T‑426/10T‑427/10T‑428/10T‑429/10T‑438/12T‑439/12T‑440/12T‑441/1262010TJ0426EU:T:2016:33500011177T

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

2 June 2016 ( *1 )

‛Competition — Agreements, decisions and concerted practices — European market for prestressing steel — Price fixing, market sharing and the exchange of commercially sensitive information — Decision finding an infringement of Article 101 TFEU — Economic unit — Direct participation in the infringement — Secondary liability of parent companies — Succession of undertakings — Complex infringement — Single and continuous infringement — 2006 Guidelines on the method of setting fines — Principle of non-retroactivity and principle that penalties must be lawful — Mitigating circumstances — Ability to pay — Rights of the defence — Obligation to state reasons — Request for reconsideration — No change in the factual circumstances — Letter of rejection — Inadmissibility’

In Joined Cases T‑426/10 to T‑429/10, T‑438/12 to T‑441/12,

Moreda-Riviere Trefilerías, SA, established in Gijón (Spain), represented, in Case T‑426/10, by F. González Díaz and A. Tresandi Blanco and, in Case T‑440/12, initially by F. González Díaz and P. Herrero Prieto, and subsequently by F. González Díaz and A. Tresandi Blanco, lawyers,

applicant in Cases T‑426/10 and T‑440/12,

Trefilerías Quijano, SA, established in Los Corrales de Buelna (Spain), represented, in Case T‑427/10, by F. González Díaz and A. Tresandi Blanco and, in Case T‑439/12, initially by F. González Díaz and P. Herrero Prieto, and subsequently by F. González Díaz and A. Tresandi Blanco,

applicant in Cases T‑427/10 and T‑439/12,

Trenzas y Cables de Acero PSC, SL, established in Santander (Spain), represented, in Case T‑428/10, by F. González Díaz and A. Tresandi Blanco and, in Case T‑441/12, initially by F. González Díaz and A. Herrero Prieto, and subsequently by F. González Díaz and A. Tresandi Blanco,

applicant in Cases T‑428/10 and T‑441/12,

Global Steel Wire, SA, established in Cerdanyola del Vallés (Spain), represented, in Case T‑429/10, by F. González Díaz and A. Tresandi Blanco and, in Case T‑438/12, initially by F. González Díaz and A. Herrero Prieto, and subsequently by F. González Díaz and A. Tresandi Blanco,

applicant in Cases T‑429/10 and T‑438/12,

v

European Commission, represented, in Cases T‑426/10, T‑427/10, T‑429/10 and T‑438/12 to T‑441/12, by V. Bottka, F. Castillo de la Torre and C. Urraca Caviedes, acting as Agents, and by L. Ortiz Blanco and A. Lamadrid de Pablo, lawyers, and, in Case T‑428/10, by V. Bottka and F. Castillo de la Torre, and by L. Ortiz Blanco and A. Lamadrid de Pablo,

defendant,

APPLICATION for annulment and variation of Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/38344 — Prestressing Steel), as amended by Commission Decision C(2010) 6676 final of 30 September 2010 and Commission Decision C(2011) 2269 final of 4 April 2011, and also by the letter of 25 July 2012 from the Director-General of the Directorate-General for Competition of the Commission,

THE GENERAL COURT (Sixth Chamber),

composed of S. Frimodt Nielsen (Rapporteur), President, F. Dehousse and A.M. Collins, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 9 July 2015,

gives the following

Judgment ( 1 )

…

Law

…

II – The third set of cases

…

B – Admissibility of the actions

539 The Commission disputes the admissibility of the third set of cases, by raising pleas of inadmissibility. Those pleas, which were disputed by the applicants, were joined to the substance.

540 It should be borne in mind that any expression in writing of an opinion issued by an EU institution cannot constitute a decision against which an action for annulment under the first paragraph of Article 263 TFEU may be brought, since it is not capable of having legal effects or is not intended to have such effects (see, to that effect, judgments of 27 March 1980 in Sucrimex and Westzucker v Commission, 133/79, EU:C:1980:104, paragraphs 15 to 19, and of 27 September 1988 in United Kingdom v Commission, 114/86, EU:C:1988:449, paragraphs 12 to 15).

