ORDER OF THE GENERAL COURT (Eighth Chamber)
21 March 2018 (*)
(Action for annulment — Agreements, decisions and concerted practices — Market for car battery recycling — Decision correcting a decision finding an infringement of Article 101 TFEU and imposing fines — Period within which an action must be brought — Point from which time starts to run — Delay — Inadmissibility)
In Case T‑361/17,
Eco-Bat Technologies Ltd, established in Matlock (United Kingdom),
Berzelius Metall GmbH, established in Braubach (Germany),
Société de traitements chimiques des métaux (STCM), established in Bazoches-les-Gallerandes (France),
represented by M. Brealey QC, I. Vandenborre and S. Dionnet, lawyers,
applicants,
v
European Commission, represented by F. van Schaik, G. Conte, I. Rogalski and J. Szczodrowski, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU and seeking, first, annulment 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), as corrected by Commission Decision C(2017) 2223 final of 6 April 2017, and, second, a reduction of the amount of the fine imposed on the applicants,
THE GENERAL COURT (Eighth Chamber),
composed of A.M. Collins (Rapporteur), President, M. Kancheva and R. Barents, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1        Eco-Bat Technologies Ltd, Berzelius Metall GmbH and Société de traitements chimiques des métaux (STCM) (collectively ‘the applicants’ or ‘Eco-Bat’) are companies established, respectively, in the United Kingdom, Germany and France, which are active, in particular, in the production of primary and recycled lead and in the wholesale and retail trade in lead-acid batteries and other types of batteries.
2        By Decision C(2017) 900 final of 8 February 2017 relating to a proceeding under Article 101 TFEU (Case AT.40018 — Car battery recycling) (‘the initial decision’), the European Commission found that there was an infringement of Article 101 TFEU in the sector of the purchase of scrap lead-acid car batteries used for the production of recycled lead. That infringement, in which four undertakings, including Eco-Bat, had allegedly participated, was said to have taken place during the period between 23 September 2009 and 26 September 2012 (recitals 1 and 2 and Article 1(1) of the initial decision). The Commission imposed a fine of EUR 32 712 000 on Eco-Bat (recital 420 and Article 2 of the initial decision).
3        According to the Commission, the infringement at issue, which constituted a single and continuous infringement, took the form of agreements or concerted practices covering the territory of Belgium, Germany, France and the Netherlands and consisted, for the four undertakings mentioned in paragraph 2 above, of coordinating their pricing behaviour for the purchase of scrap lead-acid car batteries used for the production of recycled lead (recitals 1 and 2 and Article 1(1) of the initial decision).
4        On 10 February 2017, the Commission notified the initial decision to the applicants.
5        On 6 April 2017, the Commission adopted Decision C(2017) 2223 final, correcting the initial decision (‘the correcting decision’).
6        The adoption of the correcting decision was justified by the fact that the Commission, first, had omitted to indicate, in the initial decision, the value of purchases which it had taken into account for the purpose of setting the basic amount of the fines to be imposed and, second, had committed a number of factual errors in the calculation of the basic amount of the fine to be imposed on Johnson Controls, Inc., Johnson Controls Tolling GmbH & Co. KG and Johnson Controls Recycling GmbH (collectively ‘JCI’) (recitals 2 and 3 of the correcting decision).
7        Accordingly, the correcting decision, in Article 1, provides for the addition, at the end of recital 319 of the initial decision, of a sentence indicating the value of purchases of each of the addressees of the initial decision and amends certain amounts relating to the fine to be imposed on JCI. Article 2 of the correcting decision lists the companies to which it is addressed.
8        On 21 April 2017, the applicants brought an action for annulment of the initial decision, which was registered as Case T‑232/17.
9        By letter lodged at the Court Registry on 6 June 2017, the applicants discontinued their proceedings in Case T‑232/17. By order of 12 June 2017, Eco-Bat Technologies and Others v Commission (T‑232/17, not published, EU:T:2017:389), the case was removed from the register.
Procedure and forms of order sought
10      By application lodged at the Court Registry on 6 June 2017, the applicants brought the present action against the initial decision, as corrected.
11      By separate document lodged at the Court Registry on 3 October 2017, the Commission raised a plea of inadmissibility pursuant to Article 130(1) of the Rules of Procedure of the General Court.
12      By document lodged at the Court Registry on 15 November 2017, the applicants submitted their observations on the plea of inadmissibility.
