# 62010TJ0413

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

15 July 2015 (
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‛Competition — Agreements, decisions and concerted practices — European market for prestressing steel — Price fixing, market sharing and exchange of commercially sensitive information — Decision finding an infringement of Article 101 TFEU — Cooperation during the administrative procedure — 2006 Guidelines on the method of setting fines — Reasonable time’

In Cases T‐413/10 and T‐414/10,

Socitrel — Sociedade Industrial de Trefilaria, SA, established in Trofa (Portugal), represented by F. Proença de Carvalho and T. Faria, lawyers,

Socitrel — Sociedade Industrial de Trefilaria, SA

applicant in Case T‐413/10,

Companhia Previdente — Sociedade de Controle de Participações Financeiras, SA, established in Lisbon (Portugal), represented by D. Proença de Carvalho and J. Caimoto Duarte, lawyers,

Companhia Previdente — Sociedade de Controle de Participações Financeiras, SA

applicant in Case T‐414/10,

v

European Commission, represented by F. Castillo de la Torre, P. Costa de Oliveira and V. Bottka, acting as Agents, and by M. Marques Mendes, lawyer,

European Commission

defendant,

APPLICATION for annulment and variation of Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/38344 — Prestressing Steel), as amended by Commission Decision C(2010) 6676 final of 30 September 2010 and Commission Decision C(2011) 2269 final of 4 April 2011,

THE GENERAL COURT (Sixth Chamber),

composed of S. Frimodt Nielsen (Rapporteur), President, F. Dehousse and A.M. Collins, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 17 November 2014,

gives the following

Judgment (
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Judgment

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Procedure and forms of order sought

Procedure and forms of order sought

1. Case T‐413/10 — Socitrel v Commission

Case T‐413/10 — Socitrel v Commission

| 60 | By application lodged at the Court Registry on 15 September 2010, Socitrel brought the present action. |
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60

By application lodged at the Court Registry on 15 September 2010, Socitrel brought the present action.

| 61 | By separate document lodged at the Court Registry on 16 September 2010, Socitrel made an application for suspension of operation of the contested decision. That application was dismissed by order of the President of the General Court of 13 April 2011 in Socitrel v Commission (T‐413/10 R, EU:T:2011:179), and the costs were reserved. |
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61

By separate document lodged at the Court Registry on 16 September 2010, Socitrel made an application for suspension of operation of the contested decision. That application was dismissed by order of the President of the General Court of 13 April 2011 in Socitrel v Commission (T‐413/10 R, EU:T:2011:179), and the costs were reserved.

Socitrel

Commission

| 62 | By document lodged at the Court Registry on 10 December 2010, Socitrel stated that it was requesting leave to amend its pleas following the adoption of the first amending decision. |
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62

By document lodged at the Court Registry on 10 December 2010, Socitrel stated that it was requesting leave to amend its pleas following the adoption of the first amending decision.

| 63 | By decision of 6 June 2011, Court asked the Commission to provide it with the second amending decision. The Commission complied with that request on 17 June 2011. |
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63

By decision of 6 June 2011, Court asked the Commission to provide it with the second amending decision. The Commission complied with that request on 17 June 2011.

| 64 | Following the adoption of the second amending decision, Socitrel again amended its pleas and the form of order sought, by document lodged at the Court Registry on 2 August 2011. |
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64

Following the adoption of the second amending decision, Socitrel again amended its pleas and the form of order sought, by document lodged at the Court Registry on 2 August 2011.

| 65 | The written procedure was closed on 21 November 2011 when the Commission lodged the rejoinder in the language of the case. |
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65

The written procedure was closed on 21 November 2011 when the Commission lodged the rejoinder in the language of the case.

| 66 | The composition of the Chambers of the Court having been altered as from 23 September 2013, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was therefore assigned on 27 September 2013. |
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66

The composition of the Chambers of the Court having been altered as from 23 September 2013, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was therefore assigned on 27 September 2013.

| 67 | The preliminary report referred to in Article 52(2) of the Rules of Procedure of the General Court of 2 May 1991 was communicated to the Sixth Chamber on 31 March 2014. |
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67

The preliminary report referred to in Article 52(2) of the Rules of Procedure of the General Court of 2 May 1991 was communicated to the Sixth Chamber on 31 March 2014.

| 68 | On 8 May 2014, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the Court sent a list of 16 written questions to Socitrel and the Commission. |
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68

On 8 May 2014, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the Court sent a list of 16 written questions to Socitrel and the Commission.

| 69 | By letters of 6 and 9 June 2014 respectively, the Commission and Socitrel complied with those measures. |
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69

By letters of 6 and 9 June 2014 respectively, the Commission and Socitrel complied with those measures.

| 70 | On 17 September 2014, upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure. |
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70

On 17 September 2014, upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure.

| 71 | Socitrel claims that the Court should:
  
  
  
  
  
  — | annul Articles 1 and 2 of the contested decision in so far as they relate to it; |
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71

Socitrel claims that the Court should:

—

annul Articles 1 and 2 of the contested decision in so far as they relate to it;

| — | in the alternative, annul in part Article 2 of the contested decision in that it relates to Socitrel and reduce the amount of the fine imposed on it; |
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—

in the alternative, annul in part Article 2 of the contested decision in that it relates to Socitrel and reduce the amount of the fine imposed on it;

| — | order the Commission to pay the costs. |
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—

order the Commission to pay the costs.

| 72 | The Commission contends that the Court should:
  
  
  
  
  
  — | dismiss the action; |
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72

The Commission contends that the Court should:

—

dismiss the action;

| — | order Socitrel to pay the costs. |
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—

order Socitrel to pay the costs.

2. Case T‐414/10 — Companhia Previdente v Commission

Case T‐414/10 — Companhia Previdente v Commission

| 73 | By application lodged at the Court Registry on 15 September 2010, the applicant brought the present action. |
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73

By application lodged at the Court Registry on 15 September 2010, the applicant brought the present action.

| 74 | By separate document lodged at the Court Registry on 16 September 2010, Companhia Previdente applied for suspension of operation of the contested decision. That application was dismissed by order of 10 June 2011 in Companhia Previdente v Commission (T‐414/10 R, EU:T:2011:268), and the costs were reserved. |
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74

By separate document lodged at the Court Registry on 16 September 2010, Companhia Previdente applied for suspension of operation of the contested decision. That application was dismissed by order of 10 June 2011 in Companhia Previdente v Commission (T‐414/10 R, EU:T:2011:268), and the costs were reserved.

Companhia Previdente

Commission

| 75 | By document lodged at the Court Registry on 10 December 2010, Companhia Previdente indicated that it was seeking leave to amend its pleas following the adoption of the first amending decision. |
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75

By document lodged at the Court Registry on 10 December 2010, Companhia Previdente indicated that it was seeking leave to amend its pleas following the adoption of the first amending decision.

| 76 | By decision of 6 June 2011, the Court asked the Commission to provide it with certain documents. The Commission complied with that request on 17 June 2011. |
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76

By decision of 6 June 2011, the Court asked the Commission to provide it with certain documents. The Commission complied with that request on 17 June 2011.

| 77 | Following the adoption of the second amending decision, Companhia Previdente again amended its pleas and the form of order sought, by document lodged at the Court Registry on 2 August 2011. |
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77

Following the adoption of the second amending decision, Companhia Previdente again amended its pleas and the form of order sought, by document lodged at the Court Registry on 2 August 2011.

| 78 | The written procedure was closed on 21 November 2011 when the Commission lodged the rejoinder in the language of the case. |
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78

The written procedure was closed on 21 November 2011 when the Commission lodged the rejoinder in the language of the case.

| 79 | The composition of the Chambers of the Court having been altered as from 23 September 2013, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was therefore assigned on 27 September 2013. |
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79

The composition of the Chambers of the Court having been altered as from 23 September 2013, the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was therefore assigned on 27 September 2013.

| 80 | The preliminary report referred to in Article 52(2) of the Rules of Procedure of 2 May 1991 was communicated to the Sixth Chamber on 31 March 2014. |
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80

The preliminary report referred to in Article 52(2) of the Rules of Procedure of 2 May 1991 was communicated to the Sixth Chamber on 31 March 2014.

| 81 | On 8 May 2014, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the Court sent a list of 16 written questions to Companhia Previdente and the Commission. |
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81

On 8 May 2014, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the Court sent a list of 16 written questions to Companhia Previdente and the Commission.

| 82 | By letters of 6 and 9 June 2014 respectively, the Commission and Companhia Previdente complied with those measures. |
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82

By letters of 6 and 9 June 2014 respectively, the Commission and Companhia Previdente complied with those measures.

| 83 | On 17 September 2014, upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure. |
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83

On 17 September 2014, upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure.

| 84 | Companhia Previdente claims that the Court should:
  
  
  
  
  
  — | annul Articles 1, 2 and 4 of the contested decision in so far as they relate to it; |
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84

Companhia Previdente claims that the Court should:

—

annul Articles 1, 2 and 4 of the contested decision in so far as they relate to it;

| — | acknowledge that any reduction in the fine imposed on Socitrel, in the context of other actions concerning infringements for which Companhia Previdente may be jointly and severally liable, automatically entails an equivalent reduction in the fine for which Companhia Previdente is jointly and severally liable; |
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—

acknowledge that any reduction in the fine imposed on Socitrel, in the context of other actions concerning infringements for which Companhia Previdente may be jointly and severally liable, automatically entails an equivalent reduction in the fine for which Companhia Previdente is jointly and severally liable;

| — | order the Commission to pay the costs. |
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—

order the Commission to pay the costs.

3. Joinder for the purposes of the oral procedure of Cases T‐413/10, T‐414/10 and T‐409/13 Companhia Previdente and Socitrel v Commission, and removal from the register of Case T‐409/13 Companhia Previdente and Socitrel v Commission

Joinder for the purposes of the oral procedure of Cases T‐413/10, T‐414/10 and T‐409/13 Companhia Previdente and Socitrel v Commission, and removal from the register of Case T‐409/13 Companhia Previdente and Socitrel v Commission

| 85 | By application lodged at the Court Registry on 2 August 2013, Companhia Previdente and Socitrel brought an action against the letter sent to them on 24 May 2013 by the Director-General of DG Competition of the Commission. |
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85

By application lodged at the Court Registry on 2 August 2013, Companhia Previdente and Socitrel brought an action against the letter sent to them on 24 May 2013 by the Director-General of DG Competition of the Commission.

| 86 | That case was registered at the Court Registry as Case T‐409/13. By order of 30 June 2014, Cases T‐413/10, T‐414/10 and T‐409/13 were joined for the purposes of the oral procedure. |
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86

That case was registered at the Court Registry as Case T‐409/13. By order of 30 June 2014, Cases T‐413/10, T‐414/10 and T‐409/13 were joined for the purposes of the oral procedure.

| 87 | The applicants withdrew the action initiated in the context of Case T‐409/13 by letter to the Court Registry of 11 November 2014. As the Commission had indicated by letter of 14 November 2014 that it did not object to withdrawal of that action and that it asked that the applicants be ordered to pay the costs, the Court took formal notice of that withdrawal in the minutes of the hearing of 17 November 2014, where it ordered that Case T‐409/13 be removed from the Court’s register and ordered the applicants to pay the costs in that case. |
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87

The applicants withdrew the action initiated in the context of Case T‐409/13 by letter to the Court Registry of 11 November 2014. As the Commission had indicated by letter of 14 November 2014 that it did not object to withdrawal of that action and that it asked that the applicants be ordered to pay the costs, the Court took formal notice of that withdrawal in the minutes of the hearing of 17 November 2014, where it ordered that Case T‐409/13 be removed from the Court’s register and ordered the applicants to pay the costs in that case.

Law

Law

| 88 | Cases T‐413/10 and T‐414/10 are joined for the purposes of the present judgment, the parties having been questioned on that subject at the hearing and having raised no objections. |
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88

Cases T‐413/10 and T‐414/10 are joined for the purposes of the present judgment, the parties having been questioned on that subject at the hearing and having raised no objections.

| 89 | Socitrel puts forward eight pleas in law in support of its action and also two additional pleas put forward in the context of the second amendment of its pleas and the form of order sought. |
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89

Socitrel puts forward eight pleas in law in support of its action and also two additional pleas put forward in the context of the second amendment of its pleas and the form of order sought.

| 90 | Companhia Previdente puts forward four pleas in law in support of its action and also two additional pleas submitted in the context of the second amendment of its pleas and the form of order sought. |
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90

Companhia Previdente puts forward four pleas in law in support of its action and also two additional pleas submitted in the context of the second amendment of its pleas and the form of order sought.

| 91 | The first plea put forward by Socitrel alleges failure to state reasons and breach of its rights of defence, in that, in essence, the contested decision lacks various elements that would enable it to understand the way in which the Commission set the amount of the fine. |
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91

The first plea put forward by Socitrel alleges failure to state reasons and breach of its rights of defence, in that, in essence, the contested decision lacks various elements that would enable it to understand the way in which the Commission set the amount of the fine.

| 92 | The second plea submitted by Socitrel alleges breach of the ‘reasonable time’ requirement. |
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92

The second plea submitted by Socitrel alleges breach of the ‘reasonable time’ requirement.

| 93 | The third plea put forward by Socitrel alleges breach of the Commission’s duty of diligence, of the rights of the defence and of the principles of fairness, good faith and legitimate expectations, owing to the fact that the Commission amended the initial decision on two occasions. |
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93

The third plea put forward by Socitrel alleges breach of the Commission’s duty of diligence, of the rights of the defence and of the principles of fairness, good faith and legitimate expectations, owing to the fact that the Commission amended the initial decision on two occasions.

| 94 | The fourth plea on which Socitrel relies alleges infringement of Article 101(1) TFEU and Article 23(2) of Regulation No 1/2003, breach of the principles of proportionality and personal responsibility and also of the presumption of innocence, and also failure to state reasons and failure by the Commission to follow its previous practice in taking decisions, in so far as the maximum limit of the fine that could be imposed on Socitrel was exceeded by the Commission. |
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94

The fourth plea on which Socitrel relies alleges infringement of Article 101(1) TFEU and Article 23(2) of Regulation No 1/2003, breach of the principles of proportionality and personal responsibility and also of the presumption of innocence, and also failure to state reasons and failure by the Commission to follow its previous practice in taking decisions, in so far as the maximum limit of the fine that could be imposed on Socitrel was exceeded by the Commission.

| 95 | That plea consists of three parts. |
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95

That plea consists of three parts.

| 96 | The first part of the fourth plea alleges that Companhia Previdente was wrongly held by the Commission to be jointly and severally liable and, consequently, that the maximum amount of 10% of turnover was incorrectly calculated on the basis of Companhia Previdente’s turnover and not on Socitrel’s turnover. That argument also forms the subject matter of the first and second pleas put forward by Companhia Previdente. |
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96

The first part of the fourth plea alleges that Companhia Previdente was wrongly held by the Commission to be jointly and severally liable and, consequently, that the maximum amount of 10% of turnover was incorrectly calculated on the basis of Companhia Previdente’s turnover and not on Socitrel’s turnover. That argument also forms the subject matter of the first and second pleas put forward by Companhia Previdente.

| 97 | The second part of the fourth plea, submitted in the alternative, alleges that it was incorrect to take the turnovers of Emesa, Galycas and ITC into account when calculating the 10% maximum amount. That argument also forms the subject matter of the first part of the third plea submitted by Companhia Previdente. |
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97

The second part of the fourth plea, submitted in the alternative, alleges that it was incorrect to take the turnovers of Emesa, Galycas and ITC into account when calculating the 10% maximum amount. That argument also forms the subject matter of the first part of the third plea submitted by Companhia Previdente.

| 98 | The third part of the fourth plea, submitted further in the alternative, alleges that it was incorrect to take Companhia Previdente’s turnover for 2009 into account. That argument also forms the subject matter of the second part of the third plea submitted by Companhia Previdente. |
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98

The third part of the fourth plea, submitted further in the alternative, alleges that it was incorrect to take Companhia Previdente’s turnover for 2009 into account. That argument also forms the subject matter of the second part of the third plea submitted by Companhia Previdente.

| 99 | The fifth plea on which Socitrel relies alleges breach of the principles of proportionality and legitimate expectations in the application of points 13 and 22 of the 2006 Guidelines and also failure to state reasons, in that the Commission incorrectly set the rate to reflect gravity in the fine to be imposed on Socitrel at 18%. |
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99

The fifth plea on which Socitrel relies alleges breach of the principles of proportionality and legitimate expectations in the application of points 13 and 22 of the 2006 Guidelines and also failure to state reasons, in that the Commission incorrectly set the rate to reflect gravity in the fine to be imposed on Socitrel at 18%.

| 100 | Socitrel’s sixth plea alleges breach of the principles of proportionality and equal treatment, in so far as the minor or passive role which it played was not taken into account by the Commission as a mitigating circumstance. |
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100

Socitrel’s sixth plea alleges breach of the principles of proportionality and equal treatment, in so far as the minor or passive role which it played was not taken into account by the Commission as a mitigating circumstance.

| 101 | The seventh plea put forward by Socitrel alleges breach of the principles of proportionality and equal treatment, in so far as its effective cooperation was not taken into account by the Commission as a mitigating circumstance. |
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101

The seventh plea put forward by Socitrel alleges breach of the principles of proportionality and equal treatment, in so far as its effective cooperation was not taken into account by the Commission as a mitigating circumstance.

| 102 | The eighth plea submitted by Socitrel alleges breach of the principles of proportionality and equal treatment, owing to the failure to take the economic context of crisis and Socitrel’s inability to pay into account. That argument also forms the subject matter of the fourth plea submitted, in the alternative, by Companhia Previdente. |
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102

The eighth plea submitted by Socitrel alleges breach of the principles of proportionality and equal treatment, owing to the failure to take the economic context of crisis and Socitrel’s inability to pay into account. That argument also forms the subject matter of the fourth plea submitted, in the alternative, by Companhia Previdente.

| 103 | The applicants withdrew that plea by letter of 11 November 2014 to the Court Registry. The withdrawal of the plea was duly recorded in the minutes of the hearing held on 17 November 2014. |
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103

The applicants withdrew that plea by letter of 11 November 2014 to the Court Registry. The withdrawal of the plea was duly recorded in the minutes of the hearing held on 17 November 2014.

| 104 | Socitrel and Companhia Previdente also rely on an additional plea, put forward in the context of the second amendment of their pleas and the forms of order sought, alleging, as regards Socitrel, breach of the principles of equal treatment, proportionality and legitimate expectations and failure to state reasons and, as regards Companhia Previdente, breach of the principles of equal treatment, proportionality and legitimate expectations, in so far as Socitrel and Companhia Previdente were not treated in the same way as Arcelor and SLM, which obtained a reduction of their fines that the applicants did not receive. |
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104

Socitrel and Companhia Previdente also rely on an additional plea, put forward in the context of the second amendment of their pleas and the forms of order sought, alleging, as regards Socitrel, breach of the principles of equal treatment, proportionality and legitimate expectations and failure to state reasons and, as regards Companhia Previdente, breach of the principles of equal treatment, proportionality and legitimate expectations, in so far as Socitrel and Companhia Previdente were not treated in the same way as Arcelor and SLM, which obtained a reduction of their fines that the applicants did not receive.

| 105 | Last, Socitrel and Companhia Previdente rely on a second additional plea, alleging breach of the principles of diligence, fairness, good faith and legal certainty, in so far as the Commission amended the initial decision again in 2011. |
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105

Last, Socitrel and Companhia Previdente rely on a second additional plea, alleging breach of the principles of diligence, fairness, good faith and legal certainty, in so far as the Commission amended the initial decision again in 2011.

1. The first plea relied on by Socitrel, alleging failure to state reasons and breach of its rights of defence

The first plea relied on by Socitrel, alleging failure to state reasons and breach of its rights of defence

Outline of the principles

Outline of the principles

| 106 | According to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the nature of the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. 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 296 TFEU 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 (judgments of 2 April 1998 in Commission v Sytraval and Brink’s France, C‐367/95 P, ECR, EU:C:1998:154, paragraph 63; 30 September 2003Germany v Commission, C‐301/96, ECR, EU:C:2003:509, paragraph 87; and 22 June 2004Portugal v Commission, C‐42/01, ECR, EU:C:2004:379, paragraph 66). |
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106

According to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the nature of the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. 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 296 TFEU 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 (judgments of 2 April 1998 in Commission v Sytraval and Brink’s France, C‐367/95 P, ECR, EU:C:1998:154, paragraph 63; 30 September 2003Germany v Commission, C‐301/96, ECR, EU:C:2003:509, paragraph 87; and 22 June 2004Portugal v Commission, C‐42/01, ECR, EU:C:2004:379, paragraph 66).

Commission

Sytraval and Brink’s France

Germany

Commission

Portugal

Commission

The merits of the first plea

The merits of the first plea

| 107 | It is appropriate to recall briefly the arguments submitted by Socitrel in support of its plea, which were amended following the adoption of the first amending decision. |
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107

It is appropriate to recall briefly the arguments submitted by Socitrel in support of its plea, which were amended following the adoption of the first amending decision.

| 108 | In the application, Socitrel, maintained, in essence, that the initial decision lacked various elements which were needed in order to understand the way in which the Commission had set the amount of the fine; this, in Socitrel’s submission, resulted in a failure to state reasons that constituted a breach of its rights of defence. |
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108

In the application, Socitrel, maintained, in essence, that the initial decision lacked various elements which were needed in order to understand the way in which the Commission had set the amount of the fine; this, in Socitrel’s submission, resulted in a failure to state reasons that constituted a breach of its rights of defence.

| 109 | Thus, it maintained, the initial decision mentioned neither the turnover nor the value of sales taken into consideration when establishing the basic amount, nor the parameters taken into account when setting the rate to reflect gravity and the additional amount at 18%. |
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109

Thus, it maintained, the initial decision mentioned neither the turnover nor the value of sales taken into consideration when establishing the basic amount, nor the parameters taken into account when setting the rate to reflect gravity and the additional amount at 18%.

| 110 | In addition, Socitrel claims that the fact that numerous passages in the decision addressed to it had been made confidential prevented it from reconstituting the premisses on which the Commission had relied when establishing the amount of the fine. |
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110

In addition, Socitrel claims that the fact that numerous passages in the decision addressed to it had been made confidential prevented it from reconstituting the premisses on which the Commission had relied when establishing the amount of the fine.

| 111 | Following the adoption of the first amending decision, Socitrel amended its first plea. |
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111

Following the adoption of the first amending decision, Socitrel amended its first plea.

| 112 | Socitrel submits, in essence, that the amendment of the initial decision by the Commission shows that its first plea, as set out in the application, is well founded. |
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112

Socitrel submits, in essence, that the amendment of the initial decision by the Commission shows that its first plea, as set out in the application, is well founded.

| 113 | In addition, Socitrel maintains that the first amending decision has failed to address the most significant defects to which it had objected in the application, in particular as regards the rate taken into account by the Commission concerning the gravity of the infringement and the additional amount. |
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113

In addition, Socitrel maintains that the first amending decision has failed to address the most significant defects to which it had objected in the application, in particular as regards the rate taken into account by the Commission concerning the gravity of the infringement and the additional amount.

| 114 | It further observes that the first amending decision distinguishes two infringement periods on its part (recital 5), while attributing the same sales figures to each of them, although in its submission that distinction is not reflected later in the first amending decision and in particular in recital 7 of that decision, where only a single infringement period is imputed to it. |
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114

It further observes that the first amending decision distinguishes two infringement periods on its part (recital 5), while attributing the same sales figures to each of them, although in its submission that distinction is not reflected later in the first amending decision and in particular in recital 7 of that decision, where only a single infringement period is imputed to it.

| 115 | Socitrel further observes that the Commission acknowledges, in recital 8 of the first amending decision, that it made a mistake in calculating the additional amount, but without naming the undertakings affected by that mistake. That recital refers to the table in recital 5 of that decision, in which the applicant appears with a turnover relating to a number of infringement periods. The applicant assumes that it must be concluded from that reference that it must therefore have been affected by the mistake in the calculation of the additional amount, which seems to lead to the reduction of the basic amount of its fine, which went from EUR 22500000 to EUR 20000000. That nonetheless results from conjecture on the applicant’s part, which, it maintains, shows that there was a failure to state reasons. |
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115

Socitrel further observes that the Commission acknowledges, in recital 8 of the first amending decision, that it made a mistake in calculating the additional amount, but without naming the undertakings affected by that mistake. That recital refers to the table in recital 5 of that decision, in which the applicant appears with a turnover relating to a number of infringement periods. The applicant assumes that it must be concluded from that reference that it must therefore have been affected by the mistake in the calculation of the additional amount, which seems to lead to the reduction of the basic amount of its fine, which went from EUR 22500000 to EUR 20000000. That nonetheless results from conjecture on the applicant’s part, which, it maintains, shows that there was a failure to state reasons.

| 116 | The Commission disputes those claims. |
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116

The Commission disputes those claims.

