JUDGMENT OF THE GENERAL COURT (Tenth Chamber, Extended Composition)

2 February 2022 ( *1 )

(Competition – Agreements, decisions and concerted practices – Truck manufacturers market – Decision finding an infringement of Article 101 TFEU and of Article 53 of the EEA Agreement – Agreements and concerted practices in relation to the prices of trucks, the timing for the introduction of emission technologies and the passing on to customers of the costs relating to those technologies – ‘Hybrid’ procedure staggered over time – Presumption of innocence – Principle of impartiality – Charter of Fundamental Rights – Single and continuous infringement – Restriction of competition by object – Geographic scope of the infringement – Fine – Proportionality – Equal treatment – Unlimited jurisdiction)

In Case T‑799/17,

Scania AB, established in Södertälje (Sweden),

Scania CV AB, established in Södertälje,

Scania Deutschland GmbH, established in Koblenz (Germany),

represented by D. Arts, F. Miotto, C. Pommiès, K. Schillemans, C. Langenius, L. Ulrichs, P. Hammarskiöld, S. Falkner and N. De Backer, lawyers,

applicants,

v

European Commission, represented by M. Farley and L. Wildpanner, acting as Agents,

defendant,

APPLICATION under Article 263 TFEU seeking annulment of Commission Decision C(2017) 6467 final of 27 September 2017, relating to proceedings under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) (Case AT.39824 – Trucks) or, in the alternative, a reduction of the fines imposed on the applicants in that decision,

THE GENERAL COURT (Tenth Chamber, Extended Composition),

composed of S. Papasavvas, President, A. Kornezov, E. Buttigieg (Rapporteur), K. Kowalik-Bańczyk and G. Hesse, Judges,

Registrar: B. Lefebvre, Administrator,

having regard to the written part of the procedure and further to the hearing on 18 June 2020,

gives the following

Judgment

I. Background to the dispute

1 The applicants, Scania AB, Scania CV AB and Scania Deutschland GmbH (‘Scania DE’), are three legal entities of the undertaking Scania (‘Scania’). Scania operates in the production and sales of heavy trucks (above 16 tonnes) which are used for long-haulage transport, distribution, construction haulage and specialised purposes.

2 By Decision C(2017) 6467 final of 27 September 2017 relating to a proceeding under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) (Case AT.39824 – Trucks) (‘the contested decision’), the European Commission found that the applicants had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, from 17 January 1997 until 18 January 2011, together with legal entities of the undertakings [confidential], ( 1 ) [confidential], [confidential], [confidential] and [confidential], in collusive arrangements on prices and gross price increases for medium and heavy trucks in the EEA, and on the timing and the passing on of costs for the introduction of emission technologies for medium and heavy trucks required by Euro 3 to 6 standards (Article 1 of the contested decision). The Commission imposed a fine of EUR 880523000 jointly and severally on Scania AB and Scania CV AB, for which Scania DE is held jointly and severally liable for the amount of EUR 440003282 (Article 2 of the contested decision).

A. Administrative procedure which led to the contested decision

3 On 20 September 2010, [confidential] applied for immunity from fines in accordance with paragraph 14 of the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’). On 17 December 2010, the Commission granted conditional immunity from fines to [confidential].

4 Between 18 and 21 January 2011, the Commission carried out inspections at the premises of, inter alia, the applicants.

5 On 28 January 2011, [confidential] applied for immunity from fines in accordance with paragraph 14 of the Leniency Notice and, failing that, in the alternative, for a reduction of the fine in accordance with paragraph 27 of the Leniency Notice. [confidential] and [confidential] followed suit.

6 Over the course of the investigation, the Commission sent several requests for information to, inter alia, the applicants, pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1).

7 On 20 November 2014, the Commission initiated proceedings pursuant to Article 11(6) of Regulation No 1/2003 against the applicants and the legal entities of the undertakings referred to in paragraph 2 above and adopted a statement of objections which it notified to all those entities, including the applicants.

8 Following notification of the statement of objections, the addressees of that statement had access to the Commission’s investigation file.

9 During [confidential], the addressees of the statement of objections approached the Commission informally and asked it to continue the case under the settlement procedure provided for in Article 10a of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (OJ 2004 L 123, p. 18). The Commission decided to initiate a settlement procedure after each of the addressees of the statement of objections confirmed its willingness to engage in settlement discussions.

10 Between [confidential] and [confidential], settlement discussions took place between each addressee of the statement of objections and the Commission. Following those discussions, certain addressees of the statement of objections individually submitted to the Commission a formal settlement request pursuant to Article 10a(2) of Regulation No 773/2004 (‘the settling parties’). The applicants did not make such a request.

11 On 19 July 2016, the Commission adopted, on the basis of Article 7 and of Article 23(2) of Regulation No 1/2003, Decision C(2016) 4673 final relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39824 – Trucks) addressed to the settling parties (‘the settlement decision’).

12 Since the applicants chose not to submit a formal settlement request, the Commission continued the investigation relating to them under the standard (non-settlement) procedure.

13 On 23 September 2016, the applicants, having had access to the file, submitted their written response to the statement of objections.

14 On 18 October 2016, the applicants attended a hearing.

15 On 7 April 2017, the Commission, in accordance with paragraph 111 of its Notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ 2011 C 308, p. 6), sent Scania AB a Letter of Facts. On 23 June 2017, the Commission also sent that Letter of Facts to Scania CV AB and Scania DE.

16 On 12 May 2017, Scania AB sent to the Commission its written observations on the evidence annexed to the Letter of Facts, which also reflected the position of Scania CV AB and Scania DE.

17 On 27 September 2017, the Commission adopted the contested decision.

B. Contested decision

1. Structure of the truck market and the price-setting mechanism in the truck industry

18 The Commission began the contested decision by presenting, in recitals 22 to 50, the structure of the truck market and the price-setting mechanism in the truck industry, including in respect of Scania.

(a) The structure of the truck market

19 As regards the structure of the truck market, the Commission states that it is characterised by a high level of transparency and concentration, the parties having several opportunities to meet each year and discuss the market situation. According to the Commission, through all the exchanges, the parties were able to have a precise idea of each other’s competitive situation (recitals 22 and 23 of the contested decision).

20 The Commission also states that the parties, including Scania, have subsidiaries in key national markets acting as distributors of their products. Those national distributors have their own network of dealers (recital 25 of the contested decision). The Commission notes that Scania sells its trucks through national distributors, which are wholly owned subsidiaries of Scania, in all the EEA States with the exception of [confidential]. Scania’s national distributors sell the trucks that are bought from the headquarters to dealers which are either wholly owned subsidiaries or independent companies. The Commission states that, in Germany, Scania has [confidential] dealers which are wholly owned subsidiaries (recital 26 of the contested decision).

(b) Price-setting mechanism in the truck industry

21 As regards the price-setting mechanism, the Commission states that it comprises the same steps for all the parties and begins, generally, in the first stage, with the setting of an initial gross price list by the headquarters. In addition, according to the Commission, in the second stage, transfer prices are set for the sale of trucks in the different national markets between the headquarters of the manufacturers and national distributors which are independent undertakings or wholly owned by the headquarters. Furthermore, according to the Commission, in the third stage, the prices paid by dealers to the distributors are set and, in the fourth stage, the final net price paid by customers, which is negotiated by the dealers or by the manufacturers themselves when they sell directly to dealers or to fleet customers, is set (recital 38 of the contested decision).

22 The Commission finds that, although the final price paid by customers may vary (for example, because of the application of different rebates at different levels of the distribution chain), all the prices applicable at each stage of the distribution chain derive directly (in the case of the transfer price between the headquarters and the distributor) or indirectly (in the case of the price paid by the dealer to the distributor or in the case of the price paid by the end customer) from the initial gross price. It is thus apparent, according to the Commission, that the initial gross price lists set by the headquarters are a common and fundamental component of the calculation of the prices applicable at each stage of the national distribution channels throughout Europe (recital 38 of the contested decision). The Commission states that all the parties, with the exception of [confidential], established, between 2000 and 2006, gross price lists made up of harmonised gross prices throughout the EEA (recital 40 of the contested decision).

(c) Price-setting mechanism within Scania

23 In recitals 41 to 50 of the contested decision, the Commission described the price-setting mechanism within Scania and those involved in that setting.

24 According to that description, Scania’s headquarters sets the Factory Gross Price List (‘FGPL’) for all the various available components of a truck (recital 44 of the contested decision). [confidential].

25 Each of Scania’s national distributors (for example Scania DE) negotiates with Scania’s headquarters a ‘distributor net price’ (the price paid by the distributor to the headquarters for each component) on the basis of the FGPL which it has received. The net price for the distributor is indicated in a document called ‘RPU’ which shows the difference between the FGPL and the net price for the distributor in terms of discount. The discounts granted to the distributor are set by [confidential] at Scania’s headquarters, but they are also discussed within the Price Decision Group. The final decision on the net price for the Scania distributor rests with [confidential] (recital 45 of the contested decision).

