Joined Cases T‑426/10 to T‑429/10 and T‑438/12 to T‑441/12

(publication by extracts)

Moreda-Riviere Trefilerías, SA and Others

v

European Commission

‛Competition — Agreements, decisions and concerted practices — European market for prestressing steel — Price fixing, market sharing and the exchange of commercially sensitive information — Decision finding an infringement of Article 101 TFEU — Economic unit — Direct participation in the infringement — Secondary liability of parent companies — Succession of undertakings — Complex infringement — Single and continuous infringement — 2006 Guidelines on the method of setting fines — Principle of non-retroactivity and principle that penalties must be lawful — Mitigating circumstances — Ability to pay — Rights of the defence — Obligation to state reasons — Request for reconsideration — No change in the factual circumstances — Letter of rejection — Inadmissibility’

Summary — Judgment of the General Court (Sixth Chamber), 2 June 2016

Actions for annulment — Actionable measures — Definition — Measures producing binding legal effects — Decision of the Director General for Competition of the Commission ruling on an application for reassessment of the ability to pay of undertakings fined for breach of the competition rules — Application brought after the Commission’s decision — No new and substantial facts — Inadmissibility

(Art. 263 TFEU; Commission Notice 2006/C 210/02)

In the case of an application by undertakings fined for breach of the competition rules, seeking a reduction in the amount of their fine to take account of their ability to pay, for the purposes of paragraph 35 of the Guidelines on the method of setting fines pursuant to Article 23(2)(a) of Regulation No 1/2003, whilst the Commission is not correct to maintain that it is only where an undertaking’s financial situation has deteriorated that it can properly request a reconsideration of its ability to pay, it must none the less be considered that where the only change by comparison with the factual situation examined by the Commission at the time when it assessed an undertaking’s ability to pay consists in an improvement in its financial situation, the undertaking in question is not entitled to request the Commission to reconsider the position which it previously adopted. In such a situation, therefore, the Commission’s rejection of that request for a reconsideration does not constitute an act against which an action may be brought.

A distinction must thus be drawn, when the administration receives a request to reconsider a decision which it has previously adopted, between the question of the examination of the factual and legal situation of the person concerned and the question of the reconsideration of the earlier decision. It is only where, following the examination of the situation of the person concerned, the administration finds that there has been a substantial change, in fact or in law, of the situation of the person concerned that it is then required to reconsider its decision. Conversely, where there has been no substantial change in the factual or legal circumstances, the administration cannot be required to reconsider its decisions and the position which it adopts when rejecting a request for a reconsideration submitted in those circumstances is not in the nature of a decision, so that an action brought against such a position must be rejected as inadmissible, as it is directed against an act against which an action cannot be brought. However, the assessment on the basis of which the administration finds that the person concerned has presented no new fact and has not established that there has been a substantial change in his factual and legal situation is amenable to review by the EU judicature.

(see paras 556, 557)