Case C‑88/15 P

Ferriere Nord SpA

v

European Commission

(Appeal — Agreements, decisions and concerted practices — Italian producers of reinforcing bars — Fixing of prices and limiting and controlling output and sales — Infringement of Article 65 CS — Annulment of the initial decision by the General Court of the European Union — Decision re-adopted on the basis of Regulation (EC) No 1/2003 — Failure to issue a new statement of objections — Lack of a hearing following the annulment of the initial decision)

Summary — Judgment of the Court (Ninth Chamber), 21 September 2017

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 — Obligation to organise a new hearing — Infringement — Consequences

(Art. 65 CS, Council Regulation No 1/2003, Arts 7(1) and 23(2); Commission Regulation No 773/2004, Arts 12 and 14)

Where, following the annulment of a decision adopted on the basis of provisions of the ECSC Treaty and finding a breach of Article 65 CS, the Commission readopts, after the expiry of that Treaty, the annulled decision on the legal basis of Article 7(1) and Article 23(2) of Regulation No 1/2003, the procedure leading to that new decision must comply with the rules of procedure laid down by that regulation, even if the procedure began before that regulation came into force.

Given that the procedure for replacing such a measure may, in principle, be resumed at the very point at which the illegality occurred, the Commission is not obligated to adopt a new statement of objections before readopting a decision establishing an infringement of Article 65 CS that was annulled on the ground that the Commission did not have power to adopt it on the basis of the ECSC Treaty, which was no longer in force at the date of adoption of that decision.

Under the procedural rules established by Regulation No 1/2003, as made explicit in Regulation No 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU], it is, however, provided that the competition authorities of the Member States are to be invited to participate in the oral hearing which, upon the request of the addressees of the statement of objections, is to follow the issuing of that statement. It follows that the Commission is required, in application of Articles 12 and 14 of Regulation No 773/2004, to give the parties the opportunity to develop their arguments during a hearing to which the competition authorities of the Member States were invited.

Having regard to the importance, in the context of a procedure provided for by Regulations No 1/2003 and 773/2004, of holding, at the request of the parties concerned, an oral hearing to which the competition authorities of the Member States are invited, in accordance with Article 14(3) of the latter regulation, failure to hold such a hearing constitutes infringement of an essential procedural requirement. In so far as the right to such a hearing, provided for by Regulation No 773/2004, was not respected, it is not necessary for the undertaking, the rights of which have been infringed in this way, to demonstrate that such infringement might have influenced the course of the proceedings and the content of the decision at issue to its detriment. Accordingly, the procedure is necessarily vitiated, regardless of any possible detrimental consequences for the undertaking concerned that could result from that infringement.

(see paras 37, 42-44, 46, 50, 51, 53-55)