26 In addition, Scania’s national distributor discloses to the Scania dealers in its territory its own gross price list (consisting of the net price for the distributor plus the profit margin) for all the various available components of a truck (recital 46 of the contested decision).

27 The Scania dealer will negotiate with the distributor a ‘dealer net price’ which is based on the distributor’s gross price list, less a substantial reduction for the dealer (recital 47 of the contested decision).

28 [confidential].

29 Customers who purchase trucks from Scania’s dealers pay the ‘customer price’. The ‘customer price’ consists of the dealer net price plus the dealer’s profit margin and any costs arising from the customisation of the truck, less discounts and promotions offered to the customer (recital 48 of the contested decision). The Commission finds that the change in the price at any stage of the distribution chain will have minimal, or no effect, on the final price paid by the customer (recital 48 of the contested decision).

30 The Commission states that the FGPL applies at a global level, whereas the distributor net price and the distributor gross price list apply to the region in which the distributor operates. Similarly, the price negotiated by the dealer is applied to the region in which the dealer operates (recital 49 of the contested decision).

31 Recital 50 of the contested decision contains a flowchart of the various stages of Scania’s pricing mechanism, as described in paragraphs 24 to 29 above. That flowchart was provided by the applicants during the administrative procedure and is presented as follows:

(d) The impact of price increases at European level on prices at national level

32 In recitals 51 and 52 of the contested decision, the Commission examines the impact of price increases at European level on prices at national level. In that regard, the Commission notes that manufacturers’ national distributors such as Scania DE are not independent in the setting of gross prices and gross price lists and that all the prices applied at each stage of the distribution chain up to the end customer derive from the European-wide gross price lists set at headquarters level (recital 51 of the contested decision).

33 It follows, according to the Commission, that an increase in prices in the European-wide gross price list, decided at headquarters level, determines the movement of the ‘distributor net price’, that is to say, the price which the distributor pays to the headquarters for the purchase of the truck. Consequently, according to the Commission, the increase by the headquarters of the abovementioned gross prices also influences the level of the distributor’s gross price, namely the price which the dealer pays to the distributor, even though the price for the end customer is not necessarily altered in the same proportion or is not altered at all (recital 52 of the contested decision).

2. Collusive contacts between Scania and the settling parties

34 In the contested decision, the Commission found that Scania had participated in collusive meetings and contacts with the settling parties within different forums and on different levels which evolved over time, whereas the participating undertakings, the objectives and the products concerned had remained the same (recital 75 of the contested decision).

35 Three levels of collusive contacts were identified by the Commission.

36 In the first place, the Commission found that, in the early years of the infringement, the senior managers of the parties to the cartel discussed their pricing intentions, future gross price increases, sometimes also changes in net consumer prices and, occasionally, agreed on their gross price increases. In the contested decision, the Commission referred to that level of collusive contacts as ‘top management’ level. The Commission added that, at the top management meetings, the parties to the cartel agreed, in addition, on the timing and passing on of costs relating to the introduction of truck models complying with Euro 3 to 5 standards and, on certain occasions, it was agreed not to introduce the technologies concerned before a certain date (recital 75 of the contested decision). The Commission found that the top management meetings took place between 1997 and 2004 (recital 327(a) of the contested decision).

37 In the second place, the Commission found that, for a limited period and in parallel with the top management meetings, intermediary-level employees of the headquarters of the parties to the cartel held discussions which included, in addition to the exchange of technical information, exchanges on prices and gross price increases. In the contested decision, the Commission referred to that level of collusive contacts as ‘lower headquarters level’ (recital 75 of the contested decision). The Commission found that the meetings at lower headquarters level had occurred between 2000 and 2008 (recital 327(a) of the contested decision).

38 In the third place, the Commission found that, following the introduction of the euro and the introduction of the European-wide gross price lists by almost all truck manufacturers, the parties to the cartel had continued the systematic coordination of their future pricing intentions through their German subsidiaries. In the contested decision, the Commission referred to that level of collusive contacts as ‘German level meetings’. The Commission stated that, in a similar manner to the contacts of the early years of the cartel, the representatives of the German subsidiaries discussed future gross price increases as well as the timing and the passing on of costs related to the introduction of emission technologies for medium and heavy trucks required by the Euro 5 and 6 standards. They also exchanged other commercially sensitive information (recital 76 of the contested decision). The Commission found that the German level meetings took place from 2004 onwards (recital 327(a) of the contested decision).

3. Application of Article 101 TFEU and of Article 53 of the EEA Agreement

(a) Agreements and concerted practices

39 The Commission considered that the documentary evidence in the file showed that the abovementioned contacts concerned: – the cartel participants’ intended changes to gross prices, gross price lists, the timing of those changes and, occasionally, exchanges relating to intended changes to net prices or changes to rebates offered to customers (recital 212(a) of the contested decision); – the date of introduction of emission technologies for medium and heavy trucks required by Euro 3 to 6 standards, and the passing on of the costs relating to the introduction of those technologies (recital 212(b) of the contested decision); – the sharing of other competitively sensitive information such as target market shares, current net prices and rebates, gross price lists (even before they entered into force), truck configurators, orders and stock levels (recital 212(c) of the contested decision).

40 The Commission stated that the parties had multilateral contacts at various levels and that, sometimes, they had joint contacts and meetings at different levels. According to the Commission, those contacts were linked to each other by their subject matter, by their timing, through open references to each other and by the transmission between them of the information gathered (recital 213 of the contested decision).

41 The Commission considered that those activities constituted a form of coordination and cooperation by which the parties knowingly substituted practical cooperation between them for the risks of competition. According to the Commission, the conduct in question took the form of either an agreement or a concerted practice in which the competing undertakings refrained from determining independently the commercial policy which they intended to adopt on the market but instead coordinated their pricing behaviour through direct contacts and engaged in the coordinated delay of the introduction of the technologies (recital 214 of the contested decision). According to the Commission, the systematic participation in the collusive contacts created a climate of mutual understanding of the parties’ pricing policy (recital 215 of the contested decision).

42 The Commission found that Scania regularly participated in the various forms of collusion throughout the entire infringement period and found that the infringement in which Scania participated took the form of an agreement and/or a concerted practice within the meaning of Article 101 TFEU and of Article 53 of the EEA Agreement (recital 229 of the contested decision).

(b) Restriction of competition

43 The Commission stated that the anticompetitive behaviour in the present case had the object of restricting competition (recital 236 of the contested decision).

44 According to the Commission, the principal aspect of all of the agreements and concerted practices, which could be classified as a restriction of competition, was the coordination of prices and gross price increases through contacts on pricing, the coordination of the date and additional costs of the introduction into the market of new trucks complying with emission standards and the exchange of competitively sensitive information (recital 237 of the contested decision).

45 The Commission found that Scania had participated in the collusive contacts described in paragraph 39 above and that the object of all the agreements and concerted practices in which it had participated was the restriction of competition within the meaning of Article 101 TFEU (recitals 238 and 239 of the contested decision).

(c) Single and continuous infringement

46 The Commission considered that the agreements and/or concerted practices between Scania and the settling parties constituted a single and continuous infringement of Article 101(1) TFEU and of Article 53 of the EEA Agreement for the period between 17 January 1997 and 18 January 2011. The infringement consisted of collusion with respect to pricing and gross price increases in the EEA for medium and heavy trucks and the timing and passing on of costs for the introduction of emission technologies for medium and heavy trucks required by Euro 3 to 6 standards (recital 315 of the contested decision).

47 More specifically, the Commission considered that, through the anticompetitive contacts, the parties had pursued a common plan with a single anticompetitive aim and that Scania was aware, or ought to have been aware, of the general scope and the essential characteristics of the network of collusive contacts and intended to contribute to the cartel through its actions (recital 316 of the contested decision).

48 The Commission found that the single anticompetitive aim was to restrict competition on the market for medium and heavy trucks in the EEA. That aim was achieved through practices that reduced the levels of strategic uncertainty between the parties as regards future prices and gross price increases and as regards the timing and the passing on of costs in relation to the introduction of trucks complying with environmental standards (recital 317 of the contested decision).

(d) Geographic scope of the infringement

49 The Commission considered that the geographic scope of the infringement was throughout the territory of the EEA for the entire period of the infringement (recital 386 of the contested decision).

4. Addressees

50 In the first place, the Commission addressed the contested decision to Scania CV AB and Scania DE, which it considered to be directly liable for the infringement during the following periods: – as regards Scania CV AB, for the period from 17 January 1997 to 27 February 2009; – as regards Scania DE, for the period from 20 January 2004 to 18 January 2011 (recital 410 of the contested decision).

51 In the second place, the Commission also found that, during the period between 17 January 1997 and 18 January 2011, Scania AB directly or indirectly held all the shares in Scania CV AB, which, in turn, directly or indirectly held all the shares in Scania DE (recital 411 of the contested decision). Consequently, the Commission stated that it was also addressing the contested decision to the following entities, which are held jointly and severally liable in their capacity as parent companies: – Scania AB, liable, first, for the conduct of Scania CV AB for the period between 17 January 1997 and 27 February 2009 and, secondly, for the conduct of Scania DE between 20 January 2004 and 18 January 2011; – Scania CV AB, liable for the conduct of Scania DE for the period between 20 January 2004 and 18 January 2011 (recital 412 of the contested decision).

