Judgment of the General Court (Second Chamber) of 17 December 2014 —

Pilkington Group and Others v Commission

(Case T‑72/09)

‛Competition — Agreements, decisions and concerted practices — European market in carglass — Decision finding an infringement of Article 81 EC — Market-sharing agreements and exchanges of commercially sensitive information — Fines — Rights of defence — Retroactive application of the 2006 Guidelines on the method of setting fines — Value of sales — Passive or minor role — Deterrent effect of the fine — Taking into account fines previously imposed — Ceiling of the fine — Exchange rate for the calculation of the ceiling of the fine’

1. Judicial proceedings — Decision replacing the contested decision during the proceedings — New factor — Adaptation of initial forms of order sought and pleas in law — Admissible, even where partial amendment of the contested decision (Art. 263 TFEU; Rules of Procedure of the General Court, Art. 48(2)) (see para. 46)

2. Agreements, decisions and concerted practices — Concerted practice — Adverse effect on competition — Criteria for assessment — Anti-competitive object — Sufficient (Art. 81(1) EC) (see paras 79, 80, 119, 120, 122, 167, 168, 288, 389)

3. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Degree of precision required of the evidence used by the Commission — Body of evidence — Evidential obligations of undertakings challenging the reality or the duration of the infringement (Art. 81(1) EC; Council Regulation No 1/2003, Art. 2) (see paras 81-84, 151, 182)

4. Competition — Administrative procedure — Commission decision finding an infringement — Use as evidence of statements of other undertakings which participated in the infringement — Lawfulness — Probative value of voluntary depositions made by the main participants in a cartel with a view to benefiting from the Leniency Notice (Art. 81(1) EC; Council Regulation No 1/2003, Art. 2; Commission Notice 2002/C 45/03) (see paras 87, 335, 347)

5. Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Concept — Criteria — Single objective and overall plan — Links of complementarity between the agreements (Art. 81(1) EC) (see paras 125, 126, 150, 175, 176, 181)

6. Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Calculation of the basic amount of the fine — Account taken of the characteristics of the infringement as a whole — No obligation to take account of other individual circumstances specific to each of the participating undertakings (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02) (see paras 188-191, 390, 391)

7. Competition — Fines — Amount — Determination — Complex evaluation of economic matters — Commission’s margin of discretion — Judicial review — Review of legality — Scope (Art. 263 TFEU; Council Regulation No 1/2003, Arts 23(2) and (3), and 31; Commission Notice 2006/C 210/02) (see paras 202, 203)

8. Competition — Fines — Amount — Determination — Turnover taken into consideration — Reference year — No obligation to refer to the last full year of the infringement (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 13 and 37) (see paras 204-206, 212)

9. Competition — Fines — Amount — Determination — Criteria — Overall turnover of the undertaking concerned — Turnover corresponding to the goods covered by the infringement — To be taken into consideration — Limits (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 6 and 13) (see paras 219-223)

10. Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Indication of the criteria for calculating the fine envisaged — Premature indication (Art. 81 EC; Charter of Fundamental Rights of the European Union, Art. 41(2)(a); Council Regulation No 1/2003, Art. 27(1)) (see paras 231-237)

11. Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope — Indication of the factors which led the Commission to assess the gravity and the duration of the infringement — Sufficient indication — Commission not required to indicate the figures relating to the method of calculating the fine (Art. 81 EC; Art. 296 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3)) (see paras 247, 248)

12. Competition — Fines — Amount — Determination — Commission’s margin of discretion — Limits — Compliance with rules and general principles of EU law — Determination of the fine proportionately to the assessment factors for the gravity of the infringement (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02) (see paras 276, 277, 291, 295, 307, 396)

13. Competition — Fines — Amount — Determination — Maximum amount — Distinction between ceiling and deterrent character of the fine — Objective distinct from that of the criteria of gravity and duration of the infringement — Aim to avoid fines of an excessive and disproportionate level (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2), second para.) (see paras 279, 280, 414)

14. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Horizontal cartel concerning prices — Very serious infringement — No circumstances excluding that classification (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 23) (see paras 283, 284, 289)

15. Competition — Fines — Amount — Determination — Deterrent effect — No obligation to take account of fines already imposed for other anti-competitive activities (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 25) (see paras 300, 302‑305)

16. Competition — Fines — Amount — Determination — Criteria — No obligation to take account of the financial situation of the undertaking concerned — No obligation to take account of an exceptional economic crisis (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, para. 35) (see paras 308, 441, 442)

17. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Establishment of a programme for compliance with competition rules — Not imperative to take into account (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 29) (see para. 311)

18. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Passive or ‘follow-my-leader’ role of the undertaking — Criteria for assessment (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 29) (see paras 381, 382, 384)

19. Competition — Fines — Amount — Determination — No need to take account of the turnovers of the undertakings concerned and to ensure that fines are proportional to those turnovers (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02) (see paras 397, 398, 438)

20. Competition — Fines — Amount — Methods of calculation — Conversion of the undertakings’ turnover for the reference year on the basis of the average exchange rate for the same year — Lawfulness (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3)) (see paras 416-421)

21. Competition — Fines — Amount — Whether appropriate — Judicial review — Factors which may be taken into account by the European Union judicature — Information not contained in the decision imposing the fine and not required by the duty to state reasons — Included (Art. 229 EC; Art. 296 TFEU; Council Regulation No 1/2003, Arts 23(2), and 31; Commission Notice 2006/C 210/02) (see paras 430-432)

Re:

APPLICATION for annulment of Commission Decision C(2008) 6815 final of 12 November 2008 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (COMP/39.125 — Carglass), as amended by Commission Decision C(2009) 863 final of 11 February 2009 and also by Commission Decision C(2013) 1119 final of 28 February 2013, in so far as it concerns the applicants, and also, in the alternative, for annulment of Article 2 of that decision in that it imposes a fine on the applicants or, in the further alternative, application for reduction of that fine.

Operative part

The Court:

1. Dismisses the action;