The indication of the value of sales

| 117 | It should first of all be noted that the first amending decision addressed a number of defects affecting the initial decision, in particular as regards the determination of the value of sales taken into consideration (recital 5 of the first amending decision). |
| --- | --- |

117

It should first of all be noted that the first amending decision addressed a number of defects affecting the initial decision, in particular as regards the determination of the value of sales taken into consideration (recital 5 of the first amending decision).

| 118 | To that extent, the argument put forward by Socitrel in support of its first plea concerning that defect in the initial decision has become inoperative. |
| --- | --- |

118

To that extent, the argument put forward by Socitrel in support of its first plea concerning that defect in the initial decision has become inoperative.

The two infringement periods distinguished by the Commission in recital 5 of the first amending decision

| 119 | Furthermore, as Socitrel observes, the Commission distinguished two periods in the table showing the value of sales, in particular by Socitrel, in recital 5 of the first amending decision. |
| --- | --- |

119

Furthermore, as Socitrel observes, the Commission distinguished two periods in the table showing the value of sales, in particular by Socitrel, in recital 5 of the first amending decision.

| 120 | That table states that for the period from 7 April 1994 to 8 January 1996, the amount taken into consideration by the Commission on the basis of the replies provided by Socitrel on 30 June 2009 is EUR 12016516. An identical amount is taken into consideration for the period from 9 January 1996 to 19 September 2002. |
| --- | --- |

120

That table states that for the period from 7 April 1994 to 8 January 1996, the amount taken into consideration by the Commission on the basis of the replies provided by Socitrel on 30 June 2009 is EUR 12016516. An identical amount is taken into consideration for the period from 9 January 1996 to 19 September 2002.

| 121 | It is stated, in recital 932 of the initial decision, that ‘the relevant geographic area evolved over time. From 1984 to 1995 (Zurich Club period), it included Germany, France, Italy, the Netherlands, Belgium, Luxemburg, Spain and Austria. It also included Portugal as from 1992 (under the Club España arrangements). From 1996 to 2002 (Zurich Club crisis period (when the Club Europe quota arrangement was prepared), Club Europe period and expansion period), the geographic area covered the same countries as during the Zurich Club period, including Portugal, and in addition Denmark, Sweden, Finland and Norway (see Sections 9.1.1 to 9.1.5 [of the contested decision]). This is taken into account in the calculation of the value of sales by excluding the sales in Portugal before 15 December 1992 and excluding the sales in Denmark, Sweden, Finland and Norway before 9 January 1996. |
| --- | --- |

121

It is stated, in recital 932 of the initial decision, that ‘the relevant geographic area evolved over time. From 1984 to 1995 (Zurich Club period), it included Germany, France, Italy, the Netherlands, Belgium, Luxemburg, Spain and Austria. It also included Portugal as from 1992 (under the Club España arrangements). From 1996 to 2002 (Zurich Club crisis period (when the Club Europe quota arrangement was prepared), Club Europe period and expansion period), the geographic area covered the same countries as during the Zurich Club period, including Portugal, and in addition Denmark, Sweden, Finland and Norway (see Sections 9.1.1 to 9.1.5 [of the contested decision]). This is taken into account in the calculation of the value of sales by excluding the sales in Portugal before 15 December 1992 and excluding the sales in Denmark, Sweden, Finland and Norway before 9 January 1996.

| 122 | It is apparent from recital 5 of the first amending decision that the Commission distinguished several periods in connection with the value of sales to be taken into consideration (from 1 January 1984 to 21 December 1985; from 1 January 1986 to 14 December 1992; from 15 December 1992 to 31 December 1993; from 1 January 1994 to 8 January 1996; from 9 January 1996 to 19 September 2002), depending on the geographic area to which the cartel related. |
| --- | --- |

122

It is apparent from recital 5 of the first amending decision that the Commission distinguished several periods in connection with the value of sales to be taken into consideration (from 1 January 1984 to 21 December 1985; from 1 January 1986 to 14 December 1992; from 15 December 1992 to 31 December 1993; from 1 January 1994 to 8 January 1996; from 9 January 1996 to 19 September 2002), depending on the geographic area to which the cartel related.

| 123 | The infringement imputed by the Commission to Socitrel extended over two of those periods (from 7 April 1994 (the date taken into consideration by the Commission as regards the beginning of Socitrel’s participation in the infringement) to 8 January 1996 and from 9 January 1996 to 19 September 2002) which the Commission thus took into consideration. |
| --- | --- |

123

The infringement imputed by the Commission to Socitrel extended over two of those periods (from 7 April 1994 (the date taken into consideration by the Commission as regards the beginning of Socitrel’s participation in the infringement) to 8 January 1996 and from 9 January 1996 to 19 September 2002) which the Commission thus took into consideration.

| 124 | However, in recital 949 of the initial decision, the Commission decided that, because of the late stage at which Socitrel became aware of the European dimension of the cartel, only its sales in Spain and Portugal should be taken into consideration. |
| --- | --- |

124

However, in recital 949 of the initial decision, the Commission decided that, because of the late stage at which Socitrel became aware of the European dimension of the cartel, only its sales in Spain and Portugal should be taken into consideration.

| 125 | The need to take sales in Denmark, Sweden, Finland and Norway after 9 January 1996 into account (recital 932 to the contested decision) for the cartel members concerned by that geographic area therefore had no impact on Socitrel. That explains that the value of sales taken into account in recital 5 of the first amending decision is the same for each of the two infringement periods distinguished by the Commission. |
| --- | --- |

125

The need to take sales in Denmark, Sweden, Finland and Norway after 9 January 1996 into account (recital 932 to the contested decision) for the cartel members concerned by that geographic area therefore had no impact on Socitrel. That explains that the value of sales taken into account in recital 5 of the first amending decision is the same for each of the two infringement periods distinguished by the Commission.

| 126 | In addition, the Commission acknowledged having made a mistake in counting the additional amount twice in the initial decision owing to having taken a double infringement period into account for, in particular, Socitrel. |
| --- | --- |

126

In addition, the Commission acknowledged having made a mistake in counting the additional amount twice in the initial decision owing to having taken a double infringement period into account for, in particular, Socitrel.

| 127 | However, it corrected that mistake when it adopted the first amending decision, which led to a reduction of the basic amount of the fine to be imposed on Socitrel, which, following that correction, was reduced from EUR 22500000 to EUR 20000000. |
| --- | --- |

127

However, it corrected that mistake when it adopted the first amending decision, which led to a reduction of the basic amount of the fine to be imposed on Socitrel, which, following that correction, was reduced from EUR 22500000 to EUR 20000000.

| 128 | It should further be noted that, in Annex 8 to the application, Socitrel produced a letter from the Commission’s DG Competition, dated 13 August 2010, in which the official responsible for the case stated:
  ‘As indicated in [the Commission’s] letter of 30 July, there is a mistake in the calculation as regards the “entry fee”. So far as your clients are concerned, that means that the amount in the tables in recitals 923 and 1057 is too high. The amending decision will amend that amount and replace the amount of EUR 22500000 by an amount of EUR 20000000. As previously stated, owing to the maximum amount [of 10%], that does not alter the fine imposed on your clients or lead to a change in the reasoning in the decision.’ |
| --- | --- |

128

It should further be noted that, in Annex 8 to the application, Socitrel produced a letter from the Commission’s DG Competition, dated 13 August 2010, in which the official responsible for the case stated:

‘As indicated in [the Commission’s] letter of 30 July, there is a mistake in the calculation as regards the “entry fee”. So far as your clients are concerned, that means that the amount in the tables in recitals 923 and 1057 is too high. The amending decision will amend that amount and replace the amount of EUR 22500000 by an amount of EUR 20000000. As previously stated, owing to the maximum amount [of 10%], that does not alter the fine imposed on your clients or lead to a change in the reasoning in the decision.’

| 129 | To that extent, it must be considered that the contested decision, as amended by the first amending decision, is not vitiated by a failure to state reasons. |
| --- | --- |

129

To that extent, it must be considered that the contested decision, as amended by the first amending decision, is not vitiated by a failure to state reasons.

The rate of 18% applied for gravity

| 130 | As regards the failure to state reasons with respect to gravity, it should be borne in mind that the gravity of the infringement is examined in Section 19.1.3 of the contested decision. |
| --- | --- |

130

As regards the failure to state reasons with respect to gravity, it should be borne in mind that the gravity of the infringement is examined in Section 19.1.3 of the contested decision.

| 131 | As regards Socitrel, it should be observed that, in the contested decision, the Commission considers:
  
  
  
  
  
  — | first, that ‘all undertakings except Fundia were involved in market sharing (quota fixing), customer allocation and horizontal price fixing (see Section 9 and Annexes 2 [to] 4 [to the contested decision]’ and that ‘these arrangements are among the most harmful restrictions of competition, distorting the main parameters of competition’ (recital 939, Section 19.1.3.1 on the nature of the infringement); |
| --- | --- | --- |

131

As regards Socitrel, it should be observed that, in the contested decision, the Commission considers:

—

first, that ‘all undertakings except Fundia were involved in market sharing (quota fixing), customer allocation and horizontal price fixing (see Section 9 and Annexes 2 [to] 4 [to the contested decision]’ and that ‘these arrangements are among the most harmful restrictions of competition, distorting the main parameters of competition’ (recital 939, Section 19.1.3.1 on the nature of the infringement);

| — | second, that ‘the combined market share of the undertakings for which the infringement is established ... is estimated to be around 80%, as explained in recital 98’ (recital 946, Section 19.1.3.2 on combined market share); |
| --- | --- |

—

second, that ‘the combined market share of the undertakings for which the infringement is established ... is estimated to be around 80%, as explained in recital 98’ (recital 946, Section 19.1.3.2 on combined market share);

| — | third, that the relevant geographic area evolved over time (recital 932: see paragraph 121 above); |
| --- | --- |

—

third, that the relevant geographic area evolved over time (recital 932: see paragraph 121 above);

| — | fourth, that, ‘however, for Socitrel, Proderac, Fapricela and Fundia, undertakings which were participating exclusively in Club España (covering Spain and Portugal only) or — for the latter undertaking — in the Addtek coordination, and for which awareness of the single and continuous infringement could only be established at a very late stage of the infringement (17 May 2001 and 14 May 2001 respectively, see Section 12.2.2.4), the Commission takes into account the more limited geographical scope in determining the proportion of the value of the sales’ and that ‘the situation is different for the other Club España participants (Emesa/Galycas, Tycsa/Trefilerías Quijano) [which] participated simultaneously at several levels of the cartel and/or for which awareness of the single and continuous infringement is established at a much earlier stage’ (recital 949, Section 19.1.3.3 on geographic scope). |
| --- | --- |

—

fourth, that, ‘however, for Socitrel, Proderac, Fapricela and Fundia, undertakings which were participating exclusively in Club España (covering Spain and Portugal only) or — for the latter undertaking — in the Addtek coordination, and for which awareness of the single and continuous infringement could only be established at a very late stage of the infringement (17 May 2001 and 14 May 2001 respectively, see Section 12.2.2.4), the Commission takes into account the more limited geographical scope in determining the proportion of the value of the sales’ and that ‘the situation is different for the other Club España participants (Emesa/Galycas, Tycsa/Trefilerías Quijano) [which] participated simultaneously at several levels of the cartel and/or for which awareness of the single and continuous infringement is established at a much earlier stage’ (recital 949, Section 19.1.3.3 on geographic scope).

| 132 | The Commission concludes that, ‘given the specific circumstances of this case, taking into account the criteria discussed above relating to the nature of the infringement (see Section 19.1.3.1) and the geographic scope (see Section 19.1.3.3), the proportion of the value of sales to be taken into account should be 16% for the Fundia undertaking, 18% for the undertakings Socitrel, Fapricela and Proderac and 19% for all other undertakings’ (recital 953). |
| --- | --- |

132

The Commission concludes that, ‘given the specific circumstances of this case, taking into account the criteria discussed above relating to the nature of the infringement (see Section 19.1.3.1) and the geographic scope (see Section 19.1.3.3), the proportion of the value of sales to be taken into account should be 16% for the Fundia undertaking, 18% for the undertakings Socitrel, Fapricela and Proderac and 19% for all other undertakings’ (recital 953).

| 133 | It must be considered that, to that extent, the contested decision is not vitiated by a failure to state reasons and that it enables the reasoning followed by the Commission to be understood, without prejudice to whether or not it is well founded. |
| --- | --- |

133

It must be considered that, to that extent, the contested decision is not vitiated by a failure to state reasons and that it enables the reasoning followed by the Commission to be understood, without prejudice to whether or not it is well founded.

| 134 | The complaint put forward by Socitrel must therefore be rejected. |
| --- | --- |

134

The complaint put forward by Socitrel must therefore be rejected.

The rate applied in order to determine the additional amount for deterrence

| 135 | As regards the additional amount, it must be borne in mind that, according to point 25 of the 2006 Guidelines, ‘irrespective of the duration of an undertaking’s participation in the infringement, the Commission includes in the basic amount a sum of between 15% and 25% of the value of sales in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements’. In addition, ‘the Commission may also apply such an additional amount in the case of other infringements’ and, ‘for the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred to in point 22’, such as ‘the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented’. |
| --- | --- |

135

As regards the additional amount, it must be borne in mind that, according to point 25 of the 2006 Guidelines, ‘irrespective of the duration of an undertaking’s participation in the infringement, the Commission includes in the basic amount a sum of between 15% and 25% of the value of sales in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements’. In addition, ‘the Commission may also apply such an additional amount in the case of other infringements’ and, ‘for the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred to in point 22’, such as ‘the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented’.

| 136 | In the present case, the Commission set the rate applicable to the additional amount at 18% and referred, in recital 953 of the contested decision, to the considerations which it had set out, concerning the gravity of the infringement, in relation to the nature of the infringement (Section 19.1.3.1 of the contested decision) and its geographic scope (Section 19.1.3.3 of the contested decision). |
| --- | --- |

136

In the present case, the Commission set the rate applicable to the additional amount at 18% and referred, in recital 953 of the contested decision, to the considerations which it had set out, concerning the gravity of the infringement, in relation to the nature of the infringement (Section 19.1.3.1 of the contested decision) and its geographic scope (Section 19.1.3.3 of the contested decision).

| 137 | In fact, such reasoning was held to be sufficient by the Court of Justice in its judgment of 11 July 2013 in Ziegler v Commission (C‐439/11 P, ECR, EU:C:2013:513, paragraphs 121 to 124). |
| --- | --- |

137

In fact, such reasoning was held to be sufficient by the Court of Justice in its judgment of 11 July 2013 in Ziegler v Commission (C‐439/11 P, ECR, EU:C:2013:513, paragraphs 121 to 124).

Ziegler

Commission

| 138 | The complaint put forward by Socitrel must therefore be rejected. |
| --- | --- |

138

The complaint put forward by Socitrel must therefore be rejected.

The breach of Socitrel’s rights of defence

| 139 | Socitrel maintains that its rights of defence have been breached, on two grounds. |
| --- | --- |

139

Socitrel maintains that its rights of defence have been breached, on two grounds.

| 140 | First, it claims that it follows from the defects vitiating the initial decision, which were acknowledged in part by the Commission in the first amending decision, that its rights of defence were breached. |
| --- | --- |

140

First, it claims that it follows from the defects vitiating the initial decision, which were acknowledged in part by the Commission in the first amending decision, that its rights of defence were breached.

| 141 | That argument cannot succeed, since Socitrel was invited by the Court, by letter of 29 October 2010, to amend its pleas and the form of order sought following the adoption of the first amending decision, which it did by document lodged at the Court Registry on 10 December 2010. |
| --- | --- |

141

That argument cannot succeed, since Socitrel was invited by the Court, by letter of 29 October 2010, to amend its pleas and the form of order sought following the adoption of the first amending decision, which it did by document lodged at the Court Registry on 10 December 2010.

| 142 | Second, as regards the claims that parts of the contested decision were suppressed by the Commission, which prevented Socitrel from understanding how the fine was calculated by the Commission, it should be noted that all the recitals referred to by Socitrel (recitals 1142, 1144, 1149, 1157, 1159, 1160, 1165, 1171, 1172, 1175, 1178, 1179, 1181, 1185 and 1188) concern the assessment of the requests relating to the ability to pay of other undertakings. |
| --- | --- |

142

Second, as regards the claims that parts of the contested decision were suppressed by the Commission, which prevented Socitrel from understanding how the fine was calculated by the Commission, it should be noted that all the recitals referred to by Socitrel (recitals 1142, 1144, 1149, 1157, 1159, 1160, 1165, 1171, 1172, 1175, 1178, 1179, 1181, 1185 and 1188) concern the assessment of the requests relating to the ability to pay of other undertakings.

| 143 | In such a case, the Commission is required to ensure the confidentiality of the data communicated to it by undertakings when they ask it to do so, in particular in the case of sensitive data relating to the undertakings’ financial situation. |
| --- | --- |

143

In such a case, the Commission is required to ensure the confidentiality of the data communicated to it by undertakings when they ask it to do so, in particular in the case of sensitive data relating to the undertakings’ financial situation.

| 144 | The Commission is correct, moreover, to claim that all the elements of assessment relating to Socitrel, and, in particular, the information relating to its ability to pay, were communicated to it. |
| --- | --- |

144

The Commission is correct, moreover, to claim that all the elements of assessment relating to Socitrel, and, in particular, the information relating to its ability to pay, were communicated to it.

| 145 | Socitrel’s argument must therefore be discounted and the complaint alleging breach of the rights of the defence must be rejected in its entirety. |
| --- | --- |

145

Socitrel’s argument must therefore be discounted and the complaint alleging breach of the rights of the defence must be rejected in its entirety.

| 146 | The first plea must therefore be rejected in its entirety. |
| --- | --- |

146

The first plea must therefore be rejected in its entirety.

2. The second plea put forward by Socitrel, alleging breach of the
  ‘reasonable time
  ’ requirement

The second plea put forward by Socitrel, alleging breach of the

‘reasonable time

’ requirement

Outline of the principles

Outline of the principles

| 147 | First, compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law whose observance the Courts of the European Union ensure (see judgment of 19 December 2012 in Heineken Nederland and Heineken v Commission, C‐452/11 P, EU:C:2012:829, paragraph 97 and the case-law cited). |
| --- | --- |

147

First, compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law whose observance the Courts of the European Union ensure (see judgment of 19 December 2012 in Heineken Nederland and Heineken v Commission, C‐452/11 P, EU:C:2012:829, paragraph 97 and the case-law cited).

Heineken Nederland and Heineken

Commission

| 148 | The principle that an administrative procedure must be conducted within a reasonable time has been reaffirmed by Article 41(2) of the Charter of Fundamental Rights of the European Union, under which ‘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’ (judgment of 5 June 2012 in Imperial Chemical Industries v Commission, T‐214/06, ECR, EU:T:2012:275, paragraph 284). |
| --- | --- |

148

The principle that an administrative procedure must be conducted within a reasonable time has been reaffirmed by Article 41(2) of the Charter of Fundamental Rights of the European Union, under which ‘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’ (judgment of 5 June 2012 in Imperial Chemical Industries v Commission, T‐214/06, ECR, EU:T:2012:275, paragraph 284).

Imperial Chemical Industries

Commission

| 149 | Second, whether the time taken for the procedure is reasonable must be assessed in relation to the individual circumstances of each case, and in particular its context, the conduct of the parties during the procedure, what is at stake for the various undertakings concerned and its complexity (see, to that effect, judgment of 20 April 1999 in Limburgse Vinyl Maatschappij and Others v Commission, 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, ECR, EU:T:1999:80, paragraph 126) and also, where relevant, to information or justification which the Commission may provide concerning the measures of investigation carried out during the administrative procedure. |
| --- | --- |

149

Second, whether the time taken for the procedure is reasonable must be assessed in relation to the individual circumstances of each case, and in particular its context, the conduct of the parties during the procedure, what is at stake for the various undertakings concerned and its complexity (see, to that effect, judgment of 20 April 1999 in Limburgse Vinyl Maatschappij and Others v Commission, 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, ECR, EU:T:1999:80, paragraph 126) and also, where relevant, to information or justification which the Commission may provide concerning the measures of investigation carried out during the administrative procedure.

Limburgse Vinyl Maatschappij and Others

Commission

| 150 | Third, the Court of Justice has held that the administrative procedure may give rise to the examination of two successive periods, each corresponding to its own internal logic. The first stage, covering the period up to notification of the statement of objections, begins on the date on which the Commission, exercising the powers conferred on it by the EU legislature, takes measures which imply an accusation of an infringement and must enable the Commission to adopt a position on the course which the procedure is to follow. The second stage covers the period from notification of the statement of objections to adoption of the final decision. It must enable the Commission to reach a final decision on the infringement concerned (judgment of 21 September 2006 in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‐105/04 P, ECR, EU:C:2006:592, paragraph 38). |
| --- | --- |

150

Third, the Court of Justice has held that the administrative procedure may give rise to the examination of two successive periods, each corresponding to its own internal logic. The first stage, covering the period up to notification of the statement of objections, begins on the date on which the Commission, exercising the powers conferred on it by the EU legislature, takes measures which imply an accusation of an infringement and must enable the Commission to adopt a position on the course which the procedure is to follow. The second stage covers the period from notification of the statement of objections to adoption of the final decision. It must enable the Commission to reach a final decision on the infringement concerned (judgment of 21 September 2006 in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‐105/04 P, ECR, EU:C:2006:592, paragraph 38).

Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied

Commission

| 151 | Fourth, it follows from the case-law that breach of the reasonable time principle may have two types of consequences. |
| --- | --- |

151

Fourth, it follows from the case-law that breach of the reasonable time principle may have two types of consequences.

| 152 | Where the failure to comply with the reasonable time requirement has affected the outcome of the proceedings, such a breach may entail annulment of the contested decision (see, to that effect, judgment of 21 September 2006 in Technische Unie v Commission, C‐113/04 P, ECR, EU:C:2006:593, paragraph 48 and the case-law cited). |
| --- | --- |

152

Where the failure to comply with the reasonable time requirement has affected the outcome of the proceedings, such a breach may entail annulment of the contested decision (see, to that effect, judgment of 21 September 2006 in Technische Unie v Commission, C‐113/04 P, ECR, EU:C:2006:593, paragraph 48 and the case-law cited).

Technische Unie

Commission

| 153 | It should be pointed out that, for the purposes of the application of the competition rules, a failure to act within a reasonable time can constitute a ground for annulment only in the case of a decision finding infringements, where it has been proved that the breach of that principle has adversely affected the rights of defence of the undertakings concerned. Except in that specific circumstance, failure to comply with the obligation to adopt a decision within a reasonable time cannot affect the validity of the administrative procedure under Regulation No 17 (see judgment of 16 December 2003 in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, T‐5/00 and T‐6/00, ECR, EU:T:2003:342, paragraph 74 and the case-law cited, upheld on appeal on that point in the judgment in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, cited in paragraph 150 above, EU:C:2006:592, paragraphs 42 and 43). |
| --- | --- |

153

It should be pointed out that, for the purposes of the application of the competition rules, a failure to act within a reasonable time can constitute a ground for annulment only in the case of a decision finding infringements, where it has been proved that the breach of that principle has adversely affected the rights of defence of the undertakings concerned. Except in that specific circumstance, failure to comply with the obligation to adopt a decision within a reasonable time cannot affect the validity of the administrative procedure under Regulation No 17 (see judgment of 16 December 2003 in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, T‐5/00 and T‐6/00, ECR, EU:T:2003:342, paragraph 74 and the case-law cited, upheld on appeal on that point in the judgment in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, cited in paragraph 150 above, EU:C:2006:592, paragraphs 42 and 43).

Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied

Commission

Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied

Commission

| 154 | However, as respect for the rights of the defence, a principle whose fundamental nature has been emphasised on many occasions in the case-law of the Court of Justice (judgment of 9 November 1983 in Nederlandsche Banden-Industrie-Michelin v Commission, 322/81, ECR, EU:C:1983:313, paragraph 7), is of crucial importance in procedures such as that followed in the present case, it is essential to prevent those rights from being irremediably compromised on account of the excessive duration of the investigation phase and to ensure that the duration of that phase does not impede the establishment of evidence designed to refute the existence of conduct susceptible of rendering the undertakings concerned liable. For that reason, examination of any interference with the exercise of the rights of the defence must not be confined to the actual phase in which those rights are fully effective, that is to say, the second phase of the administrative procedure. The assessment of the source of any undermining of the effectiveness of the rights of the defence must extend to the entire procedure and be carried out by reference to its total duration (judgment in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, cited in paragraph 150 above, EU:C:2006:592, paragraph 50). |
| --- | --- |

154

However, as respect for the rights of the defence, a principle whose fundamental nature has been emphasised on many occasions in the case-law of the Court of Justice (judgment of 9 November 1983 in Nederlandsche Banden-Industrie-Michelin v Commission, 322/81, ECR, EU:C:1983:313, paragraph 7), is of crucial importance in procedures such as that followed in the present case, it is essential to prevent those rights from being irremediably compromised on account of the excessive duration of the investigation phase and to ensure that the duration of that phase does not impede the establishment of evidence designed to refute the existence of conduct susceptible of rendering the undertakings concerned liable. For that reason, examination of any interference with the exercise of the rights of the defence must not be confined to the actual phase in which those rights are fully effective, that is to say, the second phase of the administrative procedure. The assessment of the source of any undermining of the effectiveness of the rights of the defence must extend to the entire procedure and be carried out by reference to its total duration (judgment in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, cited in paragraph 150 above, EU:C:2006:592, paragraph 50).