52 The Commission concluded that the addressees of the contested decision were the entities Scania AB, Scania CV AB and Scania DE (recital 413 of the contested decision).

5. Calculation of the amount of the fine

53 In the present case, the Commission applied the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the Guidelines on the method of setting fines’).

(a) Basic amount of the fine

54 As regards, in the first place, the value of sales, it was calculated on the basis of the applicants’ sales of heavy trucks in the EEA (adjusted to take into account the evolution of the EEA territory) in 2010 – which was the last full year of the infringement (recitals 429 to 431 of the contested decision). The Commission calculated that value to be EUR [confidential].

55 The Commission took the view that, given the extent of the value of the applicants’ sales, the objectives of a deterrent effect and proportionality underlying Article 23(2)(a) of Regulation No 1/2003 could be achieved without using the total value of the applicants’ sales of heavy trucks in 2010. Consequently, and pursuant to paragraph 37 of the Guidelines on the method of setting fines, the Commission decided to retain only a proportion of the total value of sales for the purpose of calculating the fine, namely EUR [confidential] (recitals 432 and 433 of the contested decision). The Commission stated that the percentage of the value of sales which it had retained for Scania was the same as the percentage retained for the settling parties in the settlement decision (recital 432 in fine of the contested decision).

56 As regards, in the second place, the gravity of the infringement, the Commission found that, given, first, the fact that price coordination agreements were, by their very nature, among the most serious infringements of Article 101 TFEU and of Article 53 of the EEA Agreement, secondly, the fact that the cartel covered the entire EEA and, thirdly, the high combined market share of the undertakings involved in the cartel (which was over 90%), the gravity coefficient used in the present case (that is to say the percentage of the retained value of sales) was 17% (recitals 434 to 437 of the contested decision).

57 In the third place, the Commission, taking into account the duration of Scania’s participation in the infringement, multiplied the amount arrived at in paragraph 56 above by 14, that figure being the number of years of that participation (recitals 438 and 439 of the contested decision).

58 In the fourth place, the Commission, in accordance with paragraph 25 of the Guidelines on the method of setting fines, increased the basic amount by an additional amount (entry fee) of 17% of the retained value of sales (recitals 440 and 441 of the contested decision).

59 On the basis of those calculations, the Commission concluded that the basic amount of the fine was EUR 880523000 (recital 442 of the contested decision).

(b) Final amount of the fine

60 The Commission considered that, in the present case, there were no aggravating or mitigating circumstances which could alter the basic amount of the fine imposed on Scania (recital 444 of the contested decision). It therefore concluded that the final amount of the fine was EUR 880523000 and that that amount did not exceed the maximum statutory threshold of 10% of Scania’s turnover (recitals 445 to 447 of the contested decision).

6. Operative part of the contested decision

61 The operative part of the contested decision reads as follows: ‘Article 1 By colluding on pricing and gross price increases in the EEA for medium and heavy trucks; and the timing and the passing on of costs for the introduction of emission technologies for medium and heavy trucks required by EURO 3 to 6 standards, the following legal entities of Scania infringed Article 101 of the Treaty and Article 53 of the EEA Agreement during the periods indicated: (a) Scania AB (publ) from 17 January 1997 until 18 January 2011; (b) Scania CV AB (publ) from 17 January 1997 until 18 January 2011; (c) Scania Deutschland GmbH from 20 January 2004 until 18 January 2011. Article 2 For the infringement referred to in Article 1, the following fines are imposed: EUR 880523000 jointly and severally on Scania AB (publ) and Scania CV AB (publ) of which Scania Deutschland GmbH is held jointly and severally responsible for the amount of EUR 440003282. …’

II. Procedure and forms of order sought

62 By application lodged at the Registry of the General Court on 11 December 2017, the applicants brought the present action.

63 By letter of 20 February 2019, the Court Registry informed the parties that the written part of the procedure had been closed.

64 By document lodged at the Court Registry on 11 March 2019, the applicants requested that a hearing be held. The Commission did not express a view within the period prescribed as to whether there should be a hearing.

65 Following a change in the composition of the Chambers of the General Court, pursuant to Article 27(5) of the Rules of Procedure of the General Court, the Judge-Rapporteur was assigned to the Tenth Chamber, to which the present case was accordingly allocated.

66 Acting upon a proposal of the Judge-Rapporteur, the Court (Tenth Chamber) decided to open the oral part of the procedure.

67 Acting on a proposal from the Tenth Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to a chamber sitting in extended composition.

68 In the context of the health crisis linked to COVID-19, the hearing scheduled for 2 April 2020 was postponed.

69 As a member of the Tenth Chamber (Extended Composition) was unable to sit in the present case, the President of the General Court designated the Vice-President of the General Court to complete the Tenth Chamber (Extended Composition) and thus to act as President of that chamber.

70 By letter of 5 June 2020, the applicants, on the basis of Article 66 of the Rules of Procedure, requested that certain information in the report for the hearing not be made public. By letter of the same date, the Commission, on the same basis, requested that certain information contained in, inter alia, the report for the hearing and in the final judgment not be made public.

71 By letter of 5 June 2020, the Commission, on the basis of Article 109(2) of the Rules of Procedure, requested that the hearing be held in closed session. The applicants submitted their observations on that request on 9 June 2020.

72 On 12 June 2020, the Court decided to hold the hearing in closed session.

73 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 18 June 2020.

74 At the hearing, the Court informed the parties that, in order to resolve the dispute, it considered that it was necessary to examine certain documents referred to in the contested decision.

75 Following clarifications provided by the Commission in a letter of 23 June 2020 on the content and legal rules governing the documents referred to in paragraph 74 above, the Court, by order of 14 July 2020, adopted a measure of inquiry and a measure of organisation of procedure requesting the Commission to produce those documents. The Commission complied with the Court’s request within the prescribed period.

76 The oral part of the procedure was closed on 26 October 2020.

77 The applicants claim that the Court should: – annul the contested decision; – failing that, partially annul the contested decision and reduce the fine imposed on the applicants pursuant to Article 261 TFEU and Article 31 of Regulation No 1/2003; – in any event, substitute its own appraisal for that of the Commission as regards the amount of the fine imposed on the applicants and reduce that fine in accordance with Article 261 TFEU and Article 31 of Regulation No 1/2003; – order the Commission to pay the costs.

78 The Commission contends that the Court should: – dismiss the action; – order the applicants to pay the costs.

III. Law

A. The omission of certain information vis-à-vis the public

79 The Commission, in its letter of 5 June 2020 (see paragraph 70 above), requested the omission vis-à-vis the public of, inter alia, the information which the settling parties had requested it to omit from the non-confidential version of the contested decision. The Commission informed the Court that, as regards the latter requests, the settling parties had referred the matter to the Hearing Officer on the basis of Article 8 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ 2011 L 275, p. 29) and that, as of that date, the Hearing Officer had not yet adjudicated on the abovementioned requests of the settling parties.

80 The Court, in the context of the application of Article 66 of the Rules of Procedure, must reconcile the principle that court rulings are made public with the right to the protection of personal data and the right to the protection of professional secrecy, regard also being had to the public’s right of access, in accordance with the principles laid down in Article 15 TFEU, to court rulings (see, to that effect and by analogy, judgment of 5 October 2020, Broughton v Eurojust, T‑87/19, not published, EU:T:2020:464, paragraph 49).

81 When carrying out that reconciliation, the Court decided, in the present case, as regards the non-confidential version of the present judgment, to anonymise the names of the natural persons and to conceal the names of the legal persons other than the applicants. It also decided to conceal certain data relating, inter alia, to the price-setting mechanism within Scania and the calculation of the fine imposed on Scania, the concealment of which does not affect the understanding of the non-confidential version of the judgment.

82 By contrast, the Court decided not to conceal, in the non-confidential version of the judgment, the information referred to in the settling parties’ requests sent to the Commission (see paragraph 79 above). Some of that information may be inferred from the content of the documents published on the website of the Commission’s Directorate-General for Competition and therefore is in the public domain. Certain other information merely constitutes legal classifications of the conduct of the settling parties and Scania or provides factual details relating to that conduct. The concealment of that information would affect the public’s understanding of the Court’s judgment.

83 The fact, relied on by the Commission, that the Hearing Officer has not yet adjudicated on the settling parties’ requests does not affect the Court’s assessment. The Hearing Officer’s assessment is aimed at establishing the non-confidential version of the contested decision, whereas the assessment made by the Court in the context of Article 66 of the Rules of Procedure concerns the establishment of the non-confidential version of the judgment. Those two assessments therefore have different purposes and, accordingly, the Court must proceed independently of the conduct of the procedure before the Hearing Officer.

