SUMMARY OF COMMISSION DECISION

of 4 July 2019

relating to a proceeding under Article 65 of the ECSC Treaty

(Case AT.37956)

(notified under document C(2019) 4969)

(Only the Italian text is authentic)

(Text with EEA relevance)

(2020/C 312/07)

On 4 July 2019 the Commission adopted a Decision relating to a proceeding under Article 65 of the ECSC Treaty. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003 (1) , the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets.

1. INTRODUCTION

(1) The infringement in question concerns Article 65 of the Treaty establishing the European Coal and Steel Community (‘the ECSC Treaty’) in the reinforcing bar sector in Italy and has already been the subject of two previous Commission Decisions.

(3) This Decision is addressed to five Italian undertakings comprising six companies: Alfa Acciai SpA (‘Alfa’), Feralpi Holding SpA (‘Feralpi’), Ferriere Nord SpA (‘Ferriere Nord’), Partecipazioni Industriali SpA in Amministrazione Straordinaria (‘Partecipazioni Industriali’ or ‘Riva’), Valsabbia Investimenti SpA and Ferriera Valsabbia SpA (‘Valsabbia’, to indicate one or both of the legal persons constituted under the name Valsabbia Investimenti SpA and under the name Ferriera Valsabbia SpA). The agreement in which they took part lasted from 6 December 1989 to 4 July 2000.

2. CASE DESCRIPTION

2.1. Procedure

(4) On the basis of the information gathered during inspections carried out at the offices of reinforcing bar manufacturers and the answers to requests for information sent to those undertakings under Article 47 of the ECSC Treaty, on 26 March 2002 the Commission initiated proceedings under Article 65 of the ECSC Treaty and adopted a statement of objections, notified under Article 36 of the ECSC Treaty to the undertakings to which the Decision was addressed.

(5) In the course of the investigation, Ferriere Nord contacted the Commission pursuant to the Commission Notice on the non-imposition or reduction of fines in cartel cases of 18 July 1996 (‘the Leniency Notice’) ( 7 )

(6) The addressees of the statement of objections submitted their written comments and asked to present them orally to the Hearing Officer at the hearing which took place on 13 June 2002.

(7) On 13 August 2002 the Commission sent to the same addressees an additional statement of objections in which it explained what its position would be regarding continuation of the proceeding following the expiry of the ECSC Treaty. The Hearing Officer held a second hearing in the presence of representatives of the Member States on 30 September 2002, which concerned only the additional statement of objections.

(8) The procedure culminated in the adoption of the Decision of 17 December 2002 against eight undertakings and an association of undertakings, subsequently annulled by the Court of First Instance on 25 October 2007 following the appeals lodged by the eight addressee undertakings. However, the Decision became final in respect of the association of undertakings, which had not lodged an appeal.

(9) The annulment of the Decision of 17 December 2002 was based on the incorrect indication of the legal basis (Article 65(4) and (5) of the ECSC Treaty, which had expired when the Decision was adopted). Therefore the annulment did not invalidate the administrative procedure which preceded the adoption of the Decision. By letter of 30 June 2008 the Commission therefore informed the interested parties of its intention to re-adopt the annulled Decision with the legal basis corrected. All the parties submitted comments.

(10) On 30 September 2009, the Commission adopted a second Decision in the present case. The Decision of 30 September 2009 was amended by the Decision of 8 December 2009, as a number of annexes had been erroneously omitted from the Decision of 30 September 2009.

(11) All of the addressees of the Decision of 30 September 2009 lodged appeals against it with the General Court of the European Union, which dismissed those appeals in its 2014 judgments.

(12) Between 20 and 24 February 2015 Alfa, Feralpi, Ferriere Nord, Riva and Valsabbia appealed to the Court of Justice against the respective 2014 judgments.

(13) On 21 September 2017 the Court of Justice annulled the decision of 30 September 2009, as amended by the Decision of 8 December 2009, in so far as it concerned the undertakings to which the present Decision is addressed, and also annulled the judgments of the General Court of 2014 on the appeals brought by the undertakings to which the present Decision is addressed.

(14) The Court of Justice found that there had been a breach of procedure because the first hearing, concerning the substance of the case, held on 13 June 2002 when the ECSC Treaty was in force, had taken place without the attendance of the representatives of the Member States’ competition authorities, whereas the second hearing of 30 September 2002, to which the representatives of the Member States had been invited in accordance with the provisions of the EC Treaty which had since become applicable, had primarily concerned the legal consequences of the expiry of the ECSC Treaty and not the substance of the case.

(15) The Court therefore concluded that the hearing of 13 June 2002 had not fully complied with the procedural requirements concerning the adoption of a decision on the basis of Article 7(1) and Article 23(2) of Regulation (EC) No 1/2003 and Article 14(3) of Regulation (EC) No 773/2004.

