Information;Judgment — ECLI:EU:T:2019:778
Date: 2019-11-07
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: Belgium

summary of the pleas in law relied on. 378 It follows from all the foregoing considerations that the third part of the first plea and, consequently, that plea as a whole must be rejected. 379 In conclusion, the application for annulment of the contested decision must be upheld in part, in so far as the Commission (i) concluded, in Article 1 of that decision, that Campine participated in the infringement between 10 February 2010 and 10 January 2011, and between 4 April 2011 and 7 March 2012 and (ii) set, in Article 2 of that decision, the amount of the fine imposed on Campine by taking into account the duration of the infringement initially found. The consequences of that annulment in part of the contested decision will be examined in paragraphs 424 and 425 below. C. The alternative head of claim, seeking the cancellation or reduction of the fine 1. Preliminary observations 380 By the second group of pleas, Campine submits complaints and arguments challenging both the lawfulness of the calculation of the amount of the fine imposed on it and the appropriateness of the fine. Thus, those complaints and arguments seek, without drawing a clear distinction, the annulment in part of Article 2 of the contested decision in so far as it concerns Campine and/or its variation in the exercise by the Court of its unlimited jurisdiction. 381 According to the case-law, the review of the lawfulness of decisions adopted by the Commission is supplemented by the unlimited jurisdiction conferred on the Courts of the European Union by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (see judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 63 and the case-law cited). The review provided for by the Treaties thus involves review by the Courts of the European Union of both the law and the facts, and means that they have the power to assess the evidence, to annul the decision that is contested and to alter the amount of a fine. The review of legality provided for under Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for under Article 31 of Regulation No 1/2003, is not therefore contrary to the requirements of the principle of effective judicial protection in Article 47 of the Charter of Fundamental Rights of the European Union (see judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 67 and the case-law cited). 382 In order to determine the amount of the fine imposed, it is for the Court to assess for itself the circumstances of the case and the nature of the infringement in question. That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment, without the General Court being bound by the indicative rules defined by the Commission in its guidelines (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraphs 89 and 90). 2. The third plea, alleging infringement of Article 23(3) of Regulation No 1/2003 and the Guidelines (a) Arguments of the parties 383 In the first place, Campine claims that the Commission did not correctly assess the gravity of the infringement. Campine again argues that it was at most only marginally involved in that infringement and that its conduct could at most be regarded only as an independent exchange of imprecise, vague and sporadic information, with no demonstrated effect on the market. It adds that it is only a small operator on the market and has virtually no market share in two of the Member States concerned, namely Germany and France. 384 In the second place, Campine maintains that the Commission did not correctly assess the duration of the infringement. It reiterates its claim that it did not participate in a single and continuous infringement, but at most a single and repeated infringement. It submits that the evidence relating to six contacts over a period of more than 3 years cannot constitute evidence of facts sufficiently close in time for it to be reasonable to conclude that the infringement continued without interruption between two specific dates. Accordingly, and in the light of the movement of prices on the scrap battery market, the duration of the infringement for Campine should be limited to 1 week or at most 2 weeks after any of the contacts that the Court might classify as illegitimate. 385 In the third place, Campine claims that the Commission did not correctly assess the mitigating circumstances when calculating the fine which was imposed on it. 386 In that regard, first, Campine criticises the fact that the Commission granted Campine only a 5% reduction in the amount of its fine on account of its secondary role in the infringement. Campine takes the view that the Commission cannot justify that percentage by the fact that the value of the purchases which it had taken into account for Campine already reflected its secondary position on the market as compared with that of Eco-Bat, JCI and Recylex. The Commission is not entitled, when assessing the mitigating circumstances, to take into account the figures relating to the value of the purchases made by Campine, since that value has already been taken into account when calculating the basic amount of the fine to be imposed. 