB
v
Commission
, paragraph 150 above, paragraph 336).
It follows that undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation that the Commission will not exceed the level of fines previously imposed or that a particular method of calculating the fines will be employed (
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above, paragraph 228). That also applies where the increase in the level of the fines is the consequence of the application in a particular case of rules of conduct of general application, such as the 2006 Guidelines (see, by analogy,
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above, paragraphs 229 and 230, and Case C‑510/06 P
Archer Daniels Midland
v
Commission
, paragraph 245 above, paragraph 59).
That conclusion cannot be called into question by Compagnie de Saint-Gobain’s argument that ‘[the] competition law compliance policies represent … an investment the calibration of which is determined, in particular, by the expected level of fines’, which, in Compagnie de Saint-Gobain’s submission, ought to encourage the Court, when examining the present plea, to take into account the special effort which it claims has to be employed in order to comply with the rules deriving from competition law. Such an argument cannot be upheld, since the EU competition rules are not residual in nature and an undertaking cannot therefore validly rely on the cost which the requirement to comply with them entails for it.
Contrary to Compagnie de Saint-Gobain’s contention, it is also irrelevant that the increase in the average level of fines resulting from the application of the 2006 Guidelines followed a period during which other rules of conduct of general application were applicable.
In the first place, that increase cannot in itself be regarded as unlawful in the light of the principles of non-retroactivity and legitimate expectations, since it remains within the legal framework defined by Article 23(2) and (3) of Regulation No 1/2003, as interpreted by the Courts of the EU (see, by analogy, judgments of 2 February 2012 in Case T‑76/08
EI du Pont de Nemours and Others
v
Commission
, not published in the ECR, paragraph 126 and the case-law cited, and Case T‑77/08
Dow Chemical
v
Commission
, not published in the ECR, paragraph 141 and the case-law cited). Thus, in accordance with point 32 of the 2006 Guidelines, the application of the new calculation method laid down in those guidelines is without prejudice to the rule in Article 23(2) of Regulation No 1/2003 that the fines imposed are not in any event to exceed 10% of the total turnover in the preceding business year of the undertaking or association of undertakings participating in the infringement. In addition, the 2006 Guidelines provide that the fine is to be calculated by reference to the gravity and the duration of the infringement in question, thus reflecting the rule in Article 23(3) of Regulation No 1/2003.
In the second place, having regard to the principles referred to at paragraphs 276 and 277 above, and contrary to Compagnie de Saint-Gobain’s contention, neither the fact that the application of the 1998 Guidelines may have been extended to the whole of the EEA in January 2003 nor the speeches delivered by Commissioners in charge of competition policy in the EU in 2003 and 2005 were of such a kind as to give rise, for economic operators, to a legitimate expectation that those guidelines would not be amended in the future.
Last, and in the third place, it is not disputed that the Commission applied in the present case the rule of conduct set out at point 38 of the 2006 Guidelines, which states that those guidelines will be applied in all cases where a statement of objections is notified after 1 September 2006. Thus, Compagnie de Saint-Gobain cannot be upheld when it claims to have had a legitimate expectation that the Commission would preclude the application of the calculation method provided for in the 2006 Guidelines in the present case.
It therefore follows from the reasoning set out at paragraphs 274 to 282 above that, at the time when the infringements were committed, the increase in the average level of fines imposed on undertakings in respect of infringements of Article 81 EC following the adoption of the 2006 Guidelines was reasonably foreseeable for prudent operators such as Saint-Gobain and Compagnie de Saint-Gobain. It follows that those undertakings cannot be supported when they take issue with the Commission for having applied the 2006 Guidelines in the present case and having thus failed to have regard to the principles of non-retroactivity of penalties and the protection of legitimate expectations, in that that choice led to the imposition of a larger fine than would have been imposed under the 1998 Guidelines. For the same reasons, the Commission was under no obligation to give any further explanation in the 2006 Guidelines of the fact that the increase in the level of fines was necessary to ensure the implementation of the EU competition policy (see, by analogy,
Schindler Holding and Others
v
Commission
, paragraph 148 above, paragraph 128).
The fifth plea must therefore be rejected as unfounded.
6. Sixth plea, alleging that the fine is excessive
The sixth, seventh and eighth pleas in Saint-Gobain’s application must be taken to be three parts of the same plea, alleging that the fine is excessive. It is appropriate, first of all, to examine the complaint alleging misapplication of Article 23 of Regulation No 1/2003 in so far as repeated infringement was taken into account as an aggravating circumstance, and also failure to state reasons. The Court will then examine the complaints alleging that the fine is disproportionate and that the Commission failed to take sufficiently into account that Saint-Gobain did not substantially contest the facts.
a) First part, alleging misapplication of Article 23 of Regulation No 1/2003 in so far as repeated infringement was taken into account as an aggravating circumstance; breach of the principle of proportionality; and failure to state reasons
This first part is essentially similar to one of the pleas raised by Compagnie de Saint-Gobain in Case T‑73/09. They should therefore be examined together.
Arguments of the parties
Saint-Gobain and Compagnie de Saint-Gobain maintain that, in taking into account when considering the aggravating circumstances, in the present case, Commission Decision 84/388/EEC of 23 July 1984 relating to a proceeding under Article [81 EC] (IV/30.988 — Agreements and concerted practices in the flat-glass sector in the Benelux countries (
OJ 1984 L 212, p. 13
) (‘the Flat glass (Benelux) decision’) and Commission Decision 89/93/EEC of 7 December 1988 relating to a proceeding under Articles [81 EC] and [82 EC] (IV/31.906 — flat glass) (‘the Flat glass (Italy) decision’), the Commission misapplied the rules on repeated infringement laid down in Article 23 of Regulation No 1/2003.
First of all, Compagnie de Saint-Gobain claims that the application of the 2006 Guidelines in that regard fails to have regard to the principles of legitimate expectations and non-retroactivity, since those guidelines had not been adopted or published at the time when the facts occurred.
Next, the principles that govern the imputability to undertakings of infringements of the EU competition rules preclude those decisions being taken into account in the calculation of the fine imposed on Saint-Gobain, which was not the addressee of either of those decisions and, moreover, had no power to issue directions to the undertakings to which those decisions were addressed. Even if the Saint-Gobain group were to be regarded as forming a single undertaking,
quod non
, the Commission erred in imputing all the activities of a group to companies not at the head of the group. That conclusion applies a fortiori to the Flat glass (Italy) decision, since the only company to which it was addressed was Fabbrica Pisana, and not Compagnie de Saint-Gobain. The fact that that decision was taken into account also constitutes a breach of Compagnie de Saint-Gobain’s rights of defence, since, as it was not an addressee of that decision, it was not in a position to comment either on the activities of its subsidiary or on its own liability prior to the adoption of the decision. Furthermore, the fact that that decision was addressed only to Fabbrica Pisana tends to show that Compagnie de Saint-Gobain, which was the parent company of Fabbrica Pisana, did not exercise decisive influence on the latter’s commercial policy.
This part of the contested decision is also vitiated by a failure to state reasons, since the Commission took the two decisions in question into account as aggravating circumstances in the case of the infringement committed by Saint-Gobain but without explaining any factors apt to justify the imputation to that undertaking of the actions of sister companies and also the actions of Compagnie de Saint-Gobain.
Saint-Gobain and Compagnie de Saint-Gobain maintain, moreover, that the Commission was wrong to take the Flat glass (Benelux) decision into account in order to establish a repeated infringement when that decision was adopted in 1984. The period of 14 years that elapsed between 1984 and the beginning of the infringement in the present case is excessive in that regard.
In any event, Compagnie de Saint-Gobain maintains that, even if the Flat glass (Benelux) decision could be taken into account for the purpose of proving a repeated infringement, the increase of 60% of the amount of the fine imposed on it, jointly and severally with Saint-Gobain, is disproportionate in the light not only of the time when that decision was adopted, but also of the fact that it is the only period of repeated infringement that could be applied against it. It follows that, in order to comply with the principles laid down in Article 47 of the Charter of Fundamental Rights, the Court should at the least exercise its unlimited jurisdiction in the present case and reduce the sanction to provide a more appropriate reflection of the gravity of the infringement. Saint-Gobain too asks the Court to exercise its unlimited jurisdiction by reducing the fine to an appropriate amount.
The Commission rejects those arguments. It observes, first of all, that it was proper to apply in this case the rules on repeated infringement set out in the 2006 Guidelines and that in any event, even if that were not so, repeated infringement was already one of the aggravating circumstances that the Commission was able to apply under the 1998 Guidelines.
Next, it is necessary to take into account the fact that Saint-Gobain and Compagnie de Saint-Gobain belong to the same undertaking and that Compagnie de Saint-Gobain exercises effective control over each of its subsidiaries.
As regards the Flat glass (Italy) decision, the Commission maintains that it had the option not to address that decision to Compagnie de Saint-Gobain, but the fact that it did not do so does not indicate that its subsidiary Fabbrica Pisana was independent of Compagnie de Saint-Gobain. On the contrary, Compagnie de Saint-Gobain has not denied that, at the time of the facts that gave rise to the adoption of that decision, it wholly owned Fabbrica Pisana. It follows that, in the absence of proof to the contrary, Fabbrica Pisana did not determine its conduct on the market independently, and that, accordingly, the Commission could, had it so wished, have imposed the fine on Compagnie de Saint-Gobain in that case. Consequently, the Commission maintains that it was entitled to take the decision into account for the purpose of making a finding in the contested decision of repeated infringement on the part of the undertaking formed by Saint-Gobain and Compagnie de Saint-Gobain.
As regards the Flat glass (Benelux) decision, which was addressed to Compagnie de Saint-Gobain, the Commission maintains that, in the light of Case
C-3/06 P
Groupe Danone
v
Commission
[2007] ECR I-1331
, the finding and the assessment of the specific features of repeated infringement are part of its discretion for the purpose of determining the amount of fines and that it cannot therefore be bound by any limitation period in order to make such a finding. It follows that the Commission has a discretion to assess, in each case, the indicia that tend to confirm any propensity on the part of the undertakings concerned to disregard the competition rules, including the periods that have elapsed between the infringements in question. Even if the Flat glass (Italy) decision, adopted in 1988, were not to be taken into consideration, it would none the less be appropriate to find that the fact that less than 14 years elapsed between the decision finding the infringement in the Flat glass (Benelux) case and the repetition of the unlawful conduct demonstrates a propensity on the part of the undertaking formed by Compagnie de Saint-Gobain and Saint-Gobain not to comply with competition law. That is all the more so because all the infringements found related to the ‘Flat Glass’ sector of the Saint-Gobain group.
Nor is the contested decision vitiated by any failure to state reasons, since, first, the Commission reveals in that decision the grounds on which, in its view, Saint-Gobain and Compagnie de Saint-Gobain belong to the same undertaking and, second, Compagnie de Saint-Gobain was an addressee of the Flat glass (Benelux) decision and could have been an addressee of the Flat glass (Italy) decision. In those circumstances, Saint-Gobain was in a position to understand why those periods of repeated infringement were taken into account vis-à-vis the undertaking which it formed with Compagnie de Saint-Gobain.
As for the rights of the defence in the context of the Flat glass (Italy) decision, they were fully respected, since Compagnie de Saint-Gobain had the opportunity, in the procedure leading to the adoption of the contested decision, to attempt to rebut the rebuttable presumption that allowed the Commission to take repeated infringement into account by demonstrating that Fabbrica Pisana formed a separate undertaking.
The Commission contends, last, that Compagnie de Saint-Gobain’s argument alleging breach of the principle of proportionality, which it submitted in the reply, is a new plea and therefore inadmissible. In any event, in applying a rate of increase of 60% in the present case, the Commission remained well below the maximum increase provided for in the 2006 Guidelines, namely the doubling of the basic fine. The opportunity provided to the Court to assess the proportionality of the fine shows, moreover, that the review which it carries out is capable of satisfying the requirements set out in the Charter of Fundamental Rights.
Findings of the Court
– Admissibility of the arguments based on the Charter of Fundamental Rights and submitted by Compagnie de Saint-Gobain in its additional pleading
It is appropriate to assess, as a preliminary issue, the admissibility of the argument put forward by Compagnie de Saint-Gobain in its additional pleading in support of the present plea, based on the principle of the proportionality of penalties set out in Article 49(3) of the Charter of Fundamental Rights.
In that regard, it follows from Article 44(1)(c) in conjunction with Article 48(2) of the Rules of Procedure that the original application must contain the subject-matter of the proceedings and a summary of the pleas in law relied on, and that new pleas in law may not be introduced in the course of the proceedings unless they are based on matters of law or of fact which come to light in the course of the procedure. However, a submission which may be regarded as amplifying a plea made previously, whether directly or by implication, in the original application, and which is closely connected therewith, must be declared admissible. The same applies to a submission made in support of a plea in law (Case
T-231/99
Joynson
v
Commission
[2002] ECR II-2085
, paragraph 156).
In the present case, it must be held that, by the references in its additional pleading to the principle of the proportionality of penalties referred to in Article 49(3) of the Charter of Fundamental Rights, Compagnie de Saint-Gobain is not putting forward any new plea or submission by reference to the pleas and submissions which it put forward previously, but is merely relying on a provision of the Charter of Fundamental Rights that supplements the legal basis of one of the submission raised in the application.
It follows that the arguments put forward by Compagnie de Saint-Gobain in that regard in its additional pleading are admissible.
– Substance
As a preliminary point, Compagnie de Saint-Gobain’s argument that the Commission was not entitled to apply the 2006 Guidelines in the present case in order to increase the basic amount of the fine in order to reflect repeated infringement must be rejected. Apart from the fact that Compagnie de Saint-Gobain puts forward no specific argument in support of that assertion, it must be emphasised that repeated infringement was already one of the aggravating circumstances capable of leading to an increase in the basic amount of the fine under the 1998 Guidelines and that, accordingly, having regard in particular to the principles referred to at paragraphs 265 to 273 above, the application of the 2006 Guidelines in the present case cannot, in that respect, be criticised either from the aspect of the principle of the non-retroactivity of criminal laws or from the aspect of the principle of legitimate expectations.
It should be borne in mind, next, that the concept of repeated infringement, as understood in a number of national legal orders, implies that a person has committed new infringements after being punished for similar infringements (Case
T-141/94
Thyssen Stahl
v
Commission
[1991] ECR II-347
, paragraph 617). Thus, one of the examples of aggravating circumstances given at point 28 of the 2006 Guidelines is where ‘an undertaking continues or repeats the same or a similar infringement after the Commission or a national competition authority has made a finding that the undertaking infringed Article 81 [EC] or 82 [EC]’.
In that regard, it follows from the reasoning set out at paragraphs 206 to 247 above that the Commission did not err in taking the view that Compagnie de Saint-Gobain and Saint-Gobain Glass France belonged to the same undertaking at the time of the infringement penalised by the contested decision.
Since Saint-Gobain and Compagnie de Saint-Gobain do not claim that the infringement at issue is not similar to or the same as the infringements penalised in the two previous decisions taken into account by the Commission in the present case for the purpose of making a finding of repeated infringement, the Court must ascertain whether, in accordance with the rules in Article 23 of Regulation No 1/2003 and also with point 28 of the 2006 Guidelines, the Commission was correct to take the view that those various infringements had been committed by the same undertaking. It is also appropriate to examine, first, the complaint put forward by Saint-Gobain and by Compagnie de Saint-Gobain that the Flat glass (Benelux) decision could not be taken into account in the present case in view of the period that elapsed between that infringement and the beginning of the infringement at issue and, second, the complaint alleging failure to state reasons.
