Case T-404/08

Fluorsid SpA and Minmet financing Co.

v

European Commission

‛Competition — Agreements, decisions and concerted practices — World market in aluminium fluoride — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Action for annulment — Period allowed for commencing proceedings — Out of time — Inadmissibility — Price-fixing and market-sharing — Evidence of the infringement — Rights of defence — Definition of the relevant market — Fines — Gravity of the infringement — 2006 Guidelines on fines’

Summary — Judgment of the General Court (First Chamber), 18 June 2013

Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — No obligation to take a position on an application for leniency at the stage of the statement of objections

Competition — Administrative procedure — Observance of the rights of the defence — Right of access to the file — Infringement — Refusal of access to documents capable of being useful for the defence of the undertaking

Actions for annulment — Subject-matter — Decision finding an infringement of the competition rules by several addressees — Evidence concerning addressees other than the applicant, not challenged or challenged outside the time-limit — Exclusion

Actions for annulment — Time-limits — Mandatory — Examination by the EU judicature of its own motion — Application lodged out of time — Claim barred by lapse of time — Application, after expiry of the time-limit, for rectification by the Court — No effect

Actions for annulment — Interest in bringing proceedings — Commission decision finding an infringement of the competition rules and imposing a fine — Undertaking designated with other entities as being jointly and severally liable — Admissibility — Bringing of a single action by two applicants — Admissibility of the action of one of the applicants — No need to examine the admissibility of the action in relation to the second applicant

An undertaking which is the addressee of a Commission decision finding an infringement of Article 81 EC has an interest in bringing proceedings against a Commission decision imposing a fine on another undertaking, for which the first undertaking has been found jointly and severally liable both in that decision and the decision addressed to it individually. That applies a fortiori where the decision addressed to the second undertaking is the primary legal basis for the first undertaking’s joint liability, which is inextricably linked to the liability of the second undertaking and the fine imposed upon it. In any event, where one and the same action is involved, the EU judicature may forego considering whether one or other of the applicants are entitled to bring proceedings. (see paras 48, 49)

The time-limit for instituting proceedings within two months of the notification of the measure concerned, within the meaning of the fifth paragraph of Article 230 EC, is a matter of public policy, 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. It is therefore for the EU judicature to ascertain of its own motion whether it has been complied with. That time-limit is fixed, absolute and may not be extended. Neither a request for, nor acceptance by the Court of, an application for rectification of the application can affect the expiry of the period for bringing an action. The question of the admissibility of an action has to be assessed on the basis of the situation existing at the date on which the application was lodged, so that, if at that time the conditions which must be satisfied to enable an action to be brought were not fulfilled, the action is inadmissible. A defect can be rectified only before the expiry of the period for bringing proceedings. (see paras 51, 53)

Where two different decisions finding infringements of EU competition rules and imposing fines are addressed to two distinct legal persons and notified on different dates, the introduction by the undertakings concerned of a joint action, as an economic unit, against the said decisions, without any distinction between the individual decisions addressed to them respectively, cannot have the consequence that one of those undertakings benefits from the same time-limit for bringing proceedings as the other. They are two separate decisions, in respect of which the time-limits for bringing proceedings must be calculated separately. In that regard, the concept of an undertaking within the meaning of Article 81(1) EC must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal. When such an economic entity infringes the competition rules, that infringement must, according to the principle of personal responsibility, be imputed unequivocally to a legal person on whom fines may be imposed and the statement of objections — and a fortiori the final decision — must be addressed to that person, indicating in which capacity that legal person is called on to answer the allegations. (see paras 56, 57, 59)

See the text of the decision. (see para. 58)

No derogation from the application of the rules on procedural time-limits may be made save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure, in accordance with the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, since the strict application of those rules serves the requirements of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice. The concepts of force majeure and unforeseeable circumstances contain an objective element relating to abnormal circumstances unconnected with the trader in question and a subjective element involving the obligation, on his part, to guard against the consequences of the abnormal event by taking appropriate steps without making unreasonable sacrifices. In particular, the trader must demonstrate diligence in order to comply with the prescribed time-limits. There must be abnormal difficulties, independent of the will of the person concerned and apparently inevitable, even if all due care is taken. (see para. 60)

In the context of enforcing compliance with time-limits for bringing an annulment action, the concept of excusable error concerns only exceptional circumstances in which, in particular, the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion in the mind of a party acting in good faith and displaying all the diligence required of a normally well-informed person; for example, when an applicant is faced with a particular difficulty of interpretation in identifying the competent authority or the time-limit. (see para. 61)

