Judgment — ECLI:EU:C:2024:851
Date: 2024-10-04
Language of the case: Italian
Court formation: Sixth Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Appeal - unfounded;Appeal - inadmissible;Action for annulment - successful;Appeal - successful
Origin: Italy

summary of those reasons, set out in paragraph 160 above, is incomplete, in so far as it fails to mention that the General Court, in paragraph 285 of the judgment under appeal, recalled that, in recitals 560 and 561 of the contested decision, the Commission had noted that the addressee undertakings of that decision had participated, over an 11-year period, in an infringement considered to be one of the most serious restrictions of competition and that, against that backdrop, failure to re-adopt the decision finding that the undertakings had participated in that infringement would be contrary to the public interest in ensuring the effective application of EU competition law and would go beyond the interest in mitigating the consequences of any breach of the fundamental rights of the addressee undertakings. That finding was, moreover, sufficient to explain that the Commission considered there to be a legitimate interest in adopting the contested decision, within the meaning of Article 7(1) of Regulation No 1/2003. 170 On the other hand, as the General Court noted in paragraph 280 of the judgment under appeal, after the first two decisions taken by the Commission to penalise the anti-competitive conduct in question were annulled and the lapse of time between the initial investigative measures and the adoption of the decision was exceptionanly long, it was for that institution to take those circumstances into account when setting out the reasons why it considered it necessary to adopt a new decision imposing a fine. Contrary to what the appellant argued, those considerations set out in paragraphs 282 and 287 of the judgment under appeal were relevant. 171 The assessment set out in paragraph 167 above is not called into question by the argument by which the appellant disputes the statement of reasons for the contested decision justifying a legitimate interest in adopting the contested decision. 172 In that regard, it must be borne in mind that the duty to state adequate reasons in decisions is an essential procedural requirement which must be distinguished from the question of whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (judgment of 18 April 2024, Dumitrescu and Others v Commission and Court of Justice, C‑567/22 P to C‑570/22 P, EU:C:2024:336, paragraph 46 and the case-law cited). 173 However, under the guise of invoking a breach of the duty to state reasons, the appellant actually seeks to challenge the merits of the statement of reasons for the contested decision. 174 Those arguments are not such as to call into question paragraphs 275 to 296 of the judgment under appeal by which the General Court held that, in the present case, the Commission had not breached its duty to state reasons. 175 It follows that the first part of the third ground of appeal must be dismissed as unfounded. The second part – Arguments of the parties 176 By the second part of the third ground of appeal, the appellant maintains, in essence, that the General Court, in paragraphs 298 to 302 of the judgment under appeal, erred in law and breached its duty to state reasons concerning the deterrent effect of the contested decision. 177 First, the General Court failed to respond to the appellant’s argument based on the fact that the Consiglio di Stato (Council of State, Italy) had confirmed, by a judgment of 21 January 2020, that another cartel in which the appellant was allegedly involved does not exist. It is apparent from that judgment that, since 2000, the appellant engaged in activities in accordance with competition rules, such that the objective of deterrence pursued by the 2002 decision was fully achieved. 178 Second, the General Court merely set out, in paragraph 298 of the judgment under appeal, general considerations concerning the deterrent effect of the contested decision. 179 Third, the judgment under appeal is vitiated by contradictory reasoning. It is apparent from paragraph 299 of that judgment that, according to the General Court, the decision to impose a penalty in the contested decision is justified, from the point of view of the objective of deterrence, in the restitution after the annulment of the 2002 and 2009 decisions of the amount of the fines imposed by those decisions. However, in paragraph 660 of that judgment, the General Court held that the objective of deterrence had already been implemented in respect of the appellant, in part and in any event, by the penalties imposed on it in the 2002 and 2009 decisions. 180 Fourth, the General Court, in paragraphs 300 and 301 of the judgment under appeal, failed to take into account the fact that the penalties imposed in the 2002 and 2009 decisions, and the litigation costs relating thereto already constituted a penalty, in particular by adversely affecting its reputation. In that regard, the appellant notes that it is apparent from the General Court’s case-law, in particular the judgment of 12 December 2018, Biogaran v Commission (T‑677/14, EU:T:2018:910), that account must be taken of the non-negligible stigma attached to a finding of involvement in an infringement of the competition rules for a legal person. Furthermore, the reasons set out in that regard in the judgment under appeal amount, by reason of their general nature, to a failure to state reasons. 181 The Commission disputes those arguments. – Findings of the Court 182 It must be observed, in the first place, that the judgment of the Consiglio di Stato (Council of State) of 21 January 2020, to which the appellant refers, found there to be no infringement with regard to the appellant’s alleged involvement in another cartel. In any event, that judgment fails to establish that, since 2000, the appellant engaged in activities in accordance with competition rules and that the objective of deterrence, already pursued by the 2002 decision, had therefore already been achieved. Accordingly, the General Court cannot be criticised for not taking a view on that judgment in the judgment under appeal. 183 In the second place, it must be recalled that, in paragraph 298 of the judgment under appeal, the General Court held that the Commission could consider, given the serious nature of the infringement established, that adopting a decision and imposing a fine was still justified in the light of the deterrent effect that that decision and that penalty could have on the markets. That finding is explained in paragraph 299 of that judgment, in which the General Court pointed out that it is the penalty, that is to say, the requirement to pay the fine imposed, which actually has a deterrent effect following the annulment of the 2002 and 2009 decisions. It follows that paragraph 298 of that judgment, read in conjunction with paragraph 299 thereof, far from setting out considerations of a general nature, sets out the General Court’s reasoning clearly and unequivocally. 