541 Likewise, any letter issued by an EU body in response to a request from its addressee does not constitute an act against which an action may be brought under the fourth paragraph of Article 263 TFEU (see, to that effect, order of 27 January 1993 in Miethke v Parliament, C‑25/92, ECR, EU:C:1993:32, paragraph 10).

542 Conversely, according to settled case-law, any measure the legal effects of which are binding on, and capable of affecting the interests of, third parties by bringing about a distinct change in their legal position is an act against which an action may be brought under Article 263 TFEU (see judgments of 11 November 1981 in IBM v Commission, 60/81, EU:C:1981:264, paragraph 9 and the case-law cited, and of 17 April 2008 in Cestas v Commission, T‑260/04, EU:T:2008:115, paragraph 67 and the case-law cited).

543 In addition, it is necessary to look to the substance of the measure annulment of which is sought in order to ascertain whether it may be the subject of an action for annulment, the form in which that measure was cast being, in principle, immaterial in that regard (see judgments in IBM v Commission, cited in paragraph 542 above, EU:C:1981:264, paragraph 9 and the case-law cited, and in Cestas v Commission, cited in paragraph 542 above, EU:T:2008:115, paragraph 68 and the case-law cited).

544 Only the act whereby an EU body determines its position unequivocally and definitively, in a form enabling its nature to be identified, constitutes a decision that may form the subject-matter of an action under Article 263 TFEU, on condition, however, that that decision does not merely constitute confirmation of a prior act (see, to that effect, judgment of 26 May 1982 in Germany and Bundesanstalt für Arbeit v Commission, 44/81, EU:C:1982:197, paragraph 12).

545 According to settled case-law, an action for the annulment of a measure which merely confirms a previous decision that has become final is inadmissible. A decision is a mere confirmation of an earlier decision where it contains no new factors as compared with the earlier measure and is not preceded by any reconsideration of the situation of the addressee of the earlier measure (judgments of 7 February 2001 in Inpesca v Commission, T‑186/98, EU:T:2001:42, paragraph 44 ; of 22 May 2012 in Sviluppo Globale v Commission, T‑6/10, not published, EU:T:2012:245, paragraph 22; and of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission, T‑199/12, not published, EU:T:2014:848, paragraph 40).

546 However, the confirmatory or other nature of a measure cannot be determined solely by reference to its content as compared with that of the previous decision which it is said to confirm. The nature of the contested measure must also be assessed in the light of the nature of the request to which it constitutes a reply (judgments of 7 February 2001 in Inpesca v Commission, T‑186/98, EU:T:2001:42, paragraph 45; of 22 May 2012 in Sviluppo Globale v Commission, T‑6/10, not published, EU:T:2012:245, paragraph 23; and of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission, T‑199/12, not published, EU:T:2014:848, paragraph 41).

547 In particular, if the measure constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested to reconsider its previous decision, that measure cannot be regarded as merely confirmatory in nature, since it constitutes a decision taken on the basis of those facts and thus contains a new factor by comparison with the previous decision (judgments of 7 February 2001 in Inpesca v Commission, T‑186/98, EU:T:2001:42, paragraph 46; of 22 May 2012 in Sviluppo Globale v Commission, T‑6/10, not published, EU:T:2012:245, paragraph 24; and of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission, T‑199/12, not published, EU:T:2014:848, paragraph 42).

548 It is settled case-law that the existence of substantial new facts may justify the submission of a request for reconsideration of a previous decision which has become final. If a request for reconsideration of a decision which has become final is based on substantial new facts, the institution concerned is required to comply with the request. After the reconsideration, the institution must take a new decision, the legality of which may where necessary be challenged before the Courts of the European Union. If, on the other hand, the request for reconsideration is not based on substantial new facts, the institution is not required to comply with it (see judgments of 7 February 2001 in Inpesca v Commission, T‑186/98,EU:T:2001:42, paragraphs 47 and 48 and the case-law cited, and of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission, T‑199/12, not published, EU:T:2014:848, paragraph 43).

549 An action brought against a decision refusing to reconsider a decision which has become final will be declared admissible if it appears that the request was actually based on substantial new facts. On the other hand, if it appears that the request was not based on such facts, an action against the decision refusing to reconsider it will be declared inadmissible (see judgments of 7 February 2001 in Inpesca v Commission, T‑186/98, EU:T:2001:42, paragraph 49 and the case-law cited, and of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission, T‑199/12, not published, EU:T:2014:848, paragraph 44).