B. Substance

84 In support of their actions, the applicants raised nine pleas in law.

85 In the first plea in law, the applicants allege infringement of the rights of the defence, the principle of good administration and the presumption of innocence resulting, in particular, from the adoption of the settlement decision prior to the adoption of the contested decision. In the second plea in law, alleging infringement of Article 48(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Article 27(1) and (2) of Regulation No 1/2003, the applicants complain, in essence, that the Commission refused them access to all the replies of [confidential] and [confidential] to the statement of objections.

86 The third, fourth, fifth, sixth and seventh pleas in law, alleging, inter alia, misapplication of Article 101 TFEU and of Article 53 of the EEA Agreement, concern, in essence, the Commission’s conclusion relating to the existence in the present case of a single and continuous infringement and that it was attributable to Scania.

87 In the eighth plea in law, alleging misapplication of Article 101 TFEU, Article 53 of the EEA Agreement and of Article 25 of Regulation No 1/2003, the applicants complain that the Commission imposed a fine on them in respect of conduct that was time-barred and, in any event, that the Commission failed to take into consideration the fact that that conduct was not continuous.

88 The ninth plea in law alleges infringement of the principle of proportionality and of the principle of equal treatment as regards the amount of the fine. Based on that plea in law, the applicants also ask the Court, in the alternative, to reduce the amount of the fine, pursuant to Article 261 TFEU and Article 31 of Regulation No 1/2003.

1. The first plea in law, alleging infringement of the rights of the defence, the principle of good administration and the presumption of innocence

89 In support of the first plea in law, the applicants submit, in essence, that the settlement decision and the contested decision, which were adopted on the basis of the same objections raised in the statement of objections addressed to both the settling parties and the applicants, concern the same alleged cartel and both decisions are based on the same facts and evidence.

90 Starting from that premiss, in the first place, the applicants claim that the contested decision was adopted in breach of their rights of defence as enshrined in Article 48(2) of the Charter and in Article 27(1) and (2) of Regulation No 1/2003, since the Commission, in the settlement decision, had carried out a legal classification of the facts and classified as an infringement the conduct in which Scania had participated before the latter had had the opportunity to exercise its rights of defence effectively.

91 In the second place, the applicants submit that the Commission failed to fulfil its obligation to conduct a diligent and impartial examination stemming from the principle of good administration enshrined in Article 41(1) of the Charter, in so far as, having adopted the settlement decision prior to the adoption of the contested decision, the Commission was no longer in a position to demonstrate impartiality and to assess objectively the evidence and the arguments put forward by Scania in the procedure which led to the adoption of the contested decision.

92 The applicants add that, in those circumstances, even a comprehensive review by the Court of the evidence which was relied on by the Commission and contained in its file cannot remedy that infringement of Article 41(1) of the Charter.

93 In the third place, the applicants submit that the contested decision is vitiated by an infringement of the presumption of innocence, the observance of which is guaranteed by Article 48(1) of the Charter. More specifically, they argue that the settlement decision defines the Commission’s final position with regard to the same facts as those set out in the statement of objections and concludes that those facts, in which Scania allegedly also participated, constitute an infringement. That declaration goes beyond a mere reference to Scania’s potential liability and therefore constitutes an infringement of Scania’s right to the presumption of innocence until evidence to the contrary is adduced by the Commission.

94 According to the applicants, to treat an infringement of the presumption of innocence as being of no significance as long as it does not lead the Commission to reach a ‘wrong’ decision, namely a decision in which the finding of an infringement is not duly supported by evidence, amounts in practice to ‘denuding’ that presumption of its content or its purpose, since, if the applicant could show that the decision was incorrect, it would not then need to invoke any infringement of due process.

95 The applicants conclude that, because the settlement decision was adopted prior to the adoption of the contested decision, the Commission could not adopt the latter decision against Scania impartially and without irreparably infringing Scania’s right to be heard and the presumption of its innocence.

96 The Commission disputes the applicants’ arguments and contends that the first plea in law should be rejected.

97 As a preliminary point, it should be noted, as the applicants confirmed at the hearing in response to a question put by the Court, that, in the first plea in law, the applicants dispute the ‘hybrid’ nature of the procedure followed by the Commission, which, in the circumstances of the present case, led to the alleged infringements, namely the infringement of the principle of the presumption of innocence, the duty of impartiality and the rights of defence of Scania who had withdrawn from the settlement procedure. In particular, the fact that the settlement decision was adopted before the contested decision aggravates those infringements, according to the applicants.

98 In that regard, it should be noted that Article 10a of Regulation No 773/2004, entitled ‘Settlement procedure in cartel cases’, provides: ‘1. After the initiation of proceedings pursuant to Article 11(6) of Regulation … No 1/2003, the Commission may set a time limit within which the parties may indicate in writing that they are prepared to engage in settlement discussions with a view to possibly introducing settlement submissions. The Commission shall not be obliged to take into account replies received after the expiry of that time limit. … 2. Parties taking part in settlement discussions may be informed by the Commission of: (a) the objections it envisages to raise against them; (b) the evidence used to determine the envisaged objections; (c) non-confidential versions of any specified accessible document listed in the case file at that point in time, in so far as a request by the party is justified for the purpose of enabling the party to ascertain its position regarding a time period or any other particular aspect of the cartel; and (d) the range of potential fines. … Should settlement discussions progress, the Commission may set a time limit within which the parties may commit to follow the settlement procedure by introducing settlement submissions reflecting the results of the settlement discussions and acknowledging their participation in an infringement of Article 101 [TFEU] as well as their liability. … Before the Commission sets a time limit for the introduction of settlement submissions, the parties concerned shall be entitled to have the information specified in the first subparagraph, disclosed to them, upon request, in a timely manner. The Commission shall not be obliged to take into account settlement submissions received after the expiry of that time limit. … 3. When the statement of objections notified to the parties reflects the contents of their settlement submissions, the written reply to the statement of objections by the parties concerned shall, within a time limit set by the Commission, confirm that the statement of objections addressed to them reflects the contents of their settlement submissions. The Commission may then proceed to the adoption of a Decision pursuant to Article 7 and Article 23 of Regulation … No 1/2003 after consultation of the Advisory Committee on Restrictive Practices and Dominant Positions pursuant to Article 14 of Regulation … No 1/2003. 4. The Commission may decide at any time during the procedure to discontinue settlement discussions altogether in a specific case or with respect to one or more of the parties involved, if it considers that procedural efficiencies are not likely to be achieved.’

99 It should be noted at the outset that that provision does not preclude, and does not exclude, the possibility for the Commission to follow a ‘hybrid’ procedure in the context of the application of Article 101 TFEU.

100 Furthermore, the Court has already accepted that the Commission was entitled to use such a ‘hybrid’ procedure and to apply a settlement procedure in respect of undertakings which put forward settlement proposals, while pursuing the procedure governed by the general provisions of Regulation No 773/2004, instead of the provisions governing the settlement procedure, in respect of undertakings which do not wish to put forward such settlement proposals (see, to that effect, judgment of 20 May 2015, Timab Industries and CFPR v Commission, T‑456/10, EU:T:2015:296, paragraphs 70, 71 and 104, upheld on appeal by judgment of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraphs 119 and 136).

101 Furthermore, the Court has also agreed that the Commission may initially adopt a settlement decision as regards the parties which have decided to enter into a settlement and that the Commission may go on to adopt a decision following the ordinary procedure in respect of the parties which decided not to enter into a settlement, provided, however, that it ensures observance of the principle of the presumption of innocence, in particular where the adoption of the settlement decision does not require a determination of the liability of the party which did not take part in the settlement (see, to that effect, judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraphs 265 to 268, upheld on appeal by judgment of 10 July 2019, Commission v Icap and Others, C‑39/18 P, EU:C:2019:584).

102 As the Commission contends, to delay or abandon any settlement procedure on the ground that one of the undertakings concerned, as in the present case Scania, withdrew from that procedure would run counter to the objective pursued by the settlement procedure, as set out in recital 4 of Commission Regulation (EC) No 622/2008 of 30 June 2008 amending Regulation No 773/2004, as regards the conduct of settlement procedures in cartel cases (OJ 2008 L 171, p. 3), which is to ensure a more expeditious and efficient handling of the case with those undertakings that have chosen to settle. However, observance of that objective must not undermine the requirements relating to observance of the principle of the presumption of innocence and the duty of impartiality.

103 The circumstances of the present case, put forward by the applicants at the hearing, namely the fact that the complete statement of objections had been sent to all the parties and that they had obtained full access to the investigation file, does not support the conclusion, contrary to what the applicants claim, that the Commission’s use of the ‘hybrid’ procedure staggered over time did not enable such an objective of speed and efficiency to be met. That objective is also covered by other circumstances specific to a settlement procedure such as the unequivocal recognition by the settling parties of their liability for the infringement, acceptance of the limited exercise of their rights of defence and the range of fines (see paragraphs 20 and 21 of the Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ 2008 C 167, p. 1)).

104 Consequently, contrary to what is claimed, in essence, by the applicants, ‘hybrid’ procedures in the context of the application of Article 101 TFEU, in which the adoption of the settlement decision and the decision following the standard procedure are staggered over time, do not in themselves, in all circumstances, entail an infringement of the presumption of innocence, the rights of the defence or the duty of impartiality and do not inevitably mean that those principles and those rights have been infringed, as is apparent from the case-law referred to in paragraphs 100 and 101 above.