184 In the third place, contrary to what the appellant claims, the reasoning set out in paragraphs 299 and 660 of the judgment under appeal is not contradictory. While the General Court acknowledged, in paragraph 660 of the judgment under appeal, which appears in the part of the judgment in which the General Court examined, in the exercise of its unlimited jurisdiction, whether to grant an additional reduction of the fine imposed on the appellant, that the 2002 and 2009 decisions had already had a certain deterrent effect, it is clear from the context and, in particular, paragraphs 658, 659 and 661 of that judgment, that the General Court took the view that the objective of deterrence had not been fully achieved before the adoption of the contested decision. In those circumstances, imposing a penalty on the appellant in that decision could be deemed justified in the light of the need to ensure the deterrent effect, as the General Court observed in paragraph 299 of the judgment under appeal. 185 In the fourth place, it must be observed that, in paragraphs 300 and 301 of the judgment under appeal, the General Court considered that the objective of imposing a fine, in the present case, was not to give the contested decision a deterrent effect but was also to prevent the undertakings concerned from going wholly unpunished. 186 In so far as the 2002 and 2009 decisions were annulled, and the corresponding fines were repaid, plus interest, only the adoption of a new decision imposing a fine on the appellant could guarantee that its participation in the cartel which was the subject of the contested decision does not go unpunished. 187 As for the costs relating to the two cases prior to the 2002 decision, it suffices to note that, in the judgment of 25 October 2007, Ferriere Nord v Commission (T‑94/03, EU:T:2007:320), the General Court ordered the Commission to pay the costs incurred by the appellant and, in the judgment of 21 September 2017, Ferriere Nord v Commission (C‑88/15 P, EU:C:2017:716), the Court of Justice ordered the Commission to pay the costs incurred by the appellant both at first instance and in the appeal giving rising to that judgment. 188 Furthermore, it is true that, in the judgment of 12 December 2018, Biogaran v Commission (T‑677/14, EU:T:2018:910), to which the appellant refers, the General Court took account of the non-negligible stigma attached to a finding of involvement in an infringement of the competition rules for a natural or legal person. However, that assessment was not intended to indicate that such stigma amounts to a form of penalty resulting from the Commission’s finding of the existence of an infringement, but to explain why it was necessary for the Commission to show precise and consistent evidence in order to establish the existence of the infringement. 189 In the light of the foregoing, it must be held that the General Court did not err in law in finding, in paragraph 300 of the judgment under appeal, that the imposition of a fine in the contested decision was intended to prevent the undertakings concerned from going wholly unpunished. 190 It follows that the second part of the third ground of appeal must be dismissed as unfounded. The third part – Arguments of the parties 191 By the third part of the third ground of appeal, the appellant maintains that the General Court, in paragraphs 304 to 307 of the judgment under appeal, did not comply with its obligation to state reasons in so far as it failed to respond to the appellant’s argument alleging an infringement of Article 6(1) ECHR. 192 The Commission disputes that argument. – Findings of the Court 193 In paragraph 303 of the judgment under appeal, the General Court noted that the appellant had maintained at first instance that the fact that it had the status of having been charged with a criminal offence throughout the proceedings was in itself a sufficient penalty. The General Court rejected that argument holding, in paragraphs 304 and 305 of that judgment, that the appellant, in view of the annulment of two decisions prior to the adoption of the contested decision, had not yet been penalised for having committed an infringement of EU competition law and that, in those circumstances, the adoption of that decision sought to ensure that the appellant was actually penalised for that infringement. 194 In support of the third part of the third ground of appeal, the appellant reiterates that a sanction had already been imposed on it before the adoption of the contested decision, but puts forward no arguments to challenge, more specifically, the General Court’s reasoning set out in paragraphs 304 and 305 of the judgment under appeal. It merely argues that the General Court failed to rule on its argument alleging an infringement of Article 6(1) ECHR. 195 In that regard, it must be noted that, in paragraph 238 of the application initiating proceedings, the appellant claimed that the fact of having had the status of ‘accused’ for more than 17 years – that is to say since the statement of objections was received in March 2002 – apart from the fact that it amounted to an infringement of Article 6(1) ECHR, which includes the obligation to protect persons charged with a criminal offence from being left in a state of uncertainty about their fate for too long, amounted, per se, to a serious penalty being imposed on the appellant. 196 However, such a line of argument was intended, as demonstrated by the title of the section in which it appears, to challenge the grounds of the contested decision according to which the imposition of a penalty was necessary to prevent the undertakings concerned from going wholly unpunished. Accordingly, and in the absence of any specific details in that regard, the General Court was right to consider that the reference to Article 6 ECHR was intended only to strengthen the appellant’s argument that it had already been penalised prior to the adoption of the contested decision, to which the General Court responded in paragraphs 304 and 305 of the judgment under appeal. 197 The General Court cannot therefore be criticised in that regard for failing to adjudicate. 198 It follows that the third part of the third ground of appeal must be dismissed as unfounded. The fourth part – Arguments of the parties 199 By the fourth part of the third ground of appeal, the appellant maintains that the General Court, by relying, in paragraphs 310 to 315 of the judgment under appeal, on the possibility, for third parties, to bring claims for compensation before the national courts, substituted the grounds, failed to examine the documents in the file and reversed the burden of proof. 