550 As regards the question of the criteria which determine whether facts are to be classified as ‘substantial new’ facts, it is clear from the case-law that, in order for a fact to be ‘new’, it is essential that neither the applicant nor the administration was aware of, or in a position to be aware of, the fact in question when the previous decision was adopted (see judgments of 7 February 2001 in Inpesca v Commission, T‑186/98, EU:T:2001:42, paragraph 50 and the case-law cited, and of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission, T‑199/12, not published, EU:T:2014:848, paragraph 45).

551 In order to be ‘substantial’, the fact concerned must be capable of substantially altering the applicant’s situation forming the basis of the initial request that gave rise to the previous decision which has become final (see judgments of 7 February 2001 in Inpesca v Commission, T‑186/98, EU:T:2001:42, paragraph 51 and the case-law cited, and of 2 October 2014 in Euro-Link Consultants and European Profiles v Commission, T‑199/12, not published, EU:T:2014:848, paragraph 46).

552 It is in the light of that case-law that the admissibility of the present action, in so far as it is directed against the letter of 25 July 2012, must be examined.

553 It must be observed at the outset that, in rejecting the second requests, the Director-General relied, in the letter of 25 July 2012, on the same grounds as those which the College of Members of the Commission had taken into consideration in the contested decision.

554 Thus, in the present case, the Director-General considered that the material which the applicants had submitted since the adoption of the contested decision showed that their financial situation had improved by comparison with that which the Commission had taken into account when it considered that they were able to pay the fine, having recourse, if necessary, to credit institutions.

555 As regards the second ground taken into consideration in the contested decision, namely the possibility of having recourse to shareholders, both legal and natural persons, the Director-General repeated it in identical terms, taking the view that the death of Mr Rub., which occurred while the second requests were under consideration, was not substantial, since his estate had been transferred to his heirs.

556 Although the Commission is not correct to maintain that it is only where an undertaking’s financial situation has deteriorated that it can properly request a reconsideration of its ability to pay, it must nonetheless be considered that where the only change by comparison with the factual situation examined by the Commission at the time when it assessed an undertaking’s ability to pay consists in an improvement in its financial situation, the undertaking in question is not entitled to request the Commission to reconsider the position which it previously adopted. In such a situation, therefore, the Commission’s rejection of that request for reconsideration does not constitute an act against which an action may be brought.

557 A distinction must thus be drawn, when the administration receives a request to reconsider a decision which it has previously adopted, between the question of the examination of the factual and legal situation of the person concerned and the question of the reconsideration of the earlier situation. It is only where, following the examination of the situation of the person concerned, the administration finds that there has been a substantial change, in fact or in law, of the situation of the person concerned that it is then required to reconsider its decision. Conversely, where there has been no substantial change in the factual or legal circumstances, the administration cannot be required to reconsider its decisions and the position which it adopts when rejecting a request for a reconsideration submitted in those circumstances is not in the nature of a decision, so that an action brought against such a position must be rejected as inadmissible, as it is directed against an act against which an action cannot be brought. However, the assessment on the basis of which the administration finds that the person concerned has presented no new fact and has not established that there has been a substantial change in his factual and legal situation is amenable to review by the Courts of the European Union.

558 It is therefore appropriate to examine whether, as the Commission claims, the applicants’ financial situation improved by comparison with the situation which it had taken into consideration in the contested decision, which the applicants deny.

559 As a preliminary point, it should be borne in mind that the Commission was correct to take into account, when it adopted the contested decision, the applicants’ situation as it appeared in the last available annual accounts, which related to the business year 2009 (see paragraph 518 above). Furthermore, the applicants put forward a considerable amount of material relating to their financial situation in support of the second requests (see paragraph 532 above). The first material was submitted on the date of those requests, that is to say, in July 2011, and related to the beginning of 2011. The examination of the second requests lasted almost one year, during which the Commission requested and obtained information, so that, in the letter of 25 July 2012, the Director-General relied on the financial data existing at the end of 2011.

560 In support of their assertion that their situation deteriorated after the adoption of the contested decision, the applicants do not compare the data relating to the end of 2011 — namely, the most recent data available when the Director-General determined the matter — with those for 2009 — namely, the data which the Commission took into consideration in the contested decision –, but compare the data from the beginning of 2011 with the data for 2008, the year when the economic crisis was at its height.