As regards, first of all, the Flat glass (Italy) decision, adopted in 1988, it is common ground that it was addressed to, among others, Fabbrica Pisana, a subsidiary of Compagnie de Saint-Gobain, but that neither Compagnie de Saint-Gobain nor Saint-Gobain was an addressee. Nor is it disputed that Fabbrica Pisana was wholly owned by Compagnie de Saint-Gobain at the time when the Flat glass (Italy) decision was adopted.
As the Commission has correctly submitted, this Court held in Case
T-203/01
Michelin
v
Commission
[2003] ECR II-4071
, paragraph 290 and the case-law cited, that where two subsidiaries are directly or indirectly 100% or almost 100% owned by the same parent company there are reasonable grounds for concluding that those subsidiaries do not determine independently their own conduct on the market and constitute with their parent company an economic unit and therefore an undertaking within the meaning of Articles 81 EC and 82 EC. Accordingly, the previous infringement committed by one of the subsidiaries in the group may be taken into account for the purpose of establishing the aggravating circumstance of repeated infringement vis-à-vis another subsidiary in the group.
However, the unlawful conduct of such a subsidiary, 100% or almost 100% owned by its parent company, cannot be imputed to the parent company, and the Commission will be unable to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company does not rebut the rebuttable presumption that it effectively exercises decisive influence over the commercial policy of that subsidiary, in accordance with the principles set out at paragraphs 211, 213 and 214 above.
It follows that the Commission cannot merely find that an undertaking ‘was able’ to exercise decisive influence over the commercial policy another undertaking, without being required to check whether that influence was actually exercised. On the contrary, it is, as a rule, for the Commission to demonstrate such decisive influence on the basis of factual evidence including, in particular, any management power one of the undertakings may have over the other (see, to that effect, Joined Cases
T-144/07, T-147/07 to T-150/07 and T-154/07
ThyssenKrupp Liften Ascenseurs and Others
v
Commission
[2011] ECR II-5129
, paragraph 311 and the case-law cited).
In addition, it must be borne in mind that, for the purposes of applying and enforcing decisions adopted pursuant to Article 81(1) EC, it is necessary to identify an entity possessing legal personality to be the addressee of the measure (
PVC II
, paragraph 203 above, paragraph 978). Thus, according to the case-law, where an infringement of the EU competition rules has been established, it is necessary to determine the natural or legal person who was responsible for the operation of the undertaking at the time when the infringement was committed so that he can answer for it (Case
C-279/98 P
Cascades
v
Commission
[2000] ECR I-9693
, paragraph 78; Case
C-297/98 P
SCA Holding
v
Commission
[2000] ECR I-10101
, paragraph 27; and Case
T-6/89
Enichem Anic
v
Commission
[1991] ECR II-1623
, paragraph 236). When the Commission adopts a decision pursuant to Article 81(1) EC, it must therefore identify the natural or legal person or persons who may be held liable for the conduct of the undertaking in question and who may be penalised on that basis, to whom the decision will be addressed (see Case T‑299/08
Elf Aquitaine
v
Commission
, paragraph 232 above, paragraphs 250 and 251 and the case-law cited).
The Court of Justice held, moreover, in Case C‑196/99 P
Aristrain
v
Commission
, paragraph 135 above (paragraph 99), that the mere fact that the share capital of two separate commercial companies is held by the same person or the same family is insufficient, in itself, to establish that those two companies are an economic unit with the result that, under EU competition law, the actions of one company can be attributed to the other and that one can be held liable to pay a fine for the other.
Accordingly, it cannot be accepted that the Commission can consider, when establishing the aggravating circumstance of repeated infringement vis-à-vis Saint-Gobain and Compagnie de Saint-Gobain, that those undertakings can be held liable for a previous infringement when they were not penalised in respect of that infringement by a Commission decision and when during the procedure carried out with a view to establishing that infringement they were not the addressees of a statement of objections, so that they were not put in a position to submit their arguments for the purpose of disputing that they formed part of an economic unit with any company to which the previous decision was addressed.
Thus, in the light of the finding made at paragraph 308 above, it must be held that the Flat glass (Italy) decision could not be taken into account by the Commission for the purpose of establishing in the present case a repeated infringement on the part of Saint-Gobain and Compagnie de Saint-Gobain.
That conclusion cannot be called into question by the Commission’s argument that the parent company had the opportunity, in the procedure leading to the adoption of the contested decision, to dispute that it formed an economic unit with the undertakings penalised in the Flat glass (Italy) decision.
It is appropriate, in that regard, to bear in mind that the Court of Justice has held that, first, the principle of respect for the rights of the defence precludes a competition decision in which the Commission imposes a fine on an undertaking without first having informed it of the objections relied on against it from being held to be lawful and, second, given its importance, the statement of objections must specify unequivocally the legal person on whom fines may be imposed and be addressed to that person (see
ThyssenKrupp Liften Ascenseurs
v
Commission
, paragraph 311 above, paragraph 318 and the case-law cited).
Consequently, it cannot be accepted that the Commission is entitled to decide, when establishing the aggravating circumstance of repeated infringement, that an undertaking should be held liable for a previous infringement in relation to which it was not penalised by a Commission decision and in the establishment of which it was not an addressee of a statement of objections, with the result that such an undertaking was not given an opportunity, in the procedure leading to the adoption of the decision establishing the previous infringement, to make representations with a view to disputing that it formed an economic entity with one of the other companies to which the previous decision was addressed (
ThyssenKrupp Liften Ascenseurs
v
Commission
, paragraph 311 above, paragraph 319).
That conclusion appears all the more valid since, according to the case-law, the Commission cannot be bound by a limitation period when reaching a finding of repeated infringement and such a finding may therefore be reached several years after a finding of infringement, at a time when the undertaking concerned would, in any event, be incapable of disputing the existence of such an economic unit, in particular if the presumption of decisive influence referred to above is applied (
ThyssenKrupp Liften Ascenseurs
v
Commission
, paragraph 311 above, paragraph 320).
In that regard, whilst it would be reasonable to assume that a parent company would actually have knowledge of a previous Commission decision addressed to a subsidiary of which it owns almost the entire share capital, such knowledge cannot remedy the absence in the previous decision of any finding that the parent company and the subsidiary formed an economic unit reached for the purpose of imputing to the parent company liability for the previous infringement and increasing the fines imposed on the parent company for repeated infringement (
ThyssenKrupp Liften Ascenseurs
v
Commission
, paragraph 311 above, paragraph 322). Where what may be a long period has elapsed since the adoption of the decision finding the previous infringement, the parent company may find it very difficult, or indeed impossible, to dispute not only the existence of such an economic unit but also, where appropriate, the constituent elements of the infringement itself.
It follows from the foregoing that, without there even being any need to adjudicate on the complaint alleging failure to state reasons in the contested decision in that regard, that decision is vitiated by an error of law in that the Commission took into account an aggravating circumstance of repeated infringement vis-à-vis Saint-Gobain and Compagnie de Saint-Gobain on the basis of the Flat glass (Italy) decision.
Unlike the Flat glass (Italy) decision, the Flat glass (Benelux) decision, adopted in 1984, was addressed not only to, among others, a subsidiary of the Saint-Gobain group, SA Glaceries de Saint-Roch, but also to Compagnie de Saint-Gobain.
It follows from the reasoning set out at paragraphs 206 to 247 above that the Commission did not err in taking the view that Compagnie de Saint-Gobain and Saint-Gobain belonged to the same undertaking at the time when the infringement was committed.
It follows that the Commission was entitled to conclude that the undertaking formed by Saint-Gobain and Compagnie de Saint-Gobain, referred to in the contested decision, had already been penalised for an identical or similar infringement of Article 81 EC in the context of the Flat glass (Benelux) decision. It is irrelevant, in that respect, that Compagnie de Saint-Gobain did not directly participate in the infringement penalised in the Flat glass (Benelux) decision. As the economic unity is the only relevant criterion for the purpose of defining the concept of undertaking within the meaning of the EU competition rules, it is sufficient that the economic unit has been involved in a number of infringements in order for a finding of repeated infringement to be made (see, to that effect, judgment of 6 March 2012 in Case T‑53/06
UPM-Kymmene
v
Commission
, not published in the ECR, paragraph 129).
Saint-Gobain and Compagnie de Saint-Gobain would infer from Case T‑38/02
Groupe Danone
v
Commission
, paragraph 97 above, however, that the fact that a period of more than 10 years elapsed between the previous findings of infringement and the repetition of the unlawful conduct by the undertaking concerned precludes the finding of a situation of repeated infringement. They submit that the contested decision fails on that point to respect the principle of legal certainty.
It must be borne in mind, in that respect, that the finding and the appraisal of the specific characteristics of a repeated infringement come within the Commission’s discretion as regards the choice of factors to be taken into account for the purposes of determining the amount of a fine and that the Commission cannot be bound by any limitation period when making such a finding (Case C‑3/06 P
Groupe Danone
v
Commission
, paragraph 296 above, paragraph 38;
BPB
v
Commission
, paragraph 150 above, paragraph 383; and Case
T-161/05
Hoechst
v
Commission
[2009] ECR II-3555
, paragraph 141).
Thus, repeated infringement is an important factor which the Commission must appraise, since the purpose of taking repeated infringement into account is to induce undertakings which have demonstrated a propensity to infringe the competition rules to change their conduct. The Commission may therefore, in each individual case, take into consideration the indicia which confirm such a propensity, including, for example, the time that has elapsed between the infringements in question (Case C‑3/06 P
Groupe Danone
v
Commission
, paragraph 296 above, paragraph 39;
BPB
v
Commission
, paragraph 150 above, point 383; and
Hoechst
v
Commission
paragraph 326 above, paragraph 142).
The Court of Justice has further stated, in Case
C-413/08 P
Lafarge
v
Commission
[2010] ECR I-5361
, paragraph 70, that the principle of proportionality requires that the time elapsed between the infringement in question and a previous breach of the competition rules be taken into account in assessing the undertaking’s propensity to infringe those rules. For the purposes of judicial review of the Commission’s measures in matters of competition law, the General Court and, where appropriate, the Court of Justice may therefore be called upon to scrutinise whether the Commission has complied with that principle when it increased, for repeated infringement, the fine imposed, and, in particular, whether such increase was imposed in the light of, among other things, the time elapsed between the infringement in question and the previous breach of the competition rules.
It should be emphasised, in that regard, that although this Court, in Case T‑38/02
Groupe Danone
v
Commission
, paragraph 97 above (paragraphs 354 and 355), accepted that the Commission was entitled to take into account a decision adopted almost 18 years before the beginning of the unlawful conduct at issue in that case, that was in a context where repeated infringement had also been established on the basis of a more recent decision, where a relatively brief period, less than 10 years, had elapsed between the infringements. It was in the light of those circumstances that the Court of Justice, in its judgment on appeal, rejected the plea alleging breach of the principle of legal certainty by this Court (Case C‑3/06 P
Groupe Danone
v
Commission
, paragraph 296 above, paragraph 40).
In the present case, since the Flat glass (Italy) decision was wrongly taken into consideration for the purpose of establishing a repeated infringement by Saint-Gobain and Compagnie de Saint-Gobain (see paragraphs 308 to 321 above), it must be stated that a period of approximately 13 years and 8 months elapsed between the time when the Flat glass (Benelux) decision was adopted, on 23 July 1984, and the time when the infringement penalised in the contested decision began, in March 1998. Thus, the undertaking formed by Saint-Gobain and Compagnie de Saint-Gobain did not show a propensity to repeat unlawful anti-competitive conduct that was comparable in every respect with the infringement committed by Groupe Danone in the case cited in the preceding paragraph.
It is therefore appropriate to consider whether the fact that only the Flat glass (Benelux) decision would be taken into consideration for the purpose of determining Saint-Gobain’s and Compagnie de Saint-Gobain’s propensity to disregard the rules of competition law entails, in this case, a breach of the principle of proportionality.
In the Flat glass (Benelux) decision, the Commission penalised, among others, Compagnie de Saint-Gobain and certain of its subsidiaries in the ‘Flat Glass’ sector of the Saint-Gobain group. It must be pointed out that that is the same sector as that to which the subsidiaries of the Saint-Gobain group to which the contested decision is addressed belong.
In addition, the cartel referred to in the Flat glass (Benelux) decision had very similar features to the cartel penalised in the contested decision, which consisted in exchanging sensitive pricing information, customer-allocation and maintaining the stability of the market shares of the participants.
In the light of those circumstances, the Court considers that the fact that a period of approximately 13 years and 8 months elapsed between the time when the Flat glass (Benelux) decision was adopted and the time when the infringement penalised in the contested decision began does not mean that the Commission is estopped from finding, without being in breach of the principle of proportionality, that the undertaking formed by the applicants had a propensity to disregard the competition rules. The Commission therefore did not err in relying on the Flat glass (Benelux) decision in order to establish the aggravating circumstance of repeated infringement in respect of Saint-Gobain and Compagnie de Saint-Gobain.
As regards, last, the complaint alleging failure to state reasons, in that the contested decision does not state the reasons why the Commission imputed the Flat glass (Benelux) decision to Saint-Gobain when that decision had not been addressed to it, it cannot be upheld.
It has just been observed that Compagnie de Saint-Gobain was an addressee of the Flat glass (Benelux) decision. The Commission explained, in the contested decision, its reasons for considering that Compagnie de Saint-Gobain and Saint-Gobain formed only a single undertaking, as Compagnie de Saint-Gobain had not succeeded in rebutting the presumption that it exercised decisive influence over the commercial policy of Saint-Gobain Glass France, which it wholly owns (recitals 599 to 622 to the contested decision). In addition, it follows, in particular, from recitals 686 and 688 to the contested decision that the Commission took issue with the undertaking formed by Saint-Gobain and Compagnie de Saint-Gobain for its repeated infringement, making express reference to the Flat glass (Italy) and Flat glass (Benelux) decisions.
On the basis of those various factors, it must be held that Saint-Gobain, in becoming aware of the contested decision, was in a position to understand that, in order to establish a repeated infringement, the Commission had taken into account the fact that Compagnie de Saint-Gobain formed a single undertaking with it and that, accordingly, it was the past activities of that undertaking and not just of Saint-Gobain that were taken into consideration.
b) Second part, alleging breach of the principle of proportionality
Arguments of the parties
In the second part of the plea, Saint-Gobain takes issue with the Commission for having failed to have regard to the principle of proportionality of penalties, and also of the rules on the calculation of fines, set out in Article 23 of Regulation No 1/2003, by imposing on it a fine of EUR 880 million. As a preliminary point, Saint-Gobain maintains that the proportionality of the fine imposed on it ought to be assessed not by reference to the amount of that fine as stated in the operative part of the contested decision, but by reference to the amount of the pre-tax profits which it needs to make in order to pay the fine, or more than EUR 1.3 billion.
This part of the plea consists of five complaints.
In the first place, Saint-Gobain submits that too much weight was placed on the duration of the infringement in the present case, owing to the multiplier effect in point 24 of the 2006 Guidelines. Duration thus has twice the impact of gravity in the calculation of the fine.
In the second place, Saint-Gobain maintains that by requiring that the proportion of sales taken into account in calculating fines in respect of horizontal infringements should be between 16 and 30%, the 2006 Guidelines unduly limit the Commission’s discretion to set a fine by reference to the actual gravity of the infringement found. In this case, a figure of below 16% ought to have been taken into account in order to reflect the limited economic impact of the infringement on the market, in the light, in particular, of the car manufacturers’ exceptional negotiating power. Likewise, the 2006 Guidelines unduly limit the Commission’s scope for manoeuvre by preventing it from applying an additional amount representing less than 15% of the value of relevant sales.