200 The Commission contends that in so far as that argument is directed against the grounds included in the judgment under appeal for the sake of completeness, it should be rejected as ineffective. In any event, the fourth part is unfounded. – Findings of the Court 201 In paragraph 301 of the judgment under appeal, the General Court held that, given the gravity and duration of the infringement established by the Commission, the objective of avoiding leaving the undertakings at issue wholly unpunished was sufficient, in itself, to justify in the present case the adoption of a decision imposing a penalty. 202 That assessment by the General Court was not challenged by the appellant in its appeal. 203 It follows that the General Court, by setting out other considerations liable to justify the adoption of the contested decision, such as the intention to protect the rights of third parties to bring claims for compensation before the national courts, mentioned such considerations for the sake of completeness, in order to reply exhaustively to the arguments put forward by the appellant. 204 Consequently, since the complaints raised by the appellant in the context of the fourth part of the third ground of appeal are directed against the grounds of the judgment under appeal included purely for the sake of completeness, they cannot lead to that judgment being set aside. 205 It follows that the fourth part of the third ground of appeal must be dismissed as ineffective. The fifth part – Arguments of the parties 206 By the fifth part of the third ground of appeal, the appellant submits that the General Court, by rejecting, in paragraphs 317 to 323 of the judgment under appeal, its complaint alleging breach of the principle of proportionality, relied on irrelevant considerations which are not sufficient to justify that rejection. 207 Furthermore, after the fifth part has been set out, the appeal contains a section entitled ‘Final considerations’, in which the appellant reiterates the arguments put forward in paragraphs 242, 243 and 252 to 254 of its application at first instance. 208 The Commission considers the fifth part to be inadmissible in the light of its vague and generic nature. It is, in any event, unfounded. – Findings of the Court 209 It should be borne in mind that the appellant merely disputes the relevance of the factors taken into account by the General Court in paragraphs 317 to 323 of the judgment under appeal, without setting out in detail the legal arguments which specifically support its request that that judgment be set aside, contrary to the requirements set out in paragraph 51 above. 210 Furthermore, those requirements are not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, confines itself to reproducing the pleas in law and arguments previously submitted to the General Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (judgment of 9 February 2023, Boshab v Council, C‑708/21 P, EU:C:2023:84, paragraph 60 and the case-law cited). 211 In the present case, by the argument summarised in paragraph 207 above, the appellant merely repeats, with the exception of some minor amendments, the argument that it had already put forward before the General Court. 212 It follows that the fifth part of the third ground of appeal must be dismissed as inadmissible. 213 The third ground of appeal must therefore be dismissed as partly inadmissible and partly unfounded. The fourth ground of appeal Arguments of the parties 214 By its fourth ground of appeal, the appellant submits that the General Court, when it held in paragraphs 326 to 342 of the judgment under appeal that the ne bis in idem principle did not preclude the adoption of the contested decision, wrongly applied that principle. 215 According to the appellant, it is true that the ne bis in idem principle does not preclude the adoption of a new decision where the previous one had been annulled for procedural irregularities. However, it is apparent from the judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582), that that possibility is subject to the condition that a ruling has not been given on the substance of the facts alleged. Since the General Court ruled on the merits of the case in the judgment of 9 December 2014, Ferriere Nord v Commission (T‑90/10, EU:T:2014:1035), that condition is not met in the present case. 216 The appellant observes that the General Court considered that the ne bis in idem principle applies only in the event that a second penalty is imposed, which is not so in the present case, since the judgment of 9 December 2014, Ferriere Nord v Commission (T‑90/10, EU:T:2014:1035), and the 2009 decision and the penalty imposed therein, were annulled by the Court. However, according to the appellant, that principle also precludes a duplication of procedures a fortiori where such duplication leads, like in the present case, to liability being established a second time in respect of the same actions. 217 Furthermore, the General Court wrongly considered that the ne bis in idem principle applies only in the event that a second penalty is imposed. Accordingly, it follows from Article 50 of the Charter that that principle also applies in the event that liability is established a second time. Liability may be established on the grounds of unlawful conduct without a penalty being enforced. 218 While acknowledging that Article 50 of the Charter refers to a final judgment, the appellant points out that the judgment of 9 December 2014, Ferriere Nord v Commission (T‑90/10, EU:T:2014:1035), although set aside by the Court, should be considered, on the merits, as being final. It is apparent from the Opinion of Advocate General Wahl in Feralpi and Others v Commission (C‑85/15 P, C‑86/16 P and C‑87/15 P, C‑88/15 P and C‑89/15 P, EU:C:2016:940), that the appeal brought against that judgment should have been declared inadmissible. 219 In any event, not all of the 2014 judgments are the subject of appeals. Accordingly, the assessment of the facts pertaining to the infringement in question – common to all the undertakings concerned – has become final. The General Court’s finding, according to which the judgments would have no impact on the undertakings which were not parties to the disputes decided by those judgments, is too formalistic and fails to take into account the very essence of the ne bis in idem principle. 220 The wording of Article 50 of the Charter should not, moreover, be interpreted too literally. The appellant observes, in that regard, that it is apparent from the judgment of 29 June 2016, Kossowski (C‑486/14, EU:C:2016:483), that, if a decision to take no further action is taken by a prosecution service which has nevertheless examined the facts, the principle ne be in idem is applicable despite there being no ‘acquittal’ by means of a judicial decision. 221 The Commission disputes the arguments put forward by the appellant. Findings of the Court 222 Article 50 of the Charter provides that ‘no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.’ Thus, the ne bis in idem principle prohibits a duplication both of proceedings and of penalties of a criminal nature, for the purposes of that article, for the same acts and against the same person (judgment of 14 September 2023, Volkswagen Group Italia and Volkswagen Aktiengesellschaft, C‑27/22, EU:C:2023:663, paragraph 44 and the case-law cited). 