Judgment of the General Court (Fourth Chamber) of 16 September 2013 — Hansa Metallwerke and Others v Commission

(Case T‑375/10)

‛Competition — Agreements, decisions and concerted parties — Bathroom fittings and fixtures markets in Belgium, Germany, France, Italy, the Netherlands and Austria — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Coordination of price increases and exchange of sensitive business information — Cooperation during the administration procedure — 2002 Leniency Notice — Reduction of the fine — 2006 Guidelines on the method of setting fines — Non-retroactivity’

1. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope — Account taken of the Guidelines on the method of setting fines — Limits — Compliance with general legal principles (Arts 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Art. 31; Commission Notice 2006/C 210/02) (see paras 42, 206-209)

2. EU law — General principles of law — Legal certainty — Principle that penalties must have a proper legal basis — Scope (Charter of Fundamental Rights of the European Union, Art. 49(1)) (see paras 49-52)

3. Competition — Fines — Amount — Determination — Legal context — Article 23(2) and (3) of Regulation No 1/2003 — Discretion conferred on the Commission by that article — Introduction by the Commission of guidelines for the calculation of fines — No infringement of the principle that penalties should have a legal basis or of the principle of legal certainty (Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 49(1); Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02) (see paras 53-56, 60-70)

4. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Distinction between the final amount and the intermediate amount of the fine — Consequences (Council Regulation No 1/2003, Art. 23(2), second para.) (see paras 72-76)

5. Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Calculation of the basic amount of the fine — Account taken of the characteristics of the infringement as a whole — Account taken of objective factors relating to the situation of each undertaking — Principle that penalties should be individual to the offender — Scope — Limits (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 13 to 25) (see paras 79-85)

6. Competition — Fines — Amount — Determination — Imposition of the maximum amount on an undertaking — Lower amount for other cartel participants — No breach of the principle of equal treatment (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02) (see para. 87)

7. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — No obligation of the Commission to adhere to its previous decision-making practice (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02) (see para. 94)

8. Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned — Conditions — Significant added value of the evidence provided by the undertaking concerned — Scope — Account taken of the chronological element of the cooperation provided — Discretion of the Commission — Judicial review — Scope (Art. 101(1) TFEU; Council Regulation No 1/2003, Arts 18 and 23; Commission Notice 2002/C 45/03, point 23(b)) (see paras 106-109, 127-139)

9. EU law — Principles — Protection of legitimate expectations — Conditions (see para. 111)

10. Judicial proceedings — Measures of inquiry — Hearing of witnesses — Discretion of the General Court (Rules of Procedure of the General Court, Art. 68) (see paras 117, 118)

11. Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope (Art. 296 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02) (see para. 125)

12. EU law — Principles — Non-retroactivity of penal provisions — Scope — Fines imposed for breach of the competition rules — Included — Whether breach by applying guidelines for the calculation of fines to an infringement prior to their introduction — Foreseeability of changes made by the Guidelines — No infringement (Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 49; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notices 98/C 9/03 and 2006/C 210/02) (see paras 154-159)

13. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Analogous requirements with regard to grounds in support of a plea — Grounds not set out in the application — Inadmissibility (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)(c)) (see para. 164)

14. 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. 101(1) TFEU) (see paras 165-167)

15. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Participation allegedly under pressure — Economic dependence — Matter not providing a justification for an undertaking which did not make use of the possibility of lodging a complaint with the competent authorities (Art. 101(1) TFEU; Commission Notice 2006/C 210/02, point 29) (see paras 174, 175, 199, 200)

16. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Termination of the infringement after the Commission’s intervention — Not included — Adoption by the undertaking, after cessation of the infringement, of measures to prevent repetition — Not imperative to take into account (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 29) (see paras 193, 194, 196)

17. Judicial proceedings — Costs — Set-off — Exceptional circumstances (Rules of Procedure of the General Court, Art. 87(3), first para.) (see paras 213, 214, 223, 224)

Re:

APPLICATION for annulment in part of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceedings under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39092 — Bathroom Fittings and Fixtures), and, in the alternative, for reduction of the fine imposed on the applicants in that decision.

Operative part

The Court:

1. Dismisses the action;

2. Orders Hansa Metallwerke AG, Hansa Nederland BV, Hansa Italiana Srl, Hansa Belgium and Hansa Austria GmbH to bear their own costs and to pay those of the European Commission;