Nederlandsche Banden-Industrie-Michelin

Commission

Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied

Commission

| 155 | Furthermore, where the breach of the reasonable time requirement does not affect the outcome of the procedure, such a breach may lead the Court, in the exercise of its unlimited jurisdiction, to provide an appropriate remedy for the breach resulting from failure to observe the reasonable time requirement by reducing, where appropriate, the amount of the fine imposed (see, to that effect, judgments in Technische Unie v Commission, cited in paragraph 152 above, EU:C:2006:593, paragraphs 202 to 204, and of 16 June 2011 in Heineken Nederland and Heineken v Commission, T‐240/07, ECR, EU:T:2011:284, paragraphs 429 and 434, upheld on appeal in the judgment in Heineken Nederland and Heineken v Commission, cited in paragraph 147 above, EU:C:2012:829, paragraph 100). |
| --- | --- |

155

Furthermore, where the breach of the reasonable time requirement does not affect the outcome of the procedure, such a breach may lead the Court, in the exercise of its unlimited jurisdiction, to provide an appropriate remedy for the breach resulting from failure to observe the reasonable time requirement by reducing, where appropriate, the amount of the fine imposed (see, to that effect, judgments in Technische Unie v Commission, cited in paragraph 152 above, EU:C:2006:593, paragraphs 202 to 204, and of 16 June 2011 in Heineken Nederland and Heineken v Commission, T‐240/07, ECR, EU:T:2011:284, paragraphs 429 and 434, upheld on appeal in the judgment in Heineken Nederland and Heineken v Commission, cited in paragraph 147 above, EU:C:2012:829, paragraph 100).

Technische Unie

Commission

Heineken Nederland and Heineken

Commission

Heineken Nederland and Heineken

Commission

The merits of the second plea

The merits of the second plea

| 156 | Socitrel maintains, in essence, that the Commission failed to comply with the reasonable time requirement by not adopting the initial decision until almost eight years after initiating the administrative procedure, which in Socitrel’s submission is detrimental to its rights of defence, owing in particular to the restructurings which it has undergone and to the difficulties which it has encountered in gathering evidence to the contrary, owing to the fact that various members of its staff have left over time. |
| --- | --- |

156

Socitrel maintains, in essence, that the Commission failed to comply with the reasonable time requirement by not adopting the initial decision until almost eight years after initiating the administrative procedure, which in Socitrel’s submission is detrimental to its rights of defence, owing in particular to the restructurings which it has undergone and to the difficulties which it has encountered in gathering evidence to the contrary, owing to the fact that various members of its staff have left over time.

| 157 | It follows from the foregoing that, in order for an administrative procedure of long duration to be capable of entailing annulment of the contested decision or a reduction of the amount of the fine, the duration of that procedure must be characterised as excessive. |
| --- | --- |

157

It follows from the foregoing that, in order for an administrative procedure of long duration to be capable of entailing annulment of the contested decision or a reduction of the amount of the fine, the duration of that procedure must be characterised as excessive.

| 158 | In the present case, the administrative procedure consisted of four successive phases, the first preceding the statement of objections and the next three following the statement of objections. |
| --- | --- |

158

In the present case, the administrative procedure consisted of four successive phases, the first preceding the statement of objections and the next three following the statement of objections.

| 159 | The first phase began on 9 January 2002, with the communication to the Commission by the Bundeskartellamt of the documents referred to in paragraph 21 above, and ended on 30 September 2008 with the adoption of the statement of objections. |
| --- | --- |

159

The first phase began on 9 January 2002, with the communication to the Commission by the Bundeskartellamt of the documents referred to in paragraph 21 above, and ended on 30 September 2008 with the adoption of the statement of objections.

| 160 | The second phase was then opened (see paragraphs 32 to 37 above) and was completed by the adoption of the initial decision, on 30 June 2010. |
| --- | --- |

160

The second phase was then opened (see paragraphs 32 to 37 above) and was completed by the adoption of the initial decision, on 30 June 2010.

| 161 | Following the initiation of a first series of actions (referred to in paragraph 10 above), the Commission on 30 September 2010 adopted a first amending decision (see paragraph 4 above) in order to correct various mistakes which it had found in the initial decision; that marked the close of the third phase of the administrative procedure. |
| --- | --- |

161

Following the initiation of a first series of actions (referred to in paragraph 10 above), the Commission on 30 September 2010 adopted a first amending decision (see paragraph 4 above) in order to correct various mistakes which it had found in the initial decision; that marked the close of the third phase of the administrative procedure.

| 162 | Last, on 4 April 2011, the fourth phase of the administrative procedure ended when the Commission adopted the second amending decision, whereby it granted a reduction of the amount of the fines imposed on (i) ArcelorMittal, ArcelorMittal Verderio, ArcelorMittal Fontaine and ArcelorMittal Wire France and (ii) SLM and Ori Martin (see paragraph 6 above). |
| --- | --- |

162

Last, on 4 April 2011, the fourth phase of the administrative procedure ended when the Commission adopted the second amending decision, whereby it granted a reduction of the amount of the fines imposed on (i) ArcelorMittal, ArcelorMittal Verderio, ArcelorMittal Fontaine and ArcelorMittal Wire France and (ii) SLM and Ori Martin (see paragraph 6 above).

| 163 | It should be observed at the outset that Socitrel’s plea relates only to the first two phases of the administrative procedure. |
| --- | --- |

163

It should be observed at the outset that Socitrel’s plea relates only to the first two phases of the administrative procedure.

| 164 | On 8 May 2014, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the Court addressed a written question to the Commission, in order to obtain a detailed description of the steps which the Commission had carried out following the inspections, which took place on 19 and 20 September 2002, and up to the adoption of the initial decision. |
| --- | --- |

164

On 8 May 2014, in the context of the measures of organisation of procedure provided for in Article 64 of the Rules of Procedure of 2 May 1991, the Court addressed a written question to the Commission, in order to obtain a detailed description of the steps which the Commission had carried out following the inspections, which took place on 19 and 20 September 2002, and up to the adoption of the initial decision.

| 165 | The Commission complied with that request by document lodged at the Court Registry on 6 June 2014. |
| --- | --- |

165

The Commission complied with that request by document lodged at the Court Registry on 6 June 2014.

| 166 | A copy of the Commission’s reply was communicated to Socitrel by the Court Registry on 16 June 2014. |
| --- | --- |

166

A copy of the Commission’s reply was communicated to Socitrel by the Court Registry on 16 June 2014.

| 167 | The Commission sets out in its reply, in detail and convincingly, the steps which it completed throughout the administrative procedure and the reasons why the procedure lasted from 2002 until 2010. |
| --- | --- |

167

The Commission sets out in its reply, in detail and convincingly, the steps which it completed throughout the administrative procedure and the reasons why the procedure lasted from 2002 until 2010.

| 168 | A number of factors explain the length of the administrative procedure in the present case. |
| --- | --- |

168

A number of factors explain the length of the administrative procedure in the present case.

| 169 | It is appropriate, in that respect, to have regard to the duration of the cartel (more than 18 years), to its particularly wide geographic scope (the cartel concerned most of the Member States), to the organisation of the cartel at geographic level and over time (the different clubs described in paragraphs 41 to 53), to the number of meetings held within the framework of the different clubs (more than 500), to the number of undertakings involved (17), to the number of leniency applications (see paragraphs 22 and 27 et seq. above) and to the particularly large volume of documents, supplied in connection with the leniency applications or obtained in the course of the inspections and in various languages, which had to be examined by the Commission, to the various requests for further information that had to be addressed by the Commission to the various companies involved, as understanding of the cartel developed (see paragraph 24 et seq. and paragraph 36 et seq. above), to the number of addressees of the statement of objections (more than 40), to the number of languages of the case (8) and also to the various applications relating to ability to pay (14). |
| --- | --- |

169

It is appropriate, in that respect, to have regard to the duration of the cartel (more than 18 years), to its particularly wide geographic scope (the cartel concerned most of the Member States), to the organisation of the cartel at geographic level and over time (the different clubs described in paragraphs 41 to 53), to the number of meetings held within the framework of the different clubs (more than 500), to the number of undertakings involved (17), to the number of leniency applications (see paragraphs 22 and 27 et seq. above) and to the particularly large volume of documents, supplied in connection with the leniency applications or obtained in the course of the inspections and in various languages, which had to be examined by the Commission, to the various requests for further information that had to be addressed by the Commission to the various companies involved, as understanding of the cartel developed (see paragraph 24 et seq. and paragraph 36 et seq. above), to the number of addressees of the statement of objections (more than 40), to the number of languages of the case (8) and also to the various applications relating to ability to pay (14).

| 170 | On the basis of the information supplied by the Commission, which confirms the particular complexity of the case, the Court considers that, in spite of the particular length of the first two phases of the procedure, the procedure cannot be characterised as excessive. Consequently, the Commission did not fail to comply with the reasonable time requirement. |
| --- | --- |

170

On the basis of the information supplied by the Commission, which confirms the particular complexity of the case, the Court considers that, in spite of the particular length of the first two phases of the procedure, the procedure cannot be characterised as excessive. Consequently, the Commission did not fail to comply with the reasonable time requirement.

| 171 | That conclusion is not called into question by the arguments whereby Socitrel maintains that its rights of defence have been breached because between 2002 and 2008 the Companhia Previdente group changed significantly as a result of the restructurings connected with the acquisition of a number of companies — the number of entities in the group rose from 21 to 27 — and because, from the time when it received the statement of objections, in September 2008, the facts imputed to it were so remote that none of the persons directly concerned was still present or able to recollect them. |
| --- | --- |

171

That conclusion is not called into question by the arguments whereby Socitrel maintains that its rights of defence have been breached because between 2002 and 2008 the Companhia Previdente group changed significantly as a result of the restructurings connected with the acquisition of a number of companies — the number of entities in the group rose from 21 to 27 — and because, from the time when it received the statement of objections, in September 2008, the facts imputed to it were so remote that none of the persons directly concerned was still present or able to recollect them.

| 172 | In fact, such arguments are too vague for the actual impact on Socitrel’s rights of defence to be measured. In that regard, it should be observed that, as stated in the Commission’s reply to the measures of organisation of procedure, Socitrel received the first request for information from the Commission on 11 February 2004 and that request clearly stated the material and temporal object and scope of the investigation. As from that date, Socitrel was therefore able to gather and submit for the Commission’s attention all the evidence that it deemed relevant in order to respond to the Commission. It cannot therefore rely on its own failure to gather and retain any evidence that might be used for the purposes of its defence. Likewise, in the absence of the slightest argument that would explain the extent to which the period of one and a half years between September 2002 and February 2004, during which the Commission examined the documents obtained during the inspection or submitted in the context of leniency applications, could adversely affect Socitrel’s exercise of its rights of defence, the Court is unable to consider that that period may have adversely affected that undertaking in the present case. |
| --- | --- |

172

In fact, such arguments are too vague for the actual impact on Socitrel’s rights of defence to be measured. In that regard, it should be observed that, as stated in the Commission’s reply to the measures of organisation of procedure, Socitrel received the first request for information from the Commission on 11 February 2004 and that request clearly stated the material and temporal object and scope of the investigation. As from that date, Socitrel was therefore able to gather and submit for the Commission’s attention all the evidence that it deemed relevant in order to respond to the Commission. It cannot therefore rely on its own failure to gather and retain any evidence that might be used for the purposes of its defence. Likewise, in the absence of the slightest argument that would explain the extent to which the period of one and a half years between September 2002 and February 2004, during which the Commission examined the documents obtained during the inspection or submitted in the context of leniency applications, could adversely affect Socitrel’s exercise of its rights of defence, the Court is unable to consider that that period may have adversely affected that undertaking in the present case.

| 173 | The second plea should therefore be rejected. |
| --- | --- |

173

The second plea should therefore be rejected.

3. The third plea put forward by Socitrel, alleging breach of the Commission’s duty of diligence, of the rights of the defence and of the principles of fairness, good faith and legitimate expectations

The third plea put forward by Socitrel, alleging breach of the Commission’s duty of diligence, of the rights of the defence and of the principles of fairness, good faith and legitimate expectations

Outline of the principles

Outline of the principles

| 174 | It should be borne in mind, first of all, that the principle of the protection of legitimate expectations is among the fundamental principles of the European Union. According to the case-law, the right to rely on that principle assumes that three conditions are satisfied. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the administration. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see judgment of 9 September 2011 in Deltafina v Commission, T‐12/06, ECR, EU:T:2011:441, paragraph 190 and the case-law cited). |
| --- | --- |

174

It should be borne in mind, first of all, that the principle of the protection of legitimate expectations is among the fundamental principles of the European Union. According to the case-law, the right to rely on that principle assumes that three conditions are satisfied. First, precise, unconditional and consistent assurances originating from authorised and reliable sources must have been given to the person concerned by the administration. Second, those assurances must be such as to give rise to a legitimate expectation on the part of the person to whom they are addressed. Third, the assurances given must comply with the applicable rules (see judgment of 9 September 2011 in Deltafina v Commission, T‐12/06, ECR, EU:T:2011:441, paragraph 190 and the case-law cited).

Deltafina

Commission

| 175 | Furthermore, it is settled case-law that the duty of diligence entails the obligation for the Commission to examine carefully and impartially all the relevant aspects of the individual case (see judgments of 21 November 1991 in Technische Universität München, C‐269/90, ECR, EU:C:1991:438, paragraph 14, and 16 September 2013ATC and Others v Commission, T‐333/10, ECR, EU:T:2013:451, paragraph 84 and the case-law cited). |
| --- | --- |

175

Furthermore, it is settled case-law that the duty of diligence entails the obligation for the Commission to examine carefully and impartially all the relevant aspects of the individual case (see judgments of 21 November 1991 in Technische Universität München, C‐269/90, ECR, EU:C:1991:438, paragraph 14, and 16 September 2013ATC and Others v Commission, T‐333/10, ECR, EU:T:2013:451, paragraph 84 and the case-law cited).

Technische Universität München

ATC and Others

Commission

| 176 | It has also been repeatedly held that it is lawful and in the interest of sound administrative management that an institution should correct the errors and omissions in a decision (see, to that effect, judgment of 14 December 2006 in Germany v Commission, T‐314/04 and T‐414/04, EU:T:2006:399, paragraph 45, and order of 22 November 2007 in Investire Partecipazioni v Commission, T‐418/05, EU:T:2007:354, paragraph 40). |
| --- | --- |

176

It has also been repeatedly held that it is lawful and in the interest of sound administrative management that an institution should correct the errors and omissions in a decision (see, to that effect, judgment of 14 December 2006 in Germany v Commission, T‐314/04 and T‐414/04, EU:T:2006:399, paragraph 45, and order of 22 November 2007 in Investire Partecipazioni v Commission, T‐418/05, EU:T:2007:354, paragraph 40).

Germany

Commission

Investire Partecipazioni

Commission

The merits of the third plea

The merits of the third plea

| 177 | Socitrel maintains, in essence, that when the initial decision had been adopted, it was informed by the Commission that that decision would be amended. Socitrel was thus required to bring an action without knowing what the actual substance of the decision imposing a fine on it was. The Commission thus breached its duty of diligence — which is confirmed, should that be necessary, by the fact that the Commission then amended the decision for a second time, without that second amending decision being notified to Socitrel — and it thus also breached Socitrel’s rights of defence. |
| --- | --- |

177

Socitrel maintains, in essence, that when the initial decision had been adopted, it was informed by the Commission that that decision would be amended. Socitrel was thus required to bring an action without knowing what the actual substance of the decision imposing a fine on it was. The Commission thus breached its duty of diligence — which is confirmed, should that be necessary, by the fact that the Commission then amended the decision for a second time, without that second amending decision being notified to Socitrel — and it thus also breached Socitrel’s rights of defence.

| 178 | However, that argument cannot succeed. |
| --- | --- |

178

However, that argument cannot succeed.

| 179 | The Commission cannot allow to remain in the legal order a decision which it knows to be vitiated with errors and omissions and, to that extent, it is lawful and in the interest of sound administrative management that an institution should correct the errors and omissions in the initial decision (see the case-law referred to in paragraph 176 above). |
| --- | --- |

179

The Commission cannot allow to remain in the legal order a decision which it knows to be vitiated with errors and omissions and, to that extent, it is lawful and in the interest of sound administrative management that an institution should correct the errors and omissions in the initial decision (see the case-law referred to in paragraph 176 above).

| 180 | The Commission cannot therefore be criticised for having corrected, by the first amending decision, the errors and omissions which it had found in the initial decision. |
| --- | --- |

180

The Commission cannot therefore be criticised for having corrected, by the first amending decision, the errors and omissions which it had found in the initial decision.

| 181 | It should be emphasised that in doing so the Commission also enhanced the reasoning on which the contested decision was based. |
| --- | --- |

181

It should be emphasised that in doing so the Commission also enhanced the reasoning on which the contested decision was based.

| 182 | Admittedly, the first amending decision was adopted by the Commission after several actions, including the applicants’, had been brought, originally, against the initial decision. However, Socitrel — like the other undertakings that brought proceedings — was invited by the Court to amend its pleas and the form of order sought, if necessary, following the adoption of that decision. |
| --- | --- |

182

Admittedly, the first amending decision was adopted by the Commission after several actions, including the applicants’, had been brought, originally, against the initial decision. However, Socitrel — like the other undertakings that brought proceedings — was invited by the Court to amend its pleas and the form of order sought, if necessary, following the adoption of that decision.

| 183 | It should be noted that Socitrel amended its pleas in the light of the first amending decision, by document lodged at the Court Registry on 10 December 2010. |
| --- | --- |

183

It should be noted that Socitrel amended its pleas in the light of the first amending decision, by document lodged at the Court Registry on 10 December 2010.

| 184 | In addition, although it was not an addressee of the second amending decision, Socitrel received a copy of that decision at the initiative of the Court, which invited it to amend its pleas and the form of order sought, if necessary, which it did, so far as its pleas were concerned, by document lodged at the Court Registry on 2 August 2011. |
| --- | --- |

184

In addition, although it was not an addressee of the second amending decision, Socitrel received a copy of that decision at the initiative of the Court, which invited it to amend its pleas and the form of order sought, if necessary, which it did, so far as its pleas were concerned, by document lodged at the Court Registry on 2 August 2011.

| 185 | Socitrel cannot therefore maintain that its rights of defence were breached by the Commission when the latter adopted those amending decisions. |
| --- | --- |

185

Socitrel cannot therefore maintain that its rights of defence were breached by the Commission when the latter adopted those amending decisions.

| 186 | Socitrel also claims that the Commission breached the principle of legitimate expectations and also the principles of fairness and good faith, although the reasons for invoking the last two principles are not clearly stated in its application. |
| --- | --- |

186

Socitrel also claims that the Commission breached the principle of legitimate expectations and also the principles of fairness and good faith, although the reasons for invoking the last two principles are not clearly stated in its application.

| 187 | In so far as Socitrel seeks to maintain, by that argument, that in correcting the initial decision the Commission prevented its action against the initial decision from succeeding, it must be held that the Commission was entitled, in the interest of sound administration, to correct the initial decision, which was vitiated by errors and omissions, before the Court made its determination. |
| --- | --- |

187

In so far as Socitrel seeks to maintain, by that argument, that in correcting the initial decision the Commission prevented its action against the initial decision from succeeding, it must be held that the Commission was entitled, in the interest of sound administration, to correct the initial decision, which was vitiated by errors and omissions, before the Court made its determination.

| 188 | No precise, unconditional and consistent assurance, originating from authorised and reliable sources, that a decision vitiated by errors and omissions would be maintained until such time as it was annulled by the Court can therefore have been given to Socitrel by the administration. |
| --- | --- |

188

No precise, unconditional and consistent assurance, originating from authorised and reliable sources, that a decision vitiated by errors and omissions would be maintained until such time as it was annulled by the Court can therefore have been given to Socitrel by the administration.

| 189 | Nor can the Commission be criticised for acting unfairly or in bad faith on the sole ground that it amended a decision which, on its own admission, was vitiated by various errors and omissions. |
| --- | --- |

189

Nor can the Commission be criticised for acting unfairly or in bad faith on the sole ground that it amended a decision which, on its own admission, was vitiated by various errors and omissions.

| 190 | The third plea must therefore be rejected in its entirety. |
| --- | --- |

190

The third plea must therefore be rejected in its entirety.

4. The fourth plea put forward by Socitrel and the first three pleas put forward by Companhia Previdente, alleging infringement of Article 101(1) TFEU and Article 23(2) of Regulation No 1/2003, breach of the principles of proportionality and personal responsibility and also of the presumption of innocence, and failure to state reasons and failure by the Commission to follow its previous practice in taking decisions, in so far as the maximum limit of the fine that could be imposed on Socitrel was exceeded

The fourth plea put forward by Socitrel and the first three pleas put forward by Companhia Previdente, alleging infringement of Article 101(1) TFEU and Article 23(2) of Regulation No 1/2003, breach of the principles of proportionality and personal responsibility and also of the presumption of innocence, and failure to state reasons and failure by the Commission to follow its previous practice in taking decisions, in so far as the maximum limit of the fine that could be imposed on Socitrel was exceeded

The first part of the fourth plea put forward by Socitrel and the first and second pleas submitted by Companhia Previdente, alleging that Companhia Previdente was wrongly held jointly and severally liable by the Commission and, consequently, that the maximum amount of 10% of turnover was incorrectly calculated on Companhia Previdente’s turnover instead of on Socitrel’s

The first part of the fourth plea put forward by Socitrel and the first and second pleas submitted by Companhia Previdente, alleging that Companhia Previdente was wrongly held jointly and severally liable by the Commission and, consequently, that the maximum amount of 10% of turnover was incorrectly calculated on Companhia Previdente’s turnover instead of on Socitrel’s

Outline of the facts

| 191 | Companhia Previdente is a company that manages shareholdings in various companies. |
| --- | --- |

191

Companhia Previdente is a company that manages shareholdings in various companies.

| 192 | Between 1994 and 1998, it had a direct shareholding of 21.2% in the capital of Socitrel and 70% in the capital of Preside SGPS, which owned 70.6% of Socitrel’s capital. |
| --- | --- |

192

Between 1994 and 1998, it had a direct shareholding of 21.2% in the capital of Socitrel and 70% in the capital of Preside SGPS, which owned 70.6% of Socitrel’s capital.

| 193 | Between 30 December 1998 and 19 September 2002, Companhia Previdente increased its shareholding in Preside SGPS to 100% of the latter’s capital. |
| --- | --- |

193

Between 30 December 1998 and 19 September 2002, Companhia Previdente increased its shareholding in Preside SGPS to 100% of the latter’s capital.

| 194 | It is common ground that Companhia Previdente therefore had, during that period, a shareholding in Socitrel’s capital of 91.8% to 93.7%. |
| --- | --- |

194

It is common ground that Companhia Previdente therefore had, during that period, a shareholding in Socitrel’s capital of 91.8% to 93.7%.

| 195 | Furthermore, after the date on which the infringement came to an end, Companhia Previdente acquired various companies, including Emesa, Galycas and ITC, all three of which were also penalised by the Commission for their participation in the cartel. |
| --- | --- |

195

Furthermore, after the date on which the infringement came to an end, Companhia Previdente acquired various companies, including Emesa, Galycas and ITC, all three of which were also penalised by the Commission for their participation in the cartel.

