Judgment of the General Court (Fourth Chamber) of 16 September 2013 — Villeroy & Boch Austria and Others v Commission

(Joined Cases T‑373/10, T‑374/10, T‑382/10 and T‑402/10)

‛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 — Single infringement — Attributability of the unlawful conduct — Proof — Fines — 2006 Guidelines on the method of setting fines — Non retroactivity — Reasonable period’

1. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope — Limits — Compliance with general legal principles (Arts 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Art. 31) (see paras 26, 397, 398)

2. Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Concept — Overall cartel — Criteria — Single objective (Art. 101(1) TFEU) (see paras 32-35, 61, 65)

3. Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Concept — Classification as a single infringement — Discretion of the Commission — No infringement of the principle that penalties must have a proper legal basis (Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 49(1)) (see paras 40-43)

4. 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 46-48, 54, 64, 242)

5. Competition — Administrative procedure — Commission decision finding an infringement — Obligation to define the market in question — Scope (Art. 101(1) TFEU) (see paras 53, 56-58, 76)

6. 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 (Arts 101 TFEU and 102 TFEU) (see paras 97, 155, 156, 164)

7. 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 (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 2) (see paras 104, 113-115, 257, 264, 275, 289)

8. 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 121, 123, 145, 148, 149, 248, 261)

9. 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 para. 157)

10. EU law — Principles — Fundamental rights — Presumption of innocence — Procedures in competition matters — Applicability (Art. 6(2) TEU; Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Arts 47 and 48(1)) (see para. 158)

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 302-304)

12. Competition — Fines — Joint and several liability for payment — Conditions — Economic unit — No infringement of the ne bis in idem principle or the principle of legality (Council Regulation No 1/2003, Art. 23(2)) (see paras 324-329, 332, 333)

13. Competition — Administrative procedure — Obligations of the Commission — Duty to act within a reasonable time — Criteria for assessment — Infringement — Consequences (Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Art. 41(1); Council Regulation No 1/2003) (see paras 347-352)

14. 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 371-376)

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); Commission Notice 2006/C 210/02, points 19 to 25) (see paras 381-384)

16. 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 388-393)

Re:

APPLICATION for annulment 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 it concerns the applicants and, in the alternative, for reduction of the fines imposed on them.

Operative part

The Court:

1. In Cases T‑373/10, T‑382/10 and T‑402/10, dismisses the actions;

2. In Case T‑374/10, annuls Article 1(7) 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 it finds that Villeroy & Boch AG participated in a cartel in the bathroom fittings and fixtures sector in Belgium, Germany, France, Italy, the Netherlands and Austria before 12 October 1994;

3. In Case T‑374/10, dismisses the action as to the remainder;

4. Orders Villeroy & Boch Austria GmbH, Villeroy & Boch SAS and Villeroy & Boch — Belgium to bear their own costs and to pay those incurred by the European Commission in Cases T‑373/10, T‑382/10 and T‑402/10;

5. Orders Villeroy & Boch AG to bear seven eighths of its own costs and to pay seven eighths of the costs incurred by the Commission in Case T‑374/10;