Judgment of the General Court (Second Chamber) of 9 December 2014 —

IRO v Commission

(Case T‑69/10)

‛Competition — Agreements, decisions and concerted practices — Market for concrete reinforcing bars in bars or coils — Decision finding an infringement of Article 65 CS after the expiry of the ECSC Treaty on the basis of Regulation (EC) No 1/2003 — Fixing of prices and payment terms — Limiting or controlling output or sales — Infringement of essential procedural requirements — Legal basis — Investigation of the case — Definition of the market — Infringement of Article 65 CS — Fines — Extenuating circumstances — Proportionality’

1. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules notified without its annexes — Context known to the person concerned, enabling him to understand the scope of the measure taken against him — No infringement of the duty to state reasons (Arts 15 CS and 36 CS) (see paras 54-59, 79)

2. Commission — Principle of collegiality — Scope — Decision to apply competition rules notified without its annexes — No infringement of the principle of collegiality — Matters set out to a sufficient legal standard in the text of the decision (Art. 219 EC) (see paras 81, 82)

3. Acts of the institutions — Choice of legal basis — EU rules — Requirements of clarity and foreseeability — Express indication of the legal basis — Decision of the Commission finding an infringement of Article 65 CS after the expiry of the ECSC Treaty and penalising the undertaking concerned — Legal basis constituted by Article 7(1), and Article 23(2) of Regulation No 1/2003 (Art. 65(1) CS; Council Regulation No 1/2003, Arts 7(1), and 23(2)) (see paras 94, 98)

4. Agreements, decisions and concerted practices — Agreements, decisions and concerted practices falling within the scope of the ECSC Treaty — Expiry of the ECSC Treaty — Continuity of the regime of free competition under the EC Treaty — Maintenance of control by the Commission acting within the legal framework of Regulation No 1/2003 (Art. 65(1) CS; Council Regulation No 1/2003) (see paras 99-115)

5. Acts of the institutions — Temporal application — Procedural rules — Substantive rules — Distinction — Expiry of the ECSC Treaty — Decision to apply competition rules adopted after that expiry and concerning facts prior thereto — Principles of legal certainty, protection of legitimate expectations and that penalties have a sound legal basis — Legal situations established prior to the expiry of the ECSC Treaty — Whether subject to the legal regime of the ECSC Treaty (Art. 65(1) CS; Charter of Fundamental Rights of the European Union, Art. 49(1)) (see paras 116-119)

6. Competition — Administrative procedure — Observance of the rights of the defence — Scope of the principle — Annulment of a first decision of the Commission finding an infringement — Adoption of a new decision based on a different legal foundation and earlier preparatory measures — Lawfulness — No obligation to issue a new statement of objections — No obligation to organise a new hearing — No obligation to comply with rules of procedure which entered into force after previous preparatory measures (Arts 36 CS and 65 CS; Commission Regulation No 773/2004, Arts 12(1), and 14(3)) (see paras 128-132, 138-142, 145-148)

7. Judicial proceedings — Application initiating proceedings — Formal requirements — Brief summary of the pleas in law on which the application is based — Similar requirements for claims invoked in support of a plea — Grounds not set out in the application — Reference to annexes as a whole — Inadmissibility (Rules of Procedure of the General Court, Art. 44(1)) (see paras 158, 170)

8. Agreements, decisions and concerted practices — Effect on trade between Member States — Criteria for assessment — Assessment on the basis of several factors taken together, not necessarily having a decisive effect taken in isolation — Cartels extending to the whole territory of a Member State — Existence of a strong presumption that trade affected (Art. 65(1) CS; Art. 81(1) EC) (see paras 161, 162)

9. Agreements, decisions and concerted practices — Infringement having as its subject-matter a restriction on competition on a given geographic market — Prior definition of the geographic market — No obligation (Art. 65(1) CS) (see para. 163)

10. Agreements, decisions and concerted practices — Participation in meetings having an anti-competitive object — Circumstances from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel — Public distancing — Restrictive interpretation (Art. 65(1) CS) (see para. 179)

11. Agreements, decisions and concerted practices — Agreements between undertakings — Adverse effect on competition for the purposes of Article 65 CS — Criteria for assessment — Anti-competitive object — Sufficient (Art. 65(1) CS) (see para. 180)

12. 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 — Presumption that the information used to determine market conduct — No anti-competitive effects on the market — No effect (Art. 65(1) CS) (see paras 191-194)

13. 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 — Admissibility of a global assessment of a bundle of indicators (Art. 65(1) CS) (see paras 196-198)

14. ECSC — Prices — Price tables — Compulsory publicity — Compatibility with the prohibition of cartels (Arts 60 CS and 65(1) CS) (see paras 216‑218, 261)

15. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — No binding or exhaustive list of criteria (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 1A) (see para. 224)

16. Competition — Fines — Amount — Determination — Complex evaluation of economic matters — Commission’s margin of discretion — Judicial review — Review of legality — Scope (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, points 1A and 1B) (see paras 224, 234-238)

17. Competition — Fines — Guidelines on the method of setting fines — Legal nature — Indicative rule of conduct implying a self-limitation on the discretion of the Commission — Obligation to comply with the principles of equal treatment, protection of legitimate expectations and legal certainty (Commission Notice 98/C 9/03) (see paras 226-228)

18. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Poor financial state of the sector in question — Not included — No obligation on the Commission to abide by its previous decision-making practice (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03) (see paras 242, 244)

19. Competition — Fines — Amount — Determination — Infringements classified as very serious on the basis of their nature alone — No obligation to demonstrate an actual impact of the infringement on the market (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 1A) (see paras 248-251)

20. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Agreement not implemented in practice — Assessment at the level of the individual conduct of each undertaking (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 3) (see paras 252, 253)

21. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Classification of an infringement as very serious — Primary role of the criterion based on the nature of the infringement — Not independent of that based on the size of the product market in question — Infringement classified as very serious despite being limited to the territory of a single Member State — Lawfulness (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 1A) (see para. 259)

22. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Passive or ‘follow-my-leader’ role of the undertaking — Criteria for assessment — Conduct deviating from that agreed within the cartel — No such conduct (Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(3); Commission Notice 98/C 9/03, point 3) (see paras 267, 268)

23. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Threats and pressure exerted on an undertaking — Not included (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 3) (see para. 269)

24. 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. 65(1) CS; Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03) (see paras 273-275)

25. Competition — Fines — Amount — Determination — Criteria — No obligation to take account of the deficit situation of the undertaking concerned — Undertaking’s real ability to pay in a specific social context — To be taken into consideration — Setting the fine at an amount which brings about the insolvency or liquidation of the undertaking concerned as a consequence of the fine — Not prohibited in principle (Art. 65 CS; Commission Notice 98/C 9/03, point 5(b)) (see paras 278-281)

Re:

APPLICATION for annulment of Commission Decision C(2009) 7492 final of 30 September 2009 relating to a proceeding under Article 65 CS (Case COMP/37.956 — Reinforcing bars, readoption), as amended and supplemented by Commission Decision C(2009) 9912 final of 8 December 2009, in which the Commission imposed a fine of EUR 3.58 million on the applicant for infringement of Article 65(1) CS.

Operative part

The Court:

1. Dismisses the action;