105 It follows that the Commission is entitled to use such a ‘hybrid’ procedure by adopting the settlement decision before the contested decision, on condition, however, that there is full observance of those principles and rights.

106 Thus, it is necessary to examine whether, in the circumstances of the present case, the Commission observed the presumption of innocence and its duty of impartiality towards Scania and the latter’s rights of defence.

107 The applicants put forward their complaints in the first plea in law primarily on the premiss that the settlement decision and the contested decision are based on the same facts and on the same evidence. They refer in that regard to the facts relating to the conduct of the settling parties, such as the facts set out in paragraph 3 of the settlement decision, but ‘necessarily involving Scania’, with the result that the circle of undertakings whose conduct was legally classified in the settlement decision is not limited to the addressees of that decision, but also includes Scania. The applicants also maintain that the infringement of the principle of the presumption of innocence arises from the fact that the settlement decision and the contested decision were adopted on the basis of the same objections raised in the statement of objections sent to both the settling parties and the applicants.

108 In that respect, as regards the complaint alleging infringement of the principle of the presumption of innocence, it should be noted that that principle constitutes a general principle of EU law, now laid down in Article 48(1) of the Charter, which applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraphs 72 and 73 and the case-law cited).

109 Article 48 of the Charter corresponds to Article 6(2) and (3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), as is apparent from the explanations to the Charter. It follows, in accordance with Article 52(3) of the Charter, that it is necessary to take account of Article 6(2) and (3) ECHR for the purposes of interpreting Article 48 of the Charter, as a minimum threshold of protection and to draw on the case-law of the European Court of Human Rights (‘the ECtHR’) concerning Article 6(2) ECHR (see, to that effect, judgment of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraphs 41 and 42). Article 52(3) of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR (see judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 32 and the case-law cited).

110 In addition, it must be noted that, in the judgment of the ECtHR of 27 September 2011, A. Menarini Diagnostics S.R.L. v. Italy (CE:ECHR:2011:0927JUD004350908, §§ 39 to 44), relating to a penalty imposed by the Italian competition authority for anticompetitive practices similar to those alleged against the applicants, the ECtHR held that, given the high level of the fine imposed, the penalty was, by its severity, a criminal matter. However, the ECtHR has also held that the nature of an administrative procedure, such as that at issue in that judgment, may differ, in several respects, from the nature of criminal proceedings in the strict sense of the term. Although those differences cannot exempt the Contracting States from their obligation to respect all the safeguards offered by the criminal law aspect of Article 6 ECHR, they may nevertheless influence the arrangements for the application of those safeguards (ECtHR, 27 September 2011, A. Menarini Diagnostics S.R.L. v. Italy, CE:ECHR:2011:0927JUD004350908, § 62; see also, to that effect, ECtHR, 23 November 2006, Jussila v. Finland, CE:ECHR:2006:1123JUD007305301, § 43).

111 The principle of the presumption of innocence implies that every person accused is presumed to be innocent until his or her guilt has been established according to law. That principle thus precludes any formal finding and even any allusion to the liability of an accused person for a particular infringement in a final decision unless that person has enjoyed all the usual guarantees accorded for the exercise of the rights of defence in the normal course of proceedings resulting in a decision on the merits of the case (see judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraph 257 and the case-law cited, upheld on appeal by judgment of 10 July 2019, Commission v Icap and Others, C‑39/18 P, EU:C:2019:584).

112 In that regard, the ECtHR has held that premature expressions of a suspect’s guilt made in a judgment against separately prosecuted co-suspects may in theory also infringe the principle of the presumption of innocence (see ECtHR, 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, § 42 and the case-law cited).

113 According to the ECtHR, the principle of the presumption of innocence will be infringed if a judicial decision or an official statement concerning a person charged contains a clear declaration, made in the absence of a final conviction, that the person concerned has committed the offence in question. In that context, that court has emphasised the importance of, first, the choice of words used by the judicial authorities and the particular circumstances in which they are expressed and, secondly, the nature and context of the proceedings in question (see, to that effect, ECtHR, 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, § 63).

114 The ECtHR has recognised that, in complex criminal proceedings involving several suspects who cannot be tried together, it is essential for the national court, in the assessment of the guilt of the accused, to refer to the participation of third persons who may later be tried separately. It stated, however, that if facts related to the involvement of third parties have to be introduced, the relevant court should avoid giving more information than necessary for the assessment of the legal responsibility of those accused in the trial before it. In addition, that court stated that the reasoning of judicial decisions must be worded in such a way as to avoid a potential prejudgment about the guilt of the third parties concerned, which could jeopardise the fair examination of the charges brought against them in the separate proceedings (see, to that effect, ECtHR, 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, §§ 64 and 65, and 23 February 2016, Navalnyy and Ofitrov v. Russia, CE:ECHR:2016:0223JUD004663213, § 99).

115 According to the case-law of the ECtHR, an infringement of the presumption of innocence may arise not only from a court or tribunal but also from other public authorities (see ECtHR, 15 March 2011, Begu v. Romania, CE:ECHR:2011:0315JUD002044802, § 126 and the case-law cited).

116 In the present case, it should be noted that, as the Commission submits, none of the passages of the settlement decision referred to by the applicants contains any reference to or allusion to Scania from which it would be apparent that the Commission had, at the time of adopting that decision, already prejudged Scania’s liability in the context of an infringement of Article 101 TFEU.

117 In that regard, first, it is necessary to note the wording of recital 4 of the settlement decision, which provides as follows: ‘On 20 November 2014, the Commission initiated proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 against the addressees of this decision and a number of entities of an additional undertaking. This undertaking did not submit a request to settle the proceedings pursuant to Article 10a(2) of Regulation (EC) No 773/2004. As at the date of this [Settlement] Decision, the administrative proceedings under Article 7 of Regulation (EC) No 1/2003 against this undertaking are pending. For the avoidance of doubt, this [Settlement] Decision does not make any findings concerning this undertaking with respect to an infringement of EU competition law.’

118 Thus, in recital 4 of the settlement decision, the Commission was implicitly referring to Scania (i) as being an undertaking against which the administrative procedure based on Article 7 of Regulation No 1/2003 was pending and (ii) by stating that the settlement decision made no conclusion concerning Scania as regards an infringement of EU competition law. Such a reference must be classified at the very most as being a suspicion of Scania’s liability, which would still have to be established, and does not constitute an infringement of the presumption of innocence (see, to that effect and by analogy, ECtHR, 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, § 63, and 31 October 2017, Bauras v. Lithuania, CE:ECHR:2017:1031JUD005679513, § 51 and the case-law cited).

119 However, secondly, even though the existence of such an express reference in the settlement decision to the absence, at that stage, of a conclusion on Scania’s liability under Article 101 TFEU demonstrates the Commission’s willingness to comply with its obligation to observe the principle of the presumption of innocence, as set out in the case-law of the ECtHR (see, to that effect, ECtHR, 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, §§ 67, 69 and 70, and 31 October 2017, Bauras v. Lithuania, CE:ECHR:2017:1031JUD005679513, § 54), namely to indicate clearly that there were separate pending proceedings relating to Scania and that its liability had not yet been legally established (see, to that effect, judgment of 5 September 2019, AH and Others(Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 45), it is not sufficient, in itself, to exclude infringement of that principle, as the Commission acknowledged, in essence, at the hearing.

120 Thus, in order to review compliance with the presumption of innocence, it is still necessary to analyse the reasoning of the settlement decision as a whole in the light of the particular circumstances in which that decision was adopted in order to ascertain that other parts of that decision which are likely to be understood as a premature expression of Scania’s liability for the infringement of EU competition law do not render meaningless the explicit reference to the absence of a finding on Scania’s liability (see, to that effect, judgment of 5 September 2019, AH and Others(Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 46).

121 In that regard, the applicants refer to paragraph 3 of the settlement decision, which deals with the description of the conduct of the addressees of that decision, and more particularly to certain passages in which the Commission described the conduct in which, ‘amongst others’, the addressees of that decision participated (recitals 47 and 60 of the settlement decision).

122 The Commission submitted, at the hearing, that those references should not be understood as referring implicitly to Scania, even if they were read in conjunction with recital 4 of the settlement decision. The applicants have not put forward any arguments to refute that interpretation of recitals 47 and 60 of the settlement decision.

123 In any event, even if, by referring in the settlement decision to the conduct of, ‘amongst others’, the addressees of that decision, the Commission was referring implicitly to, inter alia, Scania, such a reference does not concern its liability for the infringement at issue for the purposes of the case-law referred to in paragraph 111 above, but, at most, its participation in certain conduct found against the settling parties. It is therefore not a ‘clear’ declaration, made in the absence of a final finding of liability, that Scania committed the infringement at issue for the purposes of the case-law referred to in paragraph 113 above.

124 In the settlement decision, as the Commission submits, it carried out a legal classification of the facts, as acknowledged by the addressees of that decision as constituting an infringement of Article 101 TFEU, and, in paragraph 4 of the settlement decision, set out findings as to liability for that infringement only with regard to the addressees of that decision.