(16) Since the grounds for annulment of the Decision of 30 September 2009 related exclusively to a procedural error concerning the holding of the oral hearing, and did not concern any of the administrative and procedural acts preparatory to it, in accordance with settled case-law ( 8 ) the Commission decided to resume the procedure at the exact point at which the procedural error had occurred, giving the parties the opportunity to present their views on the whole matter in the course of a hearing to be held under Article 14(3) of Regulation (EC) No 773/2004.

(17) On 15 December 2017, the Commission therefore sent a letter to the addressees of the present Decision informing them of its intention to resume the procedure and inviting them to express their interest in attending an oral hearing in the presence of the representatives of the Member States. The letter offered the parties the opportunity to submit any written comments on the content of the letter.

(18) All the parties submitted written comments. All the parties, except Partecipazioni Industriali, also asked to be heard orally at a hearing. That hearing took place on 23 April 2018. Partecipazioni Industriali sent a written submission on 24 April 2018.

(19) On 4 December 2018 Alfa, Feralpi, Ferrere Nord and Valsabbia sent a letter to the Commission proposing two possible alternatives to the adoption by the Commission of a decision imposing fines. The Commission replied to that letter on 12 December 2018.

2.2. Individual involvement in the conduct

(20) The addressees of this Decision took part in a single, complex and continuous infringement of Article 65(1) of the ECSC Treaty which had as its object or effect the fixing of prices and which provided the basis for agreements limiting or controlling output or sales on the Italian market for concrete reinforcing bar in bars or coils.

(21) More specifically, from at least the end of 1989 the undertakings to which the present Decision is addressed fixed the prices for ‘size extras’ for reinforcing bar in Italy. From April 1992 these undertakings extended their decisions and behaviour to fixing the base price for reinforcing bar in Italy. From that date until September 1995 the agreement extended to the fixing of payment terms.

(22) From 1995 the parties to the agreement started colluding on reducing or controlling output or sales in order to reduce the quantities of reinforcing bar on the market. Some of them set up a more detailed and systematic system of multilateral mutual control of quantities produced and sold by each undertaking.

(23) The Commission does not have sufficient evidence to show that the competition rules were infringed in the period after 4 July 2000. It should be pointed out that not all the firms necessarily took part in all the behaviour described here and that some of them took part in it for a shorter time.

2.3. Resumption of proceedings against the addressee undertakings

(24) In the present case, the Commission’s discretion to adopt a decision must be exercised by weighing up the public interest in obtaining effective enforcement of the competition rules against the interest of the addressees in obtaining the fullest possible remedy for the alleged infringement of their fundamental rights owing to the lengthy duration of the proceedings.

(25) The outcome of the Commission weighing up the respective interests shows that, in the present case, the adoption of a decision imposing fines will avoid impunity of the parties by ensuring a deterrent effect and consistent and effective application of the competition rules. At the same time, the specific circumstances of this case were taken into consideration by the Commission for the purposes of setting the fines applicable to the addressees of the Decision. The addressees will therefore be able to benefit from an appropriate reduction of the fines otherwise applicable, in order to mitigate the potential consequences of procedural errors committed by the Commission.

2.4. Addressees

(26) Alfa Acciai SpA is an undertaking to which can be attributed not only the behaviour of Alfa Acciai SpA but also the behaviour of Alfa Acciai srl, Acciaierie Megara SpA (from 1996) and Acciaierie di Sicilia SpA. Alfa was involved in the agreement from 6 December 1989 to 4 July 2000. From 13 June 1995 to 12 February 1996, on the other hand, Alfa was not involved in the part of the agreement relating to the limitation or control of output or sales.

(27) Feralpi Holding SpA is the legal successor to Feralpi Siderurgica SpA, and is an undertaking to which can be attributed not only the behaviour of Feralpi Siderurgica SpA itself but also the behaviour of Feralpi Siderurgica srl and the former Feralpi Siderurgica SpA. Feralpi was involved in the agreement from 6 December 1989 until 27 June 2000.

(28) Partecipazioni Industriali SpA in Amministrazione Straordinaria is the new name of Riva Fire SpA, and is an undertaking to which can be attributed not only the behaviour of the former Riva Acciaio SpA but also the behaviour of Fire Finanziaria SpA, Riva Prodotti Siderurgici SpA, Acciaierie e Ferriere di Galtarossa SpA and Acciaierie del Tanaro SpA. Partecipazioni Industriali was involved in the agreement from 6 December 1989 until 27 June 2000. From 27 November 1997 to 30 November 1998 the undertaking did, however, suspend its involvement in the part of the agreement relating to the limitation or control of output or sales.