See the text of the decision. (see paras 72-74)

In the context of a complex anti-competitive infringement of Article 81(1) EC, the Commission cannot be expected to classify the infringement precisely as an agreement or a concerted practice, as both those forms of infringement are covered by Article 81 EC. Therefore, the dual characterisation of the infringement as an agreement ‘and/or’ a concerted practice must be understood as referring to a complex whole comprising a number of factual elements some of which were characterised as agreements and others as concerted practices for the purposes of Article 81(1) EC, which lays down no specific category for a complex infringement of this type. (see paras 75, 97)

The anti-competitive object and effect of an agreement are not cumulative but alternative conditions for assessing whether such an agreement comes within the scope of the prohibition laid down in Article 81(1) EC. The alternative nature of that condition, indicated by the conjunction ‘or’, leads first to the need to consider the precise object of the agreement, in the economic context in which it is to be applied. It is not necessary to examine the effects of an agreement once its anti-competitive object has been established. (see para. 96)

See the text of the decision. (see paras 100, 101)

See the text of the decision. (see paras 107-109)

In the context of the administrative procedure for applying the competition rules, the rights of the defence are breached where it is possible that the outcome of the administrative procedure conducted by the Commission may have been different as a result of an error committed by it. An applicant undertaking establishes that there has been such a breach where it adequately demonstrates not that the Commission’s decision would have been different in content, but rather that it would have been better able to ensure its defence had there been no procedural error, for example because it would have been able to use for its defence documents to which it was denied access during the administrative procedure. As regards specifically the right of access to the file, where access has been refused to a document, it is sufficient for the undertaking to show that it would have been able to use the document in its defence. That undertaking does not have to show that that error did influence, to its disadvantage, the course of the proceedings and the content of the Commission’s decision, but only that it was able to influence the course of the proceedings and the content of the Commission’s decision. Where documents are not disclosed, the undertaking concerned does not therefore have to show that disclosure of the documents would have altered the outcome of the administrative procedure, but only that there was even a small chance that the documents which were not disclosed in the administrative procedure could have been useful for its defence. Where, in a given case, first, the applicants have had access to documents relating to contacts in conjunction with the statement of objections, without deducing any exculpatory evidence from them, either in the administrative procedure or in the course of legal proceedings; second, at the stage of the administrative procedure, they decline to take a position on the subsequent contacts; and, third, during the legal proceedings, they neither explain nor substantiate how failure to refer expressly to the said documents, in the statement of objections, compromised the effectiveness of their defence during the administrative procedure, and how they could have defended themselves more effectively if they had been expressly informed that the Commission intended to use the documents as incriminating evidence, those applicants have not been able to establish that the fact that they were not informed, in the statement of objections, of the Commission’s intention to use the documents in question as incriminating evidence was capable of compromising the effectiveness of their defence and, thus, the conclusion reached by the Commission in the decision. (see paras 110, 111, 125)

See the text of the decision. (see para. 132)

It follows from the 2002 Leniency Notice that, in the context of the leniency programme provided for by that notice, the procedure for granting an undertaking immunity from fines or a reduction in fine has several distinct stages. It is only in the last stage, at the end of the administrative procedure, when the Commission adopts the final decision, that it does or does not grant, in that decision, immunity from fines or a reduction in fine. It thus follows from the system as provided for in the 2002 Leniency Notice that before the final decision is taken the undertaking seeking immunity or a reduction in the fine does not obtain immunity from fines or a reduction in the fine in the strict sense but benefits only from a procedural status that may be transformed into immunity from fines or reduction in the fine at the end of the administrative procedure if the requisite conditions are met. Point 26 of the 2002 Leniency Notice provides that, if the Commission comes to the preliminary conclusion that the evidence submitted by the undertaking constitutes added value, it will inform the undertaking in writing, no later than the date on which a statement of objections is notified, of its intention to apply a reduction of the fine. That means also that, when the Commission has no intention of granting an application for leniency, it has no obligation to notify this to the undertaking concerned at the stage of the statement of objections. Point 27 of the 2002 Leniency Notice provides that the final position of each undertaking which filed an application for a reduction of a fine will be evaluated at the end of the administrative procedure in any decision adopted. Therefore, it is only in the final decision of the administrative procedure before the Commission that the latter must determine the applications for leniency submitted to it. (see paras 134, 135)

See the text of the decision. (see paras 144-147)