JUDGMENT OF THE COURT (Fifth Chamber)

16 June 2016 ( *1 )

‛Appeal — Competition — Agreements, decisions and concerted practices — Article 81 EC — Markets for calcium carbide powder, calcium carbide granulates and magnesium granulates in a substantial part of the European Economic Area — Price fixing, market sharing and exchange of information — Regulation (EC) No 773/2004 — Articles 12 and 14 — Right to be heard — In camera hearing’

In Case C‑154/14 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 April 2014,

SKW Stahl-Metallurgie GmbH, established in Unterneukirchen (Germany),

SKW Stahl-Metallurgie Holding AG, established in Unterneukirchen,

represented by A. Birnstiel and S. Janka, Rechtsanwälte,

appellants,

the other parties to the proceedings being:

European Commission, represented by G. Meessen and R. Sauer, acting as Agents, and A. Böhlke, Rechtsanwalt,

defendant at first instance,

Gigaset AG, formerly Arques Industries AG, established in Munich (Germany),

intervener at first instance,

THE COURT (Fifth Chamber),

composed of T. von Danwitz, President of the Fourth Chamber, acting as President of the Fifth Chamber, D. Šváby (Rapporteur), A. Rosas, E. Juhász and C. Vajda, Judges,

Advocate General: N. Wahl,

Registrar: I. Illéssy, Administrator,

having regard to the written procedure and further to the hearing on 13 May 2015,

after hearing the Opinion of the Advocate General at the sitting on 3 September 2015,

gives the following

Judgment

1 By their appeal, SKW Stahl-Metallurgie GmbH (‘SKW’) and SKW Stahl-Metallurgie Holding AG (‘SKW Holding’) ask the Court to set aside the judgment of the General Court of the European Union of 23 January 2014 in SKW Stahl-Metallurgie Holding and SKW Stahl-Metallurgie v Commission (T‑384/09, not published, ‘the judgment under appeal’, EU:T:2014:27), by which it rejected their action seeking, primarily, annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA agreement (Case COMP/39.396 — Calcium carbide and magnesium based reagents for the steel and gas industries) (‘the decision at issue’) in so far as that decision relates to them, and, in the alternative, the annulment or the reduction of the fine imposed on them by that decision.

Legal context

Regulation (EC) No 1/2003

2 Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1) provides: ‘The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a) they infringe Article 81 or Article 82 [EC]; or (b) they contravene a decision ordering interim measures under Article 8; or (c) they fail to comply with a commitment made binding by a decision pursuant to Article 9. For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year. Where an infringement by an association of undertakings relates to the activities of its members, the fine shall not exceed 10% of the sum of the total turnover of each member active on the market affected by that infringement.’

Regulation (EC) No 773/2004

3 Article 12(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ 2004 L 123, p. 18), as amended by Commission Regulation (EC) No 622/2008 of 30 June 2008 (OJ 2008 L 171 p. 3; ‘Regulation No 773/2004’), provides: ‘The Commission shall give the parties to whom it addresses a statement of objections the opportunity to develop their arguments at an oral hearing, if they so request in their written submissions.’

4 Article 14(6) to (8) of that regulation provides as follows: ‘6. Oral hearings shall not be public. Each person may be heard separately or in the presence of other persons invited to attend, having regard to the legitimate interest of the undertakings in the protection of their business secrets and other confidential information. 7. The Hearing Officer may allow the parties to whom a statement of objections has been addressed, the complainants, other persons invited to the hearing, the Commission services and the authorities of the Member States to ask questions during the hearing. 8. The statements made by each person heard shall be recorded. Upon request, the recording of the hearing shall be made available to the persons who attended the hearing. Regard shall be had to the legitimate interest of the parties in the protection of their business secrets and other confidential information.’