The contested decision

| 196 | According to recitals 765 to 768 of the contested decision:
  
  
  
  
  
  ‘(765) | Between 1994 and the end of 1998, Companhia Previdente directly owned 21.2% of Socitrel and 70% of Preside, SGPS which, in turn and throughout the same period, owned 70.6% of Socitrel. Between 30 December 1998 and the end of 2002, Companhia Previdente owned 100% of Preside, SGPS and through Preside, SGPS, it directly and indirectly owned 91.8% to 93.7% of Socitrel. As explained in recital 32, at least between the beginning of 1994 and the end of 2002, there were numerous and strong personnel links between Socitrel and Companhia Previdente. |
| --- | --- | --- |

196

According to recitals 765 to 768 of the contested decision:

‘(765)

Between 1994 and the end of 1998, Companhia Previdente directly owned 21.2% of Socitrel and 70% of Preside, SGPS which, in turn and throughout the same period, owned 70.6% of Socitrel. Between 30 December 1998 and the end of 2002, Companhia Previdente owned 100% of Preside, SGPS and through Preside, SGPS, it directly and indirectly owned 91.8% to 93.7% of Socitrel. As explained in recital 32, at least between the beginning of 1994 and the end of 2002, there were numerous and strong personnel links between Socitrel and Companhia Previdente.

| (766) | Companhia Previdente claims that it should not be held jointly and severally liable with Socitrel because it did not have decisive influence on Socitrel’s behaviour. First, it submits that the Commission did not present concrete facts from which Companhia Previdente’s decisive influence on Socitrel could be deduced. Further, it argues that until 1999 — when Socitrel became its almost wholly owned subsidiary — the presumption of decisive influence could not apply. The two companies were separate entities, with different activities and Socitrel was autonomous in its commercial activity and strategy. This was illustrated by the fact that after buying Socitrel, the latter’s Executive Administration would not have been changed and would have remained totally independent. Also, Companhia Previdente limited itself to exercising its social rights and obligations, such as the approval of Socitrel’s financial statements and deciding on the dividend and capital structure policy. Companhia Previdente finally argues that its Board members participated in Socitrel’s Board with a non-executive function and that, according to the Portuguese company law, this participation in Socitrel’s Board was personal and not in representation of the parent company. |
| --- | --- |

(766)

Companhia Previdente claims that it should not be held jointly and severally liable with Socitrel because it did not have decisive influence on Socitrel’s behaviour. First, it submits that the Commission did not present concrete facts from which Companhia Previdente’s decisive influence on Socitrel could be deduced. Further, it argues that until 1999 — when Socitrel became its almost wholly owned subsidiary — the presumption of decisive influence could not apply. The two companies were separate entities, with different activities and Socitrel was autonomous in its commercial activity and strategy. This was illustrated by the fact that after buying Socitrel, the latter’s Executive Administration would not have been changed and would have remained totally independent. Also, Companhia Previdente limited itself to exercising its social rights and obligations, such as the approval of Socitrel’s financial statements and deciding on the dividend and capital structure policy. Companhia Previdente finally argues that its Board members participated in Socitrel’s Board with a non-executive function and that, according to the Portuguese company law, this participation in Socitrel’s Board was personal and not in representation of the parent company.

| (767) | While the Commission considers that the presumption of exercise of decisive influence applies for the period between 30 December 1998 and the end of 2002, when Companhia Previdente owned 91.8% to 93.7% of Socitrel, in any event Companhia Previdente’s arguments cannot be upheld in view of the numerous and strong personnel links existing between the two companies between at least the beginning of 1994 and the end of 2002, as described in recital 32. In particular, the Commission emphasises that not only Messrs P.B., L.F. and A.S. were members of both companies’ Board of Directors but they were also regularly and continuously attending the cartel meetings for Socitrel. Therefore, the Commission considers that Companhia Previdente exercised decisive influence on the conduct of the Socitrel undertaking for the entire duration of the latter’s participation in the cartel (see recital 694). |
| --- | --- |

(767)

While the Commission considers that the presumption of exercise of decisive influence applies for the period between 30 December 1998 and the end of 2002, when Companhia Previdente owned 91.8% to 93.7% of Socitrel, in any event Companhia Previdente’s arguments cannot be upheld in view of the numerous and strong personnel links existing between the two companies between at least the beginning of 1994 and the end of 2002, as described in recital 32. In particular, the Commission emphasises that not only Messrs P.B., L.F. and A.S. were members of both companies’ Board of Directors but they were also regularly and continuously attending the cartel meetings for Socitrel. Therefore, the Commission considers that Companhia Previdente exercised decisive influence on the conduct of the Socitrel undertaking for the entire duration of the latter’s participation in the cartel (see recital 694).

| (768) | Consequently the Decision should be addressed to [Socitrel] and [Companhia Previdente]. [Socitrel] should be held liable for its direct participation in the cartel in the period 7 April 1994 until 19 September 2002. [Companhia Previdente] should be held jointly and severally liable with [Socitrel] for the same period.’ |
| --- | --- |

(768)

Consequently the Decision should be addressed to [Socitrel] and [Companhia Previdente]. [Socitrel] should be held liable for its direct participation in the cartel in the period 7 April 1994 until 19 September 2002. [Companhia Previdente] should be held jointly and severally liable with [Socitrel] for the same period.’

Outline of the principles

| 197 | It is settled case-law that the concept of ‘undertaking’ covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. On that point, the Court of Justice has stated that in this context the term ‘undertaking’ must be understood as designating an economic unit even if in law that economic unit consists of several natural or legal persons, and that when such an economic entity infringes the competition rules, it is for that entity, according to the principle of personal responsibility, to answer for that infringement (see judgment of 29 September 2011 in Elf Aquitaine v Commission, C‐521/09 P, ECR, EU:C:2011:620, paragraph 53 and the case-law cited). |
| --- | --- |

197

It is settled case-law that the concept of ‘undertaking’ covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. On that point, the Court of Justice has stated that in this context the term ‘undertaking’ must be understood as designating an economic unit even if in law that economic unit consists of several natural or legal persons, and that when such an economic entity infringes the competition rules, it is for that entity, according to the principle of personal responsibility, to answer for that infringement (see judgment of 29 September 2011 in Elf Aquitaine v Commission, C‐521/09 P, ECR, EU:C:2011:620, paragraph 53 and the case-law cited).

Elf Aquitaine

Commission

| 198 | It is also clear from settled case-law 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 (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 54 and the case-law cited). |
| --- | --- |

198

It is also clear from settled case-law 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 (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 54 and the case-law cited).

Elf Aquitaine

Commission

| 199 | In such a situation, since the parent company and its subsidiary are part of the same economic unit and therefore form a single undertaking for the purposes of Article 101 TFEU, the Commission may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 55 and the case-law cited). Thus, the factor which entitles the Commission to address the decision imposing fines to the parent company is not necssarily a parent-subsidiary relationship in which the parent company instigates the infringement; nor, a fortiori, is it because of the parent company’s involvement in the infringement; rather, it is because the companies concerned constitute a single undertaking for the purposes of Article 101 TFEU (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 88). |
| --- | --- |

199

In such a situation, since the parent company and its subsidiary are part of the same economic unit and therefore form a single undertaking for the purposes of Article 101 TFEU, the Commission may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 55 and the case-law cited). Thus, the factor which entitles the Commission to address the decision imposing fines to the parent company is not necssarily a parent-subsidiary relationship in which the parent company instigates the infringement; nor, a fortiori, is it because of the parent company’s involvement in the infringement; rather, it is because the companies concerned constitute a single undertaking for the purposes of Article 101 TFEU (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 88).

Elf Aquitaine

Commission

a fortiori

Elf Aquitaine

Commission

| 200 | It must be made clear that, according to that case-law, the Commission cannot merely find that an undertaking ‘was able’ to exert a decisive influence over another undertaking, without checking whether that influence was actually exerted. It follows from that case-law, on the contrary, that it is, in principle, for the Commission to demonstrate such decisive influence on the basis of a body of factual elements, including, in particular, any power that one of those undertakings may have to issue directions to the other (see, to that effect, judgments of 2 October 2003 in Aristrain v Commission, C‐196/99 P, ECR, EU:C:2003:529, paragraphs 95 to 99; 28 June 2005Dansk Rørindustri and Others v Commission, C‐189/02 P, C‐202/02 P, C‐205/02 P to C‐208/02 P and C‐213/02 P, ECR, EU:C:2005:408, paragraphs 118 to 122; and 20 March 2002HFB and Others v Commission, T‐9/99, ECR, EU:T:2002:70, paragraph 527). |
| --- | --- |

200

It must be made clear that, according to that case-law, the Commission cannot merely find that an undertaking ‘was able’ to exert a decisive influence over another undertaking, without checking whether that influence was actually exerted. It follows from that case-law, on the contrary, that it is, in principle, for the Commission to demonstrate such decisive influence on the basis of a body of factual elements, including, in particular, any power that one of those undertakings may have to issue directions to the other (see, to that effect, judgments of 2 October 2003 in Aristrain v Commission, C‐196/99 P, ECR, EU:C:2003:529, paragraphs 95 to 99; 28 June 2005Dansk Rørindustri and Others v Commission, C‐189/02 P, C‐202/02 P, C‐205/02 P to C‐208/02 P and C‐213/02 P, ECR, EU:C:2005:408, paragraphs 118 to 122; and 20 March 2002HFB and Others v Commission, T‐9/99, ECR, EU:T:2002:70, paragraph 527).

Aristrain

Commission

Dansk Rørindustri and Others

Commission

HFB and Others

Commission

| 201 | However, the Court of Justice has stated that, in the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules of the European Union: (i) the parent company is able to exercise decisive influence over the conduct of the subsidiary; and (ii) there is a rebuttable presumption that the parent company does in fact exercise such influence (‘the presumption of actual exercise of decisive influence’) (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 56 and the case-law cited). |
| --- | --- |

201

However, the Court of Justice has stated that, in the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules of the European Union: (i) the parent company is able to exercise decisive influence over the conduct of the subsidiary; and (ii) there is a rebuttable presumption that the parent company does in fact exercise such influence (‘the presumption of actual exercise of decisive influence’) (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 56 and the case-law cited).

Elf Aquitaine

Commission

| 202 | 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 actually exercises decisive influence over the subsidiary’s commercial policy. The Commission will then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 57 and the case-law cited). |
| --- | --- |

202

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 actually exercises decisive influence over the subsidiary’s commercial policy. The Commission will then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 57 and the case-law cited).

Elf Aquitaine

Commission

| 203 | It should be pointed out that, although it is true that the Court of Justice has referred in its case-law, in addition to ownership of 100% of the share capital of the subsidiary, to other circumstances, such as fact that it was not disputed that the parent company exercised decisive influence over the commercial policy of its subsidiary and the fact that the two companies were jointly represented during the administrative procedure (judgment of 16 November 2000 in Stora Kopparbergs Bergslags v Commission, C‐286/98 P, ECR, EU:C:2000:630, paragraphs 28 and 29), the fact nonetheless remains that such circumstances were not mentioned by the Court of Justice with the aim of making the application of the presumption conditional on the production of further indicia of the actual exercise of influence by the parent company (see, to that effect, judgment of 10 September 2009 in Akzo Nobel and Others v Commission, C‐97/08 P, ECR, EU:C:2009:536, paragraphs 60 to 62 and the case-law cited). In other words, the Commission is not required, in order to apply the presumption of actual exercise of decisive influence in a given case, to provide indicia over and above those demonstrating the applicability and operation of that presumption (see, to that effect, judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 80 and the case-law cited). |
| --- | --- |

203

It should be pointed out that, although it is true that the Court of Justice has referred in its case-law, in addition to ownership of 100% of the share capital of the subsidiary, to other circumstances, such as fact that it was not disputed that the parent company exercised decisive influence over the commercial policy of its subsidiary and the fact that the two companies were jointly represented during the administrative procedure (judgment of 16 November 2000 in Stora Kopparbergs Bergslags v Commission, C‐286/98 P, ECR, EU:C:2000:630, paragraphs 28 and 29), the fact nonetheless remains that such circumstances were not mentioned by the Court of Justice with the aim of making the application of the presumption conditional on the production of further indicia of the actual exercise of influence by the parent company (see, to that effect, judgment of 10 September 2009 in Akzo Nobel and Others v Commission, C‐97/08 P, ECR, EU:C:2009:536, paragraphs 60 to 62 and the case-law cited). In other words, the Commission is not required, in order to apply the presumption of actual exercise of decisive influence in a given case, to provide indicia over and above those demonstrating the applicability and operation of that presumption (see, to that effect, judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 80 and the case-law cited).

Stora Kopparbergs Bergslags

Commission

Akzo Nobel and Others

Commission

Elf Aquitaine

Commission

| 204 | However, a parent company which holds almost all the capital of its subsidiary is, as a general rule, in a similar situation to that of a sole owner as regards its power to exercise a decisive influence over the conduct of its subsidiary, having regard to the economic, organisational and legal links which join it to that subsidiary. Consequently, the Commission is entitled to apply to that situation the same evidential regime, namely to rely on the presumption that that parent company makes effective use of its power to exercise a decisive influence over the conduct of its subsidiary. However, it cannot be precluded that in certain cases minority shareholders may have rights vis-à-vis the subsidiary that allow the abovementioned analogy to be called into question (judgment of 30 September 2009 in Arkema v Commission, T‐168/05, EU:T:2009:367, paragraph 53, upheld on appeal in the judgment of 29 September 2011 in Arkema v Commission, C‐520/09 P, ECR, EU:C:2011:619). |
| --- | --- |

204

However, a parent company which holds almost all the capital of its subsidiary is, as a general rule, in a similar situation to that of a sole owner as regards its power to exercise a decisive influence over the conduct of its subsidiary, having regard to the economic, organisational and legal links which join it to that subsidiary. Consequently, the Commission is entitled to apply to that situation the same evidential regime, namely to rely on the presumption that that parent company makes effective use of its power to exercise a decisive influence over the conduct of its subsidiary. However, it cannot be precluded that in certain cases minority shareholders may have rights vis-à-vis the subsidiary that allow the abovementioned analogy to be called into question (judgment of 30 September 2009 in Arkema v Commission, T‐168/05, EU:T:2009:367, paragraph 53, upheld on appeal in the judgment of 29 September 2011 in Arkema v Commission, C‐520/09 P, ECR, EU:C:2011:619).

Arkema

Commission

Arkema

Commission

| 205 | The purpose of the presumption of actual exercise of decisive influence is, 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 101 TFEU, and of preventing a repetition of such conduct, and, on the other hand, the importance of 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, the principle of legal certainty and the principle of the rights of the defence, including the principle of equality of arms. It is, in particular, for that reason that the presumption is rebuttable (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 59). |
| --- | --- |

205

The purpose of the presumption of actual exercise of decisive influence is, 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 101 TFEU, and of preventing a repetition of such conduct, and, on the other hand, the importance of 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, the principle of legal certainty and the principle of the rights of the defence, including the principle of equality of arms. It is, in particular, for that reason that the presumption is rebuttable (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 59).

Elf Aquitaine

Commission

| 206 | It should be borne in mind, furthermore, that that presumption is based on the fact that, save in quite exceptional circumstances, a company holding all the capital of a subsidiary can, on the basis of that shareholding alone, exercise decisive influence over that subsidiary’s conduct and, furthermore, 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 (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 60). |
| --- | --- |

206

It should be borne in mind, furthermore, that that presumption is based on the fact that, save in quite exceptional circumstances, a company holding all the capital of a subsidiary can, on the basis of that shareholding alone, exercise decisive influence over that subsidiary’s conduct and, furthermore, 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 (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 60).

Elf Aquitaine

Commission

| 207 | 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 robbed of its usefulness (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 61). |
| --- | --- |

207

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 robbed of its usefulness (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 61).

Elf Aquitaine

Commission

| 208 | Furthermore, it has consistently been held that the mere fact that the parent company is a holding company is not sufficient to preclude the possibility that it exercised decisive influence over that subsidiary. In the context of a group of companies, a holding company that coordinates, inter alia, financial investments within the group is a company which is in a position to regroup shareholdings in various companies and whose function is to ensure that they are run as one, including by means of such budgetary control (see, to that effect, judgments of 8 October 2008 in Schunk and Schunk Kohlenstoff-Technik v Commission, T‐69/04, ECR, EU:T:2008:415, paragraph 63; 13 July 2011Shell Petroleum and Others v Commission, T‐38/07, ECR, EU:T:2011:355, paragraph 70 and the case-law cited; and 29 June 2012E.ON Ruhrgas and E.ON v Commission, T‐360/09, ECR, EU:T:2012:332, paragraph 283). |
| --- | --- |

208

Furthermore, it has consistently been held that the mere fact that the parent company is a holding company is not sufficient to preclude the possibility that it exercised decisive influence over that subsidiary. In the context of a group of companies, a holding company that coordinates, inter alia, financial investments within the group is a company which is in a position to regroup shareholdings in various companies and whose function is to ensure that they are run as one, including by means of such budgetary control (see, to that effect, judgments of 8 October 2008 in Schunk and Schunk Kohlenstoff-Technik v Commission, T‐69/04, ECR, EU:T:2008:415, paragraph 63; 13 July 2011Shell Petroleum and Others v Commission, T‐38/07, ECR, EU:T:2011:355, paragraph 70 and the case-law cited; and 29 June 2012E.ON Ruhrgas and E.ON v Commission, T‐360/09, ECR, EU:T:2012:332, paragraph 283).

Schunk and Schunk Kohlenstoff-Technik

Commission

Shell Petroleum and Others

Commission

E.ON Ruhrgas and E.ON

Commission

| 209 | In order to ascertain whether a subsidiary determines its conduct on the market independently, account must also be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (judgment in Akzo Nobel and Others v Commission, cited in paragraph 203 above, EU:C:2009:536, paragraph 74). |
| --- | --- |

209

In order to ascertain whether a subsidiary determines its conduct on the market independently, account must also be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (judgment in Akzo Nobel and Others v Commission, cited in paragraph 203 above, EU:C:2009:536, paragraph 74).

Akzo Nobel and Others

Commission

| 210 | It is not necessary to restrict that assessment to matters relating solely to the subsidiary’s commercial policy stricto sensu, such as the distribution or pricing strategy. In particular, the presumption of exercise of decisive influence cannot be rebutted merely by showing that it is the subsidiary that manages those specific aspects of its commercial policy, without receiving instructions (see judgment of 16 June 2011 in FMC v Commission, T‐197/06, ECR, EU:T:2011:282, paragraph 105 and the case-law cited). It follows that the independence of the subsidiary, for the purposes of the abovementioned case-law, cannot be established merely by showing that it manages the specific aspects of its policy relating to the marketing of the products concerned by the infringement (judgment in FMC v Commission, EU:T:2011:282, paragraph 106). |
| --- | --- |

210

It is not necessary to restrict that assessment to matters relating solely to the subsidiary’s commercial policy stricto sensu, such as the distribution or pricing strategy. In particular, the presumption of exercise of decisive influence cannot be rebutted merely by showing that it is the subsidiary that manages those specific aspects of its commercial policy, without receiving instructions (see judgment of 16 June 2011 in FMC v Commission, T‐197/06, ECR, EU:T:2011:282, paragraph 105 and the case-law cited). It follows that the independence of the subsidiary, for the purposes of the abovementioned case-law, cannot be established merely by showing that it manages the specific aspects of its policy relating to the marketing of the products concerned by the infringement (judgment in FMC v Commission, EU:T:2011:282, paragraph 106).

stricto sensu

FMC

Commission

FMC

Commission

| 211 | Likewise, given that the independence of the subsidiary is not to be assessed solely by reference to the operational management aspects of the undertaking, the fact that the subsidiary never implemented for the benefit of its parent company a specific information policy on the market concerned is not sufficient to show that it was independent (judgment in FMC v Commission, cited in paragraph 210 above, EU:T:2011:282, paragraph 145). |
| --- | --- |

211

Likewise, given that the independence of the subsidiary is not to be assessed solely by reference to the operational management aspects of the undertaking, the fact that the subsidiary never implemented for the benefit of its parent company a specific information policy on the market concerned is not sufficient to show that it was independent (judgment in FMC v Commission, cited in paragraph 210 above, EU:T:2011:282, paragraph 145).

FMC

Commission

| 212 | Furthermore, the fact that it is not apparent from the documents in the file that the parent company gave instructions to its subsidiary cannot prove that such instructions did not exist (see judgment in Arkema France and Others v Commission, T‐217/06, EU:T:2011:251, paragraph 118 and the case-law cited). |
| --- | --- |

212

Furthermore, the fact that it is not apparent from the documents in the file that the parent company gave instructions to its subsidiary cannot prove that such instructions did not exist (see judgment in Arkema France and Others v Commission, T‐217/06, EU:T:2011:251, paragraph 118 and the case-law cited).

Arkema France and Others

Commission

| 213 | It should also be observed that the Courts of the European Union consider that the fact that the parent company is represented in the management bodies of its subsidiary is relevant evidence that it exercises actual control over the subsidiary’s commercial policy (judgment of 27 September 2012 in Total v Commission, T‐344/06, EU:T:2012:479, paragraph 73; see also, to that effect, judgments of 26 April 2007 in Bolloré and Others v Commission, T‐109/02, T‐118/02, T‐122/02, T‐125/02, T‐126/02, T‐128/02, T‐129/02, T‐132/02 and T‐136/02, ECR, EU:T:2007:115, paragraph 137, and FMC v Commission, cited in paragraph 210 above, EU:T:2011:282, paragraph 150). |
| --- | --- |

213

It should also be observed that the Courts of the European Union consider that the fact that the parent company is represented in the management bodies of its subsidiary is relevant evidence that it exercises actual control over the subsidiary’s commercial policy (judgment of 27 September 2012 in Total v Commission, T‐344/06, EU:T:2012:479, paragraph 73; see also, to that effect, judgments of 26 April 2007 in Bolloré and Others v Commission, T‐109/02, T‐118/02, T‐122/02, T‐125/02, T‐126/02, T‐128/02, T‐129/02, T‐132/02 and T‐136/02, ECR, EU:T:2007:115, paragraph 137, and FMC v Commission, cited in paragraph 210 above, EU:T:2011:282, paragraph 150).

Total

Commission

Bolloré and Others

Commission

FMC

Commission

| 214 | Last, a parent company may, moreover, be held liable for an infringement committed by a subsidiary even where there is a large number of operating companies in a group (judgments in Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 149 above, EU:T:1999:80, paragraph 989, and of 27 September 2012 in Shell Petroleum and Others v Commission, T‐343/06, ECR, EU:T:2012:478, paragraph 52). |
| --- | --- |

214

Last, a parent company may, moreover, be held liable for an infringement committed by a subsidiary even where there is a large number of operating companies in a group (judgments in Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 149 above, EU:T:1999:80, paragraph 989, and of 27 September 2012 in Shell Petroleum and Others v Commission, T‐343/06, ECR, EU:T:2012:478, paragraph 52).

Limburgse Vinyl Maatschappij and Others

Commission

Shell Petroleum and Others

Commission

The merits of the first part of the fourth plea put forward by Socitrel and the first and second pleas submitted by Companhia Previdente

| 215 | It should be borne in mind that Socitrel was held liable in respect of the period from 7 April 1994 to 19 September 2002 and that Companhia Previdente was held jointly and severally liable in respect of the same infringement period. |
| --- | --- |

215

It should be borne in mind that Socitrel was held liable in respect of the period from 7 April 1994 to 19 September 2002 and that Companhia Previdente was held jointly and severally liable in respect of the same infringement period.

| 216 | However, it is necessary to distinguish the period from 7 April 1994 to 29 December 1998, in respect of which the Commission considered, in essence, that it had evidence showing that Companhia Previdente exercised decisive influence over Socitrel, and the period from 30 December 1998 to 19 September 2002, in respect of which the Commission considered that, given the size of Companhia Previdente’s shareholding in the capital of its subsidiary Socitrel, the presumption of actual exercise of decisive influence could be applied. |
| --- | --- |

216

However, it is necessary to distinguish the period from 7 April 1994 to 29 December 1998, in respect of which the Commission considered, in essence, that it had evidence showing that Companhia Previdente exercised decisive influence over Socitrel, and the period from 30 December 1998 to 19 September 2002, in respect of which the Commission considered that, given the size of Companhia Previdente’s shareholding in the capital of its subsidiary Socitrel, the presumption of actual exercise of decisive influence could be applied.

| 217 | The applicants maintain, in essence, first, that Companhia Previdente cannot be held liable since the infringement was committed solely by Socitrel and there is no evidence that the parent company participated or was even merely aware of the infringement; second, that the Commission cannot make use of the presumption of actual exercise of decisive influence, since Companhia Previdente never owned 100% of its subsidiary’s share capital; third, that in any even they put forward evidence that rebuts that presumption; and fourth, and last, that for the period from 7 April 1994 to 29 December 1998 the Commission merely referred to ‘numerous and strong personnel links’ between Companhia Previdente and Socitrel and to the fact that certain managers common to both companies were aware of the cartel, but without having regard to the arguments which the applicants put forward to show that there was no decisive influence by the parent company over the subsidiary. |
| --- | --- |

217

The applicants maintain, in essence, first, that Companhia Previdente cannot be held liable since the infringement was committed solely by Socitrel and there is no evidence that the parent company participated or was even merely aware of the infringement; second, that the Commission cannot make use of the presumption of actual exercise of decisive influence, since Companhia Previdente never owned 100% of its subsidiary’s share capital; third, that in any even they put forward evidence that rebuts that presumption; and fourth, and last, that for the period from 7 April 1994 to 29 December 1998 the Commission merely referred to ‘numerous and strong personnel links’ between Companhia Previdente and Socitrel and to the fact that certain managers common to both companies were aware of the cartel, but without having regard to the arguments which the applicants put forward to show that there was no decisive influence by the parent company over the subsidiary.

| 218 | However, none of those arguments can be accepted. |
| --- | --- |

218

However, none of those arguments can be accepted.

| 219 | The Court will examine, in turn, Companhia Previdente’s liability for the unlawful conduct of its subsidiary; the evidence showing that Companhia Previdente exercised decisive influence over Socitrel during the period from 7 April 1994 to 29 December 1998; whether the Commission was entitled to apply the presumption of actual exercise of decisive influence during the period from 30 December 1998 to 19 September 2002; and, last, the various arguments put forward by the applicants to demonstrate that there was no exercise of such influence during the period from 7 April 1994 to 29 December 1998 and also to rebut the presumption of actual exercise of decisive influence during the ensuing period. |
| --- | --- |

219

The Court will examine, in turn, Companhia Previdente’s liability for the unlawful conduct of its subsidiary; the evidence showing that Companhia Previdente exercised decisive influence over Socitrel during the period from 7 April 1994 to 29 December 1998; whether the Commission was entitled to apply the presumption of actual exercise of decisive influence during the period from 30 December 1998 to 19 September 2002; and, last, the various arguments put forward by the applicants to demonstrate that there was no exercise of such influence during the period from 7 April 1994 to 29 December 1998 and also to rebut the presumption of actual exercise of decisive influence during the ensuing period.