387 According to Campine, nor can the Commission justify the percentage of only 5% by stating that Campine had participated in all the multilateral meetings and that it did not oppose or disrupt the cartel. There were only two multilateral meetings over a period of more than 3 years and Campine felt ‘morally’ obliged to participate in them because they had been organised by its most important customer, JCI, in order to discuss issues relating to the REACH Regulation. Moreover, Campine claims to have opposed the cartel so far as possible, never to have initiated any of the collusive contacts with the three members of the cartel and to have behaved in a competitive manner. Relying on various elements which are identified in the case-law and are present in this case, Campine concludes from the foregoing that the Commission should have applied a reduction of at least 20% to the amount of its fine, on the basis of the mitigating circumstance that its participation in the cartel was considerably limited. 388 Second, Campine claims that the Commission erred in not granting it a further reduction on account of its cooperation outside the scope of the Leniency Notice. It states that it provided the Commission, in its leniency application, with all the information at its disposal concerning the cartel. This was not an easy task, since the main person involved in the infringement in question, Mr C. (Campine), had left the company on 24 August 2012 and it is a small company with no in-house legal counsel and only one IT specialist. It claims that, when it submitted its leniency application, it had not yet found evidence of unlawful conduct and that, after further research, it was quite clear to it that there was simply no evidence of its participation in the cartel. The information which it provided in its leniency application was very valuable information about the functioning of the market, made it easier for the Commission to establish the infringement and was confirmation of the events. Lastly, it is stated in the contested decision that Campine provided information to the Commission on at least 12 occasions. 389 In the fourth place, Campine submits that the Commission infringed the principle of non-discrimination in calculating the amount of the fine, in so far as it did not penalise Métal Blanc whereas that company was one of the addressees of the statement of objections and there was evidence in the file to prove quite clearly the existence of discussions and agreements on prices between that company and the three members of the cartel. 390 In the light of all the foregoing considerations, Campine submits that no fine should be imposed on it or, at the very least, that the amount of the fine should be substantially reduced. 391 The Commission rejects the arguments put forward by Campine. (b) Findings of the Court 392 In the first place, as regards the Commission’s assessment of the gravity of the infringement committed by Campine, it should be recalled that, according to the Guidelines, the amount reflecting the gravity of the infringement is determined in accordance with a percentage between 0 and 30% of the value of the relevant sales of the undertaking concerned in the final year of its participation in the cartel. 393 As the Commission rightly stated in recitals 321 and 322 of the commission decision, for the purposes of setting the multiplier for the ‘gravity of the infringement’, it is necessary to take into account in particular the nature of the infringement alleged. 394 However, as the Commission observed, inter alia, in recitals 322 and 324 of the contested decision and as was already noted in paragraphs 295 to 297 above, a cartel with the objective of coordinating prices is by its nature one of the most harmful restrictions of competition (see also point 23 of the Guidelines). Consequently, it cannot be alleged that the Commission made errors of law in setting for such an infringement a rate of 15% as the multiplier for the ‘gravity of the infringement’. Such a rate, which is the lowest rate on the scale of penalties prescribed for such infringements under the Guidelines (judgment of 26 January 2017, Roca v Commission, C‑638/13 P, EU:C:2017:53, paragraph 61), is clearly consistent with the principle of proportionality. 395 Moreover, for the reasons set out in the context of the examination of the second plea above, to which reference is made, Campine’s claim that its conduct could at most be regarded only as an independent exchange of imprecise, vague and sporadic information, with no demonstrated effect on the market, cannot be accepted. 