Judgment of the General Court (Eighth Chamber) of 7 November 2019 –

Campine and Campine Recycling v Commission

(Case T‑240/17)

(Competition — Agreements, decisions and concerted practices — Market for lead-acid car battery recycling — Decision finding an infringement of Article 101 TFEU — Fines — Value of purchases — Point 37 of the Guidelines on the method of setting fines — Obligation to state reasons — Rights of the defence — Evidence of the infringement — Concept of single or repeated infringement — Duration of the infringement — Interruption of participation in the infringement — Restriction of competition by object — Mitigating circumstances — Unlimited jurisdiction)

1. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Access to the full version of an email sent as a non-confidential version — Relevance of the redacted passages for the defence of the undertaking concerned — Burden of proof — Obligation on the undertaking concerned to produce prima facie evidence that those passages would be useful for its defence (Council Regulation No 1/2003, Art. 27) (see paras 90-101)

2. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Means of proof — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation — Permissibility of an overall assessment of a body of evidence (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 2) (see paras 107-113, 140, 171, 185, 194)

3. Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision based on evidence sufficient to demonstrate the existence of the infringement — Evidential obligations of undertakings disputing the reality of the infringement (Art. 101 TFEU; Council Regulation No 1/2003, Art. 2) (see paras 114-116, 151)

4. Competition — Administrative procedure — Commission decision finding an infringement — Use as evidence of statements of other undertakings which participated in the infringement — Whether permissible — Probative value of voluntary statements by the main participants in a cartel with a view to benefiting from application of the leniency notice (Art. 101 TFEU; Commission notice 2006/C 298/11) (see paras 117-120, 146)

5. Agreements, decisions and concerted practices — Agreements between undertakings — Concept — Participation in meetings having an anti-competitive object — Included — Condition — Undertaking concerned not distancing itself from the decisions adopted — Public distancing — Criteria for assessment (Art. 101(1) TFEU) (see paras 153, 172)

6. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability for the entire infringement to a single undertaking — Conditions — Unlawful practices and conduct forming part of an overall plan — Assessment — Criteria — Contribution to the single objective of the infringement — Knowledge or foreseeability of the overall plan of the agreement, decision or concerted practice and of its key elements (Art. 101(1) TFEU) (see paras 172, 232-235, 238, 247, 249, 252, 254, 257)

7. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Single and continuous infringement — Lack of evidence relating to certain specific periods of the overall period considered — Interruption of the participation of the undertaking in the infringement — Repeated infringement — Consequences on the setting of the fine (Art. 101 TFEU) (see paras 269-273, 275, 276, 281, 282, 400)

8. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Content and objective of a cartel and economic and legal context of its development — Distinction between infringements by object and infringements by effect — Intention of the parties to an agreement to restrict competition — Not a necessary criterion — Infringement by subject matter –Sufficient degree of harm — Criteria for assessment (Art. 101(1) TFEU) (see paras 286-297, 305, 308-310)

9. 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 — Anti competitive object or effect — Presumption — Conditions (Art. 101(1) TFEU) (see paras 299-302)

10. Agreements, decisions and concerted practices — Concerted practice — Concept — Need for a causal link between the concerted action and the conduct of the undertakings on the market — Presumption that the causal link exists — Burden of rebutting that presumption incumbent on the undertaking concerned — Evidence (Art. 101(1) TFEU) (see paras 303, 304)

11. Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope — Possibility of the Commission departing from the Guidelines for the calculation of fines — Obligation to state reasons all the stricter (Arts 101(1) and 296, second para. TFEU; Council Regulation No 1/2003, Art. 23(2); Commission notice 2006/C 210/02, point 37) (see paras 321-325, 349)

12. Action for annulment — Pleas in law — Lack of or inadequate statement of reasons — Separate plea from the one concerning substantive legality (Arts 263 and 296 TFEU) (see paras 321, 341)

13. Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Indication of the main factual and legal elements likely to entail a fine — Sufficient indication in relation to the right to be heard — No obligation to give indications as regards the amount of the fine envisaged (Art. 101 TFEU; Council Regulation No 1/2003, Art. 27(1)) (see paras 353-357)

14. Competition — Fines — Amount — Determination — No obligation on the Commission to abide by its previous decision-making practice (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2)) (see para. 370)

15. Competition — Fines — Amount — Determination — Adjustment of the basic amount — Deterrent effect — Purchase cartel (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission notice 2006/C 210/02, point 37) (see para. 372)

16. Competition — Fines — Amount — Determination — Adjustment of the basic amount — Deterrent effect — Commission’s margin of discretion — No infringement of the principle that penalties should have a legal basis or of the principle of legal certainty (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission notice 2006/C 210/02, point 37) (see paras 373, 374, 421, 422)

17. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope (Arts 101(1), 261 and 263 TFEU; Council Regulation No 1/2003, Art. 31) (see paras 381, 382, 401, 413)

18. Competition — Fines — Amount — Determination — Determination of the basic amount — Gravity of the infringement — Criteria for assessment — Nature of the infringement (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission notice 2006/C 210/02, point 23) (see paras 392, 393)

19. Competition — Fines — Amount — Determination — Adjustment of the basic amount — Mitigating circumstances — Secondary position of the undertaking on the market compared to that of other participants in the cartel (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission notice 2006/C 210/02, point 29) (see para. 408)

20. EU law — Principles — Equal treatment — Need to comply with the principle of legality — Impossible to rely on an unlawful act committed in favour of a third party (Art. 101 TFEU) (see paras 415, 416)

Re:

Application based on Article 263 TFEU and seeking annulment of Commission Decision C(2017) 900 final of 8 February 2017 relating to a proceeding under Article 101 TFEU (Case AT.40018 — Car battery recycling), in so far as it concerns the applicants, or, in the alternative, cancellation or a reduction of the amount of the fine imposed on the applicants in that decision.

Operative part

The Court:

1. Annuls Article 1 of Commission Decision C(2017) 900 final of 8 February 2017 relating to a proceeding under Article 101 TFEU (Case AT.40018 — Car battery recycling) in so far as it refers to the period from 10 February 2010 to 10 January 2011 and the period from 4 April 2011 to 7 March 2012, to the extent that it concerns Campine NV and Campine Recycling NV;

2. Annuls Article 2 of Decision C(2017) 900 final in so far as it sets the amount of the fine imposed on Campine and Campine Recycling at EUR 8158000;

3. Sets the amount of the fine imposed on Campine and Campine Recycling in Article 2 of Decision C(2017) 900 final at EUR 4275648;

4. Dismisses the action as to the remainder;

5. Orders Campine and Campine Recycling to bear two thirds of their own costs;