– Companhia Previdente’s liability for the unlawful conduct of its subsidiary

| 220 | As regards Companhia Previdente’s alleged liability for the infringement which it claims to be imputable only to Socitrel, it should be borne in mind that, according to settled case-law of the Court of Justice referred to in paragraph 199 above, there is no requirement to establish the personal involvement of the parent company in the infringement in order to address to it a decision imposing a fine on it because of the commission of that infringement. |
| --- | --- |

220

As regards Companhia Previdente’s alleged liability for the infringement which it claims to be imputable only to Socitrel, it should be borne in mind that, according to settled case-law of the Court of Justice referred to in paragraph 199 above, there is no requirement to establish the personal involvement of the parent company in the infringement in order to address to it a decision imposing a fine on it because of the commission of that infringement.

| 221 | The applicants’ argument that the infringement cannot be imputed to Companhia Previdente since it was not itself the author of the infringement cannot therefore succeed and, accordingly, this complaint must be rejected. |
| --- | --- |

221

The applicants’ argument that the infringement cannot be imputed to Companhia Previdente since it was not itself the author of the infringement cannot therefore succeed and, accordingly, this complaint must be rejected.

– The period from 7 April 1994 until 29 December 1998 and the evidence establishing that Companhia Previdente exercised decisive influence over Socitrel

| 222 | It should be borne in mind that in the contested decision the Commission, after taking into account the parent company’s shareholding in the share capital of its subsidiary, referred to the existence of ‘numerous and strong personnel links’ between Companhia Previdente and Socitrel and to the fact that certain managers common to both companies were aware of the cartel. It concluded that Companhia Previdente exercised decisive influence over Socitrel. |
| --- | --- |

222

It should be borne in mind that in the contested decision the Commission, after taking into account the parent company’s shareholding in the share capital of its subsidiary, referred to the existence of ‘numerous and strong personnel links’ between Companhia Previdente and Socitrel and to the fact that certain managers common to both companies were aware of the cartel. It concluded that Companhia Previdente exercised decisive influence over Socitrel.

| 223 | The merits of each of those elements must be examined. |
| --- | --- |

223

The merits of each of those elements must be examined.

| 224 | As regards the significance of Companhia Previdente’s shareholding in Socitrel’s share capital, it should be observed that the Commission submitted that, in Portuguese company law, a shareholder who owned more than two thirds of the voting rights of an incorporated company — like Companhia Previdente, which had a direct shareholding of 21.2% in Socitrel’s share capital and of 70% in the share capital of Preside SGPS, which owned 70.6% of Socitrel’s share capital — enjoyed, in principle, total control over that company, in so far as it could approve all deliberations, in particular those relating to the appointment of the management board, whatever its structure. Furthermore, the Commission stated that such a situation could be avoided only if certain provisions of the company statutes, or certain rules introduced by shareholder agreements, provided otherwise, in order to enable blocking minorities to be formed in the case of certain strategic decisions. According to the Commission, Socitrel did not demonstrate, or even claim, that a provision of that type existed. |
| --- | --- |

224

As regards the significance of Companhia Previdente’s shareholding in Socitrel’s share capital, it should be observed that the Commission submitted that, in Portuguese company law, a shareholder who owned more than two thirds of the voting rights of an incorporated company — like Companhia Previdente, which had a direct shareholding of 21.2% in Socitrel’s share capital and of 70% in the share capital of Preside SGPS, which owned 70.6% of Socitrel’s share capital — enjoyed, in principle, total control over that company, in so far as it could approve all deliberations, in particular those relating to the appointment of the management board, whatever its structure. Furthermore, the Commission stated that such a situation could be avoided only if certain provisions of the company statutes, or certain rules introduced by shareholder agreements, provided otherwise, in order to enable blocking minorities to be formed in the case of certain strategic decisions. According to the Commission, Socitrel did not demonstrate, or even claim, that a provision of that type existed.

| 225 | When questioned in that regard at the hearing, the applicants did not dispute those factors. |
| --- | --- |

225

When questioned in that regard at the hearing, the applicants did not dispute those factors.

| 226 | It must therefore be stated that during the relevant period Companhia Previdente had a particularly high shareholding in its subsidiary’s share capital which allowed it to exercise control over all the deliberations within the subsidiary. |
| --- | --- |

226

It must therefore be stated that during the relevant period Companhia Previdente had a particularly high shareholding in its subsidiary’s share capital which allowed it to exercise control over all the deliberations within the subsidiary.

| 227 | As for the common managers, it is appropriate to refer to the document addressed to the Commission by Socitrel on 29 June 2006 (pages 19662 to 19664 of the administrative file), from which it is apparent that Socitrel and Companhia Previdente had two common managers in 1995 (Messrs A.C. and P.B.), in 1996 (Messrs L.D. and P.B.) and in 1997 (Messrs L.D. and P.B.), and three common managers in 1998 (Messrs A.S., L.D. and L.F.). |
| --- | --- |

227

As for the common managers, it is appropriate to refer to the document addressed to the Commission by Socitrel on 29 June 2006 (pages 19662 to 19664 of the administrative file), from which it is apparent that Socitrel and Companhia Previdente had two common managers in 1995 (Messrs A.C. and P.B.), in 1996 (Messrs L.D. and P.B.) and in 1997 (Messrs L.D. and P.B.), and three common managers in 1998 (Messrs A.S., L.D. and L.F.).

| 228 | It should be borne in mind that according to the case-law referred to in paragraph 213 above, the fact that the parent company is represented in the managing bodies of the subsidiary constitutes relevant evidence of the exercise of actual control over the subsidiary’s commercial policy. |
| --- | --- |

228

It should be borne in mind that according to the case-law referred to in paragraph 213 above, the fact that the parent company is represented in the managing bodies of the subsidiary constitutes relevant evidence of the exercise of actual control over the subsidiary’s commercial policy.

| 229 | It should also be emphasised that Mr P.B. participated in cartel meetings between 26 August 1993 and 14 May 1998. Mr L.F. participated in cartel meetings between 8 September 1998 and 30 July 2002. Last, Mr A.S., who chaired both companies between 18 September 1998 and the end of 2002, participated in cartel meetings between 10 December 1998 and 22 May 2001. Those facts are not disputed by the applicants. |
| --- | --- |

229

It should also be emphasised that Mr P.B. participated in cartel meetings between 26 August 1993 and 14 May 1998. Mr L.F. participated in cartel meetings between 8 September 1998 and 30 July 2002. Last, Mr A.S., who chaired both companies between 18 September 1998 and the end of 2002, participated in cartel meetings between 10 December 1998 and 22 May 2001. Those facts are not disputed by the applicants.

| 230 | Those members of the Board of Directors of the parent company were therefore duly advised of the unlawful conduct of its subsidiary, since they themselves participated in it. |
| --- | --- |

230

Those members of the Board of Directors of the parent company were therefore duly advised of the unlawful conduct of its subsidiary, since they themselves participated in it.

– The period from 30 December 1998 to 19 September 2002 and the presumption of actual exercise of decisive influence by the parent company over the subsidiary

| 231 | At the hearing, the applicants acknowledged that, in the light of the decision of the Court of Justice referred to in paragraph 204 above, which was delivered after they had lodged their action against the initial decision, the Commission was entitled to rely on the presumption that Companhia Previdente exercised decisive influence over Socitrel, notwithstanding that the parent company’s shareholding in the share capital of its subsidiary was below 100%. |
| --- | --- |

231

At the hearing, the applicants acknowledged that, in the light of the decision of the Court of Justice referred to in paragraph 204 above, which was delivered after they had lodged their action against the initial decision, the Commission was entitled to rely on the presumption that Companhia Previdente exercised decisive influence over Socitrel, notwithstanding that the parent company’s shareholding in the share capital of its subsidiary was below 100%.

| 232 | They stated that, while they were withdrawing their argument on that point, they were nonetheless maintaining their argument in order to rebut that presumption. |
| --- | --- |

232

They stated that, while they were withdrawing their argument on that point, they were nonetheless maintaining their argument in order to rebut that presumption.

– The evidence put forward by the applicants to demonstrate the absence of decisive influence during the period from 7 April 1994 to 29 December 1998 and to rebut the presumption of actual exercise of decisive influence as regards the period from 30 December 1998 to 19 September 2002

| 233 | The applicants maintain, in essence, that in spite of the size of Companhia Previdente’s shareholding in the capital of its subsidiary and the fact that there were common managers during the first period, and of the even greater size of Companhia Previdente’s shareholding in the subsidiary’s capital during the second period, which justify the application of the presumption of actual exercise of decisive influence, various factors show that Companhia Previdente did not exercise decisive influence over Socitrel. |
| --- | --- |

233

The applicants maintain, in essence, that in spite of the size of Companhia Previdente’s shareholding in the capital of its subsidiary and the fact that there were common managers during the first period, and of the even greater size of Companhia Previdente’s shareholding in the subsidiary’s capital during the second period, which justify the application of the presumption of actual exercise of decisive influence, various factors show that Companhia Previdente did not exercise decisive influence over Socitrel.

| 234 | As a preliminary point, the applicants’ first complaint, alleging that a presumption based solely on ownership of the share capital of a subsidiary constitutes a probatio diabolica for a parent company wishing to rebut that presumption, which to that extent constitutes a breach of the principle of personal liability and of the presumption of innocence, must be rejected. |
| --- | --- |

234

As a preliminary point, the applicants’ first complaint, alleging that a presumption based solely on ownership of the share capital of a subsidiary constitutes a probatio diabolica for a parent company wishing to rebut that presumption, which to that extent constitutes a breach of the principle of personal liability and of the presumption of innocence, must be rejected.

probatio diabolica

| 235 | It should be borne in mind that the Court of Justice has held that the purpose of the presumption of actual exercise of decisive influence is, 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 101 TFEU, and of preventing a repetition of such conduct, and, on the other hand, the importance of 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, the principle of legal certainty and the principle of the rights of the defence, including the principle of equality of arms. It is for that reason, among others, that the presumption is rebuttable (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 59). |
| --- | --- |

235

It should be borne in mind that the Court of Justice has held that the purpose of the presumption of actual exercise of decisive influence is, 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 101 TFEU, and of preventing a repetition of such conduct, and, on the other hand, the importance of 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, the principle of legal certainty and the principle of the rights of the defence, including the principle of equality of arms. It is for that reason, among others, that the presumption is rebuttable (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 59).

Elf Aquitaine

Commission

| 236 | It follows from the case-law, moreover, that 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 judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 62 and the case-law cited). |
| --- | --- |

236

It follows from the case-law, moreover, that 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 judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 62 and the case-law cited).

Elf Aquitaine

Commission

| 237 | To that end, it is necessary to adduce sufficient evidence to show that the subsidiary acted independently on the market (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 57 and the case-law cited). However, the applicant cannot rebut that presumption by putting forward mere unsubstantiated assertions (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 61). |
| --- | --- |

237

To that end, it is necessary to adduce sufficient evidence to show that the subsidiary acted independently on the market (see judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 57 and the case-law cited). However, the applicant cannot rebut that presumption by putting forward mere unsubstantiated assertions (judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 61).

Elf Aquitaine

Commission

Elf Aquitaine

Commission

| 238 | In order to ascertain whether a subsidiary determines its conduct on the market independently, account must also be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company (judgment in Akzo Nobel and Others v Commission, cited in paragraph 203 above, EU:C:2009:536, paragraph 74). |
| --- | --- |

238

In order to ascertain whether a subsidiary determines its conduct on the market independently, account must also be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company (judgment in Akzo Nobel and Others v Commission, cited in paragraph 203 above, EU:C:2009:536, paragraph 74).

Akzo Nobel and Others

Commission

| 239 | None of the arguments put forward by the applicants is sufficient to refute the Commission’s argument that Companhia Previdente exercised decisive influence over Socitrel during the period from 7 April 1994 to 29 December 1998, or that, having regard to the size of its shareholding in Socitrel’s capital, the actual exercise of such decisive influence could be presumed, as regards the period from 30 December 1998 to 19 September 2002. |
| --- | --- |

239

None of the arguments put forward by the applicants is sufficient to refute the Commission’s argument that Companhia Previdente exercised decisive influence over Socitrel during the period from 7 April 1994 to 29 December 1998, or that, having regard to the size of its shareholding in Socitrel’s capital, the actual exercise of such decisive influence could be presumed, as regards the period from 30 December 1998 to 19 September 2002.

| 240 | First, the fact that Companhia Previdente is a holding company, even non-operational, does not suffice to preclude the presumption of actual exercise of decisive influence (see, to that effect, judgments in Schunk and Schunk Kohlenstoff-Technik v Commission, cited in paragraph 208 above, EU:T:2008:415, paragraph 63; Shell Petroleum and Others v Commission, cited in paragraph 208 above, EU:T:2011:355, paragraph 70 and the case-law cited; and E.ON Ruhrgas and E.ON v Commission, cited in paragraph 208 above, EU:T:2012:332, paragraph 283) and does not entail any reversal of the burden of proof, as Socitrel incorrectly maintains. |
| --- | --- |

240

First, the fact that Companhia Previdente is a holding company, even non-operational, does not suffice to preclude the presumption of actual exercise of decisive influence (see, to that effect, judgments in Schunk and Schunk Kohlenstoff-Technik v Commission, cited in paragraph 208 above, EU:T:2008:415, paragraph 63; Shell Petroleum and Others v Commission, cited in paragraph 208 above, EU:T:2011:355, paragraph 70 and the case-law cited; and E.ON Ruhrgas and E.ON v Commission, cited in paragraph 208 above, EU:T:2012:332, paragraph 283) and does not entail any reversal of the burden of proof, as Socitrel incorrectly maintains.

Schunk and Schunk Kohlenstoff-Technik

Commission

Shell Petroleum and Others

Commission

E.ON Ruhrgas and E.ON

Commission

| 241 | In that regard, the fact that the parent company confines itself to managing its shareholdings, owing to the type of company it is and to the objectives set out in its statutes, is not in itself sufficient to call the Commission’s argument into question (see, to that effect, judgments in Schunk and Schunk Kohlenstoff-Technik v Commission, cited in paragraph 208 above, EU:T:2008:415, paragraph 70, and FMC v Commission, cited in paragraph 210 above, EU:T:2011:282, paragraph 130). |
| --- | --- |

241

In that regard, the fact that the parent company confines itself to managing its shareholdings, owing to the type of company it is and to the objectives set out in its statutes, is not in itself sufficient to call the Commission’s argument into question (see, to that effect, judgments in Schunk and Schunk Kohlenstoff-Technik v Commission, cited in paragraph 208 above, EU:T:2008:415, paragraph 70, and FMC v Commission, cited in paragraph 210 above, EU:T:2011:282, paragraph 130).

Schunk and Schunk Kohlenstoff-Technik

Commission

FMC

Commission

| 242 | It also follows that the fact that Companhia Previdente and Socitrel were companies with different legal personalities and had different shareholders and different registered offices is irrelevant, since in any event they were part of the same undertaking (see, to that effect, judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 53 and the case-law cited). |
| --- | --- |

242

It also follows that the fact that Companhia Previdente and Socitrel were companies with different legal personalities and had different shareholders and different registered offices is irrelevant, since in any event they were part of the same undertaking (see, to that effect, judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 53 and the case-law cited).

Elf Aquitaine

Commission

| 243 | Also irrelevant is the applicants’ argument that, in Portuguese law, the management of Companhia Previdente did not represent that company when they sat on the Board of Directors of its subsidiary. It should be borne in mind that a company cannot rely on national rules to avoid the EU rules, as the terms used in EU law must in principle be uniformly interpreted and implemented throughout the European Union (judgments of 1 February 1972 in Hagen, 49/71, ECR, EU:C:1972:6, paragraph 6, and 27 September 2012Heijmans v Commission, T‐360/06, EU:T:2012:490, paragraph 70). |
| --- | --- |

243

Also irrelevant is the applicants’ argument that, in Portuguese law, the management of Companhia Previdente did not represent that company when they sat on the Board of Directors of its subsidiary. It should be borne in mind that a company cannot rely on national rules to avoid the EU rules, as the terms used in EU law must in principle be uniformly interpreted and implemented throughout the European Union (judgments of 1 February 1972 in Hagen, 49/71, ECR, EU:C:1972:6, paragraph 6, and 27 September 2012Heijmans v Commission, T‐360/06, EU:T:2012:490, paragraph 70).

Hagen

Heijmans

Commission

| 244 | Second, the attribution of Socitrel’s unlawful conduct to the parent company does not require proof that the parent company influences its subsidiary’s policy in the specific area in which the infringement occurred (see, to that effect, judgment in Shell Petroleum and Others v Commission, cited in paragraph 208 above, EU:T:2011:355, paragraph 70). |
| --- | --- |

244

Second, the attribution of Socitrel’s unlawful conduct to the parent company does not require proof that the parent company influences its subsidiary’s policy in the specific area in which the infringement occurred (see, to that effect, judgment in Shell Petroleum and Others v Commission, cited in paragraph 208 above, EU:T:2011:355, paragraph 70).

Shell Petroleum and Others

Commission

| 245 | It follows that the fact that the parent company was not itself active in the prestressing steel sector is also insufficient to rebut the presumption of actual exercise of decisive influence, and the applicants’ arguments on that point must therefore be rejected. |
| --- | --- |

245

It follows that the fact that the parent company was not itself active in the prestressing steel sector is also insufficient to rebut the presumption of actual exercise of decisive influence, and the applicants’ arguments on that point must therefore be rejected.

| 246 | Third, the fact that Companhia Previdente held shares in many other companies active in different sectors from that affected by the cartel is irrelevant, according to consistent case-law (see, to that effect, judgment in Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 149 above, EU:T:1999:80, paragraph 989, and Shell Petroleum and Others v Commission, cited in paragraph 214 above, EU:T:2012:478, paragraph 52). |
| --- | --- |

246

Third, the fact that Companhia Previdente held shares in many other companies active in different sectors from that affected by the cartel is irrelevant, according to consistent case-law (see, to that effect, judgment in Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 149 above, EU:T:1999:80, paragraph 989, and Shell Petroleum and Others v Commission, cited in paragraph 214 above, EU:T:2012:478, paragraph 52).

Limburgse Vinyl Maatschappij and Others

Commission

Shell Petroleum and Others

Commission

| 247 | Fourth, Socitrel’s argument that it enjoyed complete independence as regards its commercial policy must also be rejected. |
| --- | --- |

247

Fourth, Socitrel’s argument that it enjoyed complete independence as regards its commercial policy must also be rejected.

| 248 | In fact, the presumption of actual exercise of decisive influence cannot be rebutted merely by showing that Socitrel managed its commercial policy in the strict sense, such as the distribution or pricing strategy, without receiving instructions from Companhia Previdente in that regard. Likewise, given that Socitrel’s independence is not to be assessed solely by reference to the operational management aspects of the undertaking, the fact that the subsidiary never implemented for the benefit of its parent company a specific information policy on the market concerned is not sufficient to show that it was independent (see, to that effect, judgment in FMC v Commission, cited in paragraph 210 above, EU:T:2011:282, paragraph 105 et seq. and the case-law cited). |
| --- | --- |

248

In fact, the presumption of actual exercise of decisive influence cannot be rebutted merely by showing that Socitrel managed its commercial policy in the strict sense, such as the distribution or pricing strategy, without receiving instructions from Companhia Previdente in that regard. Likewise, given that Socitrel’s independence is not to be assessed solely by reference to the operational management aspects of the undertaking, the fact that the subsidiary never implemented for the benefit of its parent company a specific information policy on the market concerned is not sufficient to show that it was independent (see, to that effect, judgment in FMC v Commission, cited in paragraph 210 above, EU:T:2011:282, paragraph 105 et seq. and the case-law cited).

FMC

Commission

| 249 | Furthermore, Socitrel merely puts forward argument the reality of which it fails to establish. However, mere unsubstantiated assertions cannot suffice to rebut the presumption of actual exercise of decisive influence (see, to that effect, judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 61). |
| --- | --- |

249

Furthermore, Socitrel merely puts forward argument the reality of which it fails to establish. However, mere unsubstantiated assertions cannot suffice to rebut the presumption of actual exercise of decisive influence (see, to that effect, judgment in Elf Aquitaine v Commission, cited in paragraph 197 above, EU:C:2011:620, paragraph 61).

Elf Aquitaine

Commission

| 250 | Fifth, the independence that Socitrel is alleged to have enjoyed owing to the historical context in which Companhia Previdente acquired that company, which had previously been a State-owned undertaking, cannot be inferred from that sole fact, or from the fact that the management previously in place remained in charge of the undertaking after it had been purchased. |
| --- | --- |

250

Fifth, the independence that Socitrel is alleged to have enjoyed owing to the historical context in which Companhia Previdente acquired that company, which had previously been a State-owned undertaking, cannot be inferred from that sole fact, or from the fact that the management previously in place remained in charge of the undertaking after it had been purchased.

| 251 | Those arguments must therefore be rejected. |
| --- | --- |

251

Those arguments must therefore be rejected.

| 252 | Sixth, it should be made clear that, according to consistent case-law, in order for an infringement of Article 101 TFEU to be imputed to an undertaking, it is not necessary for there to have been action by, or even knowledge on the part of, the partners or principal managers of the undertaking concerned; action by a person who is authorised to act on behalf of the undertaking is sufficient (judgments of 7 June 1983 in Musique Diffusion française and Others v Commission, 100/80 to 103/80, ECR, EU:C:1983:158, paragraph 97, and 20 March 2002Brugg Rohrsysteme v Commission, T‐15/99, ECR, EU:T:2002:71, paragraph 58). |
| --- | --- |

252

Sixth, it should be made clear that, according to consistent case-law, in order for an infringement of Article 101 TFEU to be imputed to an undertaking, it is not necessary for there to have been action by, or even knowledge on the part of, the partners or principal managers of the undertaking concerned; action by a person who is authorised to act on behalf of the undertaking is sufficient (judgments of 7 June 1983 in Musique Diffusion française and Others v Commission, 100/80 to 103/80, ECR, EU:C:1983:158, paragraph 97, and 20 March 2002Brugg Rohrsysteme v Commission, T‐15/99, ECR, EU:T:2002:71, paragraph 58).

Musique Diffusion française and Others

Commission

Brugg Rohrsysteme

Commission

| 253 | The fact that Companhia Previdente was not aware of the unlawful conduct of its subsidiary, even on the assumption that it were established, quod non, would therefore in any event have no impact on the possibility that it will be held jointly and severally liable for the subsidiary’s conduct. |
| --- | --- |

253

The fact that Companhia Previdente was not aware of the unlawful conduct of its subsidiary, even on the assumption that it were established, quod non, would therefore in any event have no impact on the possibility that it will be held jointly and severally liable for the subsidiary’s conduct.

quod non

| 254 | In conclusion, it should be stated that the applicants have failed to show that Companhia Previdente did not exercise decisive influence on Socitrel and that Socitrel acted wholly independently on the market. |
| --- | --- |

254

In conclusion, it should be stated that the applicants have failed to show that Companhia Previdente did not exercise decisive influence on Socitrel and that Socitrel acted wholly independently on the market.

| 255 | The Commission was therefore correct to find that Companhia Previdente was jointly and severally liable in respect of both the period from 7 April 1994 to 29 December 1998 and for the period from 30 December 1998 to 19 September 2002. |
| --- | --- |

255

The Commission was therefore correct to find that Companhia Previdente was jointly and severally liable in respect of both the period from 7 April 1994 to 29 December 1998 and for the period from 30 December 1998 to 19 September 2002.

| 256 | The first part of the fourth plea put forward by Socitrel and the first two pleas put forward by Companhia Previdente must therefore be rejected. |
| --- | --- |

256

The first part of the fourth plea put forward by Socitrel and the first two pleas put forward by Companhia Previdente must therefore be rejected.