The Rules of Procedure of the General Court

5 In the version applicable to the action for annulment brought by the appellants, Article 48(2) of the Rules of Procedure of the General Court provides: ‘No new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. If in the course of the procedure one of the parties puts forward a new plea in law which is so based, the President may, even after the expiry of the normal procedural time-limits, acting on a report of the Judge-Rapporteur and after hearing the Advocate General, allow the other party time to answer on that plea. Consideration of the admissibility of the plea shall be reserved for the final judgment.’

Background to the dispute

6 The relevant facts to the dispute were set out in paragraphs 2 to 4, 24 to 33, 43 and 63 of the judgment under appeal and can be summarised as follows.

7 The procedure leading to the adoption of the decision at issue was initiated following an application for immunity, within the meaning of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3), submitted on 20 November 2006 by Akzo Nobel NV.

8 Following inspections carried out on 16 January 2007 and requests for information sent to the companies involved in the procedure as of 11 July 2007, the Commission, on 24 June 2008, issued those companies with a statement of objections. The Commission accused, in particular, SKW of having participated in a price-fixing cartel contrary to Article 81 EC on the market on calcium carbonate and magnesium intended for the steel and gas industries in the European Economic Area (EEA) with the exception of Ireland, Spain, Portugal and the United Kingdom, during the period from 22 April 2004 to 16 January 2007. In addition, due to the fact that Evonik Degussa GmbH (‘Degussa’) and SKW Holding had successively held, directly or indirectly, 100% of the capital of SKW, the Commission also stated that it held, first, Degussa, in respect of the period from 22 April 2004 to 30 August 2004, when SKW had been sold to SKW Holding, and, second, SKW Holding, in respect of the period from 30 August 2004 to 16 January 2007, liable for SKW’s conduct.

9 In their written observations of 6 October 2008 addressed to the Commission in response to the statement of objections, the appellants requested the opportunity to develop, at a hearing, their arguments relating in particular to the absence of SKW Holding’s actual exercise of decisive influence over SKW during the period of the infringement, given the continuance of Degussa’s decisive influence over SKW, even after the latter’s acquisition by SKW Holding.

10 By email of 31 October 2008, the appellants asked the Hearing Officer to allow them to present the arguments concerning the influence allegedly exerted by Degussa SKW in camera. In support of that request, they argued that SKW depended, for its economic survival, on Degussa, since it provided SKW with almost all the calcium carbide which it marketed, and that these two companies were in negotiations about a new supply contract. They added that putting forward that argument in the presence of Degussa would seriously jeopardise the business relationship between Degussa and SKW and could lead to retaliation from Degussa.

11 On 5 November 2008, the appellants sent another email to the Commission, in which they suggested that a ‘practical solution’ could be to give Degussa access to their submission in camera after the end of 2008 or after the conclusion of a supply contract between the two companies. On 6 November 2008, the appellants provided information on the reasons for their request to present part of their arguments, at the hearing, in camera, and also on the content of that argument, and they reiterated their proposed alternative.

12 By letter of 6 November 2008, the Hearing Officer rejected their request. As a preliminary point, he observed that the request was not based, stricto sensu, on the protection of business secrets and other confidential information. The Hearing Officer indicated that he would therefore examine it from the point of view of their right to be heard. In that regard he noted that the argument raised by the appellants concerned Degussa’s behaviour and, in order that the Commission could take it into account as a mitigating circumstance, its probative value had to be verified by comparing it with a statement to be obtained from Degussa. Furthermore a hearing in camera would deprive Degussa of its right to respond orally to the allegations made by the appellants implicating it at least indirectly. The Hearing Officer added, concerning the alternative solution suggested by the appellants, that it was not feasible, since neither the outcome nor the duration of the negotiations between the appellants and Degussa was certain.