In the third place, the Commission was wrong to increase the amount of the fine imposed on Saint-Gobain for repeated infringement, when the basic amount of the fine already contains a factor for deterrence. Unlike the 1998 Guidelines, the 2006 Guidelines provide that an additional amount is to be applied when calculating that basic amount. It was on that basis that an increase of 60% was applied by the Commission to the basic amount of the fine imposed on Saint-Gobain. It follows that the objective of deterrence was taken into account on two different levels in Saint-Gobain’s case, thus leading to an increase in the amount of the fine of more than EUR [confidential] million and going further than is necessary to ensure compliance with the competition rules resulting from EU law.
In the fourth place, Saint-Gobain maintains that the Commission ought to have taken two additional factors into account as well when calculating the fine. First of all, it takes issue with the Commission for not having taken account of the deterrent effect of the fine of EUR 133.9 million imposed on Saint-Gobain Glass France in Commission Decision C(2007) 5791 final of 28 November 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.165 — Flat Glass) (‘the Flat Glass decision’, summarised in
OJ 2008 C 127, p. 9
). The contested decision departs, without reason, on that point, from the reasoning followed by the Commission in Decision C(2002) 5083 final of 17 December 2002 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.667 — Specialty Graphite) (‘the Speciality Graphite decision’), in which it granted a reduction of 33% of the amount of the fine imposed on one of the undertakings to which that decision was addressed in order to take into account a fine which had been imposed on that undertaking one year and five months earlier. Next, Saint-Gobain maintains that the Commission ought to have taken account of the exceptional economic crisis in the car industry at the time when the decision was adopted, which significantly aggravated the real impact of the fine. On this last point, Saint-Gobain emphasises that those economic difficulties were not the consequence of its inability to adapt to market conditions, but, rather, reflected a situation of crisis affecting the entire sector at the time when the contested decision was adopted.
In the fifth, and last, place, the disproportionate nature of the fine imposed in Saint-Gobain is the consequence of the fact that the fine significantly exceeded the level of an optimum fine, which corresponds to an amount equal to or slightly higher than the unlawful profit which the members of a cartel derive from the cartel.
The Commission contends that the fine imposed on Saint-Gobain is proportionate.
First of all, the Commission submits that the argument relating to the fact that the fine is not deductible for tax purposes cannot be upheld. That non-deductibility does not have the effect of increasing the amount of the fine: on the contrary, in the Commission’s submission, any deductibility of the amount of the fine from the taxable receipts of the undertaking concerned would enable the undertaking unduly to recover a significant proportion of the fine imposed on it.
Next, the Commission claims that it is lawful to take the view, when calculating the fine, that the gravity of an infringement depends in particular on its duration. In this case, by drawing a distinction between three phases of the infringement, it indirectly reduced the significance of the total duration of the infringement when setting the level of the fine.
Furthermore, as regards the percentage of the sales taken into consideration, the Commission denies that the 2006 Guidelines deprive it of sufficient discretion to reduce the amount of fines in the case of horizontal infringements. Those infringements are among the most serious, so that it is right, with respect to those infringements, to take a high percentage of sales into account in order to determine both the variable amount and the additional amount of the fine. In any event, the Guidelines leave the Commission sufficient discretion to distinguish according to the gravity of infringements. The Commission also disputes the argument based on the car manufacturers’ negotiating power, as in its view the case-law establishes in that respect that a circumstance of that type need not necessarily lead to a reduction of the amount of the fine.
As regards the argument that the objective of deterrence was taken into account twice, in the form of the additional amount and in the increase of the fine to reflect repeated infringement, the Commission contends that it cannot be upheld. Apart from the fact that the Courts of the EU have already rejected that argument in other cases, the additional amount and the increase to reflect repeated infringement should not be confused, as the former is a general increase intended to reflect the gravity of horizontal cartels, while the latter is an individual uplift intended to take an undertaking’s previous behaviour into account.
The Commission claims that the criticism that it did not take account of the fine imposed on Saint-Gobain Glass France in the ‘Flat Glass’ decision cannot succeed either, since whether such a circumstance is taken into consideration is a matter for the Commission’s discretion.
The Commission further contends that, in accordance with the case-law, it is not required to reduce the fines which it imposes for infringements of competition law in consideration of any financial difficulties experienced by the undertakings concerned, since to do so would amount to conferring a competitive advantage on the undertakings least adapted to market conditions.
Last, as regards the complaint that the fine exceeds an optimum amount, the Commission observes that it has already been held that to limit the amount of fines in cartel cases to the benefits achieved by the participants in the cartels would deprive those fines of their deterrent nature and that, in addition, any absence of benefits does not preclude the imposition of fines.
Findings of the Court
It should be borne in mind that the principle of proportionality requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case
C-180/96
United Kingdom
v
Commission
[1998] ECR I-2265
, paragraph 96, and Case T‑336/07
Telefónica and Telefónica de España
v
Commission
[2012] ECR, paragraph 428).
In the procedures initiated by the Commission in order to penalise infringements of the competition rules, the application of that principle requires that fines must not be disproportionate to the objectives pursued, that is to say, by reference to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity thereof (see, to that effect, judgment of 12 September 2007 in Case T‑30/05
Prym and Prym Consumer
v
Commission
, not published in the ECR, paragraphs 223 and 224 and the case-law cited). In particular, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (Case
T-43/02
Jungbunzlauer
v
Commission
[2006] ECR II-3435
, paragraphs 226 to 228, and Case
T-446/05
Amann & Söhne and Cousin Filterie
v
Commission
[2010] ECR II-1255
, paragraph 171).
It is in the light of those principles that the Court must examine the complaints put forward by Saint-Gobain in the context of the second part of the plea.
As a preliminary matter, it is appropriate to examine Saint-Gobain’s argument that the proportionality of the fine imposed on it should be assessed not by reference to the amount of that fine as stated in the operative part of the contested decision, namely EUR 880 million, but by reference to the amount of pre-tax profits that would be necessary in order to pay such a fine, which it puts at over EUR 1.3 billion.
The Court considers that the fact that Saint-Gobain is unable to deduct the fine imposed on it from its taxable profits is not a relevant circumstance for the purpose of examining the proportionality of the fine. The Commission is correct to proceed, when calculating a fine, on the principle that the fine is charged on profits after tax, since if the fine were to be charged on taxable profits the result would be that the fine would be paid in part by the State to which the undertaking pays tax and that such a consequence would be contrary to the logic underlying the competition rules laid down in EU law (see, by analogy, Case
T-10/89
Hoechst
v
Commission
[1992] ECR II-629
, paragraph 369).
It should also be borne in mind that the effectiveness of the decisions whereby the Commission imposes fines on undertakings might be significantly reduced if the companies concerned were allowed to deduct in full or in part the amount of the fines imposed on them from their taxable profits, since such a possibility would have the effect of offsetting in part the burden of the fines with a reduction of the tax burden (see, to that effect, Case
C-429/07
X
[2009] ECR I-4833
, paragraph 39).
It follows that it is by reference to the amount of EUR 880 million, as stated in Article 2(b) of the operative part of the contested decision, that the conformity of the fine imposed on Saint-Gobain by the Commission with the principle of proportionality must be assessed.
The first complaint relates to the significance placed on the duration of the infringement when calculating the fine, in application of the multiplier set out in point 24 of the 2006 Guidelines. It should be borne in mind in that regard that, in accordance with settled case-law, although the Commission, within the limits provided for in Regulation No 1/2003, enjoys a wide discretion in exercising its power to impose fines (
Erste Group Bank and Others
v
Commission
, paragraph 118 above, paragraph 123), that power is none the less limited. When the Commission adopts guidelines that are consistent with the Treaty and are designed to specify the criteria which it intends to apply in the exercise of its discretion, the Commission itself limits that discretion in that it must comply with the indicative rules it has imposed on itself (see, to that effect, Case C‑413/08 P
Lafarge
v
Commission
, paragraph 328 above, paragraph 95). The Commission may not depart from the Guidelines in an individual case without giving reasons that are compatible with the principle of equal treatment (see, by analogy,
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above, paragraph 209).
As regards the multiplier for duration, point 24 of the 2006 Guidelines provides that, ‘[i]n order to take fully into account the duration of the participation of each undertaking in the infringement, the amount determined on the basis of the value of sales … will be multiplied by the number of years of participation in the infringement’, periods of less than six months being ‘counted as half a year’, while periods longer than six months but shorter than one year are to be ‘counted as a full year’. Multiplication by the number of years of participation in the infringement, provided for in the 2006 Guidelines, is equivalent to increasing the basic amount of the fine by 100% per year.
That approach represents a fundamental change in methodology as to how the duration of a cartel is taken into consideration. Article 23(3) of Regulation No 1/2003 does not, however, preclude such a development, as it attaches equal importance to gravity and to the duration of the infringement for the purpose of setting the fine (see, to that effect, Joined Cases
T-204/08 and T-212/08
Team Relocations and Others
v
Commission
[2011] ECR II-3569
, paragraph 109).
On the other hand, that provision does not require that the two factors have an equal impact, from an arithmetical viewpoint, on the amount of the fine.
The Commission was correct to take the view that, in principle, the unlawful profit that the participants in a cartel derive from the cartel is greater when the infringement is of long duration. Thus, in the present case, it was only after the effect on the market of the concerted practices initially implemented had been examined that the need for adjustments and corrective measures became apparent, in order to attain the objective of stability of market shares between the participants. In addition, where a cartel relates to the allocation of contracts of supply which are implemented over quite long periods, in order to ensure overall stability of market shares, a number of years may elapse before the cartel operates on a significant part of the market.
When measured against those factors, it is apparent that the application in the present case of the multiplication rule set out in point 24 of the 2006 Guidelines was justified and that the first complaint must be rejected.
By its second complaint, Saint-Gobain maintains that, in requiring that the proportion of sales taken into account in the calculation of the fines for horizontal infringements be between 16 and 30% in the case of horizontal infringements, the 2006 Guidelines unduly limit the Commission’s discretion to set a fine by reference to the real gravity of the infringement found.
The second complaint was put forward for the first time in the reply. However, since it is invoked in support of the sixth plea set out in the application initiating the proceedings, alleging breach of the principle of proportionality, and is closely liked to it, it must be declared admissible, in accordance with settled case-law (
Joynson
v
Commission
, paragraph 301 above, paragraph 156, and Case
T-345/05
Mote
v
Parliament
[2008] ECR II-2849
, paragraph 85).
As regards the substance, it should be observed, first of all, that, according to point 21 of the 2006 Guidelines, ‘[a]s a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales’. According to point 23 of those guidelines, ‘[h]orizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition’ and must be ‘heavily fined’; ‘[t]herefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale’.
It follows, in particular, from the use of the expressions ‘[a]s a general rule’ and ‘generally’ that in adopting those provisions the Commission did not impose an absolute rule of conduct on itself, but expressly provided for the possibility to derogate from that rule where the circumstances justify such an approach, provided that it explains those circumstances in its decision. Saint-Gobain’s argument that the Commission is unable to apply a percentage of sales below 16% in the case of horizontal infringements cannot therefore be upheld.
Next, Saint-Gobain does not dispute the Commission’s finding, at recital 670 to the contested decision, that the object of the cartel was allocation of customers through coordination of prices. It has consistently been held that horizontal price-fixing agreements are among the most serious infringements of EU competition law and may in themselves be classified as very serious (Joined Cases
T-202/98, T-204/98 and T-207/98
Tate & Lyle and Others
v
Commission
[2001] ECR II-2035
, paragraph 103, and Case
T-213/00
CMA CGM and Others
v
Commission
, ‘
FETTCSA
’, [2003] ECR II-913
, paragraph 262). Thus, the mechanisms described by the Commission in the contested decision, consisting in the concerted allocation of contracts for the supply of carglass in the EEA through the coordination of pricing policies and customer supply strategies designed to maintain the overall stability of market shares of the undertakings participating in the cartel, are among the most serious forms of infringements of the competition rules, in that they are intended simply to eliminate competition between the undertakings that implement them.
It follows that the Commission was correct to consider that the agreements and concerted practices in question constituted, by their very nature, a very serious infringement (see, to that effect, Case T‑38/02
Groupe Danone
v
Commission
, paragraph 97 above, paragraph 147). Such a finding is all the more inevitable in the present case, since it is not disputed that, first, the combined market shares of the undertakings that participated in the cartel were on average around 60% during the infringement period and, second, the agreements and concerted practices at issue gradually affected virtually all car manufacturers in the EEA.
Furthermore, as regards the argument based on what is alleged to be the limited economic impact of the infringement, in the light of the car manufacturers’ negotiating power, it should be borne in mind that, according to settled case-law, for the purpose of applying Article 81(1) EC, there is no need to take the actual effects of an agreement into consideration, provided that it has the object of preventing, restricting or distorting competition within the common market. Consequently, it is not necessary to show actual anti-competitive effects where the anti-competitive object of the conduct in question is proved (see
Volkswagen
v
Commission
, paragraph 100 above, paragraph 178 and the case-law cited). Furthermore, and in any event, it should be emphasised that the Commission, at recital 677 to the contested decision, acknowledged that the vehicle manufacturers enjoyed negotiating power that enabled them to devise counter-strategies to reduce or thwart the cartel. However, it is apparent upon reading that passage in the contested decision in conjunction with recital 673 that the Commission did indeed take that circumstance into account in order not to apply a higher percentage of relevant sales when calculating the fine imposed on the applicants.
Last, it is appropriate to take account of the fact that in this case the Commission divided the infringement into three phases, for the purpose of calculating the value of relevant sales, and took an average value for the whole infringement period (see paragraphs 31, 156 and 158 above). That method derogates from the rule in point 13 of the 2006 Guidelines, that normally the undertaking’s sales during the last full year of its participation in the infringement are taken into account. The Commission justified that derogation by explaining, at recitals 664 to 667 to the contested decision, that it had direct evidence of collusion for only certain car manufacturers in relation to the ‘roll-out’ and ‘run-down’ periods of the cartel and that that justified applying as relevant sales during those two periods only carglass sales to those manufacturers. It was to the value of sales as thus calculated that the rates taken by the Commission in application of points 21 and 23 of the 2006 Guidelines and also the additional amount were applied. It follows that the calculation method applied by the Commission enabled the amount of the fine imposed on the undertaking formed by Saint-Gobain and Compagnie de Saint-Gobain to give the best reflection of the gravity of the infringement committed by that undertaking, evaluated as a whole, in accordance with the case-law referred to at paragraph 354 above.
As for the argument that the Commission could not set an additional amount less than 15%, it is essentially indissociable from the third complaint and is therefore examined in that context.