The second and third parts of the fourth plea relied on by Socitrel and the first and second parts of the third plea put forward by Companhia Previdente, submitted in the alternative and further in the alternative, and alleging an error in the taking into consideration of the turnover of Emesa, Galycas and ITC in the calculation of the 10% maximum amount and an error in the taking into consideration of Companhia Previdente’s turnover for 2009

The second and third parts of the fourth plea relied on by Socitrel and the first and second parts of the third plea put forward by Companhia Previdente, submitted in the alternative and further in the alternative, and alleging an error in the taking into consideration of the turnover of Emesa, Galycas and ITC in the calculation of the 10% maximum amount and an error in the taking into consideration of Companhia Previdente’s turnover for 2009

The contested decision

| 257 | For the purposes of calculating the maximum amount of 10% provided for in Article 23 of Regulation No 1/2003, the Commission, after rejecting the applicants’ claims, took into consideration the turnover for 2009 of the group composed of Companhia Previdente and all of its subsidiaries, including Emesa, Galycas and ITC, which had been purchased by Companhia Previdente in 2004 and 2005 (recitals 1059, 1061, 1062 and 1063 to 1069 of the contested decision). |
| --- | --- |

257

For the purposes of calculating the maximum amount of 10% provided for in Article 23 of Regulation No 1/2003, the Commission, after rejecting the applicants’ claims, took into consideration the turnover for 2009 of the group composed of Companhia Previdente and all of its subsidiaries, including Emesa, Galycas and ITC, which had been purchased by Companhia Previdente in 2004 and 2005 (recitals 1059, 1061, 1062 and 1063 to 1069 of the contested decision).

Outline of the principles

| 258 | The second subparagraph of Article 23(2) of Regulation No 1/2003 provides that ‘for each undertaking and association of undertakings participating in the infringement the fine shall not exceed 10% of its total turnover in the preceding business year’. |
| --- | --- |

258

The second subparagraph of Article 23(2) of Regulation No 1/2003 provides that ‘for each undertaking and association of undertakings participating in the infringement the fine shall not exceed 10% of its total turnover in the preceding business year’.

| 259 | The maximum amount of 10% of turnover, within the meaning of that provision, must be calculated on the basis of the combined turnover of all the companies going to make up the economic entity acting as an undertaking for the purposes of Article 101 TFEU (see, to that effect, judgments of 26 November 2013 in Groupe Gascogne v Commission, C‐58/12 P, EU:C:2013:770, paragraph 56, and HFB and Others v Commission, cited in paragraph 200 above, EU:T:2002:70, paragraph 528). |
| --- | --- |

259

The maximum amount of 10% of turnover, within the meaning of that provision, must be calculated on the basis of the combined turnover of all the companies going to make up the economic entity acting as an undertaking for the purposes of Article 101 TFEU (see, to that effect, judgments of 26 November 2013 in Groupe Gascogne v Commission, C‐58/12 P, EU:C:2013:770, paragraph 56, and HFB and Others v Commission, cited in paragraph 200 above, EU:T:2002:70, paragraph 528).

Groupe Gascogne

Commission

HFB and Others

Commission

| 260 | That upper limit of the amount of the fine seeks to prevent fines being imposed which it is foreseeable that the undertakings will not be able to pay, having regard to their size, as determined, albeit approximately and imperfectly, by their total turnover. That limit is therefore one which is uniformly applicable to all undertakings, arrived at by reference to the size of each of them, and seeks to ensure that the fines are not excessive or disproportionate (see judgment in Groupe Gascogne v Commission, cited in paragraph 259 above, EU:C:2013:770, paragraph 48 and the case-law cited). |
| --- | --- |

260

That upper limit of the amount of the fine seeks to prevent fines being imposed which it is foreseeable that the undertakings will not be able to pay, having regard to their size, as determined, albeit approximately and imperfectly, by their total turnover. That limit is therefore one which is uniformly applicable to all undertakings, arrived at by reference to the size of each of them, and seeks to ensure that the fines are not excessive or disproportionate (see judgment in Groupe Gascogne v Commission, cited in paragraph 259 above, EU:C:2013:770, paragraph 48 and the case-law cited).

Groupe Gascogne

Commission

| 261 | That objective must, however, be combined with the aim of ensuring that the fine has sufficient deterrent effect, which justifies taking into consideration the size and the economic power of the undertaking concerned, that is to say, the global resources of the infringer (see judgment in Groupe Gascogne v Commission, cited in paragraph 259 above, EU:C:2013:770, paragraph 49 and the case-law cited). |
| --- | --- |

261

That objective must, however, be combined with the aim of ensuring that the fine has sufficient deterrent effect, which justifies taking into consideration the size and the economic power of the undertaking concerned, that is to say, the global resources of the infringer (see judgment in Groupe Gascogne v Commission, cited in paragraph 259 above, EU:C:2013:770, paragraph 49 and the case-law cited).

Groupe Gascogne

Commission

| 262 | The taking into consideration of the size and overall resources of the undertaking in question is justified by the impact sought on the undertaking concerned, in order to ensure that the fine has sufficient deterrent effect, as the penalty must not be negligible in the light, particularly, of its financial capacity (see judgment in Groupe Gascogne v Commission, cited in paragraph 259 above, EU:C:2013:770, paragraph 50 and the case-law cited). |
| --- | --- |

262

The taking into consideration of the size and overall resources of the undertaking in question is justified by the impact sought on the undertaking concerned, in order to ensure that the fine has sufficient deterrent effect, as the penalty must not be negligible in the light, particularly, of its financial capacity (see judgment in Groupe Gascogne v Commission, cited in paragraph 259 above, EU:C:2013:770, paragraph 50 and the case-law cited).

Groupe Gascogne

Commission

| 263 | In those circumstances, when assessing the financial resources of an undertaking to which a breach of the EU competition law rules is imputed, the taking into account of the turnover of all the companies in respect of which the undertaking concerned has the opportunity to exercise a decisive influence is justified (judgment in Groupe Gascogne v Commission, cited in paragraph 259 above, EU:C:2013:770, paragraph 51). |
| --- | --- |

263

In those circumstances, when assessing the financial resources of an undertaking to which a breach of the EU competition law rules is imputed, the taking into account of the turnover of all the companies in respect of which the undertaking concerned has the opportunity to exercise a decisive influence is justified (judgment in Groupe Gascogne v Commission, cited in paragraph 259 above, EU:C:2013:770, paragraph 51).

Groupe Gascogne

Commission

| 264 | If, on the other hand, the economic unit going to make up the undertaking has broken up between the time when the infringement ceased and the time when the decision imposing a fine is adopted, each addressee of the decision is entitled to have the maximum amount in question applied individually to it (see, to that effect, judgment of 15 June 2005 in Tokai Carbon and Others v Commission, T‐71/03, T‐74/03, T‐87/03 and T‐91/03, EU:T:2005:220, paragraph 390). |
| --- | --- |

264

If, on the other hand, the economic unit going to make up the undertaking has broken up between the time when the infringement ceased and the time when the decision imposing a fine is adopted, each addressee of the decision is entitled to have the maximum amount in question applied individually to it (see, to that effect, judgment of 15 June 2005 in Tokai Carbon and Others v Commission, T‐71/03, T‐74/03, T‐87/03 and T‐91/03, EU:T:2005:220, paragraph 390).

Tokai Carbon and Others

Commission

| 265 | Furthermore, as regards the determination of the ‘preceding business year’, within the meaning of Article 23(2) of Regulation No 1/2003, it is apparent from the case-law that, in situations where there is no indication that an undertaking has ceased its commercial activities or has diverted its turnover in order to avoid the imposition of a heavy fine, it must be considered that the Commission is obliged to fix the maximum limit of the fine by reference to the most recent turnover corresponding to a complete year of economic activity (judgment of 29 November 2005 in Britannia Alloys & Chemicals v Commission, T‐33/02, ECR, EU:T:2005:428, paragraph 49). |
| --- | --- |

265

Furthermore, as regards the determination of the ‘preceding business year’, within the meaning of Article 23(2) of Regulation No 1/2003, it is apparent from the case-law that, in situations where there is no indication that an undertaking has ceased its commercial activities or has diverted its turnover in order to avoid the imposition of a heavy fine, it must be considered that the Commission is obliged to fix the maximum limit of the fine by reference to the most recent turnover corresponding to a complete year of economic activity (judgment of 29 November 2005 in Britannia Alloys & Chemicals v Commission, T‐33/02, ECR, EU:T:2005:428, paragraph 49).

Britannia Alloys & Chemicals

Commission

| 266 | This Court has also held that the Commission has no arbitrary power to apply the 10% upper limit to business years prior to the business year preceding the date of adoption of the decision. The Commission may use such an earlier business year only in exceptional circumstances, where, for example, the undertaking achieved no turnover in the business year preceding the adoption of the Commission’s decision. Moreover, even in such cases, it does not enjoy any great latitude regarding the choice of business year to use in fixing the upper limit of the fine. It is obliged to refer to the last full business year corresponding to a full year of normal economic activity (see, to that effect, judgment in Britannia Alloys & Chemicals v Commission, cited in paragraph 265 above, EU:T:2005:428, paragraphs 39 to 42 and 74). |
| --- | --- |

266

This Court has also held that the Commission has no arbitrary power to apply the 10% upper limit to business years prior to the business year preceding the date of adoption of the decision. The Commission may use such an earlier business year only in exceptional circumstances, where, for example, the undertaking achieved no turnover in the business year preceding the adoption of the Commission’s decision. Moreover, even in such cases, it does not enjoy any great latitude regarding the choice of business year to use in fixing the upper limit of the fine. It is obliged to refer to the last full business year corresponding to a full year of normal economic activity (see, to that effect, judgment in Britannia Alloys & Chemicals v Commission, cited in paragraph 265 above, EU:T:2005:428, paragraphs 39 to 42 and 74).

Britannia Alloys & Chemicals

Commission

| 267 | Thus, while it follows from the case-law that, for the purposes of calculating the upper limit of the fine provided for in Article 23(2) of Regulation No 1/2003, the Commission must, in principle, take into account the turnover achieved by the undertaking concerned in the last full business year at the date of adoption of the decision imposing the fine (see, to that effect, judgment of 7 June 2007 in Britannia Alloys & Chemicals v Commission, C‐76/06 P, ECR, EU:C:2007:326, paragraph 32), it is apparent, however, from the context and the objectives pursued by the legislation of which that provision forms part that, where the turnover in the business year preceding the adoption of the Commission’s decision does not represent a full year of normal economic activity over a period of 12 months and, thus, does not provide any useful indication as to the actual economic situation of the undertaking concerned and the appropriate level of fine to impose on it, that turnover cannot be taken into account in fixing the upper limit of the fine. In the latter situation, which will arise only in exceptional circumstances, the Commission is obliged, for the purposes of calculating the upper limit of the fine, to refer to the last full business year corresponding to a full year of normal economic activity (judgment of 12 December 2012 in 1. garantovaná v Commission, T‐392/09, EU:T:2012:674, paragraph 86, upheld on appeal in the judgment of 15 May 2014 in 1. garantovaná v Commission, C‐90/13 P, EU:C:2014:326). |
| --- | --- |

267

Thus, while it follows from the case-law that, for the purposes of calculating the upper limit of the fine provided for in Article 23(2) of Regulation No 1/2003, the Commission must, in principle, take into account the turnover achieved by the undertaking concerned in the last full business year at the date of adoption of the decision imposing the fine (see, to that effect, judgment of 7 June 2007 in Britannia Alloys & Chemicals v Commission, C‐76/06 P, ECR, EU:C:2007:326, paragraph 32), it is apparent, however, from the context and the objectives pursued by the legislation of which that provision forms part that, where the turnover in the business year preceding the adoption of the Commission’s decision does not represent a full year of normal economic activity over a period of 12 months and, thus, does not provide any useful indication as to the actual economic situation of the undertaking concerned and the appropriate level of fine to impose on it, that turnover cannot be taken into account in fixing the upper limit of the fine. In the latter situation, which will arise only in exceptional circumstances, the Commission is obliged, for the purposes of calculating the upper limit of the fine, to refer to the last full business year corresponding to a full year of normal economic activity (judgment of 12 December 2012 in 1. garantovaná v Commission, T‐392/09, EU:T:2012:674, paragraph 86, upheld on appeal in the judgment of 15 May 2014 in 1. garantovaná v Commission, C‐90/13 P, EU:C:2014:326).

Britannia Alloys & Chemicals

Commission

1. garantovaná

Commission

1. garantovaná

Commission

| 268 | It should be made clear in that regard that the reference in the case-law to a ‘full year of normal economic activity’ is intended to ensure that a year in which the undertaking concerned was in the process of winding down its business, although economic activity had not yet entirely come to an end, is precluded from being taken into account, as, more generally, is a year in which the market conduct of the undertaking concerned did not correspond to that of an undertaking carrying on an economic activity on the usual terms. On the other hand, the mere fact that turnover or the profits generated in a particular year are significantly lower, or higher, than in previous years does not mean that the year in question does not constitute a full year of normal economic activity (judgment of 12 December 2012 in Almamet v Commission, T‐410/09, EU:T:2012:676, paragraph 253). |
| --- | --- |

268

It should be made clear in that regard that the reference in the case-law to a ‘full year of normal economic activity’ is intended to ensure that a year in which the undertaking concerned was in the process of winding down its business, although economic activity had not yet entirely come to an end, is precluded from being taken into account, as, more generally, is a year in which the market conduct of the undertaking concerned did not correspond to that of an undertaking carrying on an economic activity on the usual terms. On the other hand, the mere fact that turnover or the profits generated in a particular year are significantly lower, or higher, than in previous years does not mean that the year in question does not constitute a full year of normal economic activity (judgment of 12 December 2012 in Almamet v Commission, T‐410/09, EU:T:2012:676, paragraph 253).

Almamet

Commission

Findings of the Court

| 269 | The applicants claim, in essence, that the Commission was wrong to take the turnover of Emesa, Galycas and ITC into account when calculating the maximum amount of 10% and also to take Companhia Previdente’s turnover for 2009 into account for that purpose. |
| --- | --- |

269

The applicants claim, in essence, that the Commission was wrong to take the turnover of Emesa, Galycas and ITC into account when calculating the maximum amount of 10% and also to take Companhia Previdente’s turnover for 2009 into account for that purpose.

| 270 | However, that argument cannot succeed. |
| --- | --- |

270

However, that argument cannot succeed.

| 271 | First, as regards the business year to be taken into account for the purposes of applying the 10% maximum amount, it was for the Commission to refer to the total turnover for 2009 as regards Companhia Previdente, in accordance with the provisions of Article 23(2) of Regulation No 1/2003, without there being any need to have regard to any variations upwards or downwards in that turnover by reference to the date on which the infringement ceased, as Companhia Previdente was not in an exceptional situation permitting a derogation from that rule, within the meaning of the case-law of this Court and of the Court of Justice in Britannia Alloys & Chemicals v Commission (see paragraph 266 above). |
| --- | --- |

271

First, as regards the business year to be taken into account for the purposes of applying the 10% maximum amount, it was for the Commission to refer to the total turnover for 2009 as regards Companhia Previdente, in accordance with the provisions of Article 23(2) of Regulation No 1/2003, without there being any need to have regard to any variations upwards or downwards in that turnover by reference to the date on which the infringement ceased, as Companhia Previdente was not in an exceptional situation permitting a derogation from that rule, within the meaning of the case-law of this Court and of the Court of Justice in Britannia Alloys & Chemicals v Commission (see paragraph 266 above).

Britannia Alloys & Chemicals

Commission

| 272 | The applicants’ argument on that point, like the argument based on the length of the administrative procedure, must therefore be rejected. |
| --- | --- |

272

The applicants’ argument on that point, like the argument based on the length of the administrative procedure, must therefore be rejected.

| 273 | Furthermore, the Commission was required to calculate the maximum amount of 10% of turnover, within the meaning of Article 23(2) of Regulation No 1/2003, on the basis of the combined turnover of all the companies going to make up the economic entity acting as an undertaking, according to the case-law referred to in paragraph 263 above. |
| --- | --- |

273

Furthermore, the Commission was required to calculate the maximum amount of 10% of turnover, within the meaning of Article 23(2) of Regulation No 1/2003, on the basis of the combined turnover of all the companies going to make up the economic entity acting as an undertaking, according to the case-law referred to in paragraph 263 above.

| 274 | Accordingly, the Commission was required, to that end, to take into consideration the turnover of Emesa, Galycas and ITC, which formed part of the Companhia Previdente group in 2009, and the fine imposed on the applicants is not disproportionate on that ground. |
| --- | --- |

274

Accordingly, the Commission was required, to that end, to take into consideration the turnover of Emesa, Galycas and ITC, which formed part of the Companhia Previdente group in 2009, and the fine imposed on the applicants is not disproportionate on that ground.

| 275 | For the remainder, it must be stated that, as the Commission points out, Companhia Previdente was held jointly and severally liable only for the conduct of Socitrel, which was a subsidiary of Companhia Previdente at the time when the infringement was committed, and not for the fine imposed on Emesa, Galycas and ITC, which did not belong to Companhia Previdente at that time. |
| --- | --- |

275

For the remainder, it must be stated that, as the Commission points out, Companhia Previdente was held jointly and severally liable only for the conduct of Socitrel, which was a subsidiary of Companhia Previdente at the time when the infringement was committed, and not for the fine imposed on Emesa, Galycas and ITC, which did not belong to Companhia Previdente at that time.

| 276 | Consequently, the second and third parts of the fourth plea put forward by Socitrel and the first and second parts of the third plea put forward by Companhia Previdente must be rejected. |
| --- | --- |

276

Consequently, the second and third parts of the fourth plea put forward by Socitrel and the first and second parts of the third plea put forward by Companhia Previdente must be rejected.

5. The fifth plea relied on by Socitrel, alleging breach of the principles of proportionality and legitimate expectations in the application of points 13 and 22 of the 2006 Guidelines, and failure to state reasons

The fifth plea relied on by Socitrel, alleging breach of the principles of proportionality and legitimate expectations in the application of points 13 and 22 of the 2006 Guidelines, and failure to state reasons

Outline of the principles

Outline of the principles

| 277 | It should be borne in mind that, according to the settled case-law of the Court of Justice, in setting the amount of fines, regard must be had to the duration of the infringements and to all the factors capable of affecting the assessment of the gravity of those infringements (see judgments of 11 July 2013 in Gosselin Group v Commission, C‐429/11 P, EU:C:2013:463, paragraph 88 and the case-law cited, and Team Relocations and Others v Commission, C‐444/11 P, EU:C:2013:464, paragraph 98 and the case-law cited). |
| --- | --- |

277

It should be borne in mind that, according to the settled case-law of the Court of Justice, in setting the amount of fines, regard must be had to the duration of the infringements and to all the factors capable of affecting the assessment of the gravity of those infringements (see judgments of 11 July 2013 in Gosselin Group v Commission, C‐429/11 P, EU:C:2013:463, paragraph 88 and the case-law cited, and Team Relocations and Others v Commission, C‐444/11 P, EU:C:2013:464, paragraph 98 and the case-law cited).

Gosselin Group

Commission

Team Relocations and Others

Commission

| 278 | In that regard, according to the settled case-law of the Court of Justice, the gravity of infringements of EU competition law must be determined by reference to numerous factors such as, in particular, the specific circumstances and the context of the case and the deterrent effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (see judgments in Gosselin Group v Commission, cited in paragraph 277 above, EU:C:2013:463, paragraph 89 and the case-law cited, and Team Relocations and Others v Commission, cited in paragraph 277 above, EU:C:2013:464, paragraph 99 and the case-law cited). |
| --- | --- |

278

In that regard, according to the settled case-law of the Court of Justice, the gravity of infringements of EU competition law must be determined by reference to numerous factors such as, in particular, the specific circumstances and the context of the case and the deterrent effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (see judgments in Gosselin Group v Commission, cited in paragraph 277 above, EU:C:2013:463, paragraph 89 and the case-law cited, and Team Relocations and Others v Commission, cited in paragraph 277 above, EU:C:2013:464, paragraph 99 and the case-law cited).

Gosselin Group

Commission

Team Relocations and Others

Commission

| 279 | The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (see judgments of 12 November 2009 in Carbone-Lorraine v Commission, C‐554/08 P, EU:C:2009:702, paragraph 43 and the case-law cited; Gosselin Group v Commission, cited in paragraph 277 above, EU:C:2013:463, paragraph 90 and the case-law cited; and Team Relocations and Others v Commission, cited in paragraph 277 above, EU:C:2013:464, paragraph 100 and the case-law cited). |
| --- | --- |

279

The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (see judgments of 12 November 2009 in Carbone-Lorraine v Commission, C‐554/08 P, EU:C:2009:702, paragraph 43 and the case-law cited; Gosselin Group v Commission, cited in paragraph 277 above, EU:C:2013:463, paragraph 90 and the case-law cited; and Team Relocations and Others v Commission, cited in paragraph 277 above, EU:C:2013:464, paragraph 100 and the case-law cited).

Carbone-Lorraine

Commission

Gosselin Group

Commission

Team Relocations and Others

Commission

| 280 | It also follows from settled case-law that the fact that an undertaking has not taken part in all aspects of a cartel or that it has played only a minor role in the aspects in which it did participate is not material to the establishment of the existence of an infringement on its part. While what may be the limited extent to which the undertaking concerned participated in all the aspects of a cartel cannot thus remove its personal responsibility for the entire infringement, it may nonetheless affect the assessment of the extent and the gravity of the infringement and, accordingly, the determination of the level of the penalty (see, to that effect, judgments of 8 July 1999 in Commission v Anic Partecipazioni, C‐49/92 P, ECR, EU:C:1999:356, paragraph 90; 7 January 2004Aalborg Portland and Others v Commission, 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, ECR, EU:C:2004:6, paragraph 86; and Dansk Rørindustri and Others v Commission, cited in paragraph 200 above, EU:C:2005:408, paragraph 145). |
| --- | --- |

280

It also follows from settled case-law that the fact that an undertaking has not taken part in all aspects of a cartel or that it has played only a minor role in the aspects in which it did participate is not material to the establishment of the existence of an infringement on its part. While what may be the limited extent to which the undertaking concerned participated in all the aspects of a cartel cannot thus remove its personal responsibility for the entire infringement, it may nonetheless affect the assessment of the extent and the gravity of the infringement and, accordingly, the determination of the level of the penalty (see, to that effect, judgments of 8 July 1999 in Commission v Anic Partecipazioni, C‐49/92 P, ECR, EU:C:1999:356, paragraph 90; 7 January 2004Aalborg Portland and Others v Commission, 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, ECR, EU:C:2004:6, paragraph 86; and Dansk Rørindustri and Others v Commission, cited in paragraph 200 above, EU:C:2005:408, paragraph 145).

Commission

Anic Partecipazioni

Aalborg Portland and Others

Commission

Dansk Rørindustri and Others

Commission

| 281 | It has thus been held that the Commission is required to take into account, when assessing the relative gravity of the participation of each offender in a cartel, the fact that certain offenders may not be held liable, for the purposes of the judgment in Commission v Anic Partecipazioni, cited in paragraph 280 above (EU:C:1999:356, paragraph 87) for all the aspects of that cartel (judgment of 19 May 2010 in Chalkor v Commission, T‐21/05, ECR, EU:T:2010:205, paragraph 100). |
| --- | --- |

281

It has thus been held that the Commission is required to take into account, when assessing the relative gravity of the participation of each offender in a cartel, the fact that certain offenders may not be held liable, for the purposes of the judgment in Commission v Anic Partecipazioni, cited in paragraph 280 above (EU:C:1999:356, paragraph 87) for all the aspects of that cartel (judgment of 19 May 2010 in Chalkor v Commission, T‐21/05, ECR, EU:T:2010:205, paragraph 100).