13 An oral hearing took place on 10 and 11 November 2008.

14 By letter of 28 January 2009, the appellants, after recalling their request which was rejected by the Hearing Officer’s letter referred to in paragraph 12 above, indicated that, in the meantime, negotiations between SKW and Degussa had led to the conclusion of a new supply agreement, so that there was no difficulty for them to make oral submissions in the presence of Degussa, on the part of their argument on the latter’s role. They therefore asked the Hearing Officer for a fresh hearing to give them the opportunity to present this part of their oral argument, which they had not presented at the hearing on 10 and 11 November 2008.

15 By letter of 3 February 2009, the Hearing Officer rejected this new request on the grounds that the right to be heard stemmed from the statement of objections and was granted only once. The Hearing Officer, however, permitted the appellants to supplement in writing, within a period which he laid down, their argument relating to Degussa’s role.

16 In Article 1(f) of the decision at issue, the Commission found that SKW Holding had participated in the infringement from 30 August 2004 to 16 January 2007 and SKW had participated in the infringement from 22 April 2004 to 16 January 2007. As regards SKW, according to recital 226 of that decision, the Commission considered that, during the latter period, the employees of that company had been directly involved in the agreements and/or concerted practices of the cartel at issue. As regards SKW Holding, according to recital 245 of that decision, it held 100% of SKW’s capital from 30 August 2004 to 16 January 2007, and, for the reasons given in recital 245 to 250 of the same decision, the Commission considered that it was part of the same economic unit as SKW and could therefore be held liable for the latter’s infringement of competition rules.

17 By Article 2(f) of the decision at issue, the Commission imposed a fine of EUR 13.3 million, on the appellants and on Arques Industries AG, which became Gigaset AG, due to their participation in the infringement at issue, for the period from 30 August 2004 to 16 January 2007, designating them jointly and severally liable for the payment of the fine. In addition, under Article 2(g) of that decision, it imposed a fine of EUR 1.04 million, for the period from 22 April 2004 to 30 August 2004, on Degussa, AlzChem Hart GmbH and SKW, designating them all as jointly and severally liable.

The procedure before the General Court and the judgment under appeal

18 By application lodged at the Registry of the General Court on 1 October 2009, SKW Holding and SKW sought the annulment of the decision at issue, in so far as it relates to them, or, in the alternative, the annulment or reduction of the amount of fines imposed by that decision.

19 In support of their application, the appellants submitted six pleas alleging, first, breach of their right to be heard, second, misapplication of Article 81 EC, third, breach of the obligation to state reasons, fourth, infringement of the principle of equal treatment, fifth, infringement of Articles 7 and 23 of Regulation No 1/2003, as well as of the principle of proportionality and the principle that penalties must be lawful and, sixth, breach of Article 23(2) of Regulation No 1/2003.

20 The General Court dismissed the action in its entirety.

Forms of order sought by the parties to the appeal

21 SKW and SKW Holding claim that the Court should: — set aside the judgment under appeal in its entirety in so far as it dismissed the appellants’ claims, and grant in its entirety the form of order sought at first instance; — in the alternative, set aside the judgment under appeal in part; — in the further alternative, reduce, as the Court sees fit, the fines imposed on them under Article 2(f) and (g) of the decision at issue; — in the further alternative, set aside the judgment under appeal and refer the case back to the General Court; and — order the defendant to pay the costs.

22 The Commission contends that the Court should: — dismiss the appeal; and — order the appellants to pay the costs.

The appeal

23 The appellants put forward four grounds in support of their appeal.

24 The first ground relates to infringement of the right to be heard and the principles of proportionality and the ‘prohibition of anticipatory assessment of evidence’. The second ground alleges infringement of Articles 101 and 296 TFEU. The third ground relates to the Commission’s failure to apportion the shares of the fine between those who are jointly and severally liable for that fine. The fourth alleges, in substance, breach of the first paragraph of Article 48(2) of the Rules of Procedure of the General Court.

