Judgment of the General Court (Fourth Chamber) of 16 September 2013 — Keramag Keramische Werke and Others v Commission

(Joined Cases T‑379/10 and T‑381/10)

‛Competition — Agreements, decisions and concerted practices — Bathroom fittings and fixtures markets of 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 — Duration of the infringement — Rights of the defence — Access to the file — Attributability of unlawful conduct’

1. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope — Account taken of the guidelines for the calculation of 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 34, 331, 332, 339, 340, 345)

2. Judicial proceedings — Measures of inquiry — Discretion of the General Court (Rules of Procedure of the General Court, Arts 65 and 66) (see para. 40)

3. Judicial proceedings — Application initiating proceedings — Formal requirements — No brief summary of the pleas in law on which the application is based — Inadmissibility (Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 44(1)(c)) (see paras 41, 286, 287)

4. Actions for annulment — Community law — Interest in bringing proceedings — To be considered of the Court’s own motion (Art. 263 TFEU; Rules of Procedure of the General Court, Art. 113) (see para. 44)

5. 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 — Anti-competitive object or effect — Presumption — Conditions (Art. 101(1) TFEU) (see paras 51-59, 91, 92, 135, 150, 221, 282)

6. 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 — Whether sufficient, for an undertaking to be liable, that it tacitly approved without public distancing or denunciation to the competent authorities (Art. 101(1) TFEU) (see paras 70-73, 77, 82, 136)

7. Competition — Administrative procedure — Commission decision finding an infringement — Judicial review — Limits (Arts 101(1) TFEU and 263 TFEU) (see paras 95-97)

8. Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation — Production by the Commission of statements by other incriminated undertakings — Probative value (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 2) (see paras 99-108)

9. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 27(2)) (see paras 116, 161, 261-266)

10. Judicial proceedings — Introduction of new pleas during the proceedings — Plea raised for the first time at the reply stage — Inadmissibility (Rules of Procedure of the General Court, Art. 48(2)) (see para. 205)

11. Competition — Administrative procedure — Powers of the Commission — Finding of an infringement that has ceased — Legitimate interest in making the finding — Relevance for understanding the functioning of the cartel as a whole (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 7(1)) (see paras 249-253)

12. Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Clear indication of the parties liable to be fined and the capacity identified for incriminating them (Council Regulation No 1/2003, Art. 27(1)) (see paras 267, 268, 301)

13. 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 — Obligation of the parent company to rebut the presumption that management power was actually exercised over its subsidiary (Arts 101 TFEU and 102 TFEU) (see paras 298-300, 302-304, 310-312, 316, 320)

14. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Conduct deviating from that agreed within the cartel — Limited involvement — Conditions (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 29) (see para. 352)

15. 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 (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 13 and 21 to 23) (see paras 357, 361)

Re:

APPLICATIONS for annulment in part of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding 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 by that decision.

Operative part

The Court:

1. Annuls point (6) of Article 1(1) of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39092 — Bathroom Fittings and Fixtures) in so far as the European Commission finds (i) that Allia SAS and Produits Céramique de Touraine SA participated in an infringement relating to a cartel on the French market for a period from 25 February 2004 to 9 November 2004 and (ii) that Pozzi Ginori SpA participated in an infringement relating to a cartel on the Italian market for a period other than that from 14 May 1996 to 9 March 2001;

2. Annuls Article 2(7) of Decision C(2010) 4185 final in so far as the total amount of the fine imposed on Keramag Keramische Werke AG, Koralle Sanitärprodukte GmbH, Koninklijke Sphinx BV, Pozzi Ginori and Sanitec Europe Oy exceeds EUR 50 580 701;

3. Dismisses the action as to the remainder;

4. Orders Keramag Keramische Werke, Koralle Sanitärprodukte, Koninklijke Sphinx, Allia, Produits Céramique de Touraine, Pozzi Ginori and Sanitec Europe to bear three quarters of their own costs;