The second complaint cannot therefore succeed.
By its third complaint, Saint-Gobain takes issue with the Commission for having increased the amount of the fine imposed on it to take account of repeated infringement, when the basic amount of the fine already contained a factor for deterrence, namely the additional amount. In Saint-Gobain’s submission, the combination of those two elements goes beyond what is necessary to ensure compliance with the EU competition rules.
However, that argument cannot be followed.
First, it should be borne in mind that the deterrent effect of the fine is not designed solely to deter the undertaking in question from repeating the infringement (special prevention). The Commission also has the power to determine the level of fines with a view to reinforcing their deterrent effect in general, especially where infringements of a given type are still relatively frequent and are regarded as serious (general prevention) (see, to that effect,
Tate & Lyle and Others
v
Commission
, paragraph 370 above, paragraph 134, and Case T‑566/08
Total Raffinage Marketing
v
Commission
[2013] ECR, paragraph 460). It is a concern of that type that is reflected in point 25 of the 2006 Guidelines, which provides for the inclusion in the basic amount of the fine of a sum of between 15 and 25% of the value of sales directly or indirectly related to the infringement, in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements.
The Commission’s ability generally to prevent infringements of Article 81 EC would be undermined if it were not in a position to take account of the objective of deterrence when setting the basic amount of a fine, since it is the latter amount, obtained in the context of the first stage of setting the fine, that is deemed to reflect the gravity of the infringement, by reference to its particular features, such is its nature, the cumulative market share of all the undertakings involved, the geographic scope of the infringement and whether it was implemented or not (see, to that effect, Case
T-348/08
Aragonesas Industrias y Energía
v
Commission
[2011] ECR II-7583
, paragraph 264 and the case-law cited).
Second, according to a consistent line of decisions, deterrence is an objective of the fine and a general requirement which must be a reference point for the Commission throughout the calculation of the amount of the fine. Thus, the objective of deterrence does not necessarily require that there be a specific step in that calculation in which an overall assessment is made of all relevant circumstances for the purposes of attaining that objective (
BASF
v
Commission
, paragraph 119 above, paragraph 226, and Case
T-73/04
Carbone Lorraine
v
Commission
[2008] ECR II-2661
, paragraph 131).
Accordingly, although the requirement of deterrence is the reason for applying an increase in the fine to reflect repeated infringement (see, to that effect,
Michelin
v
Commission
, paragraph 309 above, paragraph 293), the Commission was entitled also to take the objective of deterrence into account at the stage of calculating the basic amount of the fine, by applying an additional amount (see, by analogy,
UPM-Kymmene
v
Commission
, paragraph 324 above, paragraph 137). It should also be observed in that regard that, while the inclusion of an additional amount in the basic amount of the fine and the increase of that basic amount to reflect repeated infringement each pursues an objective of deterrence, they are justified by distinct considerations. Thus, in accordance with the reasoning set out at paragraphs 378 and 379 above, the additional amount, in respect of which the actual wording of the 2006 Guidelines, in French as well as in English and German (‘inclura’, ‘will include’ and ‘fügt hinzu’), suggests that it will be applied automatically in the event of serious infringements (see, to that effect,
Team Relocations and Others
v
Commission
, paragraph 362 above, paragraph 117), is designed to ensure that the basic amount of the fine reflects the quite specific gravity of horizontal price-fixing, market-sharing and output-limitation agreements, whereas the increase to reflect repeated infringement is intended to punish more heavily the unlawful conduct of undertakings which demonstrate a propensity to breach the competition rules.
By its fourth complaint, Saint-Gobain maintains that the Commission ought to have taken two additional factors into account when setting the fine, namely, first, the Flat Glass decision, whereby Saint-Gobain was penalised for an infringement of EU competition law less than a year before the adoption of the contested decision and, second, the exceptional economic crisis in the car industry at the time when the contested decision was adopted.
As to whether the
Flat Glass
decision ought to have been taken into account in the calculation of the fine, it should be observed that Saint-Gobain has not shown or even claimed that that decision was intended to penalise the same infringement of competition law as that which gave rise to the adoption of the contested decision. It has already been held that the existence of different, albeit neighbouring, product markets is a relevant criterion for the purposes of determining scope and, accordingly, the identity of the infringements of Article 81 EC (see, to that effect, judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03
Tokai Carbon and Others
v
Commission
, not published in the ECR, paragraphs 118 to 124, and
Jungbunzlauer
v
Commission
, paragraph 354 above, paragraphs 309 to 314).
As regards, next, Saint-Gobain’s reference to the 33% reduction of the amount of the fine which the Commission granted to one of the undertakings to which the Specialty Graphites decision was addressed, it is irrelevant in this case. It has consistently been held that the Commission’s practice in taking decisions cannot serve as a legal framework for fines in competition matters, since that framework is defined solely in Regulation No 1/2003, as applied in the light of the Guidelines, and that the Commission is not bound by assessments which it has made in the past (see paragraph 245 above). Decisions in other cases can give only an indication for the purpose of determining whether there might be discrimination, since the facts of those cases, such as markets, products, the undertakings and periods concerned, are not likely to be the same (see Case
C-76/06 P
Britannia Alloys & Chemicals
v
Commission
[2007] ECR I-4405
, paragraph 60 and the case-law cited). Thus, the reduction of the fine imposed on SGL Carbon AG, in particular, in the Specialty Graphites decision was justified by a combination of factors, namely not only the fact that that undertaking had already been penalised shortly before for an infringement of EU competition law, but also the very unfavourable financial situation faced by that company and also the fact that it had not reoffended (
Tokai Carbon and Others
v
Commission
, paragraph 383 above, paragraphs 405 and 406). Saint-Gobain has adduced no specific evidence capable of showing that it was in a comparable financial situation at the time when the contested decision was adopted. In addition, as is apparent from the analysis set out at paragraphs 300 to 334 above, Saint-Gobain was a repeat offender when the Commission adopted the contested decision.
As regards, moreover, the exceptional economic crisis which is alleged to have affected the car market at the time when the contested decision was adopted, which significantly increased the real impact of the fine on Saint-Gobain, that circumstance, even on the assumption that it is correct, is irrelevant in the present case. According to settled case-law, the Commission is not required when determining the amount of the fine to take account of an undertaking’s financial losses, since recognition of such an obligation would have the effect of conferring an unfair competitive advantage on the undertakings least well adapted to the conditions of the market (Case
C-308/04 P
SGL Carbon
v
Commission
[2006] ECR I-5977
, paragraph 105; see Case
T-62/02
Union Pigments
v
Commission
[2005] ECR II-5057
, paragraph 175 and the case-law cited).
It is immaterial, in that regard, that such financial difficulties, which may result in a deterioration of the economic and accounting indicators of the undertaking concerned, or indeed in a deficit financial situation, have their origin in a context of crisis affecting the markets on which that undertaking is active.
In the first place, such a crisis has, as a general rule, a greater impact on undertakings least adapted to market conditions. In the second place, any obligation for the Commission to take any situation of economic crisis into account for the purpose of reducing the amount of fines imposed for infringements of Article 81(1) EC could significantly affect the effectiveness of the prohibition set out in that provision, since cartels frequently come into existence when a sector is experiencing difficulties (see, to that effect, Case
T-127/04
KME Germany and Others
v
Commission
[2009] ECR II-1167
, paragraph 122). Last, in the third place, circumstances such as a continuing decline in demand or the resulting overcapacity, even when they are established, are risks inherent in any economic activity which, as such, do not denote an exceptional structural or economic situation capable of being taken into account in determining the amount of the fine (see, to that effect, Case T‑38/02
Groupe Danone
v
Commission
, paragraph 97 above, paragraph 414).
It follows that the fourth complaint must also be rejected.
By its fifth plea, last, Saint-Gobain maintains that the fine imposed on it is disproportionate because it goes far beyond an optimum fine.
It is sufficient to point out, in that regard, that in Case
T-329/01
Archer Daniels Midland
v
Commission
[2006] ECR II-3255
, paragraph 141, and Case T‑59/02
Archer Daniels Midland
v
Commission
, paragraph 271 above, paragraph 130, the Court held that if the fine were to be set at a level that merely cancelled the benefit of the cartel, it would have no deterrent effect. It is reasonable to assume that when making financial calculations and management decisions, undertakings take account rationally not only of the level of fines that they are likely to incur in the event of an infringement but also the likelihood of the cartel being detected. In addition, if the purpose of the fine were to be confined merely to negating the expected profit or advantage, insufficient account would be taken of the fact that the conduct in question constitutes an infringement of Article 81(1) EC. To regard the fine merely as compensating for the damage incurred would be to overlook not only the deterrent effect, which can relate only to future conduct, but also the punitive nature of such a measure in relation to the actual infringement committed. Thus, both the deterrent effect and the punitive effect of the fine are reasons why the Commission should be able to impose a fine which, depending on the circumstances of the case, may even substantially exceed the profit expected by the undertaking in question.
It follows that the fifth complaint, and thus the second part of the plea, must be rejected.
c) Third part, alleging that the fact that Saint-Gobain did not substantially contest the facts was not sufficiently taken into account, and also breach of the principle of non-discrimination and failure to state adequate reasons
Arguments of the parties
Saint-Gobain claims that the Commission infringed Article 2(2)(a) and Article 23(3) of Regulation No 1/2003 by not reducing the fine imposed on it on the sole ground that it had not relied on mitigating circumstances in its reply to the statement of objections. The need for such a reduction in the present case follows not only from the case-law but also from point 29 of the 2006 Guidelines and point 21 of the 2002 Leniency Notice. Thus, in Saint-Gobain’s submission, the Commission ought to have taken into account the fact that, unlike other undertakings concerned, it did not substantially contest in its reply the facts alleged against it in the statement of objections.
In Saint-Gobain’s submission, such an approach reduces the degree of gravity of its infringement, since that failure to contest the facts was largely used by the Commission in order to establish the infringement in the contested decision. It is immaterial, in that regard, that Saint-Gobain did not expressly ask that that factor be taken into account as a mitigating circumstance during the investigation, since the Commission ought to take into account all the facts of which it was aware at the time when it adopted the contested decision.
Saint-Gobain maintains that the contested decision also fails to have regard to the principle of non-discrimination, since the Commission granted the benefit of the 2002 Leniency Notice to the leniency applicant, without considering whether the amount of the fine imposed on Saint-Gobain could also be reduced under that notice. That factor also contrasts with the Commission’s previous administrative practice.
Saint-Gobain further maintains that the contested decision is vitiated by a failure to state sufficient reasons, since the reasons why its non-contestation of the facts was not taken into account as a mitigating circumstance ought to have been stated in that decision.
Last, Saint-Gobain asks the Court, in the alternative, to exercise its unlimited jurisdiction in this case by reducing the amount of the fine imposed on it in the contested decision in order to take account of its cooperation in the investigation.
The Commission submits, first of all, that the assertion that it did not take Saint-Gobain’s non-contestation of the facts into account is factually incorrect. It did consider whether the non-contestation of the facts by that undertaking justified such a reduction.
The Commission claims, next, that the added value associated with Saint-Gobain’s cooperation should not be overestimated, as the latter’s failure to contest the factual framework of the contested decision served mainly to corroborate the statements of the leniency applicant and also the facts established by the investigation. Furthermore, Saint-Gobain contested certain aspects of the legal classification of the facts constituting the infringement, and indeed certain facts.
Nor has Saint-Gobain relied on any exceptional circumstance that would justify its cooperation outside the leniency regime being taken into account. In that regard, the Court asserted, in Case T‑54/03
Lafarge
v
Commission
, paragraph 69 above, that the mere fact that an undertaking involved in an illegal cartel does not substantially contest the facts does not lead to a reduction of the amount of the fine that must be imposed on it. That conclusion cannot be called into question by the Commission’s previous practice in adopting decisions, based in particular on its Notice on the non-imposition or reduction of fines in cartel cases (
OJ 1996 C 207, p. 4
; ‘the 1996 Leniency Notice’).
The Commission also denies that its decision fails to state sufficient reasons on that point. It maintains that it is sufficiently clear from the reasoning set out in the contested decision concerning the fact that the leniency applicant did not substantially contest the facts that such non-contestation could not in any event give rise to a reduction of the amount of the fine imposed on Saint-Gobain.
Last, the Commission maintains that there is no reason why the Court, in this case, should reduce the amount of the fine imposed on Saint-Gobain in the exercise of its unlimited jurisdiction.
Findings of the Court
In examining this part of the plea, it is appropriate to draw a distinction between, on the one hand, the possibility of reducing the fine under points 20 to 23 of the 2002 Leniency Notice and, on the other, a reduction of the amount of the fine to reflect a mitigating circumstance outside the leniency programme, in application of point 29 of the 2006 Guidelines.
As regards, first of all, the 2002 Leniency Notice, which is applicable
ratione temporis
to the present case, it should be observed that the Commission set out in that notice the conditions in which undertakings which cooperated with it during its investigation may be exempted from a fine or may benefit from a reduction of the amount of the fine which they would have had to pay.
It is thus stated, at point 20 of the 2002 Leniency Notice, that undertakings that do not meet the conditions for exemption from a fine, under section A of that notice, may be eligible to benefit from a reduction of any fine that would otherwise have been imposed. According to point 21 of that notice, ‘[i]n order to qualify for such a reduction, an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence’.
The Court has recently held that, in the context of the leniency programme provided for by the 2002 Leniency Notice, the procedure for granting an undertaking total immunity from fines has three distinct stages, the first consisting in a request to the Commission by the undertaking concerned (Case
T-12/06
Deltafina
v
Commission
[2011] ECR II-5639
, paragraphs 111 and 112).
Under the title ‘Procedure’, points 24 and 25 of the 2002 Leniency Notice are worded as follows:
‘24.
An undertaking wishing to benefit from a reduction of a fine should provide the Commission with evidence of the cartel in question.
25.
The undertaking will receive an acknowledgement of receipt from the Directorate-General for Competition recording the date on which the relevant evidence was submitted. The Commission will not consider any submissions of evidence by an applicant for a reduction of a fine before it has taken a position on any existing application for a conditional immunity from fines in relation to the same suspected infringement.’
It follows from the wording of those passages of the 2002 Leniency Notice that, in order to be able to obtain a reduction of the amount of the fine under the leniency programme established by that notice, an undertaking must make an application to that effect to the Commission and must provide the Commission with evidence relating to a suspected cartel affecting competition in the European Union. That interpretation of the scope of the 2002 Leniency Notice is all the more justified because the leniency programme makes a distinction in the consequences which attach in principle to the establishment of the liability of the undertakings guilty of infringements of Article 81 EC. While it may seem appropriate to grant favourable treatment to undertakings that cooperate with the Commission in investigations of secret cartels affecting the EU, such treatment must be afforded solely to undertakings which comply meticulously with the procedural and substantive conditions set out in the 2002 Leniency Notice.