223 Furthermore, the Court has already held that the principle ne bis in idem must be observed in proceedings for the imposition of fines under competition law. That principle thus precludes, in competition law matters, an undertaking’s being found liable or the bringing of proceedings against it afresh on the grounds of anti-competitive conduct for which it has been penalised or declared not to be liable by a prior decision that can no longer be challenged (judgment of 22 March 2022, Nordzucker and Others, C‑151/20, EU:C:2022:203, paragraph 32 and the case-law cited). 224 In the present case, it should be noted that, at the time of the adoption of the decision, there was no decision concerning the anti-competitive conduct covered by the contested decision which was no longer open to challenge, and which had therefore become final. While it is true that the General Court ruled, in the judgment of 9 December 2014, Ferriere Nord v Commission (T‑90/10, EU:T:2014:1035), in depth, with regard to whether the appellant could be held liable for that conduct, which was the subject of the 2009 decision, in so far as that judgment – which was the subject of an appeal before the Court of Justice – has not become final and was subsequently set aside by the Court in its entirety, in the same way as the 2009 decision. 225 Contrary to what the appellant claims, the resumption of the procedure and the adoption of the contested decision are not inconsistent with the judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582). 226 Is its apparent from that judgment, as the General Court noted in paragraph 331 of the judgment under appeal, that the ne bis in idem principle prohibits only a fresh assessment in depth of the alleged commission of an offence where that assessment would result in the imposition of either a second penalty, in addition to the first, in the event that liability is established a second time or a first penalty in the event that liability not established by the first decision is established by the second (judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 61). However, neither of those two situations are present in the current case. 227 It is true, the Court added, in paragraph 62 of that judgment, that the ne bis in idem principle does not preclude in itself the resumption of proceedings in respect of the same anti-competitive conduct where the first decision was annulled for procedural reasons without any in depth ruling having been given on the facts alleged. 228 However, in doing so, the Court has not stated that the ne bis in idem principle precludes the adoption of a new decision after the judgment by which the General Court ruled in depth on a first decision and the annulment of that first decision is set aside on appeal. As is apparent from paragraph 62 of that judgment, the ne bis in idem principle can be breached only if there is already a final decision on the substance of the case. As was noted in paragraph 224 above, there was no such final decision at the time of the adoption of the contested decision. 229 The case-law cited in paragraph 227 above confirms, moreover, that the resumption of a procedure concerning the application of EU competition rules, after the annulment of a first decision closing that procedure, does not amount to a duplication of procedures. 230 It follows that the General Court rightly considered that the adoption of the contested decision did not disregard the ne bis in idem principle. 231 It is true that some of the 2014 judgments, concerning other undertakings, have become final since they were not the subject of appeals before the Court of Justice. However, those judgments, although they concern the same anti-competitive conduct as that in respect of which the appellant has been tried, do not amount, in the light of the latter, a final judgment. 232 Likewise, contrary to what the appellant claims, the possibility that a decision taken by a prosecution service may be relevant to the application of the ne bis in idem principle is not such as to call that finding into question, the Court having stated that, for the purposes of applying that principle, such a decision must be final (judgment of 29 June 2016, Kossowski, C‑486/14, EU:C:2016:483, paragraphs 52 to 54). 233 In the light of the foregoing, the fourth ground of appeal must be dismissed as unfounded. The sixth ground of appeal Arguments of the parties 234 By its sixth ground of appeal, the appellant submits, in essence, that the General Court, by failing to find that the infringement of the rights of the defence resulted from the fact that the Commission had not expressly stated its intention to invoke repeated infringement against it as an aggravating circumstance in the statement of objections, in the supplementary statement of objections or in another act from the procedure resumed in 2017, thus depriving it of the possibility to submit its observations in that regard in the course of the administrative procedure, erred in law in paragraphs 535 to 551 of the judgment under appeal. 235 First, the General Court failed to take into account the case-law of the Court of the Justice, in particular the judgment of 5 March 2015, Commission and Others v Versalis and Others (C‑93/13 P and C‑123/13 P, EU:C:2015:150), and that of the European Court of Human Rights relating to Article 6 ECHR. Second, it infringed the relevant provisions of soft law instruments that the Commission imposed on itself, namely points 84, 86 and 109 of the 2011 Commission Notice. Third, the General Court failed to take into account or distorted the transcript of certain passages of the recording of the hearing in the case giving rise to the judgment of 21 September 2017, Ferriere Nord v Commission (C‑88/15 P, EU:C:2017:716). Fourth, the facts referred to in paragraphs 547 and 548 of the judgment under appeal are, like those referred to in paragraphs 543 to 546 of that judgment, irrelevant, in so far as the statement of objections and the 2002 and 2009 decisions contain no statement of reasons relating to repeated infringement. In any event, those facts should have been updated on account of the exceptionally long duration of the procedure. The fact noted in paragraph 549 of the judgment under appeal is irrelevant, because the content of the letter of 15 December 2017 was manifestly inconsistent with the criteria established by the case-law. 236 The Commission considers that ground to be inadmissible and, in any event, unfounded. Findings of the Court 237 The General Court sets out, in paragraphs 538 to 542 of the judgment under appeal, the criteria for ascertaining the existence of a possible infringement of the appellant’s rights of the defence in taking repeated infringements into account. 