125 The applicants submit, however, that an infringement of the presumption of Scania’s innocence results from the fact that the settlement decision defines the Commission’s final position with respect to the same facts as those set out in the statement of objections and concludes that those facts, in which Scania allegedly also participated, constitute an infringement. According to the applicants, that statement goes beyond the mere reference to Scania’s potential liability.

126 In that regard, it must be noted that the facts set out in the settlement decision are accepted by the settling parties, as is apparent from recital 3 of that decision.

127 The mere fact that the addressees of the settlement decision acknowledged their involvement in the infringement and admitted their guilt cannot lead to the implicit acknowledgement of Scania’s liability on account of its possible participation in those same facts, thereby automatically converting, de facto and de jure, the conclusions reached with regard to the settling parties into a form of ‘disguised verdict’ by the Commission as regards Scania (see, to that effect, judgment of 28 March 2019, Pometon v Commission, T‑433/16, EU:T:2019:201, paragraph 68).

128 However, an admission of guilt by the parties to the cartel who participated in the settlement procedure is a factor capable of having an impact on the facts relating to the participation of ‘another undertaking’ suspected of having been a party to the same cartel, in this case Scania (see, to that effect, judgment of 28 March 2019, Pometon v Commission, T‑433/16, EU:T:2019:201, paragraph 92; see, to that effect and by analogy, ECtHR, 23 February 2016, Navalnyy and Ofitserov v. Russia, CE:ECHR:2016:0223JUD004663213, § 103). Consequently, the Commission must ensure that the facts admitted by the settling parties are not accepted in respect of a party that has not taken part in that procedure, such as Scania, without a full and proper examination during the standard procedure in the light of the arguments and evidence submitted by Scania (see, to that effect and by analogy, ECtHR, 23 February 2016, Navalnyy and Ofitserov v. Russia, CE:ECHR:2016:0223JUD004663213, §§ 103 to 105, and 31 October 2017, Bauras v. Lithuania, CE:ECHR:2017:1031JUD005679513, § 53).

129 In that context, it should be noted that, in the context of the standard administrative procedure, the undertaking concerned and the Commission are, in relation to the settlement procedure, in a situation known as ‘tabula rasa’, where liabilities have yet to be determined. Thus, when the decision in respect of Scania was adopted following the standard administrative procedure, first, the Commission was bound solely by the statement of objections and, secondly, it was required, in observance of the principle of audi alteram partem, to take account of all the relevant circumstances, including all the information and arguments that had been put forward by Scania during the exercise of its right to be heard, with the result that the Commission was required to review the file in the light of those elements (see, to that effect, judgment of 20 May 2015, Timab Industries and CFPR v Commission, T‑456/10, EU:T:2015:296, paragraphs 90, 96 and 107, upheld on appeal by judgment of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraphs 119 and 136).

130 Moreover, the Commission’s legal classification of the facts with regard to the settling parties does not in itself presuppose that the same legal classification of the facts was necessarily adopted by the Commission with respect to Scania at the conclusion of the separate procedure concerning Scania, as the Commission stated in recital 366 of the contested decision and confirmed at the hearing in response to a question put by the Court. As is apparent from the case-law, there is nothing to prevent the Commission from finding that one party to an agreement or concerted practice is liable under Article 101 TFEU, whereas the other party is not (see, to that effect, judgment of 12 July 2018, ABB v Commission, T‑445/14, not published, EU:T:2018:449, paragraphs 177 to 179 and the case-law cited).

131 As regards the applicants’ argument that the infringement of the presumption of innocence results from the fact that the settlement decision and the contested decision are based on the same evidence, the Commission accepts that there is a certain overlap between the evidence on which it relied in both decisions.

132 However, such an overlap between the evidence does not in itself support the conclusion that the presumption of innocence was not observed in the present case with regard to the applicants. The mere fact of having relied on the same evidence in both decisions does not in any way presume the conclusion which the Commission could draw from that as regards Scania’s liability.

133 Moreover, as the Commission rightly submits, whereas the principle of the presumption of innocence precludes a formal finding of an infringement or any allusion to the applicants’ liability in the settlement decision, in so far as they did not enjoy all the usual guarantees for the purposes of exercising the rights of the defence in the context of the adoption of that decision, that principle does not preclude the possibility of relying on the same evidence, provided that the applicants have had the opportunity to challenge before the EU Courts the findings made on the basis of that evidence (see, to that effect, judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission, T‑474/04, EU:T:2007:306, paragraphs 76 and 77), which is the case here.

134 Similarly, the applicants’ argument, namely that the infringement of the principle of the presumption of innocence results from the fact that the settlement decision and the contested decision were adopted on the basis of the same objections raised in the statement of objections addressed to both the settling parties and the applicants, cannot succeed.

135 In that regard, first, it should be noted that, even though the Commission set out conclusions concerning Scania’s role and liability with respect to the infringement in question in the statement of objections sent both to Scania and to the parties who ultimately participated in the settlement procedure, contrary to what the applicants claim, the settlement decision is not based directly on that statement of objections, but on the common understanding of the settling parties and the Commission in respect of the objections following the settlement meetings, in accordance with Article 10a(2) of Regulation No 773/2004 and paragraphs 16 and 17 of the Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases, as the Commission stated in recital 367 of the contested decision.

136 Secondly, it must be noted that there was nothing to prevent the applicants from rebutting, during the procedure which led to the adoption of the contested decision and in observance of their rights of defence, the objections raised against them in the statement of objections.

137 Observance of the rights of the defence obliges the Commission, before taking a decision in connection with fines, to give the persons concerned the opportunity of effectively putting forward their point of view with regard to the complaints made against them, in particular on the truth and relevance of the facts and circumstances alleged and on the documents used to support its claim that there has been an infringement of Article 101 TFEU (see, to that effect, judgment of 13 February 1979, Hoffmann-La Roche v Commission, 85/76, EU:C:1979:36, paragraphs 9 and 11).

138 In proceedings for infringement of the competition rules, it is the statement of objections which constitutes the essential procedural safeguard in this respect (see judgment of 5 March 2015, Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 95 and the case-law cited).

139 It follows that, by arguing that the Commission infringed the presumption of Scania’s innocence because the contested decision and the settlement decision were based on the same facts and evidence as well as on the same objections as set out in the statement of objections, both vis-à-vis the settling parties and Scania, the applicants disregard their right to submit, in the exercise of their right to be heard in the standard administrative procedure, all the evidence intended to challenge the facts and the evidence on which the Commission intends to rely, which, where applicable, were taken into account by the Commission when the settlement decision was adopted, and disregard the Commission’s obligation to review the file in the light of that new evidence.

140 In the present case, the applicants do not deny that they had the opportunity to exercise effectively their rights of defence in the standard administrative procedure before the adoption of the contested decision, both in writing and orally, and therefore to challenge the facts and evidence identified by the Commission in order to support the objections against the applicants. In particular, as is apparent in particular from recital 379 of the contested decision, and is not disputed by the applicants, they had the opportunity to present their views on the evidence on which the Commission relied, in particular the evidence which was added to the investigation file after the statement of objections, such as extracts from the responses of certain settling parties to the statement of objections or additional facts identified by the Commission during the standard administrative procedure, supporting its provisional findings in the statement of objections, which were communicated to Scania with the Letter of Facts of 7 April 2017.

141 However, the applicants submit that the arguments and evidence which they put forward were futile, since the Commission had already reached a decision on the legal classification of the conduct in which Scania allegedly participated as an infringement of Article 101 TFEU.

142 Thus, they claim, in essence, that, having classified the facts in the settlement decision as constituting an infringement of Article 101 TFEU, the Commission was no longer in a position to go back on that assessment and to assess objectively the evidence and arguments submitted by Scania, or to adopt other investigative measures that might have called into question or weakened those assessments made in the settlement decision. Thus, they argue, the settlement decision influenced the Commission’s investigation strategy and, ultimately, the content of the evidence on which the Commission based the contested decision. In that regard, the applicants rely on certain circumstances in relation to the conduct of the procedure which led to the adoption of the contested decision, from which the Commission’s lack of impartiality is apparent.

143 Accordingly, they submit, in a second complaint in the first plea in law, that the Commission infringed its obligation to conduct an impartial investigation in breach of Article 41(1) of the Charter.

144 In that regard, it should be noted that it follows from settled case-law that the Commission is required, during the administrative procedure relating to cartels, to respect the right to good administration enshrined in Article 41 of the Charter (see, to that effect, judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 154 and the case-law cited).

145 Article 41 of the Charter provides that every person has the right, inter alia, to have his or her affairs handled impartially by the institutions of the European Union. That requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned (see judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 155 and the case-law cited).

146 The guarantees afforded by EU law, in administrative proceedings, relating to the principle of good administration include the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see judgment of 27 September 2012, Shell Petroleum and Others v Commission, T‑343/06, EU:T:2012:478, paragraph 170 and the case-law cited).

