Judgment of the General Court (Eighth Chamber) of 9 December 2014 — Leali and Acciaierie e Ferriere Leali Luigi v Commission

(Cases T‑489/09, T‑490/09 and T‑56/10)

‛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 — Legal basis — Misuse of powers and abuse of procedure — Fines — Duration of the infringement — Proportionality — Limitation period — Action for annulment — Amending decision — Inadmissibility’

1. Judicial proceedings — Introduction of new pleas during the proceedings — Amplification of a plea made earlier — Admissibility (Rules of Procedure of the General Court, Arts 44(1), and 48(2)) (see paras 62, 63)

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 66-71, 92)

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 94, 95)

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 105, 109)

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 110-125)

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 127, 128, 130-132)

7. Competition — Union rules — Infringements — Attribution — Undertaking — Concept — Economic unit (Art. 65(1) CS) (see paras 141‑144)

8. Competition — Union rules — Infringements — Attribution — Legal person responsible for the operation of the undertaking at the time of the infringement — Exceptions — Transfer of the business of a company not having ceased to exist to another belonging to the same group — Imputation to the legal person carrying on the business — Conditions (Art. 65(1) CS) (see paras 145-150)

9. 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 paras 159, 160, 171, 220)

10. 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 (Arts 15 CS and 65(1) CS) (see paras 165-169, 176)

11. 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 (Art. 65(1) CS) (see paras 172-175, 187, 190)

12. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision finding an infringement of the competition rules — Cartels extending to the whole of the territory of a Member State and affecting trade between Member States — No contradictory grounds (Art. 15 CS) (see paras 202, 214-216)

13. 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 220, 223, 258)

14. ECSC — Prices — Price tables — Compulsory publicity — Compatibility with the prohibition of cartels (Arts 60 CS and 65(1) CS) (see paras 228-230)

15. Competition — Administrative procedure — Principle of sound administration — Requirement of impartiality — Consequences for assessment of the evidence (Charter of Fundamental Rights of the European Union, Art. 41; Council Regulation No 1/2003, thirty-seventh recital) (see paras 244-247)

16. 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. 263)

17. 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 (see paras 269-273)

18. 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(1),(4) and (5) CS) (see paras 278-283)

19. 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 292-294)

20. Competition — Administrative procedure — Commission’s powers of investigation — Scope — Documents copied at offices of the undertakings referred to in the verification decision — Documents concerning other companies — Included — Infringement of the rights of the defence — None (Art. 47 CS; Commission Decision 379/84, Art. 1(1)) (see paras 298-302)

21. 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 (Council Regulation No 1/2003, Art. 23(2)) (see paras 318, 320)

22. Competition — Fines — Amount — Determination — Deterrent effect — Account taken of the size and global resources of the fined undertaking (Council Regulation No 1/2003, Art. 23(2)) (see para. 319)

23. 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 (Rules of Procedure of the General Court, Art. 44(1)) (see paras 322, 323)

24. Competition — Fines — Assessment by reference to the individual conduct of the undertaking — Irrelevant that no sanction brought against another economic operator (Art. 65 CS; Council Regulation No 1/2003, Art. 23) (see para. 324)

25. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — No binding or exhaustive list of criteria (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 1A) (see para. 329)

26. Competition — Fines — Amount — Determination — Complex evaluation of economic matters — Commission’s margin of discretion — Judicial review — Review of legality — Scope (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, points 1A and 1B) (see para. 329, 339-341)

27. 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 331-333)

28. 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 those based on the size of the product markets in question and the concrete effect of the infringement on the market — 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 344, 353)

29. Competition — Fines — Amount — Determination — Division of the undertakings in question into categories with a specific starting point — Lawfulness — Conditions — No infringement of the principles of equal treatment and proportionality — No need to take account of the turnovers of the undertakings concerned and to ensure that fines are proportional to those turnovers (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 1A) (see paras 360-369)

30. Competition — Fines — Amount — Determination — Criteria — Duration of the infringement — Guidelines on the method of setting fines — Assessment of the duration of a single and continuous infringement — Account taken of the total duration of all aspects of the infringement (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 1B) (see paras 374, 377-381)

31. Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Need for conduct which facilitated the Commission’s finding of an infringement — Information concerning acts not capable of giving rise to fines under Regulation No 1/2003 — Mere willingness to cooperate insufficient — Assessment of the degree of cooperation provided by each of the undertakings which participated in the cartel — Respect for the principle of equal treatment (Council Regulation No 1/2003, Art. 23(2); Commission Notice 96/C 207/04, point D(2)) (see paras 389, 401-403, 407-410, 414-416)

32. Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Need for conduct which facilitated the Commission’s finding of an infringement — Burden of proof (Council Regulation No 1/2003, Art. 23(2); Commission Notice 96/C 207/04) (see para. 405)

33. 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 (Art. 263, fourth para., TFEU) (see paras 431-434)

Re:

In Cases T‑489/09 and T‑490/09, applications 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), and in the alternative, applications for a reduction in the amount of the fine imposed on the applicants, and in Case T‑56/10, application for annulment of Commission Decision C(2009) 9912 final of 8 December 2009, amending Decision C(2009) 7492 final.

Operative part

The Court:

1. Orders that Cases T‑489/09, T‑490/09 and T‑56/10 be joined for the purposes of the present judgment;

2. Dismisses the actions;

3. In Case T‑489/09, orders Leali SpA to pay the costs;

4. In Case T‑490/09, orders Acciaierie e Ferriere Leali Luigi SpA to pay the costs;