561 It must be stated, however, that the comparison between the applicants’ situation as apparent in July 2012 with the situation, relating to 2009, which the Commission took into account in the contested decision shows a significant improvement; and the data which the Commission submits in that regard are not disputed by the applicants.

562 Thus, while the total amount of the fines, including interest, was EUR 54.26 million in 2010, and amounted to EUR 58.6 million at the end of 2011, GSW’s worldwide turnover during the same period increased from EUR 543 million to EUR 823 million. The ratio between the amount of the fines and GSW’s turnover thus fell from 10%, on the date of adoption of the contested decision, to 7.1%, on the date on which the Director-General made his determination.

563 It should be noted that during that period the ratio between the amount of the fines and the value of the combined assets of GSW and TQ remained stable, at between 6 and 7%.

564 While it is the case that the applicants’ own funds declined between 2009 and 2011, from EUR 212 million to EUR 196 million, so that the ratio between the total amount of the fines and the applicants’ own funds also worsened slightly, going from 26 to 30%, it is necessary, however, to consider the projections submitted by the applicants to the Commission, which indicate that the level of own funds expected in 2015 was EUR 244 million, higher than that recorded for 2009.

565 During the same period, GSW’s prospects of profitability also substantially improved. Thus, in 2009, GSW recorded losses after five consecutive years of positive results. The results forecasts for 2010 and 2011 drawn up at the end of 2009 predicted losses of EUR 6 million and EUR 5 million respectively. In fact, the results achieved were higher than forecast, namely a profit of EUR 1 million in 2010 and of EUR 25 million in 2011. Likewise, although ‘earnings before interest, taxes, depreciation, and amortization’ (EBITDA) were EUR ‑20 million in 2009, they reached EUR 51 million in 2010 and EUR 90 million in 2011. GSW’s risk profile, made up of the ratio between its net debt, with or without the fine, and its EBITDA thus considerably improved between 2009 and 2011.

566 In addition, the availability of liquid assets also improved between 2009 and 2011, working capital going from EUR ‑51 million in 2010 to EUR ‑42 million in 2011. Although the result of the Altmann Z-score test, an indicator of the probability of bankruptcy based on retrospective data, gave rise to concern in 2009 (0.59 without a fine and 0.44 including the fines), it no longer did so in 2011 (1.35 without a fine and 1.29 including the fines), the threshold for the industry being 1.23.

567 Last, although in 2009 GSW had available a total amount of bank credits of more than EUR 160 million, EUR 22 million of which was not used in 2011, its bank debts had been successfully negotiated for an amount of EUR 3000 million, of which the fines represented around 2%.

568 The applicants do not dispute the accuracy of those financial data. They merely propose other comparisons, of figures relating to different years. In that regard, for the reasons stated in paragraph 559 above, the Commission is correct to maintain that, for the purpose of assessing whether there had been a change in the applicants’ situation at the date of the letter of 25 July 2012, what must be compared are, on the one hand, the situation prevailing at the end of 2009, which was taken into consideration in the contested decision, and, on the other, the situation existing on the date on which the Director-General adopted the letter of 25 July 2012. It is quite clear that the applicants’ situation significantly improved between those two dates.

569 In the light of the considerations set out in paragraphs 556 and 557 above, it follows that the facts alleged by the applicants in the second requests were not capable of substantially altering the assessment of their ability to pay made in the contested decision. Accordingly, the letter of 25 July 2012 is not in the nature of a decision and the actions constituting the third set of cases (Cases T‑438/12 to T‑441/12), which are directed against that letter, must be dismissed as inadmissible.

570 It follows from all of the foregoing that the present actions must all be dismissed.

On those grounds, THE GENERAL COURT (Sixth Chamber) hereby:

1. Dismisses the actions;

2. Orders Moreda-Riviere Trefilerías, SA, Trefilerías Quijano, SA, Trenzas y Cables de Acero PSC, SL and Global Steel Wire, SA to pay the costs.

Frimodt Nielsen Dehousse Collins Delivered in open court in Luxembourg on 2 June 2016. [Signatures]

( *1 ) Language of the case: Spanish.

( 1 ) Only the paragraphs of this judgment which the Court considers it appropriate to publish are reproduced here.