In the present case, Saint-Gobain did not expressly seek the benefit of the 2002 Leniency Notice during the investigation, and merely claims that it did not substantially contest the facts alleged against it in its reply to the statement of objections. In that context, the Commission cannot be criticised for not having sought to determine whether Saint-Gobain was entitled to a reduction of the amount of the fine under that notice. That conclusion cannot be affected by the fact that the approach taken by the Commission in the present case differs from its previous practice in taking decisions, since that practice cannot in any event serve, in itself, as a legal framework for fines in competition matters (see paragraph 245 above). It also follows that the complaint alleging a lack of or insufficiency of reasoning on that point is unfounded.
It is irrelevant in that regard that the Court has held in the past that, in order to benefit from a reduction of the amount of the fine on the ground of not contesting the facts, an undertaking must expressly inform the Commission that it had no intention of substantially contesting the facts, after perusing the statement of objections (Case
T-44/00
Mannesmannröhren-Werke
v
Commission
[2004] ECR II-2223
, paragraph 303), which was indeed the case here, and that, where such a request had been submitted, it was for the Commission, where appropriate, to state the reasons why it none the less considered that a reduction of the fine should not be granted on that basis (see, to that effect, Joined Cases
T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01
Tokai Carbon and Others
v
Commission
[2004] ECR II-1181
, paragraph 415, and Case T‑161/05
Hoechst
v
Commission
, paragraph 326 above, paragraphs 98 and 99).
In effect, those findings were closely linked to the fact that the 1996 Leniency Notice provided, at point 2 of section D, entitled ‘Significant reduction in a fine’, that not substantially contesting the facts on which the Commission based its allegations could give rise to a reduction of the amount of the fine that would have been imposed in the absence of cooperation. As the Commission correctly observes in its pleadings, such a rule is no longer to be found in the 2002 Leniency Notice, which mentions only, save in relation to immunity, the possibility that the amount of the fine may be reduced where an undertaking provides the Commission with ‘evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession’.
As regards the complaint alleging breach of the principle of non-discrimination, since, unlike Saint-Gobain, the leniency applicant benefited from a reduction of the amount of the fine under the 2002 Leniency Notice, it cannot succeed. Admittedly, it should be borne in mind that, in assessing the cooperation provided by the members of a cartel, the Commission cannot disregard the principle of equal treatment (Case
T-116/04
Wieland Werke
v
Commission
[2009] ECR II-1087
, paragraph 124), which requires that comparable situations must not be treated differently unless such treatment is objectively justified (see Case
C-101/08
Audiolux and Others
[2009] ECR I-9823
, paragraph 54 and the case-law cited). In the light of the reasoning set out at paragraphs 406 to 408 above, however, it must be held that Saint-Gobain and the leniency applicant were not in a comparable situation for the purposes of the 2002 Leniency Notice.
As regards, next, the mitigating circumstances referred to at point 29 of the 2006 Guidelines, it must be stated that Saint-Gobain takes issue with the Commission, in essence, for having disregarded the rule laid down in the fourth indent of that point, namely that the basic amount of the fine may be reduced ‘where the undertaking concerned has effectively cooperated with the Commission outside the scope of the [2002] Leniency Notice and beyond its legal obligation to do so’.
That argument cannot succeed, however.
It should be pointed out in that regard that the fourth indent of point 29 of the 2006 Guidelines, like the sixth indent of point 3 of the 1998 Guidelines, envisages the possibility that the fact that an undertaking has effectively cooperated with the Commission outside the scope of the Leniency Notice and beyond its legal obligation to do so may be taken into account as a mitigating circumstance.
However, in the case of secret cartels, the Commission is entitled to apply the fourth indent of point 29 of the 2006 Guidelines only exceptionally. The application of that provision cannot lead to the Leniency Notice being deprived of its practical effect. It is clear from that notice that it defines the framework for rewarding undertakings which are or were parties to secret cartels affecting the European Union for their cooperation in Commission investigations. It follows that undertakings can, in principle, obtain a reduction in the amount of the fine in return for their cooperation only where they satisfy the conditions laid down in that notice (see, by analogy, Case
T-208/06
Quinn Barlo and Others
v
Commission
[2011] ECR II-7953
, paragraphs 270 and 271).
Thus, for example, the Commission may reserve the application of the fourth indent of point 29 of the 2006 Guidelines to the undertaking which was the first to provide it with information enabling it to expand its investigation and to undertake the necessary measures in order to establish a more serious infringement or an infringement of greater duration (see, by analogy,
Quinn Barlo and Others
v
Commission
, paragraph 415 above, paragraph 272 and the case-law cited).
The present case does indeed fall within the scope of the 2002 Leniency Notice, which refers in point 1 to secret cartels between undertakings consisting in fixing prices and sharing markets, including bid-rigging. It follows that the Commission is correct to claim that in such a case the application of the fourth indent of point 29 of the 2006 Guidelines should be exceptional.
The Court observes that Saint-Gobain has not explained, either during the investigation that led to the adoption of the contested decision or in the context of the present action, how the mere fact that it had not substantially contested certain facts satisfied such a condition.
In the first place, the Commission is correct to maintain that to take the non-contestation of the facts into account as a mitigating circumstance might undermine the change in its leniency programme brought about by the adoption of the 2002 Leniency Notice, which is characterised in particular by the fact that a circumstance of that nature no longer constitutes, in principle, a ground for reducing the amount of the fine (see paragraph 410 above).
In the second place, even in cases in which the 1996 Leniency Notice applied, it was already held that where an undertaking providing cooperation does no more than confirm, in a less precise and explicit manner, certain information already provided by another undertaking by way of cooperation, the extent of the cooperation provided by the former undertaking, while possibly of some benefit to the Commission, cannot be treated as comparable to that provided by the undertaking which was the first to supply that information. A statement which merely corroborates to a certain degree a statement which the Commission already had at its disposal does not facilitate the Commission’s task significantly and therefore sufficiently to justify a reduction in the fine for cooperation (see, by analogy, Case T‑38/02
Groupe Danone
v
Commission
, paragraph 97 above, paragraph 455).
In that regard, the Court finds that, as is apparent from recital 120 to the contested decision, the evidence used by the Commission to establish the existence of the cartel in question and its functioning consists essentially of documents seized by the Commission during the inspections which it carried out in February and March 2005 at the premises of the various undertakings involved and also of the statements made by the leniency applicant, supported by documents contemporaneous with the facts. The fact that Saint-Gobain did not substantially contest the facts was, as stated at recital 456 to the contested decision, used by the Commission in order to corroborate certain findings from other evidence in its possession (see in that regard, in particular, recitals 127, 146 to 148, 165, 187, 218, 255 to 277, 297 to 299, 312, 313, 316, 317, 328, 329, 337, 338 and 388 to the contested decision).
It follows that Saint-Gobain’s contention that, by not contesting the facts, it provided the Commission with significant added value by reference to the evidence already in its possession, cannot be upheld.
Accordingly, Saint-Gobain’s complaint that the Commission did not take the extent of its cooperation into account as a mitigating circumstance outside the legal framework of the 2002 Leniency Notice cannot be upheld.
That conclusion cannot be called into question by any previous practice in taking decisions. The fact that the Commission may have found in other cases that certain factors constituted mitigating circumstances for the purpose of setting the fine does not mean that it is obliged to do likewise in a subsequent decision, as such a practice does not in itself serve as a legal framework for fines in competition matters (see paragraph 245 above and Case T‑38/02
Groupe Danone
v
Commission
, paragraph 97 above, paragraph 395).
It is also irrelevant that fines of an overall lower level may have been imposed in application of the previous guidelines on cooperation. The effective application of the EU competition rules requires that the Commission may at any time adjust the level of fines to the requirements of that policy, so that the undertakings involved in an administrative procedure that may give rise to a fine cannot acquire a legitimate expectation that the Commission will not exceed the level of fines previously imposed or that the method used to calculate those fines will be applied (see paragraphs 276 and 277 above).
Nor can the complaint alleging failure to state reasons, in that the contested decision does not disclose why Saint-Gobain was unable to benefit from a reduction of the fine under point 29 of the 2006 Guidelines, succeed.
In that regard, it should be borne in mind that, so far as the setting of fines for infringements of competition law is concerned, the Commission fulfils its obligation to state reasons where it indicates, in its decision, the factors on the basis of which the gravity and duration of the infringement were assessed, without being required to include in it a more detailed account or the figures relating to the method of calculating the fine (see, to that effect,
Stora Kopparbergs Bergslags
v
Commission
, paragraph 148 above, paragraph 66). The adequacy of such a statement of reasons must be assessed in the context of the circumstances of the case, and in particular the content of the measure in question, the nature of the reasons relied on and the interest which addressees will have in obtaining explanations (see Case
T-38/92
AWS Benelux
v
Commission
[1994] ECR II-211
, paragraph 26 and the case-law cited). It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (
Commission
v
Sytraval and Brink’s France
, paragraph 146 above, paragraph 63).
In the present case, after receiving the statement of objections, Saint-Gobain did not ask the Commission to grant it a reduction of the amount of the fine that it could impose on Saint-Gobain on the ground of any cooperation under the fourth indent of point 29 of the 2006 Guidelines. In addition, Saint-Gobain could not be unaware, first, that the mitigating circumstance referred to in the fourth indent of point 29 of the 2006 Guidelines could, given its wording, apply only outside the scope of the 2002 Leniency Notice and, second, that, owing to its nature, the cartel in question did fall within the scope of that notice. Last, in the light of recitals 56 to 59 and 127 to the contested decision, it must be considered that Saint-Gobain was able to understand that the Commission had relied, in particular, on the statements of the leniency applicant in order to establish the infringement in question and that those statements had been made before Saint-Gobain sent its reply to the statement of objections.
It follows that, on perusing the contested decision, Saint-Gobain was in a position to understand the reasons why the Commission had not granted it a reduction of the amount of the fine which it had imposed on Saint-Gobain to reflect the mitigating circumstance referred to in the fourth indent of point 29 of the 2006 Guidelines and that, accordingly, the contested decision is not vitiated by an insufficiency or lack of reasons in that regard.
The third part of the plea is therefore unfounded.
Having examined the plea in its entirety, the Court finds that it is well founded solely in so far as it claims that the contested decision is unlawful in that the Commission relied therein on the Flat glass (Italy) decision in order to establish the aggravating circumstance of repeated infringement with respect to Compagnie de Saint-Gobain and Saint-Gobain.
B –
Case T‑73/09
It should be observed, as a preliminary point, that a number of pleas or arguments raised by Compagnie de Saint-Gobain in the context of Case T‑73/09 have already been examined in the analysis of the action in Case T‑56/09. That applies, first, to the plea alleging breach of the right to an independent and impartial tribunal; second, to the plea alleging breach of the principle that penalties should be applied solely to the offender, relating to the imputation to Compagnie de Saint-Gobain of an infringement committed by one of its subsidiaries; third, the plea alleging breach of the principles of non-retroactivity of penalties and the protection of legitimate expectations; and, fourth, and last, the plea alleging misapplication of Article 23 of Regulation No 1/2003 in that repeated infringement was taken into account as an aggravating circumstance and breach of the principle of proportionality.
What follows therefore relates solely to the plea alleging, in essence, infringement of Article 23(2) of Regulation No 1/2003, in that the Commission erred in assessing the turnover that must serve as a reference for the calculation of the maximum amount of the fine, and also breach of the rights of the defence and failure to state reasons.
Arguments of the parties
By this plea, Compagnie de Saint-Gobain takes issue with the Commission for not having sought, in the contested decision, evidence showing that the total turnover of the Saint-Gobain group could be taken into account in calculating the maximum amount of the fine laid down in Article 23(2) of Regulation No 1/2003. That provision, as interpreted by the Courts of the EU, does not allow a fine of more than 10% of the turnover of the undertaking concerned, defined as a single economic entity, to be imposed. In Compagnie de Saint-Gobain’s submission, it is clear from the contested decision that that decision relates only to practices involving certain activities of the Saint-Gobain group in its ‘Flat Glass’ sector and not the other activities of the group, which constitute separate undertakings.
It follows, in Compagnie de Saint-Gobain’s submission, that the Commission ought to have calculated the maximum amount of the fine solely by reference to the turnover of the ‘Flat Glass’ sector of the Saint-Gobain group. Had it done so, the fine would not in any event have exceeded EUR 560 million. Compagnie de Saint-Gobain infers that the fine imposed on it, jointly and severally with Saint-Gobain, is excessive and disproportionate.
As the Commission failed to provide any explanation in that regard in the contested decision, the decision is also vitiated by a failure to state reasons.
In the reply, Compagnie de Saint-Gobain further claims that, since the statement of objections did not state that the total turnover of the Saint-Gobain group would be taken into consideration owing to the existence of a presumption that Compagnie de Saint-Gobain exercised decisive influence over all its subsidiaries, it was not in a position to assert its rights in that regard before the contested decision was adopted. It follows that the Commission breached Compagnie de Saint-Gobain’s rights of defence.
The Commission disputes those criticisms. It claims, first of all, it took the total turnover of the Saint-Gobain group into account in the contested decision solely for the purposes of determining whether it was appropriate to apply the 10% maximum amount referred to in Article 23(2) of Regulation No 1/2003. It observes, next, that, in accordance with settled case-law, that maximum amount must be calculated on the basis of the combined turnover of all the companies constituting the single economic entity that committed the infringement of Article 81 EC, as only that turnover gives an indication of the size and influence of the undertaking in question on the market. It follows from established case-law that the Commission is entitled to take the consolidated turnover of the parent company heading the undertaking that participated in the infringement into consideration when calculating that maximum amount. That figure includes the turnover of the various subsidiaries of the group, without there being any need formally to attribute liability for the infringement to all the undertakings that make up the group.
In the present case, the Commission demonstrated to the requisite standard that Compagnie de Saint-Gobain exercises decisive influence over the commercial policy of its subsidiaries and that, consequently, those various companies together form an undertaking. Accordingly, the calculation of the maximum amount referred to in the preceding paragraph had to be made by reference to the consolidated turnover of the entire Saint-Gobain group. It is irrelevant, in that regard, that Compagnie de Saint-Gobain’s own turnover is small, since the total turnover of the Saint-Gobain group appears in its annual reports. In addition, the maximum amount of 10% does not apply either to the turnover relating to the activity directly concerned by the infringement or to the profits made during the infringement, or to the turnover achieved solely by the part of the Saint-Gobain group to which the subsidiaries directly responsible for the infringement belonged during the year preceding the decision.
As regards the complaint alleging failure to state reasons concerning the calculation of the maximum amount of the fine referred to in Article 23(2) of Regulation No 1/2003, the Commission does not agree. It claims that that maximum amount refers to the turnover of the undertaking concerned by a decision imposing a penalty adopted pursuant to that regulation. Accordingly, Compagnie de Saint-Gobain, as an addressee of the contested decision, was in a position to ascertain that the fine imposed on it did not exceed that maximum amount.
As regards, last, the complaint alleging breach of the rights of the defence, which is raised in the reply, the Commission maintains that this is a new plea and is therefore inadmissible. In any event, it claims that there has been no breach of Compagnie de Saint-Gobain’s rights of defence in the present case, since it was not required to inform that undertaking of the specific details concerning the level of the fines which it proposed to impose or the turnover that would be used in order to ascertain that the maximum amount referred to in Article 23(2) of Regulation No 1/2003 was not exceeded. The Commission further submits that, in accordance with the case-law, it stated in the statement of objections the capacity in which it held Compagnie de Saint-Gobain responsible for the alleged facts.