Commission

Anic Partecipazioni

Chalkor

Commission

| 282 | With regard to the principle of proportionality, it should be borne in mind that that principle requires that the measures adopted by the institutions do not exceed what is appropriate and necessary to achieve the intended purpose. In relation to the calculation of fines, the gravity of infringements has to be determined by reference to numerous factors and it is important not to confer on one or other of those factors an importance which is disproportionate in relation to other factors. The principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purpose of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (see judgments of 27 September 2006 in Jungbunzlauer v Commission, T‐43/02, ECR, EU:T:2006:270, paragraphs 226 to 228 and the case-law cited, and 28 April 2010Gütermann and Zwicky v Commission, T‐456/05 and T‐457/05, ECR, EU:T:2010:168, paragraph 264 and the case-law cited). |
| --- | --- |

282

With regard to the principle of proportionality, it should be borne in mind that that principle requires that the measures adopted by the institutions do not exceed what is appropriate and necessary to achieve the intended purpose. In relation to the calculation of fines, the gravity of infringements has to be determined by reference to numerous factors and it is important not to confer on one or other of those factors an importance which is disproportionate in relation to other factors. The principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purpose of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (see judgments of 27 September 2006 in Jungbunzlauer v Commission, T‐43/02, ECR, EU:T:2006:270, paragraphs 226 to 228 and the case-law cited, and 28 April 2010Gütermann and Zwicky v Commission, T‐456/05 and T‐457/05, ECR, EU:T:2010:168, paragraph 264 and the case-law cited).

Jungbunzlauer

Commission

Gütermann and Zwicky

Commission

| 283 | Last, it is settled case-law that the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 3 May 2007 in Advocaten voor de Wereld, C‐303/05, ECR, EU:C:2007:261, paragraph 56 and the case-law cited). |
| --- | --- |

283

Last, it is settled case-law that the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 3 May 2007 in Advocaten voor de Wereld, C‐303/05, ECR, EU:C:2007:261, paragraph 56 and the case-law cited).

Advocaten voor de Wereld

The merits of the fifth plea

The merits of the fifth plea

| 284 | First of all, Socitrel claims that, in so far as a rate to reflect gravity of 18% was applied to it — and an additional amount for deterrence based on the same percentage — it was treated virtually identically to Emesa and Tycsa, to which a rate of 19% was applied, whereas the infringement which Socitrel committed is significantly less important than the infringement committed by those other two undertakings. |
| --- | --- |

284

First of all, Socitrel claims that, in so far as a rate to reflect gravity of 18% was applied to it — and an additional amount for deterrence based on the same percentage — it was treated virtually identically to Emesa and Tycsa, to which a rate of 19% was applied, whereas the infringement which Socitrel committed is significantly less important than the infringement committed by those other two undertakings.

| 285 | Next, it submits, in essence, that in determining the rate to reflect gravity, the Commission failed to take a number of factors specific to Socitrel into account, including that it was a small family undertaking, that this was the first time that it had participated in a cartel, that its participation was only incidental and that, owing to its less extensive legal and economic knowledge, resulting from its small size, it found it more difficult to gauge the consequences of its conduct. |
| --- | --- |

285

Next, it submits, in essence, that in determining the rate to reflect gravity, the Commission failed to take a number of factors specific to Socitrel into account, including that it was a small family undertaking, that this was the first time that it had participated in a cartel, that its participation was only incidental and that, owing to its less extensive legal and economic knowledge, resulting from its small size, it found it more difficult to gauge the consequences of its conduct.

| 286 | Last, Socitrel maintains that the decision is vitiated by a failure to state reasons in so far as it is unable to understand the reasons that dictated the determination of the rate to reflect gravity and of the additional amount. |
| --- | --- |

286

Last, Socitrel maintains that the decision is vitiated by a failure to state reasons in so far as it is unable to understand the reasons that dictated the determination of the rate to reflect gravity and of the additional amount.

| 287 | However, that argument cannot succeed. |
| --- | --- |

287

However, that argument cannot succeed.

| 288 | First, it should be borne in mind that in the contested decision (recital 953) the Commission established three categories for the purposes of determining the rate to reflect gravity, relying on the nature of the infringement (recitals 939 to 945), combined market share (recital 946) and the geographic dimension of the cartel (recitals 947 to 949):
  
  
  
  
  
  — | one category at 16%, which applied only to Fundia and is justified by the fact that that undertaking participated only in the Addtek ‘coordination’ (recital 939); |
| --- | --- | --- |

288

First, it should be borne in mind that in the contested decision (recital 953) the Commission established three categories for the purposes of determining the rate to reflect gravity, relying on the nature of the infringement (recitals 939 to 945), combined market share (recital 946) and the geographic dimension of the cartel (recitals 947 to 949):

—

one category at 16%, which applied only to Fundia and is justified by the fact that that undertaking participated only in the Addtek ‘coordination’ (recital 939);

| — | one category at 18%, that rate being justified on the basis of two criteria: participation in only Club España and belated awareness of the pan-European dimension of the cartel; Socitrel is in that category (recital 949); |
| --- | --- |

—

one category at 18%, that rate being justified on the basis of two criteria: participation in only Club España and belated awareness of the pan-European dimension of the cartel; Socitrel is in that category (recital 949);

| — | one category at 19%, in which all the other undertakings that participated in the cartel are to be found (recital 953). |
| --- | --- |

—

one category at 19%, in which all the other undertakings that participated in the cartel are to be found (recital 953).

| 289 | It should be pointed out that Emesa and Tycsa participated actively in the Zurich Club (from 1992 in the case of one of them and from 1993 in the case of the other) and in Club Europe, whereas Socitrel did not participate in either of those clubs, which the Commission took into account. |
| --- | --- |

289

It should be pointed out that Emesa and Tycsa participated actively in the Zurich Club (from 1992 in the case of one of them and from 1993 in the case of the other) and in Club Europe, whereas Socitrel did not participate in either of those clubs, which the Commission took into account.

| 290 | Admittedly, the difference between the rates of the respective categories in which Emesa and Tycsa, on the one hand, and Socitrel, on the other, come is small, but it should be borne in mind that, according to point 21 of the 2006 Guidelines, the proportion of the value of sales taken into account may be up to 30% and that, according to point 23 of those guidelines, horizontal 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, as a matter of competition policy, they must be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale. |
| --- | --- |

290

Admittedly, the difference between the rates of the respective categories in which Emesa and Tycsa, on the one hand, and Socitrel, on the other, come is small, but it should be borne in mind that, according to point 21 of the 2006 Guidelines, the proportion of the value of sales taken into account may be up to 30% and that, according to point 23 of those guidelines, horizontal 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, as a matter of competition policy, they must be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.

| 291 | It must be stated in the present case that, in view of the nature of the infringement referred to in recital 939 of the contested decision (market sharing/quota fixing, customer allocation and horizontal price fixing), the rate to reflect gravity applied by the Commission for the category that committed the infringement is at the lower end of the scale (15% to 30%), which has the consequence that the difference by comparison with another category that committed an infringement also characterised by horizontal price-sharing, market-sharing and production-limitation agreements is small. |
| --- | --- |

291

It must be stated in the present case that, in view of the nature of the infringement referred to in recital 939 of the contested decision (market sharing/quota fixing, customer allocation and horizontal price fixing), the rate to reflect gravity applied by the Commission for the category that committed the infringement is at the lower end of the scale (15% to 30%), which has the consequence that the difference by comparison with another category that committed an infringement also characterised by horizontal price-sharing, market-sharing and production-limitation agreements is small.

| 292 | It should also be stated, moreover, that the distinction which the Commission draws between, on the one hand, the category of which Emesa and Tycsa, in particular, form part and, on the other, the category of which Socitrel, Fapricela and Proderac form part, is based on objective factors. |
| --- | --- |

292

It should also be stated, moreover, that the distinction which the Commission draws between, on the one hand, the category of which Emesa and Tycsa, in particular, form part and, on the other, the category of which Socitrel, Fapricela and Proderac form part, is based on objective factors.

| 293 | Socitrel cannot therefore claim, on the sole basis of that slight difference between the two rates to reflect gravity applied by the Commission, that there has been a breach of equal treatment. |
| --- | --- |

293

Socitrel cannot therefore claim, on the sole basis of that slight difference between the two rates to reflect gravity applied by the Commission, that there has been a breach of equal treatment.

| 294 | Second, Socitrel submits that its participation was limited to the Iberian peninsula. |
| --- | --- |

294

Second, Socitrel submits that its participation was limited to the Iberian peninsula.

| 295 | However, it must be stated that the Commission duly took that factor into account when it took into consideration, as the value of sales, only the value of Socitrel’s sales in the Iberian peninsula (recital 949 of the contested decision). |
| --- | --- |

295

However, it must be stated that the Commission duly took that factor into account when it took into consideration, as the value of sales, only the value of Socitrel’s sales in the Iberian peninsula (recital 949 of the contested decision).

| 296 | Third, Socitrel asserts that its minor role was not taken into account. It also maintains that it played only a peripheral role in the cartel and not a leading role, unlike other Iberian undertakings, such as Tycsa and Emesa. |
| --- | --- |

296

Third, Socitrel asserts that its minor role was not taken into account. It also maintains that it played only a peripheral role in the cartel and not a leading role, unlike other Iberian undertakings, such as Tycsa and Emesa.

| 297 | It should be borne in mind that the minor role which an undertaking plays in the cartel constitutes a mitigating circumstance, which is assessed separately from the objective gravity of the infringement as such. |
| --- | --- |

297

It should be borne in mind that the minor role which an undertaking plays in the cartel constitutes a mitigating circumstance, which is assessed separately from the objective gravity of the infringement as such.

| 298 | Socitrel’s argument must therefore be rejected on that point and, for the remainder, reference should be made to the argument which Socitrel specifically puts forward in that regard in the context of the sixth plea. |
| --- | --- |

298

Socitrel’s argument must therefore be rejected on that point and, for the remainder, reference should be made to the argument which Socitrel specifically puts forward in that regard in the context of the sixth plea.

| 299 | Fourth, as regards Socitrel’s assertions in relation to the fact that it is a small company forming part of a family group, it should be borne in mind that the value of sales taken into consideration by the Commission in the contested decision in order to determine the basic amount of the fine (see paragraph 20 above) is based on Socitrel’s PS sales in 2001. |
| --- | --- |

299

Fourth, as regards Socitrel’s assertions in relation to the fact that it is a small company forming part of a family group, it should be borne in mind that the value of sales taken into consideration by the Commission in the contested decision in order to determine the basic amount of the fine (see paragraph 20 above) is based on Socitrel’s PS sales in 2001.

| 300 | Consequently, Socitrel’s size on the market, on the assumption that it is small, is reflected in the amount of the fine imposed on it after that value of its actual sales had been taken into account. |
| --- | --- |

300

Consequently, Socitrel’s size on the market, on the assumption that it is small, is reflected in the amount of the fine imposed on it after that value of its actual sales had been taken into account.

| 301 | As for the impact of its small size and the fact that it is part of a family group on its legal and economic knowledge, which, in Socitrel’s submission, prevented it from gauging the precise extent of the infringement in which it was participating, it should be borne in mind that Socitrel is part of the undertaking made up of Companhia Previdente, which has 27 subsidiaries active in various sectors of the economy (see paragraphs 129 and 130 of the application). |
| --- | --- |

301

As for the impact of its small size and the fact that it is part of a family group on its legal and economic knowledge, which, in Socitrel’s submission, prevented it from gauging the precise extent of the infringement in which it was participating, it should be borne in mind that Socitrel is part of the undertaking made up of Companhia Previdente, which has 27 subsidiaries active in various sectors of the economy (see paragraphs 129 and 130 of the application).

| 302 | Socitrel is therefore part of a diversified economic group of some size, whose worldwide consolidated turnover in 2009 came to EUR 125904527. |
| --- | --- |

302

Socitrel is therefore part of a diversified economic group of some size, whose worldwide consolidated turnover in 2009 came to EUR 125904527.

| 303 | However, the management of such a structure — operated, moreover, so far as Socitrel and Companhia Previdente are concerned, by common administrators, both between 1994 and 1998 and between 1998 and 2002 (see the document sent to the Commission by Socitrel on 29 June 2006, pages 19662 to 19664 of the administrative file), who themselves participated in Club España meetings — renders Socitrel’s assertions that none of those persons was aware that participation in a cartel was unlawful and might result in the undertaking being ordered to pay a significant fine implausible. |
| --- | --- |

303

However, the management of such a structure — operated, moreover, so far as Socitrel and Companhia Previdente are concerned, by common administrators, both between 1994 and 1998 and between 1998 and 2002 (see the document sent to the Commission by Socitrel on 29 June 2006, pages 19662 to 19664 of the administrative file), who themselves participated in Club España meetings — renders Socitrel’s assertions that none of those persons was aware that participation in a cartel was unlawful and might result in the undertaking being ordered to pay a significant fine implausible.

| 304 | In any event, it should be borne in mind that in principle the undertakings themselves bear the risk of any incorrect assessment of their legal situation, in accordance with the general maxim that ignorance of the law is no defence (Opinion of Advocate General Kokott in Schenker & Co. and Others, C‐681/11, ECR, EU:C:2013:126, point 57). |
| --- | --- |

304

In any event, it should be borne in mind that in principle the undertakings themselves bear the risk of any incorrect assessment of their legal situation, in accordance with the general maxim that ignorance of the law is no defence (Opinion of Advocate General Kokott in Schenker & Co. and Others, C‐681/11, ECR, EU:C:2013:126, point 57).

Schenker & Co. and Others

| 305 | For the remainder, it should be stated that Socitrel’s argument overlaps with the complaints put forward by it and its parent company concerning the fact that the worldwide turnover of the undertaking formed by Companhia Previdente and its various subsidiaries was taken into consideration for the purposes of calculating the maximum amount of 10% and its argument to that effect must be rejected (see paragraph 276 above). |
| --- | --- |

305

For the remainder, it should be stated that Socitrel’s argument overlaps with the complaints put forward by it and its parent company concerning the fact that the worldwide turnover of the undertaking formed by Companhia Previdente and its various subsidiaries was taken into consideration for the purposes of calculating the maximum amount of 10% and its argument to that effect must be rejected (see paragraph 276 above).

| 306 | Last, it follows from all of those considerations, and from the reasoning devoted to the first plea (see paragraph 107 et seq. above), that the contested decision is not vitiated by a failure to state reasons. |
| --- | --- |

306

Last, it follows from all of those considerations, and from the reasoning devoted to the first plea (see paragraph 107 et seq. above), that the contested decision is not vitiated by a failure to state reasons.

| 307 | As for Socitrel’s assertions concerning the Commission’s previous practice in taking decisions, it should be borne in mind that it has consistently been held that the Commission’s practice in previous decisions does not constitute a legal framework for the fines imposed in competition matters (see, to that effect, judgment in Heineken Nederland and Heineken v Commission, cited in paragraph 147 above, EU:C:2012:829, paragraph 108 and the case-law cited), that assertion applying both to the determination of the amount of individual fines and to the Commission’s interpretation of its own Guidelines (see, to that effect, judgment in Dansk Rørindustri and Others v Commission, cited in paragraph 200 above, EU:C:2005:408, paragraphs 227 and 230), therefore in relation to the general level of fines or to the methodology employed in calculating them. |
| --- | --- |

307

As for Socitrel’s assertions concerning the Commission’s previous practice in taking decisions, it should be borne in mind that it has consistently been held that the Commission’s practice in previous decisions does not constitute a legal framework for the fines imposed in competition matters (see, to that effect, judgment in Heineken Nederland and Heineken v Commission, cited in paragraph 147 above, EU:C:2012:829, paragraph 108 and the case-law cited), that assertion applying both to the determination of the amount of individual fines and to the Commission’s interpretation of its own Guidelines (see, to that effect, judgment in Dansk Rørindustri and Others v Commission, cited in paragraph 200 above, EU:C:2005:408, paragraphs 227 and 230), therefore in relation to the general level of fines or to the methodology employed in calculating them.

Heineken Nederland and Heineken

Commission

Dansk Rørindustri and Others

Commission

| 308 | It should be observed, moreover, that Socitrel puts forward no argument in support of those assertions, which it makes in a wholly incidental manner in paragraph 193 of its application. |
| --- | --- |

308

It should be observed, moreover, that Socitrel puts forward no argument in support of those assertions, which it makes in a wholly incidental manner in paragraph 193 of its application.

| 309 | The same applies to the assertion that the Commission breached the principle of legitimate expectations, which is mentioned in the heading of the plea without subsequent clarification being provided. |
| --- | --- |

309

The same applies to the assertion that the Commission breached the principle of legitimate expectations, which is mentioned in the heading of the plea without subsequent clarification being provided.

| 310 | The fifth plea must therefore be rejected in its entirety. |
| --- | --- |

310

The fifth plea must therefore be rejected in its entirety.

6. The sixth plea put forward by Socitrel, alleging breach of the principles of proportionality and equal treatment, in so far as the minor or passive role played by the applicant was not taken into consideration as a mitigating circumstance

The sixth plea put forward by Socitrel, alleging breach of the principles of proportionality and equal treatment, in so far as the minor or passive role played by the applicant was not taken into consideration as a mitigating circumstance

The contested decision

The contested decision

| 311 | According to recitals 985 and 986 of the contested decision:
  
  
  
  
  
  ‘(985) | Socitrel and Companhia Previdente argue ... that Socitrel only participated in Club España, the activities of which were less important than the activities of other Clubs and that Socitrel was not a founding member of Club España. They also claim that regarding the Portuguese market, the cartel activities started without Socitrel, although this was its main market. Socitrel moreover produced only wire and not strand, allegedly the main cartel product and its illegal behaviour only affected a small part of the European market. Also SLM and ITC invoke that they did not participate in the cartel from the start. |
| --- | --- | --- |

311

According to recitals 985 and 986 of the contested decision:

‘(985)

Socitrel and Companhia Previdente argue ... that Socitrel only participated in Club España, the activities of which were less important than the activities of other Clubs and that Socitrel was not a founding member of Club España. They also claim that regarding the Portuguese market, the cartel activities started without Socitrel, although this was its main market. Socitrel moreover produced only wire and not strand, allegedly the main cartel product and its illegal behaviour only affected a small part of the European market. Also SLM and ITC invoke that they did not participate in the cartel from the start.

| (986) | The Commission first observes that Socitrel was a regular participant in the Club España meetings, systematically participating [in] and contributing to over 40 meetings between 7 April 1994 and the date of the Commission’s inspections. It fully participated in the quota and client allocation arrangements, in fixing prices and in sharing commercially sensitive information with the other Club España participants as described in Section 9.2.2. Its role can therefore not be qualified as “substantially limited” under the 2006 Guidelines, nor as passive or one of a mere follower even under the 1998 Guidelines on fines. Also the fact that Socitrel did not, while participating in Club España, simultaneously regularly participate in the pan-European meetings is of no relevance, in particular since Socitrel only sold in Spain and Portugal, the territory covered by Club España and therefore fully participated in the cartel at the level most interesting to it. In any event, there is no evidence that Socitrel avoided applying the agreement by adopting competitive agreement in the market. Finally, the claim that Socitrel’s behaviour affected only a limited part of the European market (mainly Spain and Portugal) and that it only sold wire, and the claim that Socitrel, SLM and ITC did not join the cartel from its start, but only several years later, are already taken into account in the calculation of the basic amount of the fine (see Section 19.1) and cannot therefore in addition serve to grant a reduction of the fine.’ |
| --- | --- |

(986)

The Commission first observes that Socitrel was a regular participant in the Club España meetings, systematically participating [in] and contributing to over 40 meetings between 7 April 1994 and the date of the Commission’s inspections. It fully participated in the quota and client allocation arrangements, in fixing prices and in sharing commercially sensitive information with the other Club España participants as described in Section 9.2.2. Its role can therefore not be qualified as “substantially limited” under the 2006 Guidelines, nor as passive or one of a mere follower even under the 1998 Guidelines on fines. Also the fact that Socitrel did not, while participating in Club España, simultaneously regularly participate in the pan-European meetings is of no relevance, in particular since Socitrel only sold in Spain and Portugal, the territory covered by Club España and therefore fully participated in the cartel at the level most interesting to it. In any event, there is no evidence that Socitrel avoided applying the agreement by adopting competitive agreement in the market. Finally, the claim that Socitrel’s behaviour affected only a limited part of the European market (mainly Spain and Portugal) and that it only sold wire, and the claim that Socitrel, SLM and ITC did not join the cartel from its start, but only several years later, are already taken into account in the calculation of the basic amount of the fine (see Section 19.1) and cannot therefore in addition serve to grant a reduction of the fine.’

Outline of the principles

Outline of the principles

| 312 | In the words of the third indent of point 29 of the 2006 Guidelines:
  ‘The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as:
  
  
  
  
  
  — | ... |
| --- | --- | --- |

312

In the words of the third indent of point 29 of the 2006 Guidelines:

‘The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as:

—

...

| — | where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market: the mere fact that an undertaking participated in an infringement for a shorter duration than others will not be regarded as a mitigating circumstance since this will already be reflected in the basic amount.’ |
| --- | --- |

—

where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market: the mere fact that an undertaking participated in an infringement for a shorter duration than others will not be regarded as a mitigating circumstance since this will already be reflected in the basic amount.’

| 313 | According to consistent case-law, where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined (judgments du 16 December 1975 in Suiker Unie and Others v Commission, 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, ECR, EU:C:1975:174, paragraph 623, and Commission v Anic Partecipazioni, cited in paragraph 280 above, EU:C:1999:356, paragraph 150) so that it may be established whether any aggravating or mitigating circumstances are applicable to them (judgment of 9 July 2003 in Cheil Jedang v Commission, T‐220/00, ECR, EU:T:2003:193, paragraph 165). |
| --- | --- |

313

According to consistent case-law, where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined (judgments du 16 December 1975 in Suiker Unie and Others v Commission, 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, ECR, EU:C:1975:174, paragraph 623, and Commission v Anic Partecipazioni, cited in paragraph 280 above, EU:C:1999:356, paragraph 150) so that it may be established whether any aggravating or mitigating circumstances are applicable to them (judgment of 9 July 2003 in Cheil Jedang v Commission, T‐220/00, ECR, EU:T:2003:193, paragraph 165).

Suiker Unie and Others

Commission

Commission

Anic Partecipazioni

Cheil Jedang

Commission

| 314 | In order to determine whether a mitigating circumstance is applicable to an undertaking on the ground that it did not actually implement unlawful agreements, it is necessary to determine whether the undertaking put forward arguments capable of showing that, during the period in which it was party to the offending agreements, it actually avoided implementing them by adopting competitive conduct on the market or, at the very least, whether it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation (judgment of 15 March 2006 in Daiichi Pharmaceutical v Commission, T‐26/02, ECR, EU:T:2006:75, paragraph 113). |
| --- | --- |

314

In order to determine whether a mitigating circumstance is applicable to an undertaking on the ground that it did not actually implement unlawful agreements, it is necessary to determine whether the undertaking put forward arguments capable of showing that, during the period in which it was party to the offending agreements, it actually avoided implementing them by adopting competitive conduct on the market or, at the very least, whether it clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation (judgment of 15 March 2006 in Daiichi Pharmaceutical v Commission, T‐26/02, ECR, EU:T:2006:75, paragraph 113).

Daiichi Pharmaceutical

Commission

| 315 | Where it has been shown that the offending undertaking was able to take the collusive cartel arrangements into account in order to determine its conduct on the relevant market, the fact that it did not participate in one or other of those arrangements, on the assumption that it is established, cannot in itself suffice to satisfy the proof required by the case-law that, in order to benefit from the mitigating circumstance referred to in the 2006 Guidelines, the offenders must demonstrate that they adopted anticompetitive conduct or, at least, that they clearly and substantially breached the obligations relating to the implementation of the cartel, to the point of disrupting its very operation. Proof of not having participated in only some of the collusive cartel arrangements cannot in itself mean that the other arrangements did not harm competition on the relevant market (judgment of 5 December 2013 in Solvay Solexis v Commission, C‐449/11 P, EU:C:2013:802, paragraph 81). |
| --- | --- |

315

Where it has been shown that the offending undertaking was able to take the collusive cartel arrangements into account in order to determine its conduct on the relevant market, the fact that it did not participate in one or other of those arrangements, on the assumption that it is established, cannot in itself suffice to satisfy the proof required by the case-law that, in order to benefit from the mitigating circumstance referred to in the 2006 Guidelines, the offenders must demonstrate that they adopted anticompetitive conduct or, at least, that they clearly and substantially breached the obligations relating to the implementation of the cartel, to the point of disrupting its very operation. Proof of not having participated in only some of the collusive cartel arrangements cannot in itself mean that the other arrangements did not harm competition on the relevant market (judgment of 5 December 2013 in Solvay Solexis v Commission, C‐449/11 P, EU:C:2013:802, paragraph 81).