238 In paragraph 538 of that judgment, the General Court held, with reference to the judgment of 5 March 2015, Commission and Others v Versalis and Others (C‑93/13 P and C‑123/13 P, EU:C:2015:150), that, where the Commission intends to impute an infringement of competition law to a legal person and seeks, in that context, to invoke repeated infringement against it as an aggravating circumstance, the statement of objections addressed to that person must contain all the information enabling it to defend itself, in particular the information demonstrating that the conditions for a finding of repeated infringement are satisfied. In paragraph 539 of that judgment, the General Court pointed out that it was for that purpose that the Commission undertook, in paragraph 84 of the 2011 Commission Notice, to mention in the statement of objections, ‘in a sufficiently precise manner’, the facts which may give rise to aggravating circumstances, and added, in paragraph 540 of that judgment, that repeated infringement must be viewed, according to settled case-law, as a circumstance that may be in the nature of an aggravating circumstance. 239 In paragraph 541 of the judgment under appeal, the General Court stated that the obligation described in paragraphs 538 to 540 of that judgment derives from the obligation to respect the rights of the defence, which is subject to a general principle that, in any procedure in which sanctions, especially fines or penalty payments, may be imposed, the undertakings and associations of undertakings concerned must be afforded the opportunity, from the stage of the administrative procedure, to make known their views on the truth and relevance of the facts, objections and circumstances alleged against them. 240 Lastly, the General Court considered, in paragraph 542 of the judgment under appeal that, when reviewing whether the rights of the defence have been respected, the EU Courts must take into account all the circumstances of the case in order to ensure that the Commission’s intention to find that an infringement was committed or that a given circumstance existed was sufficiently foreseeable from the point of view of the undertaking concerned, so that the latter can be regarded as having been afforded the opportunity to submit its comments on the matter under consideration. 241 Those explanations put forward by the General Court are not disputed by the appellant. 242 By contrast, the appellant submits, in essence, that the General Court erred in law in considering that, in the present case, the fact that the Commission intended to invoke repeated infringement against it as an aggravating circumstance was sufficiently foreseeable. 243 For the purposes of rejecting that claim, the General Court relied, on the one hand, on the content of the statement of objections, referred to in paragraphs 543 to 546 of the judgment under appeal, and, on the other, on the Commission’s letter of 15 December 2017 in which it announced the resumption of the administrative procedure, referred to in paragraphs 547 to 549 of that judgment. 244 Although the appellant states that it is not requesting the Court to carry out a new assessment of the facts, its argument is almost exclusively focused on the content of the statement of objections. 245 It is clear from paragraphs 547 and 548 of the judgment under appeal that the Commission informed the appellant, in its letter of 15 December 2017 announcing the resumption of the administrative procedure, that it would base the decision to be taken at the end of the procedure on the objections set out in the statement of objections, which had led to the adoption of the 2002 and 2009 decisions and that repeated infringement had been taken into account in those decisions in order to calculate the amount of the appellant’s fine, under the head of aggravating circumstances. 246 In those circumstances, even though the statement of objections was lacking in clarity, the General Court was entitled to consider, in paragraph 550 of the judgment under appeal, that the Commission’s intention to invoke, in the contested decision, repeated infringement against the appellant as an aggravating circumstance was sufficiently foreseeable. 247 Furthermore, the Commission made a finding of repeated infringement in respect of the appellant on the basis of an earlier decision finding an infringement in respect of the appellant, which was taken into account for the same purposes in the 2002 and 2009 decisions. In those circumstances, contrary to what the appellant claims, the General Court was not required to consider that the Commission should have updated the evidence in the light of which it invoked repeated infringement. 248 The appellant also claims that certain passages of the recording of the hearing in the case giving rise to the judgment of 21 September 2017, Ferriere Nord v Commission (C‑88/15 P, EU:C:2017:716), confirm the plausible nature of the reasons why it did not submit observations on repeated infringement after the resumption of the administrative procedure. However, the appellant does not specify the legal reasons why those passages demonstrate that it rightly considered that the Commission, after the resumption of the procedure, could not take into account repeated infringement as an aggravating circumstance without expressly informing it in advance. 249 Therefore, the objection alleging a failure to adjudicate, or a distortion of those passages, must be dismissed as inadmissible, having regard to the requirements set out in paragraph 51 above. 250 Accordingly, the sixth ground of appeal must be dismissed as partly inadmissible and partly unfounded. The seventh ground of appeal The first part – Arguments of the parties 251 By the first part of the seventh ground of appeal, the appellant submits that the General Court, by rejecting, in paragraphs 565 to 579 of the judgment under appeal, its complaint that taking repeated infringement into account under the head of aggravating circumstances is contrary to the principle of proportionality on account of the excessively long duration of the procedure, erred in law. 252 First, paragraph 575 of the judgment under appeal is vitiated by an inadequate statement of reasons. While the appellant referred to the abnormal duration of the procedure in question, the General Court maintained, in paragraph 575, that the time which elapsed between the earlier infringement and the infringement penalised in the contested decision was short. 253 Second, the General Court considered that the Commission could invoke repeated infringement on account of an infringement established more than 30 years before the adoption of the contested decision. In so doing, the General Court took as a basis a manifestly disproportionate interpretation of the concept of repeated infringement. That interpretation cannot be justified by the objective to ensure the deterrent effect of that decision, in so far as, since 2000, the appellant has not committed further infringements of the competition rules. The General Court failed to take into account the deterrent effect of the legal and administrative procedures in which the appellant was involved. 