(29) Valsabbia Investimenti SpA and Ferriera Valsabbia SpA are an undertaking to which can be attributed not only the behaviour of Valsabbia Investimenti SpA and Ferriera Valsabbia SpA but also the behaviour of the former Ferriera Valsabbia SpA and the even earlier Ferriera Valsabbia SpA. In fact, Valsabbia Investimenti SpA and Ferriera Valsabbia SpA are simply the two companies that resulted from the split (on 1 March 2000) of the former Ferriera Valsabbia SpA. The undertaking was involved in the agreement from 6 December 1989 to 27 June 2000.

(30) Ferriere Nord SpA is the same undertaking and the same legal person, with the same business name, active in the reinforcing bar sector since April 1992, which engaged in the behaviour which this Decision holds to be the infringement of Community competition law to which the Commission has objected. Ferriere Nord was involved in the agreement from 1 April 1993 to 4 July 2000. However, from 13 June 1995 to 27 September 1998 Ferriere Nord was not a party to the part of the agreement relating to the limitation or control of output or sales.

2.5. Fines

(31) The amount of the fines has been set according to the 1998 Guidelines on Fines.

2.5.1. Basic amount

(32) The infringement consists in a single, complex and continuous restrictive practice which, having as its object the fixing of prices and the limiting or controlling of production or sales, constitutes a very serious infringement of Article 65(1) of the ECSC Treaty. The cartel covered the whole of Italy. The Commission considers therefore that the addressees committed a very serious infringement. The fact that the restrictive practice was confined solely to the Italian market does not mean that the gravity of the infringement can be regarded as serious rather than very serious, since account must be taken of the volume of Italian production at the time of the infringement.

(33) However, without prejudice to the very serious nature of the infringement, the Commission has, in determining the basic amount of the fine, taken account of the specific characteristics of the case, involving a national market that was subject at the time to the rules of the ECSC Treaty and on which the firms in question accounted for a limited share of the relevant market during the first period of the infringement.

2.5.1.1. Differentiated treatment

(34) Within the category of very serious infringements, the scale of fines applicable makes it possible to treat firms differently in order to take account of the effective economic capacity of the offenders to impair competition significantly, as well as to set the fine at a level that ensures sufficient deterrence.

(35) The Commission considers that the market shares acquired by the addressees of this Decision in the last full calendar year of the infringement (1999) are not representative of their actual presence on the relevant market in the reference period. Between 1990 and 1999 the market shares of the firms virtually tripled. Therefore, on the basis of the average market shares in the period 1990-1999, three groups of undertakings can be identified in descending order of presence on the market.

(36) In the annulled decisions of 17 December 2002 and 30 September 2009, the Commission took the view that for Riva the basic amount of the fine calculated in relation to the relative size of the relevant market should be increased in order to take account of its size and global resources. The turnover in ECSC products achieved by Riva was very much higher than that of the other undertakings involved. Therefore, in order to ensure a level of sufficient deterrence, the Commission took the view that the basic amount of the fine for Riva should be increased by 375 %.

(37) The current market situation of Riva is, however, very different. Over the last few years this company has had very different (overall) results, with a turnover of zero in both 2017 and 2018. Partecipazioni Industriali has stated that its turnover in ECSC products since 2013 has been negligible. In 2012 Riva was split and the part relating to long products was assigned to the group headed by Riva Forni Elettrici SpA, which in turn sold it in 2015. Riva was admitted to the extraordinary administration procedure and in effect its only current activity is liquidation of the remaining assets. For these reasons, the Commission no longer considers it appropriate to increase the basic amount of the fine and therefore no increase of the basic amount will be applied to any of the addressees of this Decision.

2.5.1.2. Duration

(38) The infringement lasted for more than ten years and six months as regards all the undertakings, with the exception of Ferriere Nord, where the infringement lasted for more than seven years. The basic amount of the fine is thus increased by 105 % for all the firms, with the exception of Ferriere Nord, where it is increased by 70 %.

2.5.2. Aggravating circumstances

(39) In the present case the Commission has identified only one aggravating circumstance, i.e. the fact that Ferriere Nord has already been the subject of a Commission Decision of 2 August 1989 concerning its involvement in an agreement to fix prices and limit sales in the welded steel mesh sector ( 9 )

(40) The Commission therefore considers it necessary to impose an increase of 50 % of the basic amount in respect of Ferriere Nord.

2.5.3. Mitigating circumstances

(41) The fact that Riva and Ferriere Nord did not, for a certain period, participate directly in one of the four forms of the agreement (limiting or controlling output and/or sales) should be taken into account as a separate mitigating circumstance. The Commission notes that Riva did not participate in this part of the agreement for about a year, while Ferriere Nord did not participate for about three years ( 10 )

(42) The Commission therefore considers it necessary to reduce the basic amount of the fine by 3 % for Riva and 6 % for Ferriere Nord.