The second ground, alleging infringement of Articles 101 and 296 TFEU

Arguments of the parties

25 By the first part of their second ground, which should be examined first, the appellants accuse the General Court of infringing Article 101 TFEU by failing in its obligation under paragraph 74 of the judgment of 10 September 2009 in Akzo Nobel and Others v Commission, (C‑97/08 P, EU:C:2009:536) to take account of all the relevant factors relating to the economic, organisational and legal links between SKW Holding and SKW in order to impute to the former liability for the conduct of the latter.

26 More specifically, it complains that the General Court did not take sufficient account of key economic circumstances of the case, namely SKW Holding’s lack of economic interest in the cartel, the nature of the relations between the appellants and Degussa, or the fact that even after the sale of SKW to SKW Holding, Degussa retained economic interests in and means of control over SKW, which is a central indicium showing that Degussa was able to exercise decisive influence over SKW.

27 By the second part of their second ground, the appellants claim that the General Court infringed Article 296 TFEU, in finding, in particular in paragraphs 117 to 119 and 140 of the judgment under appeal, that the Commission had erred in failing to respond to an argument developed by the appellants challenging the attribution of SKW’s conduct to SKW Holding but in not annulling the decision at issue, on the grounds that the reasoning in the decision at issue was superfluous.

28 According to the appellants, that reasoning cannot be regarded as superfluous, since it refers to a decisive factor in the overall assessment of the influence of a parent company over its subsidiary.

29 In addition, the treatment of that argument is indicative of the fact that the General Court does not give sufficient weight to undertakings’ essential right to have the Commission have sufficient regard to the exculpatory evidence on which they rely in order to rebut the presumption of decisive influence. It is essential that all those exculpatory factors be comprehensively assessed by the Commission, as the Court recalled in its judgment of 20 January 2011 in General Química and Others v Commission (C‑90/09 P, EU:C:2011:21).

30 In the present case, the General Court should have found that the Commission, by its mere summary statement that SKW Holding exercised decisive influence over SKW during the period from 30 August 2004 to 16 January 2007, had failed to take into consideration and comprehensively evaluate all the relevant factors relating to the economic, organisational and legal links between SKW to its former parent company, Degussa.

31 The Commission argues that the second ground is inadmissible in that, by that ground, the appellants challenge the General Court’s assessment of the evidence presented to it. The Commission adds that this ground is, in any event, unfounded.

Findings of the Court

32 By the first part of their second ground, the appellants complain, in essence, that the General Court failed to take sufficient account of certain evidence when assessing SKW Holding’s exercise of decisive influence over SKW and in particular the economic interest which Degussa had retained in the management of its former subsidiary, SKW.

33 In that regard, it should be observed that, according to the settled case-law of the Court of Justice, the General Court has exclusive jurisdiction to find and assess the facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that assessment does not therefore constitute a point of law which is subject as such to review by the Court of Justice (judgment of 9 July 2015 in InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraph 59 and the case-law cited).

34 In the present case, it is clear that the appellants merely challenge the assessment of factual evidence carried out by the General Court as to the exercise of decisive influence by SKW Holding over SKW, without accusing it of distorting that evidence.

35 Consequently, the first part of the second ground must be rejected as inadmissible.

36 By the second part of the second ground, the appellants complain that the General Court infringed Article 296 TFEU by failing to annul the decision at issue, even though the Commission had not set out the reasons why it considered that the evidence presented by the appellants was insufficient to rebut the presumption of exercise of decisive influence by SKW Holding over SKW.

37 In that respect, it must be recalled that the question whether the General Court could, properly in law, conclude that the Commission had failed in its duty to state reasons is a question of law subject to the review of the Court of Justice on appeal (see, to that effect, judgments of 6 November 2008 in Netherlands v Commission, C‑405/07 P, EU:C:2008:613, paragraph 44; 3 September 2009 in Moser Baer India v Council, C‑535/06 P, EU:C:2009:498, paragraph 34, and 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 108).