147 As a preliminary point, it should be noted that, contrary to what the Commission contends, an infringement of the principle of impartiality in circumstances similar to those of the present case is not assessed solely as a potential consequence of an infringement of the principle of the presumption of innocence when the settlement decision is adopted, but may result from other failures on the part of the Commission to offer guarantees sufficient to rule out any legitimate doubt, within the meaning of the case-law referred to in paragraph 145 above, as to its impartiality in the conduct of the standard procedure.

148 However, none of the arguments put forward by the applicants establishes that the Commission did not offer, in the present case, all the guarantees to exclude any legitimate doubt as regards its impartiality in the examination of the case concerning Scania, and in particular in the examination of the arguments and evidence which Scania was able to submit in the context of the exercise of its rights of defence during the standard administrative procedure.

149 First, it must be pointed out in that regard that, when examining the evidence submitted, in the context of the standard procedure, by the parties which have chosen not to settle, the Commission is in no way bound by the factual findings and legal classifications which it adopted in the settlement decision with regard to the parties who decided to enter into a settlement. Thus, in accordance with the principle of the presumption of innocence and its duty of impartiality, the Commission may make findings of fact or legal classifications which differ from those made in the settlement decision, if its de novo review of the evidence at its disposal, in accordance with the ‘tabula rasa’ principle, justifies this.

150 Secondly, the applicants’ argument, namely that the doubt as to the Commission’s impartiality stems from the fact that the member of the Commission responsible for competition announced, at a press conference, the adoption of the settlement decision, with the result that the Commission could no longer depart from the conclusions of that decision in the context of the contested decision, cannot succeed. In the press release in question, it is clearly stated, as in recital 4 of the settlement decision (see paragraph 117 above), that the abovementioned member of the Commission did not set out any conclusion regarding Scania’s liability in respect of whom the standard procedure was still ongoing. The member of the Commission responsible for competition matters thus, in that press release, merely informed the public of the adoption of the settlement decision, with discretion and circumspection as regards Scania’s liability in the infringement in question, as is required when observing the presumption of innocence, and therefore did not fail to comply with his duty of impartiality (see, to that effect, and by analogy, judgment of 12 December 2018, Servier and Others v Commission, T‑691/14, under appeal, EU:T:2018:922, paragraphs 132 and 134).

151 Thirdly, the applicants do not demonstrate how the fact of having involved the same Commission services, in particular those of the Directorate-General for Competition, in the adoption of both the settlement decision and the contested decision is capable, in itself, of proving that there was no impartial examination of the case with regard to the applicants. It is true that the involvement of the same services in the adoption of both decisions makes it more difficult to ensure that the examination of facts and evidence concerning an undertaking after the settlement decision has been adopted will be carried out in accordance with the ‘tabula rasa’ principle imposed by the case-law (see paragraph 129 above), which could justify, in order to dispel doubt in that regard, allocating the file to two different teams.

152 However, in the present case, the applicants have not demonstrated that a member of the Commission or of the services involved in the adoption of the contested decision showed bias or personal prejudice towards Scania, in particular as a result of having participated in the adoption of the settlement decision, in infringement of the principle of subjective impartiality, which could be such as to affect the impartial examination of the facts and evidence concerning Scania.

153 Fourthly, as regards the applicants’ argument that the Commission was not prepared to adopt new investigative measures, which could have led it to call into question the position it adopted in the settlement decision, it should be noted that the principle which prevails in EU law is that the evidence may be freely adduced (see judgment of 29 February 2016, Schenker v Commission, T‑265/12, EU:T:2016:111, paragraph 40 and the case-law cited).

154 It should also be noted, as the Commission submits, that it has discretion as to whether it is appropriate to adopt investigative measures. Thus, contrary to what is argued by the applicants, an expression of the Commission’s bias in respect of the applicants cannot be inferred in an abstract manner from the existence of such a discretion as to how to conduct the investigation. On the contrary, the failure to adopt other investigative measures can be explained above all by the Commission’s exercise of its discretion as regards the appropriateness of adopting such measures. It was therefore for the applicants to put forward arguments specifically to demonstrate that the absence of additional investigative measures could be explained only by the Commission’s bias and not by the Commission’s legitimate exercise of its discretion in conducting the investigation.

155 In that regard, the applicants submit that the Commission relied, in its assessment of the nature and scope (temporal and geographic) of the alleged conduct, in particular in recitals 144 and 339 of the contested decision, on an assessment of the facts, which Scania rejected and refuted in detail. There is nothing in the file to indicate that the Commission continued the investigation in order to verify Scania’s conclusions, for example by sending Scania a request for information aimed at producing documentary evidence of its observations or those objections, or by sending such a request to other parties. According to the applicants, that was a ‘self-interested failure’ by the Commission.

156 However, such arguments by the applicants demonstrate at the very most that the Commission did not follow the conclusions or interpretation of the facts proposed by Scania, in particular finding that they lacked credibility (see, inter alia, recital 301 of the contested decision) and overlap with the question of whether the findings of fact in the contested decision are duly supported by the evidence produced by the Commission and whether it made errors of law in its analysis, which forms part of the examination of the validity of the Commission’s assessment (see, to that effect, judgment of 12 December 2018, Servier and Others v Commission, T‑691/14, under appeal, EU:T:2018:922, paragraph 137 and the case-law cited). Such arguments do not demonstrate that the Commission was biased in deciding, in the exercise of its discretion, not to continue the investigation and, in particular, in deciding not to ask the applicants to produce additional evidence in support of their own arguments.

157 Fifthly, the applicants submit that the Commission did not act independently in that, as regards alleged cartels, the Commission is the investigating, prosecuting and decision-making authority at the same time.

158 In that regard, it should be noted that it is apparent from the case-law that the fact that the Commission is responsible for both investigating and imposing penalties for infringements of Article 101 TFEU is not in itself contrary to Article 6 ECHR as interpreted by the ECtHR, and does not constitute an infringement of the principle of impartiality, since its decisions are amenable to review by the EU Courts, which provides the guarantees set out in Article 6 ECHR (see, to that effect, judgments of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraphs 33 to 38 and the case-law cited, and of 27 June 2012, Bolloré v Commission, T‑372/10, EU:T:2012:325, paragraphs 65 to 67).

159 As regards the complaint alleging infringement of the rights of defence, it should be noted that the applicants do not allege that the Commission did not respect, during the administrative procedure which led to the adoption of the contested decision, all the procedural guarantees associated with the effective exercise of their rights of defence, as provided for, inter alia, in the general provisions of Regulation No 773/2004 (see paragraph 140 above), but rely on the infringement of their rights of defence solely as regards the fact that, in the settlement decision, the Commission carried out a legal classification of the facts relating to the conduct of the settling parties but necessarily involving Scania, without the latter having been able to exercise its rights of defence.

160 In that regard, it should be noted that, in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of EU law which has been emphasised on numerous occasions in the case-law of the Court of Justice and which has been enshrined in Article 48(2) of the Charter (see judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others, C‑550/07 P, EU:C:2010:512, paragraph 92 and the case-law cited). That principle must be fully complied with even if the proceedings in question are administrative proceedings (see judgments of 9 July 2009, Archer Daniels Midland v Commission, C‑511/06 P, EU:C:2009:433, paragraph 84 and the case-law cited, and of 5 March 2015, Commission and Others v Versalis and Others, C‑93/13 P and C‑123/13 P, EU:C:2015:150, paragraph 94 and the case-law cited).

161 The rule that the parties should be heard forms part of the rights of the defence. It applies to any procedure which may result in a decision by an EU institution perceptibly affecting a person’s interests (see judgment of 2 December 2009, Commission v Ireland and Others, C‑89/08 P, EU:C:2009:742, paragraphs 50 and 51 and the case-law cited).

162 In so far as the applicants claim that the settlement decision was adopted without them having been able to express their views, it should be noted, as is apparent from the examination of the complaint alleging infringement of the presumption of innocence, that the settlement decision did not perceptibly affect the applicants’ interests within the meaning of the case-law referred to in paragraph 161 above since, contrary to what they claim, the Commission did not, in the settlement decision, carry out a legal classification of the facts against Scania and did not in any way prejudge Scania’s liability for the infringement in question. Consequently, the fact that Scania was not heard in the procedure which led to the adoption of the settlement decision does not infringe its rights of defence.

163 As regards, lastly, the applicants’ argument that an ‘inextricable link’ between the settlement decision and the contested decision results from the fact that the Commission consulted the settling parties in the course of preparing the non-confidential version of the contested decision with a view to its publication cannot succeed either. First, the applicants do not explain how such an ‘inextricable link’ would support their arguments set out in the first plea in law. Secondly, and in any event, as the Commission submits, by following that course of action, it gave effect to the case-law resulting from the judgment of 12 October 2007, Pergan Hilfsstoffe für industrielle Prozesse v Commission (T‑474/04, EU:T:2007:306), by giving the settling parties the opportunity to rely on the confidentiality of certain information concerning them in view of the fact that, although they were not the addressees of the contested decision, they were nevertheless mentioned in it.