2.5.4. Further reduction of the fine to take account of the length of the administrative procedure

(43) The Commission considers that the procedural errors it made in the context of the transition between the ECSC Treaty and the EC Treaty and the delay that may have been caused by those errors may justify appropriate compensation for the addressees of this Decision.

(44) In the light of the Commission’s discretion with regard to the fixing of fines, the addressees of this Decision may therefore be granted a reduction of the fines which should be proportionate so as not to penalise the addressees for procedural errors they did not themselves commit but, at the same time, not of such a scale as to undermine the principle that cartels are very serious infringements of competition law.

(45) In order to take due account of those factors, the Commission concludes that a reduction of the fines of 50 % as an extraordinary attenuating circumstance may be granted in order to mitigate the negative consequences for the addressees of this Decision arising from the lengthy duration of the proceedings. This reduction is therefore to be granted to all the addressees of this Decision.

2.5.5. Application of maximum fines under Article 23(2) of Regulation (EC) No 1/2003

(46) Partecipazioni Industriali, as the legal successor to Riva, was admitted to the extraordinary administration procedure on 5 December 2016. As of that date, therefore, the company ceased to operate as a going concern and no longer had the legal obligation to draw up an annual accounts (which will be drawn up only after the insolvency procedure has been completed, for the period corresponding to the total duration of that procedure). Its last published turnover was EUR 594 000 for 2015.

(47) In such a situation, the Commission considers that, in order to comply with the commitment made in the additional statement of objections of 12 August 2002 to set the ceiling for fines, including for Partecipazioni Industriali, as the legal successor to Riva, at 10 % of the turnover in ECSC products in the territory of the Union in the last full year preceding the date of adoption of the final Decision (2017), and given that, in 2017, the turnover in ECSC products achieved by Partecipazioni Industriali, as the legal successor to Riva, i.e. its output value was zero, the fine applicable to that undertaking for its participation in the infringement penalised by this Decision cannot exceed that ceiling and must therefore be zero.

(48) The Commission considers that such amount of the fine applicable to Partecipazioni Industriali is justified in any event by the need to ensure that the amount of the fine is not excessive in relation to the financial capacity of the undertaking involved at the time the Decision is adopted.

2.5.6. Application of the 1996 leniency notice

(49) The Commission acknowledges that Ferriere Nord provided it with useful information that allowed it to gain a better understanding of the details of the restrictive practice. It considers that this satisfies the first paragraph of point D of the Notice, which states that a reduction in the amount of a fine is possible if, before a statement of objections is sent, an enterprise provides the Commission with information, documents or other evidence which materially contribute to establishing the existence of the infringement. The Commission considers that granting Ferriere Nord a reduction of 20 % in the amount of the fine is therefore justified.

3. FINES IMPOSED BY THE DECISION

Alfa Acciai SpA EUR 3 587 million Feralpi Holding SpA (formerly Feralpi Siderurgica SpA) EUR 5 125 million Ferriere Nord SpA EUR 2 237 million Partecipazioni Industriali SpA in Amministrazione Straordinaria (formerly Riva Acciaio SpA) EUR 0 Valsabbia Investimenti SpA and Ferriera Valsabbia SpA, jointly and severally liable: EUR 5 125 million

(1) Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(2) Decision C(2002)5087 (OJ L 353, 13.12.2006, p. 1).

(3) See judgments of the Court of First Instance of 25 October 2007, SP and others v Commission, T-27/03, ECLI:EU:T:2007:317; Riva Acciaio v Commission, T-45/03, ECLI:EU:T:2007:318; Feralpi Siderurgica v Commission, T-77/03, ECLI:EU:T:2007:319 and Ferriere Nord v Commission, T-94/03, ECLI:EU:T:2007:320.

(4) Decision C(2009)7492 final.

(5) Decision C(2009)9912 final.

(6) See judgments of the Court of 21 September 2017, Feralpi v Commission, C-85/15 P, ECLI:EU:C:2017:709; Ferriera Valsabbia, Valsabbia Investimenti and Alfa Acciai v Commission, C-86/15P, ECLI:EU:C:2017:717; Ferriere Nord v Commission, C-88/15P, ECLI:EU:C:2017:716 and Riva Fire v Commission, C-89/15P, ECLI:EU:C:2017:713.

(7) OJ C 207, 18.7.1996, p. 4.

(8) Judgment of the Court of Justice of 15 October 2002, Limburgse Vinyl Maatschappij and others v Commission, paragraph 73.

(9) OJ L 260, 6.9.1989, p. 1.

(10) Respectively from 27 November 1997 to 30 November 1998 and from 13 June 1995 to 27 September 1998.