Judgment of the General Court (Eighth Chamber) of 9 December 2014 —

Ferriera Valsabbia and Valsabbia Investimenti v Commission

(Case T‑92/10)

‛Competition — Agreements, decisions and concerted practices — Market for concrete reinforcing bars in bars or coils — Decision finding an infringement of Article 65 CS after the expiry of the ECSC Treaty on the basis of Regulation (EC) No 1/2003 — Fixing of prices and payment terms — Limiting or controlling output or sales — Misuse of powers — Rights of the defence — Single and continuous infringement — Fines — Fixing of the starting amount — Extenuating circumstances — Duration of the administrative procedure’

1. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Terminology — No obligation to use the terminology of the rule of procedure (Statute of the Court of Justice, Arts 21, first para., and 53, first para; Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 54)

2. Commission — Principle of collegiality — Scope — Decision to apply competition rules notified without its annexes — No infringement of the principle of collegiality — Matters set out to a sufficient legal standard in the text of the decision (Art. 219 EC) (see paras 59, 60, 80)

3. Acts of the institutions — Choice of legal basis — EU rules — Requirements of clarity and foreseeability — Express indication of the legal basis — Decision of the Commission finding an infringement of Article 65 CS after the expiry of the ECSC Treaty and penalising the undertaking concerned — Legal basis constituted by Article 7(1), and Article 23(2) of Regulation No 1/2003 (Art. 65(1) CS; Council Regulation No 1/2003, Arts 7(1), and 23(2)) (see paras 92, 96)

4. Agreements, decisions and concerted practices — Agreements, decisions and concerted practices falling within the scope of the ECSC Treaty — Expiry of the ECSC Treaty — Continuity of the regime of free competition under the EC Treaty — Maintenance of control by the Commission acting within the legal framework of Regulation No 1/2003 (Art. 65(1) CS; Council Regulation No 1/2003) (see paras 97-112)

5. Acts of the institutions — Temporal application — Procedural rules — Substantive rules — Distinction — Expiry of the ECSC Treaty — Decision to apply competition rules adopted after that expiry and concerning facts prior thereto — Principles of legal certainty and protection of legitimate expectations — Legal situations established prior to the expiry of the ECSC Treaty — Whether subject to the legal regime of the ECSC Treaty (Art. 65(1) CS) (see paras 113, 114, 116, 148)

6. Competition — Administrative procedure — Observance of the rights of the defence — Scope of the principle — Annulment of a first decision of the Commission finding an infringement — Adoption of a new decision based on a different legal foundation and earlier preparatory measures — Lawfulness — No obligation to issue a new statement of objections — No obligation to organise a new hearing (Art. 65 CS; Council Regulation No 1/2003, Arts 14(3), and 27(1); Commission Regulation No 773/2004, Arts 10, 12(1), and 14(3)) (see paras 140, 141, 146, 147)

7. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Concept — Criteria — Single objective, overall plan, same subject-matter and subjects — Changing in certain characteristics and intensity of the cartel — No effect (Art. 65(1) CS; Art. 81(1) EC) (see paras 155-159, 167, 175)

8. Agreements, decisions and concerted practices — Prohibition — Infringements — Burden of proof — Burden of proof on Commission — Proof adduced by a number of indicia and coincidences pointing to the existence and duration of continuous anti-competitive practices — Lack of evidence relating to certain specific periods of the overall period considered — No effect (Art. 65(1) CS) (see paras 191-194)

9. Agreements, decisions and concerted practices — Agreements between undertakings — Adverse effect on competition for the purposes of Article 65 CS — Criteria for assessment — Anti-competitive object — Sufficient (Art. 65(1) CS) (see para. 213)

10. Agreements, decisions and concerted practices — Participation in meetings having an anti-competitive object — Circumstances from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel — Public distancing — Restrictive interpretation — Publication of an ECSC tariff by an undertaking — Insufficient (Art. 65(1) CS) (see paras 213, 214, 356)

11. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — No binding or exhaustive list of criteria (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 1A) (see para. 227)

12. Competition — Fines — Amount — Determination — Complex evaluation of economic matters — Commission’s margin of discretion — Judicial review — Review of legality — Scope (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, points 1A and 1B) (see paras 227, 237-239)

13. Competition — Fines — Guidelines on the method of setting fines — Legal nature — Indicative rule of conduct implying a self-limitation on the discretion of the Commission — Obligation to comply with the principles of equal treatment, protection of legitimate expectations and legal certainty (Commission Notice 98/C 9/03) (see paras 229-231)

14. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Classification of an infringement as very serious — Primary role of the criterion based on the nature of the infringement — Not independent of that based on the size of the product market in question — Infringement classified as very serious despite being limited to the territory of a single Member State — Lawfulness — Obligation to take account of the actual impact on the market — Scope — Existence of a crisis on the market concerned — No effect (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 1A) (see paras 250-252, 256, 262, 285, 286, 294, 299, 300, 315)

15. Competition — Fines — Legal context — Determination — Effect of Commission’s previous decision-making practice — None (Art. 65 CS; Council Regulation No 1/2003, Art. 23(2)) (see paras 255, 297, 313, 340)

16. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — General reference to documents annexed to the application — Inadmissibility (Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 44(1)(c)) (see paras 268, 284)

17. Agreements, decisions and concerted practices — Concerted practice — Exchange of information under a cartel agreement or with a view to setting up a cartel — Taking into account of information exchanged — Presumption (Art. 65(1) CS) (see para. 276)

18. Competition — Fines — Amount — Determination — Criteria — Actual impact on the market — Criteria for assessment — Fixing of prices by reference to agreed prices having the effect of limiting customers’ margin for negotiation (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03) (see paras 285, 286)

19. Competition — Fines — Amount — Determination — Division of the undertakings in question into categories with a specific starting point — Lawfulness — Conditions — Compliance with the principles of equal treatment and proportionality — Criteria (Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, point 1A) (see paras 319-324, 329, 330)

20. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Account taken of overall turnover of the undertaking concerned — Lawfulness — Relevance of the turnover achieved with products forming the subject-matter of a restrictive practice — Limits — Observance of the principle of proportionality (Art. 65 CS; Commission Notice 98/C 9/03, point 1A) (see paras 333-336)

21. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Passive or ‘follow-my-leader’ role of the undertaking — Criteria for assessment (Art. 65(1) CS; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03, point 3) (see para. 350)

22. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Conduct divergent from that agreed in the cartel implying adoption of competitive conduct in the market — Assessment (Art. 65(1) CS; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 3) (see paras 351, 352, 355-357)

23. Competition — Administrative procedure — Obligations of the Commission — Duty to act within a reasonable time — Criteria for assessment — Infringement — Condition — Harm to rights of the defence — Effects capable of consisting in a fine reduction (Art. 65(1) CS; Charter of Fundamental Rights of the European Union, Art. 41; Council Regulation No 1/2003) (see paras 363-366, 373)

Re:

Primarily, application for annulment of Commission Decision C(2009) 7492 final of 30 September 2009 relating to a proceeding under Article 65 CS (Case COMP/37.956 — Reinforcing bars, readoption), as amended by Commission Decision C(2009) 9912 final of 8 December 2009, in so far as it finds that the applicants infringed Article 65 CS and imposes upon them, jointly and severally, a fine of EUR 10.25 million, or in the alternative application for a reduction in the amount of that fine.

Operative part

The Court:

1. Dismisses the action;