Findings of the Court
As a preliminary point, it should be observed that, by the reference which it makes to Article 41 of the Charter of Fundamental Rights in its additional pleading, in support of the present plea, Compagnie de Saint-Gobain does not put forward any new plea or complaint by comparison with the pleas and complaints which it set out in its application. It follows that that argument is admissible, in accordance with the case-law cited at paragraph 301 above.
As for the substance, it should be borne in mind that, as is apparent from the analysis set out at paragraphs 206 to 247 above, the Commission was correct, in the present case, to impute Saint-Gobain’s unlawful conduct to Compagnie de Saint-Gobain.
The present plea none the less raises the question of the meaning that should be given to the concept of the turnover of the ‘undertaking’ participating in the infringement, to which reference is made in Article 23(2) of Regulation No 1/2003, in a situation in which, first, the Commission correctly imputes to a parent company liability for the unlawful conduct of one or more of its subsidiaries active in a specific economic sector and, second, that parent company has other subsidiaries active in different sectors in respect of which the decisive influence of the parent company has not been established in the contested decision. As Compagnie de Saint-Gobain observes, the approach taken on that point determines, in the present case, whether the fine imposed jointly and severally on Compagnie de Saint-Gobain and Saint-Gobain exceeds the maximum amount.
In that regard, it is appropriate, first of all, to reject the complaint whereby Compagnie de Saint-Gobain alleges failure to state reasons with respect to the amount of the turnover used by the Commission as a reference for the purpose of ascertaining that the fine which it imposed on the undertaking formed by Compagnie de Saint-Gobain and Saint-Gobain did not exceed the maximum amount referred to in Article 23(2) of Regulation No 1/2003.
In so far as the maximum amount in question refers to the turnover of the undertaking or association of undertakings which committed the infringement and which is the addressee of the decision, that undertaking or association of undertakings is, by definition, in a position to ensure that that maximum amount is not exceeded. That undertaking or association of undertakings is not only deemed to be aware of the legal limit in question, but is also supposed to know the amount of its own turnover. It is therefore in a position to determine whether or not the maximum amount of 10% was exceeded by the fine imposed on it, in spite of the absence of any explanation on that point in the decision whereby the penalty was imposed on it. It follows that no specific reasons are required with regard to the application of that maximum amount (Joined Cases
T-217/03 and T-245/03
FNCBV
v
Commission
[2006] ECR II-4987
, paragraphs 237 and 238).
In any event, it should be observed that, at recital 13 to the contested decision, the Commission stated, inter alia, that the total consolidated turnover of the Saint-Gobain group in 2007 was EUR 43 400 million and that Saint-Gobain’s turnover during the same year was EUR 5 611 million. Furthermore, as is apparent from recitals 593 to 623 to the contested decision, in the present case the Commission imputed the infringement committed by Saint-Gobain to Compagnie de Saint-Gobain, having concluded, in particular, at recital 622 to the contested decision, that the various subsidiaries of the Saint-Gobain group involved in the infringement formed a single undertaking with Compagnie de Saint-Gobain. The Commission observed, moreover, at recital 710 to the contested decision, that, pursuant to Article 23(2) of Regulation No 1/2003, the fine could not exceed 10% of the total turnover in the preceding business year of each undertaking and association of undertakings that had participated in the infringement. Last, it follows, at least implicitly, from recitals 710 to 712 to the contested decision that in the present case the Commission considered that the fine imposed jointly and severally on Saint-Gobain and Compagnie de Saint-Gobain did not exceed that maximum amount.
It must therefore be held that, on perusing the contested decision, Compagnie de Saint-Gobain was in a position to understand that it was by reference to the consolidated turnover of the Saint-Gobain group and on account of the decisive influence exercised by Compagnie de Saint-Gobain over Saint-Gobain’s commercial policy that the Commission ascertained that the fine imposed on that undertaking did not exceed the maximum amount referred to in Article 23(2) of Regulation No 1/2003.
As regards, next, the complaint that the maximum amount referred to in Article 23(2) of Regulation No 1/2003 was exceeded, it should first of all be borne in mind that the upper limit of the amount of the fine determined in that provision seeks to avoid the imposition of fines which it is foreseeable that the undertakings, owing to their size, as determined, albeit approximately and imperfectly, by their total turnover, will be unable to pay. That limit is therefore one which is uniformly applicable to all undertakings and arrived at according to the size of each of them and seeks to ensure that the fines are not excessive or disproportionate (
Dansk Rørindustri and Others
v
Commission
, paragraph 116 above, paragraphs 280 and 281; see, to that effect, judgment of 8 July 2008 in Case T‑52/03
Knauf Gips
v
Commission
, not published in the ECR, paragraph 452). Thus, Article 23(2) of Regulation No 1/2003 prohibits the Commission only to impose a fine in excess of the maximum amount of 10% of turnover of the undertaking concerned, that maximum amount being determined by reference to the business year preceding the date of the decision (
Sarrió
v
Commission
, paragraph 149 above, paragraph 85, and
Limburgse Vinyl Maatschappij and Others
v
Commission
, paragraph 86 above, paragraph 593).
That maximum amount of 10% of turnover must be calculated on the basis of the total turnover of all the companies constituting the single economic entity acting as an undertaking for the purposes of Article 81 EC, since only the total turnover of the component companies can constitute an indication of the size and economic power of the undertaking in question (Case
T-9/99
HFB and Others
v
Commission
[2002] ECR II-1487
, paragraphs 528 and 529; Case T‑112/05
Akzo Nobel and Others
v
Commission
, paragraph 210 above, paragraph 90; and judgment of 16 November 2011 in Case T‑79/96
Sachsa Verpackung
v
Commission
, not published in the ECR, paragraph 107). Thus, in accordance with the case-law, the Commission did not err by taking the consolidated turnover of the ultimate parent company concerned as a reference for the calculation of the maximum amount of the fine, when the presumption that the parent company exercised decisive influence over the commercial policy of the subsidiary or subsidiaries involved in the infringement had not been rebutted (see, to that effect, Case T‑112/05
Akzo Nobel and Others
v
Commission
, paragraph 210 above, paragraph 91;
ThyssenKrupp Liften Ascenseurs
v
Commission
, paragraph 311 above, paragraph 288; Case
T-39/06
Transcatab
v
Commission
[2011] ECR II-6831
, paragraph 129; and Case
T-41/05
Alliance One International
v
Commission
[2011] ECR II-7101
, paragraph 166).
Furthermore, and as the Commission correctly submits, the maximum amount referred to in Article 23(2) of Regulation No 1/2003 has a distinct and autonomous objective by comparison with that resulting from the criteria of the gravity and duration of the infringement (see
Knauf Gips
v
Commission
, paragraph 449 above, paragraph 452). Thus, the assessment of that maximum amount must be made by reference to the size and economic power of the undertaking concerned, since that maximum amount is intended to avoid the imposition of a fine which it is foreseeable that the undertaking in question will be unable to pay.
The consolidated turnover of the Saint-Gobain group is better able to reflect the size and economic power of the undertaking to which the contested decision is addressed than the proportion of that turnover achieved solely by the ‘Flat Glass’ sector of that group (see, to that effect, Joined Cases
T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95
Cimenteries CBR and Others
v
Commission
[2000] ECR II-491
, paragraph 5040, and
HFB and Others
v
Commission
, paragraph 450 above, paragraph 529). It is irrelevant in that regard that the Commission did not establish in the contested decision that Compagnie de Saint-Gobain exercised decisive influence over the commercial policy of all of its subsidiaries.
It follows that the mere fact that the Saint-Gobain group is active in various industrial sectors, such as flat glass, innovative materials, building products or processing, does not constitute a valid reason why a lower turnover than the consolidated group turnover should be taken into account for the purpose of calculating the maximum amount of the infringement, even though the infringement referred to in the contested decision relates to only one of those sectors.
Furthermore, as observed at paragraph 443 above, the Commission established that Compagnie de Saint-Gobain formed, for the purposes of the application of Article 81 EC, an economic unit with the ‘Flat glass’ sector of the Saint-Gobain group. In such a case, in accordance with the case-law, the Commission is entitled to take the turnover of the parent company into account in order to set the amount at a sufficiently deterrent level (see, to that effect,
ThyssenKrupp Liften Ascenseurs
v
Commission
, paragraph 311 above, paragraph 445). That objective would be undermined if, as Compagnie de Saint-Gobain suggests, only the turnover of the companies that directly participated in the infringement could serve as a reference for the calculation of the fine (judgment of 13 September 2010 in Case T‑26/06
Trioplast Wittenheim
v
Commission
, not published in the ECR, paragraph 115).
That conclusion is not inconsistent with the Court’s reasoning in
Knauf Gips
v
Commission
, paragraph 449 above. In that judgment, the Court, in order to determine whether the worldwide turnover of all the companies in the Knauf group could serve as a reference for the calculation of the maximum amount of the fine, considered, first, whether the Knauf group constituted an economic unit for the purposes of competition law and, second, whether the Commission had demonstrated to the requisite legal standard that Knauf Gips AG, the applicant in that case, was the legal person which, at the head of the Knauf group, was responsible for coordinating the activities of the group (
Knauf Gips
v
Commission
, paragraph 449 above, paragraph 339). However, that approach was justified in that case by the fact that, in the decision annulment of which was sought in that case, the Commission had been unable to identify a legal person managing the group of companies constituting the undertaking responsible for the infringement, to which the infringements committed by the various companies constituting the group could be imputed (
Knauf Gips
v
Commission
, paragraph 449 above, paragraph 337). By contrast, the Commission was correct, in the present case, to impute the activities of Saint-Gobain to Compagnie de Saint-Gobain, the ultimate parent company of the Saint-Gobain group.
As regards, last, the complaint alleging breach of the rights of the defence, in that before adopting the contested decision the Commission did not give Compagnie de Saint-Gobain the opportunity to demonstrate that it did not exercise decisive influence over the commercial policy of all of its subsidiaries, it must be held that, even on the assumption that it is admissible when it was put forward only in the reply, it is unfounded in any event. As stated at paragraph 452 above, the calculation of the maximum amount of the fine imposed on Compagnie de Saint-Gobain and Saint-Gobain by reference to the consolidated turnover of the Saint-Gobain group did not depend on the existence of decisive influence by Compagnie de Saint-Gobain over the commercial policy of all of its subsidiaries.
It follows that the Commission did not infringe Article 23(2) of Regulation No 1/2003 by relying on the consolidated turnover of the Saint-Gobain group for the purpose of determining the maximum amount of the fine that could be imposed on Compagnie de Saint-Gobain and Saint-Gobain in the present case. In fact, it must be pointed out that the fine of EUR 880 million imposed jointly and severally on Compagnie de Saint-Gobain and Saint-Gobain is below the maximum amount as thus calculated.
Consequently, the present plea must be rejected as unfounded.
C –
Findings in the two actions as regards the claims for annulment
In the light of all of the foregoing, the claims for annulment submitted by Compagnie de Saint-Gobain and by Saint-Gobain can be upheld only in so far as they seek to establish that the Commission was wrong to take the Flat glass (Italy) decision into account for the purpose of establishing the aggravating circumstance of repeated infringement in regard to them.
III –
The claims that the Court should exercise its unlimited jurisdiction
Saint-Gobain and Compagnie de Saint-Gobain also ask the Court to exercise its unlimited jurisdiction in the present case and reduce the amount of the fine imposed on them.
As a preliminary point, the Court observes that the unlimited jurisdiction conferred on it in competition matters by Article 31 of Regulation No 1/2003, in application of Article 229 EC, authorises it, in addition to merely reviewing the legality of the penalty, which merely permits dismissal of the action for annulment or annulment of the contested measure, to vary the contested measure, even without annulling it, by taking account of all of the factual circumstances, by amending, in particular, the fine imposed where the question of the amount of the fine is before it (see Case
C-534/07 P
Prym and Prym Consumer
v
Commission
[2009] ECR I-7415
, paragraph 86 and the case-law cited;
Limburgse Vinyl Maatschappij and Others
v
Commission
, paragraph 86 above, paragraph 692; and
Romana Tabacchi
v
Commission
, paragraph 100 above, paragraph 265).
In the present case, it is appropriate to examine in turn, in the first place, Saint-Gobain’s argument that the figures for sales which it claims to have made outside the EEA should be deducted from the basis for the calculation of the fine; in the second place, Saint-Gobain’s argument that the figures for sales which it made in 1999 were not used for 1998 in order to calculate the fine; in the third place, the inferences that should be drawn, if appropriate, from the illegality of the contested decision as regards the fact that the Flat glass (Italy) decision was taken into account for the purpose of proving repeated infringement on the part of Compagnie de Saint-Gobain and Saint-Gobain; and, last, and in the fourth place, the new plea raised by Compagnie de Saint-Gobain at the hearing, alleging that a reasonable time had been exceeded.
A –
The figures for sales that Saint-Gobain claims to have made outside the EEA
Saint-Gobain maintains that the sales which it made outside the EEA should be removed from the basis for the calculation of the fine, even if there is no illegality in the contested decision on that point. It refers, in that regard, to point 13 of the 2006 Guidelines, which states that only turnover achieved within the EEA is to be taken into consideration in calculating fines imposed for infringements of Article 81 EC.
At recital 33 to the contested decision, the Commission stated that the geographic scope of the market affected by the infringement in question corresponded to the whole of the EEA.
In a letter sent to the Commission on 28 January 2008, in answer to a request for information from the Commission dated 10 December 2007, Saint-Gobain referred to amounts of annual turnover, for the years 2001 to 2004, corresponding, in particular, to sales made outside the EEA. In a letter sent to the Commission on 22 August 2008 in answer to a fresh request for information from the Commission dated 25 July 2008, Saint-Gobain supplemented that information, referring to a part of the amounts of annual turnover for the years 1999 and 2000, also corresponding to sales made, according to Saint-Gobain, outside the EEA.
The Commission contends, however, that the sales alleged to have been made outside the EEA should not be deducted from the total amounts of turnover communicated to it by Saint-Gobain.
The Court, by way of a measure of organisation of procedure, requested Saint-Gobain to communicate any documents capable of substantiating the reality of the turnover alleged to have been achieved outside the EEA, including by producing contracts of sale, and to state to which manufacturers the sales to which those figures correspond related. Saint-Gobain was also requested to respond to the arguments put forward by the Commission in its rejoinder as to why the figures in question should not be deducted from the basis for the calculation of the fine imposed on it.
The Court considers, first of all, that Saint-Gobain’s assertion that the fact that the arguments referred to at paragraphs 167 and 168 above were put forward by the Commission only in the rejoinder suggests that the Commission was mistaken to include the sales outside the EEA in the basis for the calculation of the fine cannot be accepted.
First, it should be borne in mind that that information was submitted by the Commission in the rejoinder in answer to a fresh plea submitted by Saint-Gobain in the reply, relating specifically to that alleged mistake. Second, in its requests for information of 10 December 2007 and 25 July 2008, the Commission had asked Saint-Gobain to communicate its turnover achieved within the EEA over a number of successive years. In each of those requests, it asked Saint-Gobain to provide it, if possible, with certified figures and to distinguish the turnover achieved for each car manufacturer concerned. During the investigation, however, Saint-Gobain submitted no material capable of showing that the percentages of turnover which it sought to have deducted from the figures which it had previously communicated to the Commission did indeed correspond to sales made outside the EEA.
Next, the Court observes that Saint-Gobain produced a series of invoices or lists of invoices relating to sales outside the EEA between 1999 and 2003. It is apparent from the table in paragraph 11 of Saint-Gobain’s letter to the Court of 12 November 2012 that the manufacturers concerned are [confidential]. The flat glass items to which those invoices relate concern production sites which at the material time were situated outside the EEA ([confidential]).