254 The General Court also failed to take account of the fact that the objective to ensure the deterrent effect had been taken into account both in order to impose penalties in respect of the conduct at issue and to increase the amount of the fine imposed for repeated infringement, thus leading to a duplication of penalties contrary to the principle of proportionality. 255 Furthermore, the assessment of the General Court is difficult to reconcile with the principle laid down in the judgment of 17 June 2010, Lafarge v Commission (C‑413/08 P, EU:C:2010:346, paragraphs 70 and 73), according to which EU competition law does not authorise the Commission to take account of repeated infringement without any limitation in time. The taking into account, under the head of repeated infringement, of conduct which had taken place more than 30 years before the adoption of the contested decision is therefore manifestly disproportionate and constitutes, in practice, a negation of the principle laid down by the Court. 256 The Commission contends that that line of argument is inadmissible and, in any event, manifestly unfounded. – Findings of the Court 257 By that part, the appellant complains the General Court failed to state reasons and misinterpreted the principle of proportionality. Contrary to what the Commission argues, that branch must therefore be found to be admissible. 258 However, the appellant’s argument is unfounded. 259 In the first place, so far as concerns the reasoning in paragraph 575 of the judgment under appeal, it is apparent from that paragraph that, in order to assess whether the Commission was right to rely on repeated infringement against the appellant, the General Court considered that the time which elapsed between the earlier infringement committed by that undertaking and the infringement penalised in the contested decision was short. Contrary to the appellant’s submissions the General Court did not disregard the fact that the complaint before it concerned not that period but the time which elapsed between the earlier infringement and the date on which the contested decision was adopted. Not only did the General Court summarise that complaint in paragraph 566 of that judgment, but it also held, in paragraph 575 of that judgment, that the Commission was right to rely on repeated infringement against the appellant as an aggravating circumstance ‘despite the fact that the investigation lasted some time due to the judicial uncertainties surrounding it’. It follows from those factors that the appellant’s complaints that the Commission failed to state reasons and failed to adjudicate are based on a misreading of the judgment under appeal. 260 In the second place, so far as concerns the complaint alleging breach of the principle of proportionality, it must be noted that, according to settled case-law, the principle of proportionality requires that acts of the EU institutions should be suitable for attaining the legitimate objectives pursued by the legislation at issue and should not go beyond what is necessary to achieve those objectives (judgment of 9 December 2020, Groupe Canal + v Commission, C‑132/19 P, EU:C:2020:1007, paragraph 104 and the case-law cited). 261 As for increasing the fine for repeated infringement, it is important to point out that such increases meet the imperative of punishing repeated infringements of the competition rules by the same undertaking (judgment of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraph 61). 262 It that regard, it must be recalled that the appellant does not dispute the General Court’s finding, in paragraph 553 of the judgment under appeal, that, in the context of deterrence, repeated infringement justifies, according to the case-law, a significant increase in the basic amount of the fine. It is evidence that the penalty previously imposed was not sufficiently deterrent. 263 Moreover, the appellant does not dispute the General Court’s rejection, in paragraphs 557 and 564 of the judgment under appeal, of its complaint alleging that the time elapsed between the infringement previously committed and the infringement which is the subject of the contested decision was too long for repeated infringement to be invoked against it. 264 The appellant merely argues that, given that the objective of taking repeated infringement into account is to deter the undertakings involved from committing further infringements of competition law, the principle of proportionality has been breached in the present case since, on the one hand, it has not committed further infringements since 2000 and, on the other, the administrative and legal procedures that have already taken place relating to the cartel which is the subject of the contested decision inevitably had a deterrent effect. 265 It should be borne in mind that, in paragraph 577 of the judgment under appeal, the General Court held that it was conceivable that the threat of penalty faced by the appellant throughout the investigation and the imposition of a penalty on two occasions may have had some deterrent effect. The General Court nonetheless considered, without erring in law, that ‘it is the penalty, namely the act of paying the fine imposed by the Commission, as increased for repeated infringement, which actually deters undertakings from committing further infringements of the competition rules’. 266 In any event, the appellant has not demonstrated that the mere fact that a considerable period of time has elapsed between the infringements taken into account under the head of repeated infringement and the adoption of the contested decision by the Commission renders disproportionate the taking into account of such infringements. 267 That finding is not called into question by the other arguments put forward by the appellant. 268 First, the General Court did not err in law in finding that the Commission was right to consider, on the one hand, that the adoption of a new decision finding that the appellant had participated in the cartel was justified, inter alia, by the objective of deterring undertakings from committing further infringements of competition law and, on the other, that it was necessary to strengthen that deterrent effect by invoking repeated infringement against the appellant. Contrary to the appellant’s submissions, the fact that repeated infringement was taken into account, both in order to determine the appropriateness of adopting a new decision establishing the appellant’s involvement in a cartel and to calculate the amount of the fine imposed on the appellant, does not constitute a ‘duplication’ contrary to the principle of proportionality. 269 Second, it is true that the principle of proportionality requires that the time elapsed between the infringement in question and a previous breach of the competition rules be taken into account in assessing the undertaking’s tendency to infringe those rules (judgment of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraphs 70 and 73). However, that period is not the one invoked by the appellant in support of its complaint alleging breach of the principle of proportionality. 