Solvay Solexis

Commission

| 316 | Furthermore, it should be borne in mind that 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) provided that an ‘exclusively passive or “follow-my-leader” role played by an undertaking in the infringement’ constituted a mitigating circumstance. |
| --- | --- |

316

Furthermore, it should be borne in mind that 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) provided that an ‘exclusively passive or “follow-my-leader” role played by an undertaking in the infringement’ constituted a mitigating circumstance.

| 317 | The list of mitigating circumstances in point 29 of the 2006 Guidelines, however, no longer refers, under the mitigating circumstances that may be taken into account, to such a circumstance. |
| --- | --- |

317

The list of mitigating circumstances in point 29 of the 2006 Guidelines, however, no longer refers, under the mitigating circumstances that may be taken into account, to such a circumstance.

| 318 | It has been held, however, that, in so far as the list set out in point 29 of the 2006 Guidelines was not exhaustive, an exclusively passive or ‘follow-my-leader’ role could not, in principle, be excluded from the circumstances that might lead to a reduction of the basic amount of a fine (judgment of 25 October 2011 in Aragonesas Industrias y Energía v Commission, T‐348/08, ECR, EU:T:2011:621, paragraph 281). |
| --- | --- |

318

It has been held, however, that, in so far as the list set out in point 29 of the 2006 Guidelines was not exhaustive, an exclusively passive or ‘follow-my-leader’ role could not, in principle, be excluded from the circumstances that might lead to a reduction of the basic amount of a fine (judgment of 25 October 2011 in Aragonesas Industrias y Energía v Commission, T‐348/08, ECR, EU:T:2011:621, paragraph 281).

Aragonesas Industrias y Energía

Commission

The merits of the sixth plea

The merits of the sixth plea

| 319 | Socitrel maintains in essence that the Commission was wrong to refuse to grant it the benefit of mitigating circumstances, in view of its non-contestation of the facts imputed to it; of the very minor role which it played in Club España by comparison with that played by Tycsa and Emesa, which, moreover, is reflected in the fact that the Commission did not carry out an inspection at its premises; of its passive role and the fact that it did not participate in drawing up the anticompetitive agreements; and also of the fact that it did not participate in several meetings at which important matters were discussed. It further claims, in essence, that it was for the Commission to take into consideration the fact that Socitrel had not participated in all the aspects of the cartel, when assessing the gravity of its participation therein, in accordance with the principle of personal responsibility and the principle that penalties must be personal to the offender. |
| --- | --- |

319

Socitrel maintains in essence that the Commission was wrong to refuse to grant it the benefit of mitigating circumstances, in view of its non-contestation of the facts imputed to it; of the very minor role which it played in Club España by comparison with that played by Tycsa and Emesa, which, moreover, is reflected in the fact that the Commission did not carry out an inspection at its premises; of its passive role and the fact that it did not participate in drawing up the anticompetitive agreements; and also of the fact that it did not participate in several meetings at which important matters were discussed. It further claims, in essence, that it was for the Commission to take into consideration the fact that Socitrel had not participated in all the aspects of the cartel, when assessing the gravity of its participation therein, in accordance with the principle of personal responsibility and the principle that penalties must be personal to the offender.

| 320 | However, that argument cannot be accepted. |
| --- | --- |

320

However, that argument cannot be accepted.

| 321 | As regards the conditions laid down in the 2006 Guidelines, it must be stated that, as the Commission correctly points out, Socitrel participated in price fixing, quota allocation and the exchange of commercially sensitive information throughout its participation in Club España and it has adduced no evidence showing that it avoided implementing the agreement by adopting competitive conduct on the market during that period. |
| --- | --- |

321

As regards the conditions laid down in the 2006 Guidelines, it must be stated that, as the Commission correctly points out, Socitrel participated in price fixing, quota allocation and the exchange of commercially sensitive information throughout its participation in Club España and it has adduced no evidence showing that it avoided implementing the agreement by adopting competitive conduct on the market during that period.

| 322 | It cannot therefore claim to be entitled to a reduction of the amount of the fine in application of the mitigating circumstances referred to in point 29 of the 2006 Guidelines. |
| --- | --- |

322

It cannot therefore claim to be entitled to a reduction of the amount of the fine in application of the mitigating circumstances referred to in point 29 of the 2006 Guidelines.

| 323 | As regards the ‘exclusively passive or “follow-my-leader” role’, it should be observed that Socitrel did not participate in all the Club España meetings and was aware of the pan-European aspect of the cartel only at a late stage, in 2001, a factor which was correctly taken into consideration by the Commission when it set the rate to reflect the gravity of the infringement (see paragraph 288 et seq. above). On the other hand, it must be held that the applicant did not have an exclusively passive or ‘follow-my-leader’ role within Club España. It actively participated in price fixing, quota allocation and the exchange of commercially sensitive information, and did so throughout the entire duration of its participation, and while it did not participate in all the meetings, it participated in a large number of them. |
| --- | --- |

323

As regards the ‘exclusively passive or “follow-my-leader” role’, it should be observed that Socitrel did not participate in all the Club España meetings and was aware of the pan-European aspect of the cartel only at a late stage, in 2001, a factor which was correctly taken into consideration by the Commission when it set the rate to reflect the gravity of the infringement (see paragraph 288 et seq. above). On the other hand, it must be held that the applicant did not have an exclusively passive or ‘follow-my-leader’ role within Club España. It actively participated in price fixing, quota allocation and the exchange of commercially sensitive information, and did so throughout the entire duration of its participation, and while it did not participate in all the meetings, it participated in a large number of them.

| 324 | Consequently, the Commission did not breach either the principle of equal treatment or the principle of personal liability, nor did it breach the principle that the penalty must be personal to the offender, and the amount of the fine does not appear to be disproportionate in the light of Socitrel’s actual participation in Club España. |
| --- | --- |

324

Consequently, the Commission did not breach either the principle of equal treatment or the principle of personal liability, nor did it breach the principle that the penalty must be personal to the offender, and the amount of the fine does not appear to be disproportionate in the light of Socitrel’s actual participation in Club España.

| 325 | The sixth plea must therefore be rejected in its entirety. |
| --- | --- |

325

The sixth plea must therefore be rejected in its entirety.

7. The seventh plea relied on by Socitrel, alleging breach of the principles of proportionality and equal treatment, in that its actual cooperation was not taken into account by the Commission as a mitigating circumstance

The seventh plea relied on by Socitrel, alleging breach of the principles of proportionality and equal treatment, in that its actual cooperation was not taken into account by the Commission as a mitigating circumstance

The contested decision

The contested decision

| 326 | According to recitals 1006 to 1009 the contested decision:
  
  
  
  
  
  ‘(1006) | ... Socitrel [refers] to the fact that [it] replied promptly and precisely to the Commission’s requests for information. |
| --- | --- | --- |

326

According to recitals 1006 to 1009 the contested decision:

‘(1006)

... Socitrel [refers] to the fact that [it] replied promptly and precisely to the Commission’s requests for information.

| (1007) | The Commission has assessed whether a reduction of fines was justified, in line with the case-law, with regard to the question whether the cooperation of any of the undertakings concerned enabled the Commission to establish the infringement more easily. As it is generally the case for cartels, that assessment has in fact been carried out in application of the Leniency Notice (see Section 19.4 below). In this context, the Commission notes that Austria Draht, Trame, Socitrel, Fapricela, Proderac, the Ovako companies, Itas and CB did not formally apply for leniency and did not provide information constituting significant added value. |
| --- | --- |

(1007)

The Commission has assessed whether a reduction of fines was justified, in line with the case-law, with regard to the question whether the cooperation of any of the undertakings concerned enabled the Commission to establish the infringement more easily. As it is generally the case for cartels, that assessment has in fact been carried out in application of the Leniency Notice (see Section 19.4 below). In this context, the Commission notes that Austria Draht, Trame, Socitrel, Fapricela, Proderac, the Ovako companies, Itas and CB did not formally apply for leniency and did not provide information constituting significant added value.

| (1008) | Taking into account the arguments of the parties and the limited scope and value of their cooperation, no other circumstances are present that would lead to a reduction of the fines outside the Leniency Notice, which, in secret cartel cases, could in any event only be of an exceptional nature. A prompt and precise reply to the Commission’s request for information does not in itself constitute [a mitigating] circumstance, since the parties were obliged to reply to such questions within the given deadlines. |
| --- | --- |

(1008)

Taking into account the arguments of the parties and the limited scope and value of their cooperation, no other circumstances are present that would lead to a reduction of the fines outside the Leniency Notice, which, in secret cartel cases, could in any event only be of an exceptional nature. A prompt and precise reply to the Commission’s request for information does not in itself constitute [a mitigating] circumstance, since the parties were obliged to reply to such questions within the given deadlines.

| (1009) | Also the non-contestation of the facts does not in itself suffice to qualify for a reduction of the fine under point 29 of the 2006 Guidelines on fines, particularly when the facts are established on the basis of ample evidence. The Commission is not bound by its earlier practice, and the reward for non-contestation of facts which was provided for in the 1996 Leniency Notice has subsequently been abandoned. The simple non-contestation, outside some exceptional situations, does not facilitate the work of the Commission, as the Court of Justice has found that even in that situation the Commission will have to prove those facts and the undertaking is free to put forward, at the appropriate time and in particular in the procedure before the [General] Court, any plea in its defence which it deems appropriate. The opposite is only true where the undertaking at issue acknowledges the facts. In so far as the applicable Leniency Notice, i.e. that of 2002, does not provide for any reduction for the simple acknowledgement of facts (nor, a fortiori, for a non-contestation of those facts) no legitimate expectation has been created as to the granting of any reduction on that basis. To the extent that certain parties have acknowledged certain facts, this has not facilitated the Commission’s task, in so far as the Commission had a sufficient body of evidence in order to prove the facts in question. No reduction of the fine for non-contestation of the facts should therefore be granted.’ |
| --- | --- |

(1009)

Also the non-contestation of the facts does not in itself suffice to qualify for a reduction of the fine under point 29 of the 2006 Guidelines on fines, particularly when the facts are established on the basis of ample evidence. The Commission is not bound by its earlier practice, and the reward for non-contestation of facts which was provided for in the 1996 Leniency Notice has subsequently been abandoned. The simple non-contestation, outside some exceptional situations, does not facilitate the work of the Commission, as the Court of Justice has found that even in that situation the Commission will have to prove those facts and the undertaking is free to put forward, at the appropriate time and in particular in the procedure before the [General] Court, any plea in its defence which it deems appropriate. The opposite is only true where the undertaking at issue acknowledges the facts. In so far as the applicable Leniency Notice, i.e. that of 2002, does not provide for any reduction for the simple acknowledgement of facts (nor, a fortiori, for a non-contestation of those facts) no legitimate expectation has been created as to the granting of any reduction on that basis. To the extent that certain parties have acknowledged certain facts, this has not facilitated the Commission’s task, in so far as the Commission had a sufficient body of evidence in order to prove the facts in question. No reduction of the fine for non-contestation of the facts should therefore be granted.’

a fortiori

Outline of the principles

Outline of the principles

| 327 | The fourth indent of point 29 of the 2006 Guidelines provides:
  ‘The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as:
  
  
  
  
  
  — | ... |
| --- | --- | --- |

327

The fourth indent of point 29 of the 2006 Guidelines provides:

‘The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as:

—

...

| — | where the undertaking concerned has effectively cooperated with the Commission outside the scope of the Leniency Notice and beyond its legal obligation to do so.’ |
| --- | --- |

—

where the undertaking concerned has effectively cooperated with the Commission outside the scope of the Leniency Notice and beyond its legal obligation to do so.’

The merits of the seventh plea

The merits of the seventh plea

| 328 | Socitrel claims in essence that the Commission was wrong to refuse to grant it a reduction of the amount of the fine by reason of its cooperation. |
| --- | --- |

328

Socitrel claims in essence that the Commission was wrong to refuse to grant it a reduction of the amount of the fine by reason of its cooperation.

| 329 | In order for Socitrel to be able to claim the benefit of the fourth indent of point 29 of the 2006 Guidelines, however, it must establish that its cooperation, having gone beyond Socitrel’s legal obligation to cooperate but without entitling it to a reduction of the fine under the Leniency Notice, was objectively useful to the Commission, in that the latter was able to rely in its final decision on evidence supplied to it by Socitrel in the context of its cooperation, and without which the Commission would not have been in a position to penalise the infringement in question, in whole or in part. |
| --- | --- |

329

In order for Socitrel to be able to claim the benefit of the fourth indent of point 29 of the 2006 Guidelines, however, it must establish that its cooperation, having gone beyond Socitrel’s legal obligation to cooperate but without entitling it to a reduction of the fine under the Leniency Notice, was objectively useful to the Commission, in that the latter was able to rely in its final decision on evidence supplied to it by Socitrel in the context of its cooperation, and without which the Commission would not have been in a position to penalise the infringement in question, in whole or in part.

| 330 | It must be stated that that is not the case here. Socitrel did not contest the facts and replied in a timely manner to the requests for information sent to it, which does not go beyond its legal obligation to cooperate; furthermore, it has failed to show that the Commission was able to rely in its final decision on evidence supplied to it by Socitrel in the context of its cooperation, and without which the Commission would not have been in a position to penalise the infringement, in whole or in part. |
| --- | --- |

330

It must be stated that that is not the case here. Socitrel did not contest the facts and replied in a timely manner to the requests for information sent to it, which does not go beyond its legal obligation to cooperate; furthermore, it has failed to show that the Commission was able to rely in its final decision on evidence supplied to it by Socitrel in the context of its cooperation, and without which the Commission would not have been in a position to penalise the infringement, in whole or in part.

| 331 | The seventh plea must therefore be rejected. |
| --- | --- |

331

The seventh plea must therefore be rejected.

8. The first additional plea put forward in connection with the second amendment of the pleas and the forms of order sought by Socitrel and Companhia Previdente, alleging, in Socitrel’s case, breach of the principles of equal treatment, proportionality and legitimate expectations and failure to state reasons and, in Companhia Previdente’s case, breach of the principles of equal treatment, proportionality and legitimate expectations, in so far as Socitrel and Companhia Previdente were not treated in the same way as Arcelor and SLM, which obtained a reduction of the fine which the applicants were not granted

The first additional plea put forward in connection with the second amendment of the pleas and the forms of order sought by Socitrel and Companhia Previdente, alleging, in Socitrel’s case, breach of the principles of equal treatment, proportionality and legitimate expectations and failure to state reasons and, in Companhia Previdente’s case, breach of the principles of equal treatment, proportionality and legitimate expectations, in so far as Socitrel and Companhia Previdente were not treated in the same way as Arcelor and SLM, which obtained a reduction of the fine which the applicants were not granted

The contested decision

The contested decision

| 332 | In the words of recital 1072a, inserted into the contested decision by the second amending decision:
  
  
  
  
  
  ‘(1072a) | The 10% [maximum amount] laid down in Article 23(2) is calculated on the basis of the total turnover of all the legal entities constituting an “undertaking”. The 10% [maximum amount] is not based on the individual turnovers of the legal entities within an undertaking that are held jointly and severally liable for an infringement. However, in this particular case, the Commission will use its margin of appreciation and discretion to set the parts of the fines for which the ArcelorMittal subsidiaries are not jointly and severally liable with ArcelorMittal SA, and the fine for which SLM is solely liable at a level not exceeding 10% of their own turnover in the business year preceding the adoption of the Decision. Therefore, the maximum amount of the fine for which ArcelorMittal Wire France SA and ArcelorMittal Fontaine SA are jointly and severally liable for the period prior to 1 July 1999 should be set at 10% of the total consolidated turnover of ArcelorMittal Wire France SA for the year ending 31 December 2009. Out of that total amount, the maximum amount of the fine for which Arcelor Mittal Verderio Srl is jointly and severally liable with ArcelorMittal Wire France SA and ArcelorMittal Fontaine SA should be set at 10% of its own turnover for the year ending 31 December 2009. The maximum amount of the fine for which SLM is solely liable should be set at 10% of its turnover for the year ending 31 December 2009.’ |
| --- | --- | --- |

332

In the words of recital 1072a, inserted into the contested decision by the second amending decision:

‘(1072a)

The 10% [maximum amount] laid down in Article 23(2) is calculated on the basis of the total turnover of all the legal entities constituting an “undertaking”. The 10% [maximum amount] is not based on the individual turnovers of the legal entities within an undertaking that are held jointly and severally liable for an infringement. However, in this particular case, the Commission will use its margin of appreciation and discretion to set the parts of the fines for which the ArcelorMittal subsidiaries are not jointly and severally liable with ArcelorMittal SA, and the fine for which SLM is solely liable at a level not exceeding 10% of their own turnover in the business year preceding the adoption of the Decision. Therefore, the maximum amount of the fine for which ArcelorMittal Wire France SA and ArcelorMittal Fontaine SA are jointly and severally liable for the period prior to 1 July 1999 should be set at 10% of the total consolidated turnover of ArcelorMittal Wire France SA for the year ending 31 December 2009. Out of that total amount, the maximum amount of the fine for which Arcelor Mittal Verderio Srl is jointly and severally liable with ArcelorMittal Wire France SA and ArcelorMittal Fontaine SA should be set at 10% of its own turnover for the year ending 31 December 2009. The maximum amount of the fine for which SLM is solely liable should be set at 10% of its turnover for the year ending 31 December 2009.’

| 333 | Recital 1072b of the contested decision fixes the total turnover taken into consideration and also the amount corresponding to the maximum amount of 10% for each of the companies affected by that second amending decision. |
| --- | --- |

333

Recital 1072b of the contested decision fixes the total turnover taken into consideration and also the amount corresponding to the maximum amount of 10% for each of the companies affected by that second amending decision.

Findings of the Court

Findings of the Court

| 334 | As the Commission emphasises, Socitrel and Companhia Previdente are clearly not in a situation comparable to that of ArcelorMittal and its subsidiaries and to that of Ori Martin and SLM. |
| --- | --- |

334

As the Commission emphasises, Socitrel and Companhia Previdente are clearly not in a situation comparable to that of ArcelorMittal and its subsidiaries and to that of Ori Martin and SLM.

| 335 | Those two parent companies constituted an undertaking with their subsidiaries during part of the infringement period and were considered to be jointly and severally liable with those subsidiaries for the period when they formed an undertaking together, which was reflected in a differentiated calculation of the 10% maximum amount (see, to that effect, judgment of 4 September 2014 in YKK and Others v Commission, C‐408/12 P, ECR, EU:C:2014:2153, paragraph 55 et seq.). |
| --- | --- |

335

Those two parent companies constituted an undertaking with their subsidiaries during part of the infringement period and were considered to be jointly and severally liable with those subsidiaries for the period when they formed an undertaking together, which was reflected in a differentiated calculation of the 10% maximum amount (see, to that effect, judgment of 4 September 2014 in YKK and Others v Commission, C‐408/12 P, ECR, EU:C:2014:2153, paragraph 55 et seq.).

YKK and Others

Commission

| 336 | That is not the case for Companhia Previdente so far as Emesa, Galycas and ITC are concerned, as it acquired those undertakings after the infringement and was not held jointly and severally liable for their unlawful conduct. |
| --- | --- |

336

That is not the case for Companhia Previdente so far as Emesa, Galycas and ITC are concerned, as it acquired those undertakings after the infringement and was not held jointly and severally liable for their unlawful conduct.

| 337 | The complaint alleging breach of the principle of equal treatment must therefore be rejected. |
| --- | --- |

337

The complaint alleging breach of the principle of equal treatment must therefore be rejected.

| 338 | It follows that the complaint alleging breach of the principle of proportionality, on the ground that the fine imposed on the applicants is disproportionate because a reduction comparable to that granted to ArcelorMittal and Ori Martin was not granted to Socitrel and Companhia Previdente, must also be rejected. |
| --- | --- |

338

It follows that the complaint alleging breach of the principle of proportionality, on the ground that the fine imposed on the applicants is disproportionate because a reduction comparable to that granted to ArcelorMittal and Ori Martin was not granted to Socitrel and Companhia Previdente, must also be rejected.

| 339 | Nor did the Commission give the applicants any precise assurance that could have caused them to have well-founded expectations that their fines would be reduced for reasons similar to those that led to such a reduction being granted to ArcelorMittal and Ori Martin. |
| --- | --- |

339

Nor did the Commission give the applicants any precise assurance that could have caused them to have well-founded expectations that their fines would be reduced for reasons similar to those that led to such a reduction being granted to ArcelorMittal and Ori Martin.

| 340 | Last, the complaint alleging failure to state reasons must be rejected, since recitals 4, 5 and 9 to 13 of the second amending decision clearly explain the reasons why the Commission amended its decision. |
| --- | --- |

340

Last, the complaint alleging failure to state reasons must be rejected, since recitals 4, 5 and 9 to 13 of the second amending decision clearly explain the reasons why the Commission amended its decision.

| 341 | The first additional plea submitted by the applicants must therefore be rejected. |
| --- | --- |

341

The first additional plea submitted by the applicants must therefore be rejected.

9. The second additional plea submitted by Socitrel and Companhia Previdente, alleging breach of the principles of diligence, fairness, good faith and legal certainty, in so far as the Commission amended its initial decision again in 2011

The second additional plea submitted by Socitrel and Companhia Previdente, alleging breach of the principles of diligence, fairness, good faith and legal certainty, in so far as the Commission amended its initial decision again in 2011

| 342 | Socitrel and Companhia Previdente maintain, in essence, that the Commission breached the principles of diligence, fairness, good faith and legal certainty, in so far as it amended the initial decision for a second time in 2011, owing to flawed reasoning capable of compromising their rights of defence and thus placing the applicants in a state of permanent uncertainty. |
| --- | --- |

342

Socitrel and Companhia Previdente maintain, in essence, that the Commission breached the principles of diligence, fairness, good faith and legal certainty, in so far as it amended the initial decision for a second time in 2011, owing to flawed reasoning capable of compromising their rights of defence and thus placing the applicants in a state of permanent uncertainty.

| 343 | It must be stated, however, that this second additional plea overlaps with the argument submitted by Socitrel in support of its third plea, which must be rejected for the reasons stated in paragraphs 184 to 189 above. |
| --- | --- |

343

It must be stated, however, that this second additional plea overlaps with the argument submitted by Socitrel in support of its third plea, which must be rejected for the reasons stated in paragraphs 184 to 189 above.

| 344 | In those circumstances, the second additional plea put forward by Socitrel and Companhia Previdente on the occasion of the second amendment of their pleas must be rejected, for the same reasons. |
| --- | --- |

344

In those circumstances, the second additional plea put forward by Socitrel and Companhia Previdente on the occasion of the second amendment of their pleas must be rejected, for the same reasons.

| 345 | It is apparent from all of the foregoing that none of the pleas in law put forward by the applicants can be upheld. Their respective actions for annulment must therefore be rejected in their entirety, without there being any need, in the circumstances of the case, for the Court to exercise its unlimited jurisdiction and vary the fine imposed on them. |
| --- | --- |

345

It is apparent from all of the foregoing that none of the pleas in law put forward by the applicants can be upheld. Their respective actions for annulment must therefore be rejected in their entirety, without there being any need, in the circumstances of the case, for the Court to exercise its unlimited jurisdiction and vary the fine imposed on them.

Costs

Costs

| 346 | Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission. |
| --- | --- |

346

Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

| | 1. | Joins Cases T‐413/10 and T‐414/10 for the purposes of the judgment; |
| --- | --- | --- |

1.

1.

Joins Cases T‐413/10 and T‐414/10 for the purposes of the judgment;

Joins Cases T‐413/10 and T‐414/10 for the purposes of the judgment;

| | 2. | Dismisses the actions; |
| --- | --- | --- |

2.

2.

Dismisses the actions;

Dismisses the actions;

| | 3. | Orders Socitrel — Sociedade Industrial de Trefilaria, SA and Companhia Previdente — Sociedade de Controle de Participações Financeiras, SA to bear their own costs and to pay the costs incurred by the European Commission, including those relating to the interlocutory proceedings. |
| --- | --- | --- |

3.

3.

Orders Socitrel — Sociedade Industrial de Trefilaria, SA and Companhia Previdente — Sociedade de Controle de Participações Financeiras, SA to bear their own costs and to pay the costs incurred by the European Commission, including those relating to the interlocutory proceedings.

Orders Socitrel — Sociedade Industrial de Trefilaria, SA and Companhia Previdente — Sociedade de Controle de Participações Financeiras, SA to bear their own costs and to pay the costs incurred by the European Commission, including those relating to the interlocutory proceedings.

| | Frimodt Nielsen
  
  
  Dehousse
  
  
  Collins
  
  
  Delivered in open court in Luxembourg on 15 July 2015.
  [Signatures] |
| --- | --- |

Frimodt Nielsen

Dehousse

Collins

Delivered in open court in Luxembourg on 15 July 2015.

[Signatures]

---

(
  *1
  )	Language of the case: Portuguese.

*1

(
  1
  )	Only the paragraphs of this judgment which the Court considers it appropriate to publish are reproduced here.

1