EN Official Journal of the European Union C 39/9

Final Report of the Hearing Officer (1)

Envelopes (re-imposition of a fine)

(Case AT.39780)

(2018/C 39/05)

The draft Decision amends the Commission’s previous decision of 10 December 2014 in the Envelopes case (hereafter: ‘the 2014 Decision’) (2). The amendment concerns five companies (Printeos SA, Printeos Cartera Industrial SL (3), Tompla Scandinavia AB, Tompla France SARL, and Tompla Druckerzeugnisse Vertriebs GmbH) belonging to the same undertaking (hereafter collectively ‘Printeos’).

Following the settlement procedure in cartel cases, the 2014 Decision found that five undertakings, including Printeos, had participated in a cartel in violation of Article 101 TFEU and Article 53 EEA and imposed fines on all the companies concerned.

Printeos brought an action against the 2014 Decision before the General Court, seeking annulment only of the fine, not of the finding of the infringement. By judgment of 13 December 2016, the General Court annulled the part of the 2014 Decision imposing the fine on Printeos, on the ground of failure to state adequate reasons as to the relative amounts of the fines imposed on the five undertakings (4).

By letter of 29 March 2017, the Directorate-General for Competition informed Printeos of the intention to adopt a fresh decision, re-imposing the same fine on Printeos, now with adequate reasoning, and invited Printeos to submit comments.

In its response of 17 April 2017, Printeos argues that the adoption of a new decision would infringe the ne bis in idem principle, because the 2014 Decision still exists and is final.

In my view, the adoption of the draft Decision does not infringe the ne bis in idem principle. According to the case-law of the Court of Justice, this principle ‘merely prohibits a fresh assessment in depth of the alleged commission of an offence which 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’ (5). The draft decision corresponds to neither of those two prohibited scenarios: liability was established in the 2014 Decision, and the draft Decision neither establishes liability a second time nor imposes a second fine in addition to a first fine, but merely re-imposes the first fine, following the annulment of that first fine by the General Court. Given that the General Court has not exercised its unlimited jurisdiction with regard to the fine, but merely annulled the fine because of inadequate reasoning, the Commission has not lost its power to impose the fine again (6).

Pursuant to Article 16 of Decision 2011/695/EU, I have examined whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views. My conclusion is that it does.

Overall, I consider that the effective exercise of procedural rights has been respected in this case.

Brussels, 9 June 2017. Wouter WILS

(1) Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’).

(2) Commission Decision C(2014) 9295 final of 10 December 2014. A summary of the decision has been published in the Official Journal, OJ C 74, 3.3.2015, p. 5, together with the Hearing Officer’s Final Report (OJ C 74, 3.3.2015, p. 4).

(3) Formerly named Tompla Sobre Exprés SL.

(4) Judgment in Printeos v Commission, T-95/15, EU: T:2016:722.

(5) Judgment in 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, C-251/99 P, C-252/99 P and C-254/99 P, EU:C:2002:582, paragraph 61.

(6) Idem, paragraph 693.