396 As regards Campine’s argument that it was involved only marginally in the infringement, it should be noted that, for the purpose of assessing the gravity of an infringement, differences between undertakings which have participated in the same cartel need not necessarily be taken into account when setting the multiplier for the ‘gravity of the infringement’ (or the additional amount), but may be taken into account at another stage of calculating the fine, such as when adjusting the basic amount in the light of any mitigating and aggravating circumstances, under points 28 and 29 of the Guidelines (see judgment of 26 January 2017, Laufen Austria v Commission, C‑637/13 P, EU:C:2017:51, paragraph 71 and the case-law cited). In the present case, the Commission took into account the ancillary role played by Campine in the cartel by way of mitigating circumstances by granting it a 5% reduction in the amount of the fine. 397 As for Campine’s argument that it is only a small operator on the market and had virtually no market share in two of the four Member States concerned, it should be pointed out that the Court has acknowledged that the use of the value of an undertaking’s sales (and, by analogy, of the value of purchases in the case of a purchase cartel) as a starting point for calculating the basic amount of the fines makes it possible to reflect, for each participating undertaking, the scale of its involvement in the infringement in question (judgment of 26 January 2017, Mamoli Robinetteria v Commission, C‑619/13 P, EU:C:2017:50, paragraph 105). This reasoning may be applied by analogy to the use of the value of purchases in the case of a purchase cartel. In the present case, the basic amount of the fines was determined, for each cartel participant, on the basis of the value of the purchases that it had made during the infringement period in the territories concerned. Thus, a different basic amount was established for each of those participants, reflecting the scale of their respective activities in the territories concerned. 398 It must therefore be concluded that the Commission correctly assessed the gravity of the infringement when calculating the amount of the fine imposed on Campine. 399 In the second place, it should be recalled that, for the purposes of determining the duration of the participation of each of the undertakings concerned in the infringement, the Commission relied on the classification of that cartel as ‘single and continuous’. Thus, it considered that Campine had taken part in that single and continuous infringement, without interruption, from 23 September 2009 to 26 September 2012, so that the multiplier to be applied for the duration of the infringement had to be set at 3.01. 400 It is apparent from the examination of the second subsection of the second plea (see paragraphs 263 to 284 above) that the Commission was wrong to find that Campine had participated in the infringement continuously from 23 September 2009 to 26 September 2012. It was found that its participation in that infringement was interrupted, first, between 10 February 2010 and 10 January 2011 and, second, between 4 April 2011 and 7 March 2012, so that the duration of the single and repeated infringement attributable to Campine was 14 months. 401 Accordingly, the multiplier to be applied for the duration of the infringement must be set at 1.17 for Campine. 402 In the third place, as regards the assessment of mitigating circumstances, it should be recalled that, pursuant to point 29 of the Guidelines, the Commission granted Campine a reduction of 5% of the basic amount of its fine, in the light, in essence, of its minor and peripheral role in the cartel. 403 It is necessary to ascertain whether that level of reduction is appropriate in view of the nature of, and all the relevant circumstances that characterise, Campine’s participation in the cartel. 404 In that respect, first, it is apparent from recital 355 of the contested decision that, in order to set the level of reduction to be applied to Campine’s fine at 5%, on the one hand, the Commission found that Campine had been involved in significantly fewer anticompetitive contacts than the three other members of the cartel (namely 6 contacts for Campine, compared with 61 for JCI, 28 for Eco-Bat and 39 for Recylex), that for long periods there was no evidence of its participation in any anticompetitive contacts and that it therefore appeared that it had played only a minor or peripheral role in the infringement. On the other hand, the Commission found that a reduction of more than 5% would not be justified, as ‘the value of purchases figure taken into account for Campine already reflects its secondary position on the market compared to Eco-Bat, JCI and Recylex’, as Campine ‘took part in all multilateral meetings and [as it] did not oppose or disrupt the cartel’. 