270 It follows that the first part of the seventh ground of appeal must be dismissed as unfounded. The second part – Arguments of the parties 271 By the second part of the seventh ground of appeal, the appellant submits, first, that paragraphs 580 to 595 of the judgment under appeal are vitiated by an inadequate statement of reasons. It states that it argued, at first instance, that the increase in the amount of the fine imposed for repeated infringement was disproportionate in the light, first, of the fact that the lapse of time was exceptionally long and, second, of the ‘minor’ nature of repeated infringement. The General Court examined only the second of those arguments. 272 Second, the 50% increase in the amount of the fine imposed for repeated infringement is clearly out of proportion, given that the contested decision was adopted more than 30 years after the decision finding the previous infringement. In that regard, the General Court should have noted the contradictory nature of the contested decision. The Commission reduced the basic amount of the fine by 50%, having regard to the duration of the procedure, but failed to take that period into account for the purposes of applying the increase in the amount of the fine imposed for repeated infringement. For reasons of consistency, moreover, the Commission should have reduced, on account of the time factor, the 50% increase for repeated infringement by at least half. Furthermore, that increase cannot, by its very nature, exceed the amount of the fine. However, in the present case, the amount of that increase is approximately equal to twice the amount of the fine which would have been imposed on the appellant if the Commission had not invoked repeated infringement against it as an aggravating circumstance. 273 The Commission contends that the appellant is merely repeating the arguments that it put forward before the General Court and is thus asking the Court to carry out a new examination of the application at first instance. The appellant’s line of argument is therefore inadmissible and, in any event, unfounded. – Findings of the Court 274 By the second part of the seventh ground of appeal, the appellant submits that the General Court breached the duty to state the reasons for its judgments and misinterpreted the principle of proportionality. Contrary to what the Commission argued, that part must therefore be held to be admissible. 275 However, the argument put forward by the appellant is unfounded. 276 In the first place, the appellant criticises the General Court for having failed to respond to its argument that the increase applied to it by the Commission, under the head of repeated infringement, was disproportionate, having regard to the duration of the procedure. In that regard, it should be borne in mind that the General Court rejected, in paragraphs 565 to 579 of the judgment under appeal, the appellant’s argument that the finding of repeated infringement against it was not in line with the principle of proportionality. Thus, the General Court was no longer required to respond to the argument put forward by the appellant that the principle of proportionality also precludes the increase in the amount of the fine imposed for repeated infringement. 277 In the second place, the appellant has not established that the General Court erred in law in ruling that the Commission, by setting the rate of the increase for repeated infringement at 50% of the amount of the basic fine, had not breached the principle of proportionality. 278 It must be added that the fact that, in the contested decision, the Commission reduced by 50% the amount of the basic fine in the light of the duration of the procedure, while applying an increase for repeated infringement, does not reveal any contradiction sine those two factors are independent from each other. 279 Lastly, the appellant, by maintaining that the amount of the increase for repeated infringement cannot exceed the amount of the fine, does not set out any legal rule in support of that claim and carries out a calculation which is not only incorrect, but is also based on a hypothetical situation. 280 In the light of the foregoing, the second part of the seventh ground of appeal and, therefore, that ground in its entirety must be dismissed as unfounded. The eighth ground of appeal Arguments of the parties 281 The eighth ground of appeal is in two parts. 282 By the first part of that ground, the appellant submits that the General Court erred in law in finding, in paragraphs 611 to 628 of the judgment under appeal, that the Commission did not breach the principle of equal treatment by applying a reduction in the amount of the fine to the appellant that was proportionally less than that applied to Riva. 283 According to the appellant, it is apparent from the contested decision that Riva, which had participated in the cartel referred to in that decision for a total period of 10 years and 6 months, received a 3% reduction of the fine on the ground that it had not participated, for a period of one year, in the part of the cartel concerned with limiting or controlling output or sales. By contrast, the appellant, which had participated in the cartel for a period of seven years, received a 6% reduction of the fine in respect of the period of three years that it had not participated in that part of the cartel, that it to say a 2% reduction for each of those years. 284 By the second part of the eighth ground of appeal, the appellant argues that the General Court erred in law by failing to find that the Commission’s statement of reasons to justify its choice of applying different reductions in the amount of the fine imposed for identical conduct was submitted out of time. 285 The Commission contends that that those arguments are inadmissible. The appellant merely repeats, in essence, the arguments put forward at first instance. It is thus asking the Court to carry out a new examination of the application at first instance. The appellant’s line of argument is, in any event, manifestly unfounded. Findings of the Court 286 Contrary to what the Commission submits, the two parts of the eighth ground of appeal, in so far as they concern errors of law allegedly committed by the General Court, are admissible. 287 With regard to the first part, it should be borne in mind that the principle of equal treatment, enshrined in Article 20 of the Charter, 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 (judgment of 18 April 2024, Dumitrescu and Others v Commission and Court of Justice, C‑567/22 P to C‑570/22 P, EU:C:2024:336, paragraphs 65 and 67 and the case-law cited). 