In that regard, in the first place, it should be observed that the invoices and lists of invoices produced by Saint-Gobain substantiate only a part of the figures for sales which it made outside the EEA during the infringement period. Thus, Saint-Gobain has produced only invoices or lists of invoices for 2002 and 2003 for sales of flat glass to [confidential] and [confidential]. In certain cases, relating in particular to sales to [confidential], no invoice has been produced.
Saint-Gobain attempts to justify the documents missing from its file by relying, in particular, on the fact that a long time has elapsed since the facts, with the consequence that many probative documents, whether accounting documents or others, have disappeared. However, that argument cannot be followed. Saint-Gobain could have attempted to communicate probative documents to the Commission during the investigation, which it expressly declined to do owing to both the ‘relatively small amount’ of the sales concerned and the ‘major difficulties which would have had to be overcome in order to retrieve from [Saint-Gobain’s international commercial database] the turnover relating to those sales outside the [EEA]’. It should be emphasised on that point that, contrary to Saint-Gobain’s assertion, the questions which the Commission sent it on several occasions during the investigation were sufficiently precise for it to understand the need to supply evidence capable of substantiating the figures for sales outside the EEA to which that undertaking referred. Nor can Saint-Gobain’s suggestion that the Commission did not sufficiently draw its attention to the importance of breaking down its turnover by manufacturer be upheld. That assertion is contradicted by the wording of the questionnaires sent to Saint-Gobain by the Commission on 10 December 2007 and 25 July 2008.
In the second place, it should be observed that, according to the contested decision, the manufacturers referred to at paragraph 470 above were all the subject of collusion on the part of the members of the ‘club’. While Saint-Gobain acknowledges, in its answer to the questions put by the Court, that those sales were made in part in the context of a wider commercial relationship governed by a framework contract concluded with an entity of the manufacturer situated within the EEA, it none the less maintains that the sales in question were the result of orders from subsidiaries situated outside the EEA and that the glass was delivered to manufacturing sites outside the EEA. At the hearing, Saint-Gobain also maintained that the purchasing departments of the car manufacturing groups within the EEA were not systematically responsible for negotiating supply contracts.
However, it must be stated, first of all, that, with the sole exception of the framework contract concluded with [confidential], which is examined at paragraph 475 below, Saint-Gobain provides no information about the turnovers mentioned in the table in paragraph 10 of its written reply to the questions put by the Court which were not achieved in the context of a wider commercial relationship governed by a framework contract concluded with a car manufacturer in the EEA. The Court observes, moreover, in that regard, that some of the actual documents produced by Saint-Gobain in answer to the questions put by the Court illustrate the business model of centralised purchasing used by car manufacturers in the EEA. It is appropriate to refer, on that point, to the call for tenders launched by [confidential] for the supply of windscreens for that manufacturer’s production site at [confidential] and also to a contract between Saint-Gobain and [confidential] for the supply of glass for the [confidential] factory.
As regards, next, the framework contract concluded between Saint-Gobain and [confidential], that contract does indeed tend to show that the turnovers achieved by Saint-Gobain in that context were not achieved under a framework contract concluded with a manufacturer established within the EEA. The Court none the less observes that this is the only document produced by Saint-Gobain for the purposes of substantiating the turnovers mentioned in the table in paragraph 10 of its answer to the questions put by the Court concerning deliveries to that manufacturer in [confidential] during the infringement period. In the absence of any other probative material, such as invoices or accounts, the Court cannot therefore be satisfied as to the reality of the figures submitted. That applies a fortiori because the contract between Saint-Gobain and [confidential] provides no figures relating either to the prices charged or to the volumes of glass to be supplied under that contract.
It should be observed, last, that the sales that Saint-Gobain claims to have made outside the EEA related to car manufacturers’ production sites in countries adjoining the EEA, most of which have acceded to the European Union since the infringement ceased. As the Commission correctly submitted at the hearing, there is no doubt that at least a proportion of the vehicles produced on those sites and equipped with the glass items to which Saint-Gobain refers in the abovementioned table was marketed in the EEA. It is therefore reasonable to consider that there is a close link between such sales and the internal market.
In those circumstances, the arguments put forward by Saint-Gobain to justify a reduction of the amount of the fine on the ground that a proportion of its turnover was achieved outside the EEA cannot be upheld.
B –
The sales figures to be taken into account for 1998
As regards the turnovers to be taken into account for 1998, it should be borne in mind that during the investigation Saint-Gobain did not supply turnovers broken down by manufacturer for that year. Accordingly, as already observed at paragraph 138 above, the Commission took account, for 1998, of the figures of sales for each manufacturer which had been supplied to it by Saint-Gobain for the nearest year covered by the infringement period, namely 1999.
Saint-Gobain maintains, however, that the carglass market grew between 1998 and 1999 and that, accordingly, it would have been of greater benefit to it if, for the purpose of setting the basis for the calculation of the fines, the figures for sales actually made in 1998 had been taken into account, instead of the figures for sales made in 1999 also being used for 1998.
In that regard, it should be observed that Saint-Gobain’s argument is vague and, in addition, is not supported by any probative material. Both during the investigation and in its written pleadings, moreover, Saint-Gobain stated that it was unable to supply precise turnovers, by manufacturer, for 1998.
In those circumstances, there is no need in the present case to take a different approach from that taken by the Commission when calculating the fine and there is no need to refer, in order to determine the turnovers for 1998, to figures other than those for sales made by Saint-Gobain in 1999.
C –
The consequences of the illegality of the contested decision in so far as the Flat glass (Italy) decision was taken into account for the purposes of establishing repeated infringement
It is appropriate to rule on the consequences of the illegality of the contested decision in so far as the Flat glass (Italy) decision was taken into account in order to establish the aggravating circumstance of repeated infringement with respect to Saint-Gobain and Compagnie de Saint-Gobain.
As a preliminary point, the Court observes that the plea alleging breach of the rules on repeated infringement was raised by both Saint-Gobain and Compagnie de Saint-Gobain and that this plea was upheld in part in the context of the actions brought by them (see paragraphs 308 to 321 above).
It should be borne in mind, next, that, in accordance with the case-law cited at paragraph 461 above, the Court, in the exercise of its unlimited jurisdiction, may, if it considers it necessary, substitute its assessment for the Commission’s when calculating the fine, including therefore in the inferences that should be drawn from the finding that an undertaking has a tendency to infringe the EU competition rules.
The level of the increase of the basic amount of the file to reflect repeated infringement is supposed to reflect the gravity associated with the repetition of conduct that is contrary to EU competition law. According to the contested decision, the increase of 60% of the basic amount of the fine was justified in the light of both the Flat glass (Benelux) decision and the Flat glass (Italy) decision. Since only the first of those decisions can be applied for the purpose of establishing repeated infringement and since, in addition, that decision was the more remote in time from the beginning of the infringement referred to in the contested decision, it must be considered that the repetition of the unlawful infringement of Saint-Gobain and Compagnie de Saint-Gobain is less serious than that found by the Commission in the contested decision.
In the light of those circumstances, the percentage of the increase on the ground of repeated infringement must be reduced to 30% and the fine imposed jointly and severally on Saint-Gobain and Compagnie de Saint-Gobain must therefore be set at an amount of EUR 715 million.
D –
The new plea raised by Compagnie de Saint-Gobain at the hearing, alleging that a reasonable time had been exceeded
At the hearing, Compagnie de Saint-Gobain raised a new plea, alleging that a reasonable time had been exceeded owing to the excessive duration of the administrative and judicial proceedings. Compagnie de Saint-Gobain emphasises, in that regard, that more than seven years elapsed between the time when the Commission adopted the first measure of investigation in this case and the time when the hearing took place, when Compagnie de Saint-Gobain was still awaiting the judgment of the Court. The passage of that period had significant consequences for Compagnie de Saint-Gobain owing to the bank guarantee which it was required to provide to the Commission in order to avoid immediate payment of the fine imposed on it. Compagnie de Saint-Gobain therefore asks the Court to vary the contested decision in order to take account of that excessive period and of the costs which that procrastination entailed for it.
The Commission contends that this plea is inadmissible in that it seeks to have the duration of the administrative procedure that gave rise to the adoption of the contested decision taken into account. In the Commission’s submission, the applicant was aware of that period when it brought its action and it was thus open to the applicant to claim at that stage that the duration of the period in question was unreasonable. In any event, the Commission asserts that the duration of the administrative procedure cannot be deemed excessive. Last, in its submission, it follows from the case-law that the fact that the procedure is excessively long cannot affect the lawfulness of the contested decision, without prejudice to an action for damages.
In that regard, the Court observes that, according to Article 6(1) of the ECHR, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
As a general principle of EU law, such a right is applicable in the context of judicial proceedings brought against a Commission decision. That right has also been asserted in Article 47(2) of the Charter of Fundamental Rights, which relates to the principle of effective judicial protection (see Case
C-385/07 P
Der Grüne Punkt - Duales System Deutschland
v
Commission
[2009] ECR I-6155
, paragraphs 178 and 179 and the case-law cited).
Furthermore, according to a consistent line of decisions, compliance with the ‘reasonable time’ requirement is also a general principle of EU law applicable in administrative procedures relating to competition policy conducted by the Commission and relating to competition policy (Case
C-105/04 P
Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied
v
Commission
[2006] ECR I-8725
, paragraph 35 and the case-law cited). That principle has been re-asserted, as such, in Article 41 of the Charter of Fundamental Rights, which states that every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.
Article 41(1) and the second paragraph of Article 47 of the Charter of Fundamental Rights thus contain two expressions of one and the same procedural principle, namely that a person is entitled to expect that a decision will be adopted within a reasonable time (see, to that effect, Case T‑214/06
Imperial Chemical Industries
v
Commission
[2012] ECR, paragraph 285).
In the present case, although Compagnie de Saint-Gobain claims that that principle has been breached, it does not claim that the duration of the proceedings had any effect on the content of the contested decision or that it might affect the result of this case. In particular, it does not claim that that duration had any effect on its ability to defend itself, either during the administrative or during the judicial proceedings. Nor does it seek annulment of the contested decision on account of the alleged breach. On the other hand, Compagnie de Saint-Gobain asks the Court to vary the Commission’s decision on account of that breach.
In that regard, it is appropriate, first of all, to decide that, on the assumption that the complaint alleging that a reasonable time was exceeded during the administrative procedure is admissible even though it was not submitted in the application, the duration of that procedure cannot in any event be considered excessive in the circumstances of the present case. That procedure, which began in February 2005 when inspections were carried out by the Commission at certain premises of companies of the Saint-Gobain group, ended with the adoption of the contested decision on 12 November 2008, at the close of a period of around 3 years and 10 months. It is sufficient to observe, in that regard, that the investigation related to a particularly complex cartel that gradually affected virtually all car manufacturers in the European Union and gave rise to multiple contacts and meetings. In order to deal with that case the Commission was required to examine a significant number of issues of fact and of law, as may be seen from the size of the contested decision, which contains 731 paragraphs and 221 pages. Furthermore, the Commission’s description of the procedure which it followed, at recitals 39 to 55 to the contested decision, does not reveal any periods of unwarranted inactivity.
As regards, next, the duration of the judicial proceedings leading to delivery of the present judgment, it should be emphasised that it follows from Case C‑58/12 P
Groupe Gascogne
v
Commission
[2013] ECR that the sanction for a breach by a Court of the European Union of its obligation under the second paragraph of Article 47 of the Charter of Fundamental Rights to adjudicate on the cases before it within a reasonable time must be an action for damages brought before the General Court, since such an action constitutes an effective remedy of general application for asserting and penalising such a breach (
Groupe Gascogne
v
Commission
, paragraphs 82 and 83).
It follows that the action brought in the present case by Compagnie de Saint-Gobain, which seeks only annulment of the contested decision in so far as it concerns Compagnie de Saint-Gobain or, in the alternative, a reduction of the amount of the fine imposed on it, and cannot in any event be compared with an action for damages, is not an appropriate framework for the purposes of penalising any breach by the General Court of its obligation to adjudicate within a reasonable time in the present case.
For the sake of completeness, it should be borne in mind that, under the second paragraph of Article 47 of the Charter of Fundamental Rights, every person is also entitled to have his case heard by an independent and impartial tribunal. That guarantee, which is part of the constitutional traditions common to the Member States, is also enshrined in Article 6(1) of the ECHR.
According to the case-law, the guarantee of impartiality has two aspects. In the first place, the tribunal must be subjectively impartial, that is, none of its members must show bias or personal prejudice, there being a presumption of personal impartiality in the absence of evidence to the contrary. In the second place, the tribunal must be objectively impartial, which means that it must offer guarantees sufficient to exclude any legitimate doubt in this respect (Joined Cases
C-341/06 P and C-342/06 P
Chronopost and La Poste
v
UFEX and Others
[2008] ECR I-4777
, paragraph 54; see, to that effect, Eur. Court H.R.,
Piersack v. Belgium
, 1 October 1982, § 30, Series A no. 53;
De Cubber v. Belgium
, 26 October 1984, §§ 24 to 30, Series A no. 86; and
Findlay v. the United Kingdom
, 25 February 1997, § 73,
Reports of Judgments and Decisions
1997-I).
In this instance, by raising a complaint alleging that the duration of the judicial proceedings in the present case is excessive, Compagnie de Saint-Gobain asks the Chamber of the Court responsible for the case to assess whether it has itself committed a procedural irregularity in causing an unjustified delay in dealing with the case. Such an assessment would therefore mean that the present composition of the Court would have to determine not only whether it might be open to criticism for having procrastinated but also, where appropriate, whether such procrastination must be deemed excessive.
In that context, it must be held that, even on the assumption that the action for annulment did constitute an appropriate framework for penalising a breach of the obligation for the Courts of the European Union to adjudicate within a reasonable time, the present composition of the Court would not in any event have been able to provide Compagnie de Saint-Gobain with sufficient guarantees to preclude any legitimate doubt as to whether it would examine impartially the complaint alleging that the duration of the judicial proceedings was excessive (see, by analogy, Case C‑58/12 P
Groupe Gascogne
v
Commission
, paragraph 495 above, paragraph 90).
It follows that the present plea, which Compagnie de Saint-Gobain raises in support of its claim for a variation of the contested decision, must be rejected as unfounded in part and inadmissible in part.
Costs
Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that each party bears its own costs.
In the present case, the applicant’s claims have been declared well founded only in part. However, as Saint-Gobain correctly submitted at the hearing, account should be taken of the fact that one of its complaints, alleging an error in the calculation of the fine, was withdrawn after the Commission had adopted an amending decision at an advanced stage in the procedure, namely after the hearing.
In addition, the Council limited its intervention in Case T‑56/09 to supporting only the Commission’s claim that Saint-Gobain’s first plea, alleging that Regulation No 1/2003 is unlawful, should be rejected. That plea was rejected as unfounded.
The Court therefore considers that on an equitable assessment of the facts of the case each party should be ordered to bear its own costs, with the exception of the Council, whose costs must be paid by Saint-Gobain.