405 Campine does not call into question the findings made by the Commission in the first part of the reasoning set out in the previous paragraph and the material accuracy of which is moreover confirmed by the information in the case file. 406 It should be noted, however, that the fact that Campine did not take part in any anticompetitive contacts in connection with the cartel for a total period of approximately 22 months has already been taken into account by the Court in order to reduce the multiplier to be applied for the duration of the infringement (see paragraph 401 above). 407 As regards the Commission’s findings in the second part of its reasoning set out in paragraph 404 above, it should first of all be noted that it is common ground between the parties that Campine took part in all the multilateral cartel meetings, but that there were only two such meetings during the entire period of the cartel. Campine’s argument that it felt ‘morally obliged’ to attend those meetings on the ground that they were organised by its most important customer, JCI, cannot succeed. As can be seen from the considerations set out in paragraphs 138 to 154 and 164 to 173 above, the discussions at those meetings were of an anticompetitive nature and Campine did not publicly distance itself from their content. Next, it must be stated that there is nothing in the documents before the Court to support Campine’s claim that it opposed the cartel so far as possible. Campine’s claim that it never initiated any of any collusive contacts with the other members of the cartel is contradicted by the email of 10 February 2010, from which it is apparent that it had requested JCI to lower its purchase prices for scrap batteries on the German market (see paragraphs 155 to 163 above). 408 On the other hand, the Court cannot concur with the Commission, when, in order to limit the level of reduction that could be granted to Campine on account of mitigating circumstances, it relies on the fact that the value of the purchases taken into account in Campine’s case already reflects its secondary position on the market in comparison with that of the other cartel participants. In other words, in order not to grant Campine a reduction of more than 5%, the Commission seeks to rely on the fact that Campine’s limited presence on the market was already taken into account when determining the basic amount of its fine, which was based on the value of the purchases made by each of the cartel participants, and that, therefore, if such a reduction were applied to its fine, it would no longer have a sufficient deterrent effect. Such an approach cannot be accepted, since it amounts to treating a small operator more severely than a larger market operator. 409 Second, it is not possible to take the view, as Campine does, that the Commission erred in not further reducing the amount of its fine on account of its cooperation outside the scope of the Leniency Notice. 410 In that regard, it should be recalled that the fourth indent of point 29 of the Guidelines provides that the basic amount of the fine may be reduced on account of mitigating circumstances ‘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’. 411 In order for Campine to be able to claim the benefit of the fourth indent of point 29 of the Guidelines, however, it must establish that its cooperation, having gone beyond Campine’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 Campine 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 (see, to that effect, judgment of 15 July 2015, Socitrel and Companhia Previdente v Commission, T‑413/10 and T‑414/10, EU:T:2015:500, paragraph 329). 412 It is clear that that is not the case here. As the Commission rightly observes in its pleadings, Campine’s cooperation consisted only in complying with its legal obligation to respond to requests for information and to undergo inspections. Moreover, far from acknowledging the facts, Campine has consistently denied them and contested its participation in the cartel, even in the context of this action. Lastly, as is apparent from recitals 404 to 411 of the contested decision, the information that Campine provided in its leniency application provided little or no added value. 413 In the light of the considerations set out in paragraphs 402 to 412 above, it is appropriate, in the exercise of the unlimited jurisdiction conferred on the General Court by Article 31 of Regulation No 1/2003, to apply an 8% reduction to the basic amount of Campine’s fine on account of mitigating circumstances. 414 In the fourth place, it is necessary to reject Campine’s complaint that the Commission infringed the principle of non-discrimination by holding it liable for participating in the cartel in question and imposing on it a fine for that conduct, but did not act in the same way with regard to Métal Blanc, when there is allegedly clear evidence of collusive contacts between the latter and the members of the cartel. 