38 Accordingly, the second part of this ground is admissible.

39 It must be recalled that the obligation to state reasons laid down in the second paragraph of Article 296 TFEU is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a ground of appeal alleging breach of Article 296 TFEU (judgment of 18 June 2015 in Ipatau v Council, C‑535/14 P, EU:C:2015:407, paragraph 37 and the case-law cited).

40 It must also be recalled that, although the statement of reasons for an EU measure, which is required by the second paragraph of Article 296 TFEU, must show clearly and unequivocally the reasoning of the author of the measure in question, so as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review, it is not required to go into every relevant point of fact and law. In addition, the question whether the obligation to provide a statement of reasons has been satisfied must be assessed with reference not only to the wording of the measure but also to its context and the whole body of legal rules governing the matter in question (judgment in Gauweiler and Others, C‑62/14, EU:C:2015:400, paragraph 40 and the case-law cited).

41 In the present case, it must be held that, in finding, in paragraphs 139 to 144 of the judgment under appeal that the Commission had not breached its obligation to state reasons, the General Court correctly applied the principles set out in paragraphs 39 and 40 above.

42 It is clear from the decision at issue that the Commission, in recital 245 of that decision, held SKW Holding liable for SKW’s conduct on the basis that SKW Holding owned 100% of SKW’s capital, while stating, in recital 246 of that decision, that the presumption that SKW Holding actually exercised a decisive influence over SKW was supported by several other elements.

43 The Commission then, in recitals 247 to 250 of the decision at issue, rejected each of the arguments that the appellants, in order to rebut the presumption of actual exercise of decisive influence by SKW Holding over SKW, had advanced in written submissions in response to the statement of objections. Thus, in response to the argument that SKW Holding did not have knowledge of the infringement, the Commission, in recital 247 of the decision, referred to a detailed statement of reasons already set out in recital 224 of that decision, according to which the reference to the decisive influence that SKW Holding was deemed to have exerted on SKW was not to be understood as meaning that it was accused of having used its influence to instruct its subsidiary to participate in the infringement or, at least, not having used this influence to prevent such participation. Regarding the argument that SKW Holding had no economic interest in the cartel in question on the ground that it was a sales representative for Degussa, the Commission, in recital 248 of the decision at issue, rejected that argument by relying on the wording of the delivery and service agreement, referred to in recitals 28 and 31 of that decision, according to which no party negotiated on behalf of the other. As for the argument that SKW Holding’s role in SKW was merely as a financial investor, the Commission, in recital 250 of that decision, stated that, according to the Court’s case-law referred to in that decision, that argument was not such as to call into question the presumption of actual exercise of decisive influence by SKW Holding over SKW.

44 Therefore, the General Court did not err in finding, in paragraph 145 of the judgment under appeal, that the Commission had satisfied its obligation to state reasons.

45 That conclusion cannot be contradicted by the appellants’ claim that the Commission did not consider, when adopting the decision at issue, their comments relating to an email written by a member of SKW’s staff, to which the Commission had referred in the statement of objections in order to assert that SKW Holding’s staff was aware of the cartel at issue.

46 As the General Court correctly held in paragraphs 118, 119 and 140 the judgment under appeal, that fact could not lead to the conclusion that the Commission breached its duty to state reasons, since, in coming to the conclusion that SKW Holding actually exercised decisive influence over SKW’s conduct on the market, the Commission relied on, first, SKW Holding’s ownership of 100% of SKW’s capital, and, second, the fact that the Commission had referred, in recital 246 of the decision at issue, to several other elements, which had proved to be accurate and which were, in themselves, a sufficient basis for its finding that SKW Holding exercised a decisive influence over SKW.

47 In the light of the foregoing, the second ground of appeal must be rejected as, in part, inadmissible and, in part, unfounded.