13      The applicants claim that the Court should:
–        reject the plea of inadmissibility as inadmissible;
–        deliver a judgment by default;
–        in any event, reject the plea of inadmissibility as unfounded;
–        annul Article 2(1)(b) of the initial decision, as corrected, and reduce the amount of the fine imposed on them;
–        order the Commission to pay the costs.
14      The Commission contends that the Court should:
–        dismiss the action as inadmissible;
–        order the applicants to pay the costs.
Law
Admissibility of the plea of inadmissibility
15      The applicants claim that the plea of inadmissibility was submitted to the Court after the expiry, on 2 October 2017, of the period laid down by Article 130 of the Rules of Procedure, read in conjunction with Articles 60 and 81 thereof. It should therefore, in their view, be held that the plea of inadmissibility is itself inadmissible.
16      In the absence of a defence lodged by the Commission within the period prescribed, and given the alleged inadmissibility of the plea of inadmissibility, the applicants request the Court to deliver a judgment by default within the meaning of Article 123 of the Rules of Procedure, by ruling in their favour.
17      It should be recalled that it is apparent from Article 7(2) of the decision of the General Court of 14 September 2011 on the lodging and service of procedural documents by means of e-Curia (OJ 2011 C 289, p. 9) that a procedural document is served at the time when the intended recipient requests access to that document, or, failing that, on the expiry of the seventh day following the day on which the notification email was sent.
18      In the present case, it is apparent from e-Curia that the Commission requested access to the application on 24 July 2017 at 13.40. Consequently, the period for lodging the plea of inadmissibility started to run from that date and, in accordance with Article 130(1), read in conjunction with Articles 58, 60 and 81 of the Rules of Procedure, expired on 4 October 2017 at midnight. As the Commission lodged the plea of inadmissibility at the Court Registry on 3 October 2017, it must be held that it is admissible.
19      With regard to the applicants’ request that the Court deliver a judgment by default, as the conditions of Article 123(1) of the Rules of Procedure have not been met, inasmuch as the Commission lodged a plea of inadmissibility within the prescribed period, that request must be rejected.
Admissibility of the action for annulment
20      Pursuant to Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on inadmissibility or lack of competence without going to the substance of the case. In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.
21      In support of its plea of inadmissibility, the Commission puts forward three arguments. First, the action is inadmissible given that it is actually brought against the initial decision, which was not challenged in time. Second, the correcting decision itself does not constitute an act open to challenge and the applicants have no interest in its annulment. Third, the notification of the correcting decision did not reset the period within which the initial decision had to be challenged.
22      The applicants dispute the relevance of those arguments, pointing out that it is apparent from the application that they seek to challenge the initial decision, as corrected, and not the initial decision or the correcting decision separately.
23      As regards the resetting of the period within which the initial decision, as corrected, had to be challenged, the applicants reject the Commission’s argument that the correction of the initial decision was not substantive in nature and, as a result, does not affect the intelligibility of the initial decision.
24      In that regard, first, the applicants maintain that the correction of the initial decision is directly relevant for all seven pleas put forward by them in support of their action.
25      The applicants also assert that, had the correction been only minor, the Commission would not have adopted a correcting decision. In addition, the Commission itself conceded that it was appropriate to indicate the exact value of purchases in the initial decision in order to make it clear and complete. Moreover, the omission of the figure for the value of purchases is not purely formal inasmuch as such information is necessary for the purposes of assessing the legality and appropriateness of the fine.
26      The applicants add that the judgments relied on by the Commission in support of its arguments are not relevant, since they concern the correction of quite minor errors. In the present case, the omission of a figure for the value of purchases prevented them from understanding the reasoning followed by the Commission in the initial decision. In order to assess the legality and appropriateness of the fine, it would have been necessary to carry out complex calculations.
27      Consequently, according to the applicants, the Commission failed to meet its obligation to set out sufficient reasons for the initial decision and they were not able to challenge that decision, since that would involve guessing certain essential elements of it. Accordingly, the period for bringing an action could start to run only from the moment at which those essential elements were added to the initial decision by the correcting decision.
28      Lastly, the applicants submit that the present case is comparable to the case that gave rise to the judgment of 9 December 2014, SP v Commission (T‑472/09 and T‑55/10, EU:T:2014:1040), in which the Commission indicated that the period for bringing an action started to run only from notification of a correcting decision which added tables illustrating price variations to an initial decision. The Court should, in the applicants’ view, follow a similar approach in the present case.