415 It should be recalled that, according to settled case-law, the fact that a trader who was in a position similar to that of an applicant was not found by the Commission to have committed any infringement cannot in any event constitute a ground for setting aside the finding of an infringement by that applicant, provided that it was properly established (judgment of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission, C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120, paragraph 146). It follows from that case-law that the Commission is entitled to address to each undertaking against which an infringement is found a decision recording that infringement and imposing a penalty on it. Arguments based on a comparison of the situation of the addressee of such a decision with the situation of other undertakings (whether or not addressees of the same decision) cannot in any circumstances call in question the legality of the decision in so far as it finds and penalises a duly established infringement (judgment of 14 December 2006, Raiffeisen Zentralbank Österreich and Others v Commission, T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraphs 138 and 139). Campine’s complaint must therefore be rejected as ineffective. 416 Moreover, and in any event, it is settled case-law that the principle of equal treatment, a general principle of European Union law, is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference of treatment is objectively justified (see judgment of 13 December 2001, Krupp Thyssen Stainless and Acciai speciali Terni v Commission, T‑45/98 and T‑47/98, EU:T:2001:288, paragraph 237 and the case-law cited). However, in the present case, Campine does not put forward any argument or evidence to establish that it was in a situation comparable to that of Métal Blanc. In that regard, the Commission’s statement in the defence that, unlike in the case of Campine, it had insufficient evidence to demonstrate that Métal Blanc had infringed Article 101 TFEU and punish it accordingly must be considered credible. 417 In the light of all the foregoing considerations, the third plea must be upheld to the extent that the Commission did not correctly assess the ‘duration of the infringement’ factor when calculating the basic amount of Campine’s fine and that it granted only a 5% reduction of that amount on account of mitigating circumstances. This plea must be rejected as to the remainder. 3. The fourth plea, seeking a reduction of the amount of the fine, alleging that the 10% increase applied under point 37 of the Guidelines should be annulled (a) Arguments of the parties 418 In the first part, Campine claims that, if the Court holds that the complaints that it relied on in the context of the first plea do not justify annulment of the contested decision, the Court should at the very least annul the 10% increase in the amount of the fine applied under point 37 of the Guidelines. 419 In the second part, Campine submits that, having regard to its individual circumstances and to its extremely limited and marginal role in the infringement at issue, if the Court concludes that the Commission was justified in increasing the amount of the fine on the basis of point 37 of the Guidelines, that increase should be limited to a symbolic amount or, at the very least, be significantly lower than 10%. 420 The Commission rejects Campine’s arguments. (b) Findings of the Court 421 As regards the first part of the fourth plea, it is sufficient to recall that the arguments put forward in support of it were already rejected in the context of the assessment of the first plea, in paragraphs 321 to 349, 353 to 361 and 369 to 378 above. 422 As regards the second part, it is also sufficient to note that Campine’s limited role in the cartel has already been taken into account by the grant of a reduction in the basic amount of its fine on account of mitigating circumstances. 423 The fourth plea must therefore be rejected as unfounded. D. The determination of the final amount of the fine 424 It is apparent from the considerations set out in paragraphs 399 to 413 above that the multiplier to be applied for the duration of the infringement should be set at 1.17 and the reduction to be applied on account of mitigating circumstances at 8%. 425 The final amount of the fine imposed on Campine is therefore calculated as follows: first of all, the basic amount of the fine is determined by applying, in view of the gravity, a percentage of 15% to the value of the purchases made by Campine, which results in an amount of EUR 1 946 981, and by applying to the latter amount, in respect of the duration of the infringement, a multiplier of 1.17, which results in an amount of EUR 2 277 968, to which an additional amount of EUR 1 946 981 must be added, to reach an amount of EUR 4 224 949. 8% of that amount (EUR 337 996) is then deducted, on account of mitigating circumstances, which results in an amount of EUR 3 886 953. Lastly, that latter amount must be increased by 10% on the basis of point 37 of the Guidelines (EUR 388 695), which results in a fine in the final amount of EUR 4 275 648. IV. Costs 426 Under Article 134(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party. 