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

Feralpi v Commission

(Case T‑70/10)

‛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 — Infringement of essential procedural requirements — Lack of competence — Legal basis — Infringement of the rights of the defence — Principles of sound administration, proportionality and equality of arms — Criteria for attributing liability — Definition of the market — Infringement of Article 65 CS — Fines — Limitation period — Gravity — Duration’

1. Acts of the institutions — Presumption of validity — Non-existent act — Concept (Art. 249 EC) (see paras 50-53)

2. 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 (Arts 15 CS and 36 CS) (see paras 56-61, 82)

3. 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 84-86)

4. 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 94-99)

5. 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 100-115)

6. 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 (Art. 65(1) CS; Charter of Fundamental Rights of the European Union, Art. 49(1)) (see paras 117, 118, 120-122)

7. 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 (Art. 65 CS) (see paras 133-142, 147, 148)

8. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Refusal to communicate an inculpatory document — Consequences for the burden of proof incumbent on the undertaking concerned (Art. 65(1) CS; Council Regulation No 1/2003, Art. 27(2)) (see para. 144)

9. Competition — Administrative procedure — Obligations of the Commission — Duty to act within a reasonable time — Criteria for assessment — Infringement — Condition — Harm to the rights of 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 152-155)

10. Competition — Administrative procedure — Rights of defence — Statement of objections referring to a document not annexed thereto — No infringement of the rights of the defence where access to the document is provided before the expiry of the period prescribed for replying to the statement of objections (see paras 168, 169)

11. Competition — Undertaking — Concept — Economic unit — Attribution of infringements — Legal person responsible for the operation of the undertaking at the time of the infringement — Attribution to an entity in succession to that which committed the infringement in economic activity on the market concerned — No effect (Art. 65(1) CS) (see paras 177-179)

12. 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 (Art. 65(1) CS) (see paras 201-204, 269)

13. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Presumption of innocence — Reliance on a body of evidence — Degree of probative value required for the evidence on which the Commission relies — Evidential obligations on undertakings disputing the existence of the infringement (Art. 65(1) CS; Charter of Fundamental Rights of the European Union, Art. 48(1); Council Regulation No 1/2003, Art. 2) (see paras 206-215, 239)

14. Acts of the institutions — Statement of reasons — Obligation — Scope — Contradiction in the statement of reasons — Conditions — Effects (Art. 296 TFEU) (see para. 220)

15. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Responsibility for conduct of other undertakings in the context of the same infringement — Lawfulness — Criteria — Account taken at the time of assessment of the seriousness of the infringement (Art. 65(1) CS) (see paras 225, 226, 301-306)

16. Competition — Fines — Assessment by reference to the individual conduct of the undertaking — Irrelevant that no sanction brought against another economic operator (see paras 227, 293)

17. ECSC — Prices — Price tables — Compulsory publicity — Compatibility with the prohibition of cartels (Arts 60 CS and 65(1) CS) (see paras 243, 297)

18. Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Documentary proof — Assessment of the probative value of a document — Criteria — No initials and signature — No effect (Art. 65 CS) (see para. 250)

19. 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 (Art. 65(1) CS) (see paras 254, 285)

20. 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. 317)

21. Competition — Fines — Guidelines on the method of setting fines — Calculation method taking various elements of flexibility into account — Discretion of the Commission — Judicial review — Unlimited jurisdiction (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, points 1A and 1B) (see paras 331, 342-344)

22. 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 334-336)

23. 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(2); Commission Notice 98/C 9/03, point 1A) (see paras 360-365, 367, 368)

24. 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 (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 1A) (see paras 372, 380, 392-294)

25. Competition — Fines — Legal context — Determination — Commission’s previous decision-making practice — Indicative nature (Art. 65 CS; Council Regulation No 1/2003, Art. 23(2)) (see para. 376)

26. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Price-fixing — Obligation on the Commission to refer when assessing the impact of an infringement, to the operation of competition in the absence thereof (Council Regulation No 1/2003, Art. 23(2)) (see paras 381, 382)

Re:

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 which the Commission imposed a fine of EUR 10.25 million on the applicant for infringement of Article 65(1) CS.

Operative part

The Court:

1. Dismisses the action;