29      First of all, in any event, the Commission’s arguments seeking to establish that the correcting decision cannot be the subject of an action under Article 263 TFEU must be rejected. It is clear from the application that the applicants seek the annulment not of that decision taken separately, but of the initial decision, as corrected.
30      Next, it is necessary to examine whether, as the applicants claim, the notification to them of the correcting decision had the effect of resetting the period for bringing an action.
31      According to settled case-law, the period of two months for bringing an action laid down by Article 263 TFEU is a matter of public policy, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice (see, to that effect, judgments of 23 January 1997, Coen v Belgian State, C‑246/95, EU:C:1997:33, paragraph 21, and of 18 September 1997, Mutual Aid Administration Services v Commission, T‑121/96 and T‑151/96, EU:T:1997:132, paragraphs 38 and 39).
32      It follows from a combined reading of the sixth paragraph of Article 263 TFEU and of the third subparagraph of Article 297(2) TFEU that, so far as actions for annulment are concerned, the date to be taken into account for the purpose of determining the starting point of the period for bringing an action is the date of notification of the act at issue, where it specifies to whom it is addressed.
33      The Court of Justice has already made it clear that a decision is properly notified provided that it is communicated to the person to whom it is addressed and the latter is placed in a position to become acquainted with it (see judgment of 17 May 2017, Portugal v Commission, C‑337/16 P, EU:C:2017:381, paragraph 47 and the case-law cited).
34      Moreover, a purely formal error or omission which does not affect the understanding of the reasons for the decision in question cannot in any event prevent the application of the periods laid down by Article 263 TFEU (see, to that effect, judgment of 17 May 2017, Portugal v Commission, C‑337/16 P, EU:C:2017:381, paragraphs 48 to 50, and order of 13 February 1998, Guérin automobiles v Commission, T‑276/97, EU:T:1998:30, paragraph 18).
35      In the present case, the omission of certain information by the Commission in the initial decision, without being purely formal, did not prevent the applicants from understanding that decision. On the one hand, the errors in question were purely factual and were related only to the calculation of the basic amount of the fine to be imposed on JCI. On the other hand, the value of Eco-Bat’s purchases, set out in the correcting decision, was capable of being understood from reading the initial decision, since the Commission had indicated in that decision that it was based on the figures for 2011 and that those figures had been provided by the applicants themselves in their reply of 1 October 2016 to a request for information from the Commission. Moreover, it is apparent from the applicants’ reply of 2 November 2016 to the Commission’s letter of facts that they had understood which figures would be used to calculate the basic amount of their fine. Furthermore, the application in Case T‑232/17 did not contain any plea alleging a failure to state reasons in respect of the value of purchases used to calculate the basic amount of the fine.
36      Consequently, the omission of the figure for the value of purchases in the initial decision did not prevent an understanding of its grounds or make it impossible for that decision to be challenged by way of an action for annulment. It must therefore be held that, in the present case, the period for bringing an action against the initial decision, which started to run from the notification of that decision to the applicants, was not reset by the adoption and subsequent notification of the correcting decision.
37      The judgment of 9 December 2014, SP v Commission (T‑472/09 and T‑55/10, EU:T:2014:1040), relied upon by the applicants, cannot invalidate that conclusion. The issue of whether the period for bringing an action had expired did not arise in the case which resulted in that judgment. In any event, the fact that the Commission stated that the period for bringing an action against an initial decision had started to run only from the notification of a correcting decision could not have had any influence on the applicable periods because, as a result of the public-policy nature of those periods, they are not subject to the discretion of the parties (see, to that effect, judgment of 23 January 1997, Coen v Belgian State, C‑246/95, EU:C:1997:33, paragraph 21, and order of 8 December 2005, Campailla v Commission, C‑210/05 P, not published, EU:C:2005:759, paragraph 28).
38      In the present case, the initial decision was notified to the applicants on 10 February 2017. The two-month period for bringing an action, extended on account of distance by a single period of 10 days, expired on 20 April 2017 at midnight. Since the present action was lodged at the Court Registry on 6 June 2017, it must be held that it has been brought out of time.
39      The present action must accordingly be dismissed as inadmissible.
Costs
40      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 (Eighth Chamber)
hereby orders:
1.      The action is dismissed as inadmissible.
2.      Eco-Bat Technologies Ltd, Berzelius Metall GmbH and Société de traitements chimiques des métaux (STCM) shall pay the costs.
Luxembourg, 21 March 2018.
E. Coulon
A.M. Collins
Registrar
President
*      Language of the case: English.