The third and fourth grounds alleging, respectively, the Commission’s failure to allocate the shares of the fine imposed by the decision at issue between those who are jointly and severally liable for it and infringement of the first paragraph of Article 48(2) of the Rules of Procedure of the General Court

48 By their third ground of appeal, the appellants argue that the General Court acted in breach of the principles that penalties must be clear and that they must be appropriate to the offender and to the offence by failing to annul the decision at issue notwithstanding the fact that the Commission failed to fix the share of the fine to be borne by each of the companies, which were jointly and severally liable for it, with respect to the other companies so liable, in disregard of the principles outlined in paragraphs 153 and 164 of the judgment of 3 March 2011 in Siemens and VA Tech Transmission & Distribution v Commission (T‑122/07 to T‑124/07, EU:T:2011:70)

49 In their fourth ground of appeal, directed against paragraphs 126 to 130 of the judgment under appeal, the appellants criticise the General Court for holding that the arguments developed on that issue before it were new and, consequently, inadmissible within the meaning of the first paragraph of Article 48(2) of the Rules of Procedure of the General Court in the version in force before 1 July 2015.

50 In that connection, as regards the third ground, the Court has already ruled, on appeal against the judgment of 3 March 2011 in Siemens and VA Tech Transmission & Distribution v Commission (T‑122/07 to T‑124/07, EU:T:2011:70), relied on by the appellants, that the Commission’s power to impose penalties does not extend to the power to determine the shares of the fine specific to each of the joint and several co-debtors in the context of their reciprocal relationships, but that it is for the national courts to determine those shares, in compliance with EU law, by applying national law (see, to that effect, judgment of 10 April 2014 in judgment in Commission and Others v Siemens Österreich and Others, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 58 and 67).

51 Therefore, the General Court cannot be criticised for not annulling the decision at issue on the ground that the Commission had not laid down the shares of the fine specific to each of the joint and several co-debtors in the context of their reciprocal relationships.

52 Therefore, the third ground of appeal should be rejected as unfounded.

53 In light of the foregoing, the fourth ground of appeal, by which the appellants criticise the General Court for rejecting as inadmissible, on the basis of the first paragraph of Article 48(2) of the Rules of Procedure of the General Court, their argument on the failure to fix, in the decision at issue, the shares of the fine, cannot, in any event, lead to the judgment under appeal being set aside and it must therefore be rejected as ineffective.

The first ground alleging infringement of the right to be heard and the principles of proportionality and the ‘prohibition of anticipatory assessment of evidence ’

Arguments of the parties

54 In their first ground, directed against paragraphs 35 to 63 of the judgment under appeal, the appellants complain that the General Court erred in law by holding that the refusal by the Hearing Officer to organise an in camera hearing during the administrative procedure had not infringed their right to be heard.

55 They argue that such a refusal is a breach of the procedural right to effectively and thoroughly make their views known on the facts both in writing and orally at a hearing, a right which applies at the stage of the administrative procedure. The Commission must grant a request for an in camera hearing especially when, as in this case, first, the company concerned is seeking to challenge the finding of its decisive influence over its subsidiary and, second, the very existence of this company would be endangered by a hearing in the presence of other companies which were also being prosecuted.

56 The appellants submit that, although the General Court, following the Commission, weighed up the interests, namely, on the one hand, that of the companies whose confidential information was not to be disclosed and, on the other hand, that of the other undertakings to be able to defend themselves against any possible inculpatory evidence, it has, in this case, carried out a wholly disproportionate assessment of those interests to the detriment of the appellants.

57 According to the appellants, since the administrative procedure could have resulted in a different outcome if they had been able to present, in an in camera hearing, their arguments on Degussa’s role, the General Court should have annulled the decision at issue.

58 By holding, in paragraph 53 of the judgment under appeal, that that argument was not such as to relieve the appellants of their liability, the General Court infringed the ‘prohibition of anticipatory assessment of evidence’ and relied on the wrong evidence, leading it to commit an error of assessment concerning the probative value of those arguments.