164 Similarly, the applicants cannot reasonably claim that a mere technical error which, on the Commission’s website, in the heading relating to the contested decision, caused the link to lead to the settlement decision suggests that there is a connection between the two decisions in such a way that a conclusion can be drawn from that on Scania’s liability under Article 101 TFEU.

165 It follows that the first plea in law must be rejected.

2. The second plea in law, alleging infringement of Article 48(2) of the Charter and of Article 27(1) and (2) of Regulation No 1/2003

166 The applicants submit, in essence, that the Commission infringed their rights of defence, in breach of Article 48(2) of the Charter and Article 27(1) and (2) of Regulation No 1/2003, by refusing them access to all of the replies to the statement of objections submitted by [confidential] and [confidential], even though, according to the applicants, it is likely that those replies contain exculpatory evidence in relation to the other parties, including Scania, beyond the evidence set out in the excerpts from those replies to which access was granted to Scania by the Hearing Officer.

167 According to the applicants, [confidential] and [confidential] used their replies to the statement of objections to dispute the Commission’s allegations against them, as is shown by the extracts which Scania was allowed to review. The applicants consider that the fact that the Commission partially changed its stance on the question of whether the replies of [confidential] and [confidential] were incriminating or exculpatory casts doubt on the validity of denying full access to those replies.

168 Relying on the case-law, the Commission disputes the applicants’ arguments in that they do not demonstrate that the refusal to grant Scania access to all of the replies of [confidential] and [confidential] to the statement of objections, which are not strictly speaking part of an investigation file, undermined the effective exercise of Scania’s rights of defence and, in particular, the right to consult documents that may contain exculpatory evidence relating to it.

169 As is apparent from the case-law referred to in paragraph 160 above, in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of EU law which has been enshrined in Article 48(2) of the Charter. That principle must be fully complied with even if the proceedings in question are administrative proceedings.

170 According to Article 27(2) of Regulation No 1/2003, ‘the rights of defence of the parties concerned shall be fully respected in the proceedings’ and ‘they shall be entitled to have access to the Commission’s file, subject to the legitimate interest of undertakings in the protection of their business secrets’.

171 It should be noted that, according to settled case-law, that principle requires that the person concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (see judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 66 and the case-law cited).

172 A corollary of the principle of respect for the rights of the defence, the right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. Those documents include both incriminating evidence and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved (judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 68).

173 In that regard, it must be noted that it is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by means of the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, the replies of the other undertakings which allegedly participated in the cartel to the statement of objections are not, in principle, included in the documents of the investigation file that the parties may consult (judgments of 14 May 2020, NKT Verwaltung and NKT v Commission, C‑607/18 P, not published, EU:C:2020:385, paragraph 263, and of 30 September 2009, Hoechst v Commission, T‑161/05, EU:T:2009:366, paragraph 163).

174 However, if the Commission wishes to rely on a passage in a reply to a statement of objections or on a document annexed to such a reply in order to prove the existence of an infringement in a proceeding under Article 101 TFEU, the other undertakings involved in that proceeding must be placed in a position in which they can express their views on such evidence. In such circumstances, the passage in question from a reply to the statement of objections or the document annexed thereto constitutes evidence against the various undertakings alleged to have participated in the infringement (judgment of 14 May 2020, NKT Verwaltung and NKT v Commission, C‑607/18 P, not published, EU:C:2020:385, paragraph 264; see, also, judgment of 30 September 2009, Hoechst v Commission, T‑161/05, EU:T:2009:366, paragraph 164 and the case-law cited).

175 By analogy, if a passage in a reply to a statement of objections or in a document annexed to such a reply may be relevant for the defence of an undertaking in that it enables that company to invoke evidence which is not consistent with the inferences made at that stage by the Commission, it constitutes exculpatory evidence. In that case, the undertaking concerned must be authorised to examine the passage or the document concerned and to give its view thereon (judgment of 12 July 2011, Mitsubishi Electric v Commission, T‑133/07, EU:T:2011:345, paragraph 43).

176 However, the mere fact that other undertakings relied on the same arguments as the undertaking concerned and that they may have used more resources for their defence is not sufficient to regard those arguments as exculpatory evidence (see, to that effect, judgment of 27 September 2006, Jungbunzlauer v Commission, T‑43/02, EU:T:2006:270, paragraphs 353 and 355).

177 As regards the consequences of access to the file which does not comply with those rules, where an exculpatory document has not been communicated, the undertaking concerned must establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents in its defence, in the sense that, had it been able to rely on them during the administrative procedure, it would have been able to put forward evidence which did not agree with the findings made by the Commission at that stage and would therefore have been able to have some influence on the Commission’s assessment in any decision it adopted, at least as regards the gravity and duration of the conduct of which it was accused and, accordingly, the level of the fine (judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraphs 74 and 75).

178 The possibility that a document which was not disclosed might have influenced the course of the proceedings and the content of the Commission’s decision can be established only if a provisional examination of certain evidence shows that the documents not disclosed might – in the light of that evidence – have had a significance which ought not to have been disregarded (judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 76).

179 It is nevertheless for the applicant to adduce prima facie evidence that the undisclosed documents would be useful to its defence (see judgment of 14 March 2013, Fresh Del Monte Produce v Commission, T‑587/08, EU:T:2013:129, paragraph 690 and the case-law cited; see also, to that effect, judgment of 14 May 2020, NKT Verwaltung and NKT v Commission, C‑607/18 P, not published, EU:C:2020:385, paragraph 265 and the case-law cited). The applicant must, in particular, indicate the potential exculpatory evidence in question or adduce evidence that it exists and therefore of its relevance for the purposes of the case (see judgment of 16 June 2011, Heineken Nederland and Heineken v Commission, T‑240/07, EU:T:2011:284, paragraph 257 and the case-law cited).

180 It is necessary to examine, in the light of those principles, whether, in the present case, the Commission’s refusal to grant access to all of the replies of [confidential] and [confidential] to the statement of objections was capable of undermining the applicants’ rights of defence in so far as they did not have sufficient access to potentially exculpatory evidence, as they claim.

181 In that regard, it should be noted, as the Commission submits, that there is a difference in access to the Commission’s file in respect of a cartel depending on when a document was added to the investigation file, which is also apparent from paragraph 27 of the Commission Notice on the rules for access to the Commission file in cases pursuant to Articles [101] and [102 TFEU], Articles 53, 54 and 57 of the EEA Agreement and Council Regulation (EC) No 139/2004 (OJ 2005 C 325, p. 7). Whereas the parties concerned, in order to be able effectively to exercise their rights of defence, have the right to consult the investigation file as it existed when the statement of objections was sent, and in order to be able to respond effectively to the objections put forward at that stage by the Commission, access to the evidence subsequently added to the file, in particular the replies of the other parties to the cartel to the statement of objections, is neither automatic nor unlimited (see, to that effect, judgment of 14 May 2020, NKT Verwaltung and NKT v Commission, C‑607/18 P, not published, EU:C:2020:385, paragraph 265).

182 In the present case, it should be noted that the Hearing Officer granted the applicants access to certain passages of the replies to the statement of objections submitted by [confidential] and by [confidential], taking the view that they might contain exculpatory evidence concerning Scania in view of the fact that they came from a leniency applicant and from an undertaking to which the Commission had sent a request for information, therefore they might have contained amendments or withdrawals of the statements on which the Commission had relied.

183 The applicants claim, however, that ‘it is likely’ that the replies to the statement of objections submitted by [confidential] and by [confidential] contain more exculpatory evidence which they could have relied on effectively in the exercise of their rights of defence.

184 However, it must be stated that, as the Commission submits, in essence, the applicants remain very vague as regards the identification of the potential exculpatory evidence that the replies of [confidential] and [confidential] to the statement of objections contained and which were not disclosed to the applicants following the Hearing Officer’s decision and therefore they do not provide anything to prove the existence of that evidence and, therefore, its usefulness for their defence for the purposes of the case-law cited in paragraph 179 above.

185 The applicants do not specify in any way the Commission’s findings in the contested decision which could have been influenced if full access to the replies of [confidential] and [confidential] to the statement of objections had been granted to the applicants. In particular, they do not identify any inference concerning Scania’s own unlawful conduct which the Commission based specifically on an element covered by [confidential]’s leniency application or [confidential]’s reply to the request for information which might, depending on the circumstances, have been altered or withdrawn by those parties in their replies to the statement of objections.

186 The applicants rely, in that regard, on the specific procedural circumstances of the present case and, more specifically, on the fact that [confidential] and [confidential], two settling parties, sent the Commission their replies to the statement of objections when the settlement discussions were ongoing, only a few weeks before they ‘presumably’ filed their settlement submissions and before the settlement decision was adopted. The applicants infer from this that those replies must necessarily contain comments challenging the Commission’s allegations against them, which is also apparent from the extracts from the replies in question to which access was granted to Scania.

187 However, such circumstantial and temporal evidence relating to the fact that the settling parties replied to the statement of objections during the settlement procedure is not in itself sufficient to demonstrate that those replies contain new exculpatory evidence in respect of Scania.