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

1.
Joins Cases T‑56/09 and T‑73/09 for the purposes of the judgment;

2.
Sets the amount of the fine imposed jointly and severally on Saint-Gobain Glass France SA, Saint-Gobain Sekurit Deutschland GmbH & Co. KG, Saint-Gobain Sekurit France SAS and Compagnie de Saint-Gobain SA in Article 2(b) of Commission Decision C(2008) 6815 final of 12 November 2008 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (COMP/39.125 — Carglass), as amended by Commission Decision C(2009) 863 final of 11 February 2009 and by Commission Decision C(2013) 1118 final of 28 February 2013, at EUR 715 million;

3.
Dismisses the actions for the remainder;

4.
Orders the parties to bear their own costs, with the exception of the Council of the European Union, whose costs are to be paid by Saint-Gobain Glass France, Saint-Gobain Sekurit Deutschland and Saint-Gobain Sekurit France.

Forwood
Dehousse
Schwarcz
Delivered in open court in Luxembourg on 27 March 2014.
[Signatures]
Table of contents

Background to the dispute

Contested decision

Procedure and forms of order sought

Law

I - The subject-matter of the action

II - The principal claims, seeking annulment of the contested decision

A — Case T‑56/09

1. First plea: illegality of Regulation No 1/2003

a) First part: breach of the right to an independent and impartial tribunal

Arguments of the parties

Findings of the Court

b) Second part, alleging breach of the principle of the presumption of innocence

Arguments of the parties

Findings of the Court

2. Second plea, alleging breach of the rights of the defence

a) Arguments of the parties

b) Findings of the Court

3. Third plea, alleging insufficient reasoning and an error in the calculation of the fine

a) First part, alleging insufficient reasoning

Arguments of the parties

Findings of the Court

b) Second part, alleging an error in the calculation

Arguments of the parties

Findings of the Court

4. Fourth plea, alleging an error in the imputation to Compagnie de Saint-Gobain of liability for Saint-Gobain’s unlawful conduct, a breach of the principle that penalties should be applied solely to the offender and the principle of the presumption of innocence, and misuse of powers

a) Arguments of the parties

b) Findings of the Court

Admissibility of the plea in so far as it is raised by Saint-Gobain

Substance

5. Fifth plea, alleging breach of the principles of non-retroactivity of penalties and legitimate expectations

a) Arguments of the parties

b) Findings of the Court

6. Sixth plea, alleging that the fine is excessive

a) First part, alleging misapplication of Article 23 of Regulation No 1/2003 in so far as repeated infringement was taken into account as an aggravating circumstance; breach of the principle of proportionality; and failure to state reasons

Arguments of the parties

Findings of the Court

– Admissibility of the arguments based on the Charter of Fundamental Rights and submitted by Compagnie de Saint-Gobain in its additional pleading

– Substance

b) Second part, alleging breach of the principle of proportionality

Arguments of the parties

Findings of the Court

c) Third part, alleging that the fact that Saint-Gobain did not substantially contest the facts was not sufficiently taken into account, and also breach of the principle of non-discrimination and failure to state adequate reasons

Arguments of the parties

Findings of the Court

B — Case T‑73/09

Arguments of the parties

Findings of the Court

C — Findings in the two actions as regards the claims for annulment

III - The claims that the Court should exercise its unlimited jurisdiction

A — The figures for sales that Saint-Gobain claims to have made outside the EEA

B — The sales figures to be taken into account for 1998

C — The consequences of the illegality of the contested decision in so far as the Flat glass (Italy) decision was taken into account for the purposes of establishing repeated infringement

D — The new plea raised by Compagnie de Saint-Gobain at the hearing, alleging that a reasonable time had been exceeded

Costs
(
*1
)	Language of the case: French.