59 The Commission contends that that ground should be dismissed either as inadmissible in so far as, by that ground, the appellants are seeking to challenge the General Court’s factual findings and its assessment of the evidence or, in any event, as unfounded, since the appellants had sufficient opportunity during the administrative procedure, to present their views regarding Degussa’s role in the cartel. In that regard, the Commission also argues that it is required to allow any company likely to be inculpated during a hearing to be present so that, first, it may take note of evidence which the Commission could use as the basis for additional objections and, second, it may defend itself.

Findings of the Court

60 By the first ground of appeal, the appellants criticise the General Court for concluding, in paragraph 63 of the judgment under appeal, that the Commission and the Hearing Officer took sufficient account of the need to respect their right to be heard when they refused to grant their request that an in camera hearing be organised, given the evidence that the appellant intended to adduce at such a hearing regarding SKW’s position in relation to Degussa.

61 As a preliminary point, and as is clear from paragraph 56 above, it should be noted that the appellants do not dispute that, as the General Court held in paragraph 39 of the judgment under appeal, it is for the Hearing Officer, when he has to assess whether or not to hold a hearing in camera, to reconcile the protection of the rights of the defence of the undertaking prosecuted for an alleged breach of the EU competition rules against the legitimate interest of third parties, persons or companies who provided information or documents related to the alleged infringement to have their business secrets and other confidential information protected.

62 Therefore, the complaint, in the context of the present ground, relates only to the manner in which the General Court weighed up the interests at issue.

63 In that regard, paragraph 62 of the judgment under appeal states as follows: ‘In conclusion, it should be noted that the appellants seem to disregard the fact that their arguments regarding Degussa’s role in the cartel, after the sale of SKW’s entire capital, and their request that that argument not be brought to Degussa’s attention, required a reconciliation of the requirements arising from the rights of the defence of the appellants and those of Degussa, and a weighing up of the respective interests of those undertakings. The facts set out in paragraphs 24 to 32 [of the judgment under appeal] show that the Hearing Officer undertook this weighing up only after hearing the appellants’ explanations as to the content of that argument and its alleged importance to their defence. It appears, moreover, from the considerations set out above that the Hearing Officer correctly came to the conclusion that he was not entitled to give priority to the protection of the [appellants’] rights of defence and therefore to allow the infringement of Degussa’s similar rights …’

64 It follows from paragraph 62 of the judgment under appeal that, in the weighing of the interests involved, the General Court held, in essence, that the appellants’ rights of defence cannot take priority over those of Degussa. In that regard, in paragraphs 58 and 59 of the judgment under appeal, it held that in order to ensure that Degussa’s rights of defence were respected, Degussa had to be in a position, at the hearing, to take immediate note of the accusations concerning it which might be raised by the appellants, and to respond to them orally.

65 It follows from paragraph 55 of the judgment and paragraphs 9 and 10 above that the argument that the appellants wished to put forward in camera concerned the role of Degussa for the period following its sale of SKW to SKW Holding. Degussa has not been the subject of Commission proceedings in respect of that period, either at the time the hearing took place or subsequently.

66 Accordingly, it must be held that, in refusing to grant the appellants’ request to hold an in camera hearing, the Hearing Officer took into account Degussa’s rights of defence, even though the latter could not rely on those rights due to the fact that it was a third party to the proceedings in respect of that period.

67 In that regard, the fact that some of the evidence communicated to the Commission, were it to have granted the request for an in camera hearing, might have subsequently led it to hold Degussa liable for the infringement concerned for a longer period than that originally considered is irrelevant, since, in any event and as noted by the Advocate General in point 60 of his Opinion, the Commission would have been required, in such circumstances, to issue Degussa with a supplementary statement of objections so as to enable that company to present its observations on that evidence.

68 Accordingly, the General Court erred in law and infringed the appellants’ right to be heard, by holding that the Hearing Officer could refuse to hold an in camera hearing on the grounds that such a hearing could have harmed Degussa’s rights of defence.

