Cases T‑472/09 and T‑55/10

SP SpA

v

European Commission

‛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 — Infringement of essential procedural requirements — Legal basis — Misuse of powers and abuse of procedure — Fines — Ceiling laid down by Article 23(2) of Regulation No 1/2003 — Actions for annulment — Amending decision — Inadmissibility’

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

Actions for annulment — Interest in bringing proceedings — Action against a decision adding annexes to an existing decision without changing its substance — Action not capable of procuring a benefit for the party bringing it — Inadmissibility

Competition — Fines — Amount — Determination — Maximum amount — Calculation — Turnover to be taken into consideration — Cumulative turnover of all the companies forming an economic entity acting as an undertaking — Break-up of the economic entity at the time the fine imposed — Application of the ceiling to companies individually — Company in liquidation — Impossibility of fining it without establishing economic unity between that company and the group subject to the fine

Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Refusal to communicate a document — Consequences — Need to draw a distinction, in relation to the burden of proof borne by the undertaking concerned, between incriminating and exculpatory documents

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

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

Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Exchange of information between competitors — Presumption that the information used to determine market conduct — No anti-competitive effects on the market — No effect

Agreements, decisions and concerted practices — Complex infringement comprising elements both of an agreement and of a concerted practice — Single classification as an ‘agreement and/or concerted practice’ — Lawfulness — Consequences for the duty to state reasons

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, protection of legitimate expectations and that penalties have a sound legal basis — Legal situations established prior to the expiry of the ECSC Treaty — Whether subject to the legal regime of the ECSC Treaty

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

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

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

Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules notified without its annexes — Context known to the person concerned, enabling him to understand the scope of the measure taken against him — No infringement of the duty to state reasons

Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Similar requirements for claims invoked in support of a plea

See the text of the decision. (see para. 65)

See the text of the decision. (see para. 66)

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

See the text of the decision. (see paras 78-83, 104)

See the text of the decision. (see paras 106, 107)

Within the Community legal order, the institutions have conferred powers only. For that reason, Community measures refer in their preamble to the legal basis which enables the institution concerned to act in the field in question. The choice of the appropriate legal basis has constitutional significance. A decision whereby the Commission finds, after expiry of the ECSC Treaty, that an undertaking has infringed of Article 65(1) CS and imposes a fine upon it has its legal basis in Article 7(1) of Regulation No 1/2003 as regards the finding of the infringement, and in Article 23(2) of Regulation No 1/2003 as regards the imposition of the fine. (see paras 117, 121)

See the text of the decision. (see paras 122-138)

The application, within the EU legal order, of rules of the EC Treaty in a field which was originally governed by the ECSC Treaty must take effect in conformity with the principles governing the temporal application of the law. In this connection, whilst procedural rules are generally held to apply to all disputes pending at the time when such rules enter into force, substantive rules must be interpreted, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, as applying to situations existing before their entry into force only in so far as it is clear from their wording, objectives or general scheme that such an effect must be given to them. From that point of view, as regards the question of the substantive provisions applicable to a legal situation which was definitively established before the expiry of the ECSC Treaty, the continuity of the EU legal order and the requirements relating to the principles of legal certainty and the protection of legitimate expectations require the application of substantive provisions drawn from the ECSC Treaty to the facts which fall within their scope of application ratione materiae and ratione temporis. In that regard, the principle that offences and punishments are to be strictly defined by law does not require, with regard to a decision imposing a fine for breach of the competition rules, that the action in question be unlawful not only when it was committed but also when it was formally punished. (see paras 140, 141, 143-145)

See the text of the decision. (see paras 150, 151, 162, 210, 220)

See the text of the decision. (see paras 156-160, 167)

See the text of the decision. (see paras 163-166, 178, 181, 269)

In administrative procedures of the Commission in the area of competition law, respect for the rights guaranteed by the EU legal order in administrative procedures is of particular importance in cases where the institution concerned has a discretion. Respect for those guarantees is also required by Regulation No 1/2003. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case. Moreover, the evidence must be assessed in its entirety, taking into account all relevant circumstances. (see paras 184-187)

See the text of the decision. (see paras 197, 223, 226)

See the text of the decision. (see para. 201)

An infringement of Article 81 EC and, by analogy, 65 CS may result not only from an isolated act but also from a series of acts or from continuous conduct. In that regard, activities relating to the fixing of a base price and payment terms for a product constitute instances of the practical implementation of the same intention to fix an agreed minimum price, in that each of those activities is applied in ways which are more or less similar over time and by means of which the minimum agreed price is fixed. The fact that the same conduct was adopted over many years as regards base prices, size extras, payment terms and the control or restriction of production and/or sales, together with evidence of meetings to check on concerted action, shows that the market situation was under constant surveillance and that new initiatives were adopted when the undertakings involved considered it necessary, so that it cannot be said that the activities at issue were short-lived. (see paras 211-213)

The prices which appear in the price lists must be fixed by each undertaking independently, without any agreement, even tacit, between them. It follows that where, within the context of regular consultation, competing companies initiate a continuing activity which tends to eliminate relative uncertainty, in particular regarding the size extras that they will apply in the market, through either agreements or concerted practices, that activity constitutes an agreement prohibited by Article 65 CS. (see paras 231-232)

Where a Commission decision finding a breach of the competition rules of the ECSC Treaty and imposing fines has been annulled because Article 65(4) and (5) CS had expired and the Commission could no longer derive competence from those provisions at the time when it adopted the decision, execution of the judgment declaring that annulment requires the Commission to take up the procedure at the exact point at which the unlawfulness intervened, that is, on the adoption of the annulled decision. The Commission is therefore not obliged, under the principle of respect for defence rights, to address a new statement of objections to the applicant. (see paras 277, 280)

See the text of the decision. (see paras 285-288)

For a company fined for breach of the competition rules, the fine ceiling of 10% of total turnover in the preceding business year laid down by Article 23(2) of Regulation No 1/2003 aims, inter alia, to protect undertakings against excessive fines which could destroy them commercially. It follows that the ceiling refers not to the period of the infringements penalised, which may precede the date of the fine by several years, but to a period closer to that date. If it transpires that several addressees constitute the undertaking that is the economic entity responsible for the infringement penalised, and still do so at the date when the decision is adopted, the ceiling may be calculated on the basis of the overall turnover of that undertaking, that is to say of all its constituent parts taken together. By contrast, if that economic unit has subsequently broken up, each addressee of the decision is entitled to have the ceiling in question applied individually to it. Thus, if the existence of an economic unity has not been established between an undertaking and a group of companies subject to the fine, and, at the time of the imposition of the fine, that undertaking is in liquidation and therefore has no turnover, it cannot be fined. In that regard, the mere fact that shareholders in an undertaking are also represented on its board, without holding a majority, cannot justify a finding that those members continued to exercise a determinant influence on that undertaking at the time the fine was imposed. Similarly, a press release referring to a strategic partnership between those members and a group of companies is not sufficient to establish the existence, at the time the decision imposing the fine was adopted, of a determinant influence of those members over that group. Nor is the existence of an economic unity between two companies demonstrated by the fact, taken in isolation, that the registered office of the one corresponds to the administrative headquarters of the other. (see paras 307, 308, 317, 318, 321, 324)