288 In the present case, it is clear from the judgment under appeal that, in the contested decision, the Commission found, on the one hand, that both the appellant and Riva had participated in the cartel referred to in that decision and, on the other, that those two undertakings had not participated in a certain part of that cartel for a period of three years, in respect of the appellant, and for a period of one year, in respect of Riva. 289 As the General Court pointed out in paragraph 613 of the judgment under appeal, when calculating the fines imposed on undertakings which have participated in a cartel, applying differential treatment to the undertakings concerned is inherent to the powers held by the Commission in that respect. In the context of its discretion, the Commission is required to tailor the penalty according to the conduct and characteristics of those undertakings in order to ensure, in each case, the full efficiency of the European Union competition rules (judgment of 13 June 2013, Versalis v Commission, C‑511/11 P, EU:C:2013:386, paragraph 104 and the case-law cited). 290 It is clear from paragraphs 615 to 617 of the judgment under appeal that the Commission justified the difference between the respective rates of reduction by the need to apply weightings to the reduction granted for not participating in a part of the cartel in accordance with the duration of the overall participation of each of those undertakings in the entire cartel. The participation of the appellant and Riva in the entire cartel was an important factor which had to be taken into account for the purposes of assessing the mitigating circumstance in question. Since Riva’s overall participation in the cartel was longer, the effect of its non-participation in that aspect of the cartel was more significant. 291 More specifically, the General Court observed, in paragraph 622 of the judgment under appeal, that, in determining the rate of reduction to grant to Riva, the Commission took account of the relative gravity of the participation of each of those two undertakings in the infringement, in accordance with the principle that penalties must fit the offence set out in paragraph 289 above. It thus considered that in so far as Riva’s overall participation in the cartel was longer than the appellant’s, it was necessarily more serious, and that the effect of its non-participation in a certain part of the cartel was all the more significant. 292 In ruling, in paragraph 323 of the judgment under appeal, that that approach was in line with the principle of equal treatment, the General Court erred in law. 293 It is common ground that the Commission granted a 2% reduction per year to the appellant, in respect of the period during which it was not involved in the part of the cartel at issue, whereas Riva was granted a 3% reduction. 294 It is true that, in the absence of other evidence which differentiate between the participation of those two undertakings in the cartel, the fact that Riva participated in that cartel for a period of 10 years and 6 months meant that Riva’s participation had a more serious effect on competition than that of the appellant, which participated in the cartel for a period of only seven years. However, that finding cannot be extended to periods during which the undertakings had not participated in a certain part of that cartel, because their non-participation in that part had, in principle, the same effect on competition. 295 Admittedly, it is possible to apply weightings to the reduction granted on account of their non-participation in a part of the cartel in accordance with the total duration of participation of each of the undertakings in that cartel. However, in the present case, the appellant, for a period of three years – that is to say nearly half the duration of its participation in that cartel – did not participate in that part of the cartel, whereas Riva, during the ten years and 6 months of its participation in that same cartel, had not participated in that part of the cartel for a period of one year only. 296 In those circumstances, it must be found that the Commission treated comparable situations differently, without providing valid justification for that difference in treatment. 297 It follows that the first part of the eighth ground of appeal must be upheld. It is therefore necessary to set aside the judgment under appeal, without it being necessary to rule on the second part of the eighth ground of appeal. The action before the General Court 298 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court of Justice is to quash the decision of the General Court. It may then itself give final judgment in the matter, where the state of the proceedings so permits. 299 In the present case, it is appropriate for the Court to give final judgment in the matter, as the state of the proceedings so permits. 300 It is clear from paragraphs 286 to 297 above that the contested decision is incompatible with the principle of equal treatment, in so far as it granted the appellant a reduction of 2% per year in the amount of the fine for the period during which it had not participated in part of the cartel at issue, even though it granted, for the same reasons, a reduction of 3% to Riva. Having found that the decision at issue is unlawful, the Court may, in the exercise of its unlimited jurisdiction, substitute its own appraisal for the Commission’s and, consequently, cancel, reduce or increase the fine imposed. That power is exercised by taking into account all of the factual circumstances (judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 78 and the case-law cited). In the present case, the Court considers, in the exercise of its unlimited jurisdiction, that the rate of reduction of 3% per year of the amount of the fine should also be applied to the appellant. 301 It follows that the amount of the fine imposed on the appellant in the contested decision is set at EUR 2 165 000. Costs 302 Pursuant to Article 184(2) of the Rules of Procedure of the Court of Justice, the Court is to make a decision as to costs where the appeal is well founded and the Court itself gives final judgment in the case. 303 Under Article 138(3) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. 304 Since the appellant and the Commission have both succeeded on some and failed on other heads, they must be ordered to bear their own costs at first instance and on appeal. On those grounds, the Court (Sixth Chamber) hereby: 1. Sets aside point 1 of the operative part of the judgment of the General Court of the European Union of 9 November 2022, Ferriere Nord v Commission (T‑667/19, EU:T:2022:692), in so far as it rejects the complaints of the ninth plea at first instance of Ferriere Nord SpA alleging breach of the principle of equal treatment; 2. Dismisses the appeal as to the remainder; 3. Annuls Article 2(3) of Commission Decision C(2019) 4969 final of 4 July 2019 relating to an infringement of Article 65 of the ECSC Treaty (Case AT.37956 – Reinforcing bars); 4. Sets the amount of the fine imposed on Ferriere Nord SpA, in Article 2(3) of Decision C(2019) 4969 final at EUR 2 165 000; 5. Orders Ferriere Nord SpA and the European Commission to bear their own costs of the proceedings at first instance and of the appeal. [Signatures] * Language of the case: Italian.