Judgment of the General Court (Fourth Chamber) of 16 September 2013 —

Duravit and Others v Commission

(Case T‑364/10)

‛Competition — Agreements, decisions and concerted practices — Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Coordination of price increases and exchange of sensitive business information — Single and continuous infringement — Burden of proof — Fines — Equal treatment — Proportionality — Principle that penalties must have a proper legal basis’

1. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope — Account taken of the Guidelines on the method of setting fines imposed for infringements of the competition rules — Limits — Compliance with general legal principles (Arts 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Art. 31; Commission Notice 2006/C 210/02) (see paras 42-45, 48, 55, 177, 358, 359, 364)

2. Judicial proceedings — Measures of inquiry — Hearing of witnesses — Discretion of the General Court — Relevance of the principle of the right to a fair process (Rules of Procedure of the General Court, Art. 68) (see paras 49-53)

3. Competition — Fines — Amount — Determination — Legal context — Article 23(2) and (3) of Regulation No 1/2003 — Discretion conferred on the Commission by that article — Introduction by the Commission of guidelines for the calculation of fines — No infringement of the principle that penalties should have a proper legal basis or of the principle of legal certainty (Arts 101(1) TFEU and 290(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02) (see paras 64-66, 71-81)

4. EU law — General principles of law — Legal certainty — Principle that penalties must have a proper legal basis — Scope (Charter of Fundamental Rights of the European Union, Art. 49(1)) (see paras 67-69)

5. Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Concept — Overall cartel — Criteria — Single objective — Cross-border commercial links and flows — Detailed way in which infringement committed — Irrelevant (Art. 101(1) TFEU) (see paras 90-92, 134, 139, 140, 143)

6. EU law — Principles — Fundamental rights — Presumption of innocence — Procedures in competition matters — Applicability (Art. 6(2) EU; Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Arts 47 and 48(1)) (see paras 93-95)

7. Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision based on evidence sufficient to demonstrate the existence of the infringement — Evidential obligations of undertakings disputing the reality of the infringement (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 2) (see paras 96-99, 141, 144)

8. Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation — Production by the Commission of statements by other incriminated undertakings — Probative value (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 2) (see paras 100-108, 186, 191, 195)

9. Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Admissible evidence (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 27(1)) (see paras 150, 160)

10. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability for an undertaking by reason of participation in the infringement considered as a whole — Conditions — Whether sufficient, for an undertaking to be liable, that it tacitly approved without public distancing or denunciation to the competent authorities (Art. 101(1) TFEU) (see paras 180-183, 249, 252)

11. Agreements, decisions and concerted practices — Concerted practice — Concept — Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market — Exchange of information between competitors — Anti-competitive object or effect — Presumption — Conditions — Participation allegedly under pressure — Matter not providing a justification for an undertaking which did not make use of the possibility of lodging a complaint with the competent authorities (Art. 101(1) TFEU) (see paras 199, 210-212, 227, 233, 318)

12. Judicial proceedings — Application initiating proceedings — Formal requirements — No brief summary of the pleas in law on which the application is based — Inadmissibility (Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 44(1)(c)) (see paras 292-294)

13. Competition — Administrative procedure — Observance of the rights of the defence — Hearing of undertakings — Minuting and registration of the hearing — No infringement of the right to be heard (Charter of Fundamental Rights of the European Union, Art. 41(1); Council Regulation No 1/2003, Art. 27(1); Commission Regulation No 773/2004, Arts 12 and 14(8)) (see paras 344-350)

14. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Criteria for assessment — Nature and geographic extent of the infringement (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 21 to 23) (see paras 370-373)

15. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Distinction between the final amount and the intermediate amount of the fine — Consequences (Council Regulation No 1/2003, Art. 23(2) (see paras 379-384)

Re:

APPLICATION for annulment in part of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39092 — Bathroom Fittings and Fixtures) and for reduction of the fine imposed on the applicants in that decision.

Operative part

The Court:

1. Annuls point (8) of Article 1(1) of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39092 — Bathroom Fittings and Fixtures) in so far as the European Commission finds that Duravit AG, Duravit BeLux SPRL/BVBA and Duravit SA participated in an infringement in Italy, Austria and the Netherlands;

2. Dismisses the action as to the remainder;

3. Orders Duravit AG, Duravit BeLux and Duravit SA to bear three quarters of their own costs;

4. Orders the Commission to pay one quarter of the costs incurred by Duravit AG, Duravit BeLux and Duravit SA and to bear its own costs;