69 However, it is the Court’s settled case-law that an infringement of the rights of the defence results in the annulment of the contested measure only if, without such an irregularity, the outcome of the procedure might have been different (see, to that effect, judgment of 3 July 2014 in Kamino International Logistics and Datema Hellmann Worldwide Logistics, C‑129/13 and C‑130/13, EU:C:2014:2041, paragraph 79 and the case-law cited), which it is for the undertaking concerned to show (see, to that effect, judgment of 29 June 2006 in SGL Carbon v Commission, C‑308/04 P, EU:C:2006:433, paragraph 98).

70 In that regard, it should be noted that, in paragraph 53 of the judgment under appeal, the General Court found that the appellants’ assertions as to Degussa’s influence over SKW’s conduct, even if true, were irrelevant to the question of their liability for the infringement at issue.

71 The appellants dispute this finding, arguing that evidence of Degussa’s continued control over SKW after selling it to SKW Holding was quite likely to call into question Degussa’s decisive influence over SKW, inter alia, given the fact that SKW Holding was only an outside financial investor in the branch which acquired a commercially specialised chemical undertaking.

72 That argument cannot be accepted. As is apparent, in essence, from paragraphs 43, 119 and 120 of the judgment under appeal, the General Court found, in its assessment of the facts, that imputing liability for the infringement in question to SKW Holding could, in any event, be grounded on several factors which were, according to the General Court, by themselves sufficient as a basis for the conclusion that SKW Holding exercised decisive influence over SKW. In the light of that finding, the General Court was entitled to conclude, without erring in law, in particular in paragraphs 48, 49 and 52 of the judgment under appeal, to which it refers in paragraph 53 thereof, that, in order to challenge the attribution of liability, SKW Holding had to demonstrate that it did not itself exercise such influence, so that the question of whether another entity, such as Degussa, exercised decisive influence was not relevant.

73 Inasmuch as the appellants also claim that the General Court infringed the ‘prohibition of anticipatory assessment of evidence’, their argument cannot succeed. By finding that the appellants’ claims as to Degussa’s influence over SKW’s conduct, even if true, were irrelevant as to the question of their liability for the infringement at issue, the General Court did not carry out an anticipatory assessment of evidence, but merely rejected their argument concerning Degussa’s influence over SKW’s conduct, even assuming, for the appellants’ benefit, that that effect were established.

74 Moreover, it should be noted that, in paragraphs 214 to 228 of the judgment under appeal to which paragraph 56 of that judgment refers, the General Court refused to uphold the appellants’ plea alleging that the Commission unlawfully refused to acknowledge that there were extenuating circumstances, which they, as is clear from paragraph 53 above, sought to elaborate in camera.

75 Consequently, the appellants have failed to show that the proceedings against them could have led, in the absence of the irregularity, to a different result.

76 In addition, it is apparent from paragraphs 31, 33 and 62 of the judgment under appeal, the tenor of which has been set out in paragraph 15 above, that, after the conclusion of a new supply contract between SKW and Degussa, that is to say, when the appellants no longer had any difficulties in submitting their arguments on Degussa’s role, they were able to submit written observations to the Commission.

77 It follows that the first ground of appeal must be rejected.

78 It follows from all the foregoing that the appeal must be dismissed in its entirety.

Costs

79 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

80 Under Article 138(1) of those Rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

81 Since the Commission has applied for costs and SKW and SKW Holding have been unsuccessful, SKW and SKW Holding must be ordered to pay the costs of the Commission and to bear their own costs.

On those grounds, the Court (Fifth Chamber) hereby:

1. Dismisses the appeal;

2. Orders SKW Stahl-Metallurgie GmbH and SKW Stahl-Metallurgie Holding AG to pay the costs of the European Commission and to bear their own costs.

[Signatures]

( *1 ) Language of the case: German.