Judgment of the General Court (Eighth Chamber) of 12 July 2018 –

NKT Verwaltungs and NKT v Commission

(Case T‑447/14)

(Competition — Agreements, decisions and concerted practices — European market for power cables — Decision finding an infringement of Article 101 TFEU — Single and continuous infringement — Evidence of the infringement — Duration of Involvement — Public Distancing — Calculation of the fine — Gravity of the infringement — Unlimited jurisdiction)

1. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Subject-matter — Communication of responses to the statement of objections — Conditions — Relevance of the replies of the other addressees of the statement of objections for the defence of the undertaking concerned — Burden of proof — Obligation of the undertaking concerned to adduce prima facie evidence of the usefulness of those replies for its defence (Council Regulation No 1/2003, Art. 27) (see paras 45-68)

2. Competition — EU rules — Territorial scope — Cartel implemented or which is capable of producing an immediate and substantial effect in the internal market — Criterion of the immediate, substantial and foreseeable effect — Assessment by reference to the effects, taken together, of the contested practices (Art. 101(1) TFEU) (see paras 78-83, 89-97)

3. Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Indication of the main factual and legal elements likely to entail a fine — Sufficient indication in relation to the right to be heard (Council Regulation No 1/2003, Arts 23 and 27) (see paras 100-102)

4. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Means of proof — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation — Permissibility of an overall assessment of a body of evidence (Art. 101(1) TFEU) (see paras 107-110, 196, 216, 252, 262, 263)

5. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability for the entire infringement to a single undertaking — Conditions — Unlawful practices and conduct forming part of an overall plan — Assessment — Criteria — Contribution to the single objective of the infringement — Knowledge and predictability of the overall plan of the agreement, decision or concerted practice and its key elements (Art. 101(1) TFEU) (see paras 119-122, 142, 147, 148, 154, 163, 168, 169, 174, 256)

6. Agreements, decisions and concerted practices — Agreements between undertakings — Meaning — Participation in meetings having an anti-competitive object — Included — Condition — Undertaking concerned not distancing itself from the decisions adopted — Public distancing — Criteria for assessment (Art. 101(1) TFEU) (see paras 203-216)

7. Competition — Fines — Amount — Determination — Principle of equal treatment — Scope — Not possible for an undertaking to require non-discriminatory application of unlawful treatment granted to other undertakings concerned (Council Regulation No 1/2003, Art. 23(2) and (3)) (see paras 279, 285-290)

Re:

Application pursuant to Article 263 TFEU primarily for annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power Cables) in so far as it concerns the applicants and, in the alternative, an application for a reduction in the amount of the fine imposed on the applicant.

Operative part

The Court:

1. Dismisses the action;