Case C‑609/13 P

Duravit AG and Others

v

European Commission

(Appeal — Competition — Agreements, decisions and concerted practices — Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy the Netherlands and Austria — Coordination of selling prices and exchange of sensitive business information — Regulation (EC) No 1/2003 — Article 31 — Obligation to state reasons)

Summary — Judgment of the Court (First Chamber), 26 January 2017

Agreements, decisions and concerted practices—Prohibition—Infringements—Agreements and concerted practices constituting a single infringement—Attribution of liability for the entire infringement to a single undertaking—Conditions—Unlawful practices and conduct forming part of an overall plan—Assessment—Requirement that the participating undertakings be competitors—No such requirement

Appeal—Grounds—Inadequate statement of reasons—Scope of the obligation to state reasons—Obligation of the General Court to provide an explanation of the differences between various judgments concerning the same Commission decision—No such obligation

Agreements, decisions and concerted practices—Concerted practice—Meaning—Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market—Attempt to conclude an agreement

Competition—Administrative procedure—Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement—Decision based on evidence sufficient to demonstrate the existence of the infringement—Evidential obligations of undertakings disputing the reality of the infringement

Appeal—Jurisdiction of the Court—Whether it may review, on grounds of fairness, the assessment by the General Court in regard to the amount of the fines imposed on undertakings which have infringed the competition rules of the Treaty—Precluded

The unlimited jurisdiction conferred on the EU judicature by Article 31 of Regulation No 1/2003 concerns only the penalty imposed and not the entirety of the decision at issue. In addition, neither the exercise of unlimited jurisdiction nor the review of legality are equivalent to an own-motion review and they therefore do not require the General Court to undertake of its own motion a new and comprehensive investigation of the case, independently of the claims put forward by the applicant. Moreover, when the General Court exercises its power of unlimited jurisdiction, proceedings are inter partes. Consequently, with the exception of pleas involving matters of public policy, the task of the General Court is not to carry out an examination of its own motion, irrespective of the specific pleas relied on before it, and to take an independent, discretionary decision concerning the fine set by the Commission, but is rather to rule on the pleas in law which are raised before it. (see paras 31, 36, 42, 43)

See the text of the decision. (see para. 47)

See the text of the decision. (see para. 49)

See the text of the decision. (see paras 56-62)

A ‘concerted practice’ within the meaning of Article 101(1) TFEU refers to a form of coordination between undertakings which, without having been taken to a stage where an agreement properly so called has been concluded, knowingly substitutes for the risk of competition practical cooperation between them. Accordingly, the criteria of coordination and cooperation which are constituent elements of a concerted practice within the meaning of that provision must be understood in the light of the concept inherent in the provisions of the FEU Treaty relating to competition, to the effect that each economic operator must determine independently the policy which he intends to adopt on the internal market. That requirement of independence strictly precludes any direct or indirect contact between such operators, which is such as either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which the operator concerned himself has decided to adopt on the market or which he contemplates adopting, where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market. It follows that contact, consisting in an attempt to reach an agreement on prices, constitutes a concerted practice prohibited by Article 101(1) TFEU. (see paras 70-73)

The General Court’s obligation to state the reasons for its judgments does not in principle extend to requiring it to justify the approach taken in one case as against that taken in another case, even if the latter concerns the same Commission decision concerning a proceeding under Article 101 TFEU. (see para. 90)

There is no infringement of the right of access to the file where the Commission refers, in its decision finding there to be an infringement of Article 101(1) TFEU, to notes relating to a meeting which (i) were made available to the parties concerned before the judicial proceedings, (ii) were referred to in the statement of objections preceding the Commission’s decision and (iii) were the subject of argument before the General Court. Moreover, the fact that the decision concerned refers not to those notes in their entirety but only to a page or to an annex of them is not such as to give rise to an infringement of the rights of defence. Such references are sufficient to identify the relevant document. (see paras 101, 103)

An argument cannot be considered to be out of time when it is put forward in writing in response to the General Court’s request and serves to clarify certain points of discussion before they are debated at a hearing. (see para. 104)

The General Court is the sole judge of any need to supplement the information available to it in respect of the cases before it. Even where a request for the examination of witnesses, made by a party, states precisely about what facts and for what reasons the witness or witnesses should be examined, it falls to the General Court to assess the relevance of the request to the subject-matter of the dispute and the need to examine the witnesses named. The General Court’s discretion in that regard is compatible with the fundamental right to a fair hearing and, in particular, Article 6(3)(d) of the European Convention on Human Rights. That provision does not require that every witness be called but is aimed at full equality of arms, ensuring that the procedure in issue, considered in its entirety, has given the accused an adequate and proper opportunity to challenge the suspicions concerning him. (see paras 108-110)