427 Since the applicants’ action has been upheld in part, the Commission must be ordered to bear its own costs and to pay one third of those incurred by the applicants. The applicants are ordered to bear two thirds of their own costs. On those grounds, THE GENERAL COURT (Eighth Chamber) hereby: 1. Annuls Article 1 of Commission Decision C(2017) 900 final of 8 February 2017 relating to a proceeding under Article 101 TFEU (Case AT.40018 — Car battery recycling) in so far as it refers to the period from 10 February 2010 to 10 January 2011 and the period from 4 April 2011 to 7 March 2012, to the extent that it concerns Campine NV and Campine Recycling NV; 2. Annuls Article 2 of Decision C(2017) 900 final in so far as it sets the amount of the fine imposed on Campine and Campine Recycling at EUR 8 158 000; 3. Sets the amount of the fine imposed on Campine and Campine Recycling in Article 2 of Decision C(2017) 900 final at EUR 4 275 648; 4. Dismisses the action as to the remainder; 5. Orders Campine and Campine Recycling to bear two thirds of their own costs; 6. Orders the European Commission to bear its own costs and to pay one third of the costs of Campine and Campine Recycling. Collins Kancheva Barents Delivered in open court in Luxembourg on 7 November 2019. E. Coulon A. M. Collins Registrar President Table of contents I. Background to the dispute A. The administrative procedure which led to the contested decision B. The contested decision 1. Relevant sector 2. Description of the infringement 3. The Commission’s legal assessment of the infringement 4. Duration of participation in the infringement 5. Liability for the infringement 6. Calculation of the amount of the fines (a) Starting point for setting the basic amount of the fines (b) Basic amount of the fines (c) Adjustments to the basic amount of the fines (d) Application of the 10% of turnover limit (e) Application of the Leniency Notice and the final amount of the fines II. Procedure and forms of order sought III. Law A. Admissibility of the documents produced by Campine at the hearing and its request to have the email of 10 February 2010 removed from the case file B. The principal head of claim, seeking the annulment of the contested decision 1. The second plea, alleging that the Commission has not established to the requisite legal standard that Campine infringed Article 101(1) TFEU (a) Preliminary observations (b) The first part of the second plea, alleging incorrect assessment of the evidence (1) Arguments of the parties (2) Findings of the Court (i) The meeting in Windhagen on 23 September 2009 (ii) The email of 10 February 2010 (iii) The meeting in Cologne on 4 April 2011 (iv) The text messages from Mr M. (JCI) of 7 March 2012 (v) Certain contacts during May 2012 (vi) Certain contacts during June 2012 (c) The second part of the second plea, alleging that the evidence adduced does not support the finding of an infringement (1) Arguments of the parties (2) Findings of the Court (i) On whether it is demonstrated that Campine participated in the cartel (ii) On whether Campine took part in a single and continuous infringement – Preliminary observations – Campine’s participation in an overall plan pursuing a common objective – Campine’s intentional contribution to the overall plan – Campine’s awareness of the unlawful conduct as a whole – The continuous nature of Campine’s participation in the infringement (iii) On whether the conduct attributed to Campine has an anticompetitive object or effect 2. The first plea, alleging infringement of the obligation to state reasons, of the rights of the defence and of the principles of good administration, legal certainty, the protection of legitimate expectations and non-discrimination (a) The first part of the first plea, alleging breach of the obligation to state reasons (1) Arguments of the parties (2) Findings of the Court (b) The second part of the first plea, alleging infringement of Campine’s rights of defence and of the principle of good administration (1) Arguments of the parties (2) Findings of the Court (c) The third part of the first plea, alleging infringement of the principles of legal certainty, protection of legitimate expectations and nondiscrimination (1) Arguments of the parties (2) Findings of the Court C. The alternative head of claim, seeking the cancellation or reduction of the fine 1. Preliminary observations 2. The third plea, alleging infringement of Article 23(3) of Regulation No 1/2003 and the Guidelines (a) Arguments of the parties (b) Findings of the Court 3. The fourth plea, seeking a reduction of the amount of the fine, alleging that the 10% increase applied under point 37 of the Guidelines should be annulled (a) Arguments of the parties (b) Findings of the Court D. The determination of the final amount of the fine IV. Costs * Language of the case: English.