Judgment of the General Court (Third Chamber) of 23 January 2014 — Gigaset v Commission

(Case T‑395/09)

‛Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Imputability of the unlawful conduct — Obligation to state reasons — Fines — Duration of the infringement — Equal treatment — Mitigating circumstances — Cooperation during the administrative procedure — Joint and several liability for payment of a fine — 2006 guidelines on the method of setting fines’

1. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Rebuttable — Burden of proof (Arts 81 EC and 82 EC) (see paras 16-21, 30-32, 45, 67, 81-83, 92, 93, 231, 232)

2. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for infringement of the competition rules and concerning a number of addressees — Attribution of the practices of a subsidiary to its parent company — Need for express statement of reasons — Scope (Arts 81 EC and 253 EC) (see paras 94-98)

3. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability for an undertaking by reason of participation in the infringement considered as a whole — Conditions (Art. 81(1) EC) (see paras 101-104, 117)

4. Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope — Indication of the factors which led the Commission to assess the gravity and the duration of the infringement — Sufficient indication (Arts 81(1) EC and 253 EC; Council Regulation No 1/2003, Art. 23(2) and (3)) (see paras 127-132, 136)

5. Competition — Fines — Amount — Determination — Criteria — Deterrent effect of the fine — Discretion of the Commission — Same percentage applied in respect of all cartel participants — Lawfulness — Rounding of the duration of participation of various undertakings in the same single infringement — Justification — None — Breach of the principle of equal treatment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 19 to 26) (see paras 143-150, 158-177, 195-200)

6. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction — Scope — Increase in the fine imposed on other undertakings which have not been given an opportunity to comment in that respect — Not included (Art. 261 TFEU; Council Regulation No 1/2003, Art. 31) (see paras 183-192)

7. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Undertaking concerned not challenging the facts — Aspect not included in the new guidelines — Discretion of the Commission (Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 29) (see paras 211-218, 220)

Re:

APPLICATION for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 (EC) and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it relates to the applicant, and, in the alternative, for the reduction of the fine imposed on the applicant by that decision.

Operative part

The Court:

1. Fixes the amount of the fine imposed on Gigaset AG under Article 2(f) of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 (EC) and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) at EUR 12.3 million;

2. Dismisses the action as to the remainder;

3. Orders Gigaset to bear 90% of its own costs and 90% of those incurred by the Commission, with the exception of the costs relating to the proceedings for interim measures. The Court orders the Commission to pay 10% of its own costs and 10% of the costs incurred by Gigaset, with the exception of the costs relating to the proceedings for interim measures.

Judgment of the General Court (Third Chamber) of 23 January 2014 — Gigaset v Commission

(Case T‑395/09)

‛Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Imputability of the unlawful conduct — Obligation to state reasons — Fines — Duration of the infringement — Equal treatment — Mitigating circumstances — Cooperation during the administrative procedure — Joint and several liability for payment of a fine — 2006 guidelines on the method of setting fines’

1. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Rebuttable — Burden of proof (Arts 81 EC and 82 EC) (see paras 16-21, 30-32, 45, 67, 81-83, 92, 93, 231, 232)

2. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for infringement of the competition rules and concerning a number of addressees — Attribution of the practices of a subsidiary to its parent company — Need for express statement of reasons — Scope (Arts 81 EC and 253 EC) (see paras 94-98)

3. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability for an undertaking by reason of participation in the infringement considered as a whole — Conditions (Art. 81(1) EC) (see paras 101-104, 117)

4. Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope — Indication of the factors which led the Commission to assess the gravity and the duration of the infringement — Sufficient indication (Arts 81(1) EC and 253 EC; Council Regulation No 1/2003, Art. 23(2) and (3)) (see paras 127-132, 136)

5. Competition — Fines — Amount — Determination — Criteria — Deterrent effect of the fine — Discretion of the Commission — Same percentage applied in respect of all cartel participants — Lawfulness — Rounding of the duration of participation of various undertakings in the same single infringement — Justification — None — Breach of the principle of equal treatment (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 19 to 26) (see paras 143-150, 158-177, 195-200)

6. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction — Scope — Increase in the fine imposed on other undertakings which have not been given an opportunity to comment in that respect — Not included (Art. 261 TFEU; Council Regulation No 1/2003, Art. 31) (see paras 183-192)

7. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Undertaking concerned not challenging the facts — Aspect not included in the new guidelines — Discretion of the Commission (Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 29) (see paras 211-218, 220)

Re:

APPLICATION for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 (EC) and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it relates to the applicant, and, in the alternative, for the reduction of the fine imposed on the applicant by that decision.

Operative part

The Court:

1. Fixes the amount of the fine imposed on Gigaset AG under Article 2(f) of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 (EC) and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) at EUR 12.3 million;

2. Dismisses the action as to the remainder;