Judgment of the General Court (Third Chamber) of 23 January 2014 — SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission

(Case T‑384/09)

‛Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Rights of the defence — Imputability of the unlawful conduct — Obligation to state reasons — Fines — Equal treatment — Mitigating circumstances — Cooperation during the administrative procedure — Proportionality — Joint and several liability for payment of the fine — 2006 guidelines on the method of setting fines’

1. Competition — Administrative procedure — Observance of the rights of the defence — Hearing of undertakings — Request by an undertaking to submit its arguments in camera in order to protect its commercial relationship with another undertaking — Risk of infringement of the rights of defence of that other undertaking — Rejection — Change of circumstances not involving the need to submit arguments in camera — Application for a fresh hearing — Rejection — Infringement of the right to be heard — None — Need for the Hearing Officer to reconcile the defence rights of the two undertakings (Council Regulation No 1/2003, Art. 27; Commission Regulation No 773/2004, Arts 12(1), and 14(1) and (6)) (see paras 20, 21, 35-39, 58, 61, 62)

2. 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 — Rebuttable — Burden of proof (Arts 81 EC and 82 EC) (see paras 67-72, 82-86, 90, 99, 109-111, 123, 124)

3. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — New plea — Definition (Rules of Procedure of the General Court, Art. 48(2), first para.) (see paras 129, 130)

4. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Mere reference to an earlier judgment of the General Court — Inadmissibility (Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Arts 44(1)(c), and 48(2)) (see paras 131-134)

5. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope (Arts 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Art. 31) (see para. 135)

6. Competition — Fines — Amount — Determination — Guidelines adopted by the Commission — Ability of the Commission to depart from them — Limits — Respect for the principle of equal treatment — Account taken of the particular characteristics of an undertaking having regard, in particular, to the risk that the fine may be disproportionate (Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 13, 25 and 37) (see paras 147, 153, 164-168)

7. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Modification of the Guidelines for the calculation of fines — No obligation on the Commission to adhere to its previous decision making practice (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 29) (see para. 185)

8. Competition — Fines — Amount — Determination — Criteria — Reduction in the amount of the fine in return for cooperation of the undertaking concerned — Conditions (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 29) (see paras 186, 188)

9. Competition — Fines — Joint and several liability for payment — Conditions — Economic unit — Exceptions (Art. 81 EC) (see paras 194-197)

10. Competition — Fines — Amount — Determination — Discretion conferred on the Commission by Article 23(2) of Regulation No 1/2003 — Infringement of the principle that penalties must have a sound legal basis — None (Charter of Fundamental Rights of the European Union, Art. 49(1); Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02) (see para. 206)

11. Competition — Fines — Imposition — No requirement that the undertaking benefited from the infringement — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Absence of benefit — Not included (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 29 and 31) (see para. 225)

12. Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Recipient undertaking (Art. 81 EC; Commission Notice 2002/C 45/03) (see paras 237-240)

13. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Turnover to be taken into consideration — Cumulative turnover of all the companies constituting the economic entity operating as an undertaking — Possible dissolution of the economic entity after the adoption of the contested decision — No effect (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 266, 267)

Re:

APPLICATION for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it applies to the applicants, and, in the alternative, an application for annulment or reduction of the amount of the fine imposed on the applicants by that decision.

Operative part

The Court:

1. Dismisses the action;

2. Orders SKW Stahl-Metallurgie Holding AG and SKW Stahl-Metallurgie GmbH, in addition to bearing their own costs, to pay the costs incurred by the European Commission;

3. Orders Gigaset AG to bear its own costs.

Judgment of the General Court (Third Chamber) of 23 January 2014 — SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission

(Case T‑384/09)

‛Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Rights of the defence — Imputability of the unlawful conduct — Obligation to state reasons — Fines — Equal treatment — Mitigating circumstances — Cooperation during the administrative procedure — Proportionality — Joint and several liability for payment of the fine — 2006 guidelines on the method of setting fines’

1. Competition — Administrative procedure — Observance of the rights of the defence — Hearing of undertakings — Request by an undertaking to submit its arguments in camera in order to protect its commercial relationship with another undertaking — Risk of infringement of the rights of defence of that other undertaking — Rejection — Change of circumstances not involving the need to submit arguments in camera — Application for a fresh hearing — Rejection — Infringement of the right to be heard — None — Need for the Hearing Officer to reconcile the defence rights of the two undertakings (Council Regulation No 1/2003, Art. 27; Commission Regulation No 773/2004, Arts 12(1), and 14(1) and (6)) (see paras 20, 21, 35-39, 58, 61, 62)

2. 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 — Rebuttable — Burden of proof (Arts 81 EC and 82 EC) (see paras 67-72, 82-86, 90, 99, 109-111, 123, 124)

3. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — New plea — Definition (Rules of Procedure of the General Court, Art. 48(2), first para.) (see paras 129, 130)

4. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Mere reference to an earlier judgment of the General Court — Inadmissibility (Statute of the Court of Justice, Arts 21, first para., and 53, first para.; Rules of Procedure of the General Court, Arts 44(1)(c), and 48(2)) (see paras 131-134)

5. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope (Arts 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Art. 31) (see para. 135)

6. Competition — Fines — Amount — Determination — Guidelines adopted by the Commission — Ability of the Commission to depart from them — Limits — Respect for the principle of equal treatment — Account taken of the particular characteristics of an undertaking having regard, in particular, to the risk that the fine may be disproportionate (Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 13, 25 and 37) (see paras 147, 153, 164-168)

7. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Modification of the Guidelines for the calculation of fines — No obligation on the Commission to adhere to its previous decision making practice (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 29) (see para. 185)

8. Competition — Fines — Amount — Determination — Criteria — Reduction in the amount of the fine in return for cooperation of the undertaking concerned — Conditions (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 29) (see paras 186, 188)

9. Competition — Fines — Joint and several liability for payment — Conditions — Economic unit — Exceptions (Art. 81 EC) (see paras 194-197)

10. Competition — Fines — Amount — Determination — Discretion conferred on the Commission by Article 23(2) of Regulation No 1/2003 — Infringement of the principle that penalties must have a sound legal basis — None (Charter of Fundamental Rights of the European Union, Art. 49(1); Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02) (see para. 206)

11. Competition — Fines — Imposition — No requirement that the undertaking benefited from the infringement — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Absence of benefit — Not included (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, points 29 and 31) (see para. 225)

12. Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Recipient undertaking (Art. 81 EC; Commission Notice 2002/C 45/03) (see paras 237-240)

13. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Turnover to be taken into consideration — Cumulative turnover of all the companies constituting the economic entity operating as an undertaking — Possible dissolution of the economic entity after the adoption of the contested decision — No effect (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 266, 267)

Re:

APPLICATION for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it applies to the applicants, and, in the alternative, an application for annulment or reduction of the amount of the fine imposed on the applicants by that decision.

Operative part

The Court:

1. Dismisses the action;

2. Orders SKW Stahl-Metallurgie Holding AG and SKW Stahl-Metallurgie GmbH, in addition to bearing their own costs, to pay the costs incurred by the European Commission;