Case T‑250/12

Corporación Empresarial de Materiales de Construcción, SA

v

European Commission

‛Competition — Agreements, decisions and concerted practices — Sodium chlorate market in the EEA — Amending decision reducing the determined duration of participation in the cartel — Calculation of the amount of the fine — Whether time-barred — Article 25 of Regulation No 1/2003’

Summary — Judgment of the General Court Second Chamber), 6 October 2015

Actions for annulment — Admissibility — Natural or legal persons — Letter from an undertaking informing the Commission of its intention to assume economic liability for payment of any fine — Limitation of the exercise of the right of action — Infringement of the fundamental principles of legality and respect for the rights of the defence

Actions for annulment — Interest in bringing proceedings — Action against a competition decision reducing the determined duration of participation in an infringement and reducing the amount of the fine — Plea seeking partial annulment of the said decision for breach of the rules on prescription — Admissibility

In the context of an annulment action against a decision on competition, adopted by the Commission following the annulment of the initial decision by the General Court, and which amends the latter, first by amending the determined duration of the infringement period, and, second, by reducing the amount of the fine, an applicant has an interest in raising a plea designed to obtain the partial annulment of the subsequent decision as regards the amount of the reduced fine since the said annulment is capable of procuring him a benefit. In that regard, first, where, by amending the duration of the initial infringement in which the applicant is alleged to have participated, the Commission fixes, in the subsequent decision, a new date from which the limitation period laid down in Article 25(1)(b) of Regulation No 1/2003 begins to run, the Commission cannot blame the applicant for raising, in support of its action for annulment, the plea alleging infringement of Article 25(1)(b), whereas the applicant had not raised it before the General Court in the context of an earlier action. Secondly, assuming that the Court upholds the action, on the basis of a plea claiming infringement of the limitation period, since that plea is directed solely against an article of the subsequent decision imposing the new amount of the fine, the latter would therefore be annulled in part, only in that it fixes the new amount of the fine imposed on the applicant in the initial decision, and not in that it fixes the new infringement period in which the applicant is alleged to have participated, a period in respect of which the limitation in time of the Commission’s power to impose a fine must be assessed. Consequently, it should not be presumed, for the purpose of determining whether a plea claiming infringement of the limitation period is admissible, that a judgment annulling in part the contested decision, based on that decision, would have the effect of reviving the amount of the fine imposed on the applicant in the initial decision, having regard to the Commission’s obligation to take the necessary measures to comply with a judgment, in accordance with Article 266 TFEU, in particular as regards its power to impose a fine on the applicant in relation to the new infringement period. (see paras 46, 48)

A letter sent by an applicant to the Commission, informing it that it would assume sole economic liability for payment of any fine that might be imposed on it in relation to the infringement at issue cannot be interpreted as meaning that the applicant has waived the benefit of the provisions of Article 25(1)(b) of Regulation No 1/2003 as regards the possible limitation in time of the Commission’s power to impose such a fine on it, particularly where it is apparent solely from the wording of that letter that the applicant has agreed to assume sole liability to pay any fine imposed by the Commission. Although an undertaking’s express or implicit acknowledgement of matters of fact or of law during the administrative procedure before the Commission may constitute additional evidence when determining whether an action is well founded, it cannot restrict the actual exercise of a natural or legal person’s right to bring proceedings before the General Court under the fourth paragraph of Article 263 TFEU. In the absence of a specific legal basis, such a restriction is contrary to the fundamental principles of the rule of law and of respect for the rights of the defence. Moreover, the rights to an effective remedy and of access to an impartial tribunal are guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union which, under the first subparagraph of Article 6(1) TEU, has the same legal value as the Treaties. Under Article 52(1) of that charter, any limitation on the exercise of the rights and freedoms recognised by the charter must be provided for by law. (see paras 52, 53)

When assessing the limitation period for proceedings in the matter of fines, where it is clear both from the operative part and from the grounds of a judgment that the General Court annulled an article of an initial decision only in so far as the Commission had fixed the amount of the fine in that decision, and that it did not annul that article in that the Commission had decided, on the basis of Article 23(2) of Regulation No 1/2003, to impose a fine jointly and severally on and undertaking and the applicant, by the adoption of a subsequent decision whereby the Commission partially maintains the fine initially imposed on the applicant, the Commission cannot be regarded as having adopted a new decision to impose a fine on the applicant. Therefore, where the adoption of a decision has the purpose and effect only of maintaining in part the fine initially imposed on the applicant, in order to assess the merits of the a plea alleging limitation in time of the Commission’s power to impose a fine on the applicant, account should be taken of the date on which the Commission decided to impose the fine on the applicant, namely the date of the initial decision, and not the date of a subsequent decision, which is intended to give the applicant the benefit of the effects of an annulling judgment. (see paras 76, 77)

As regards the time-limitation period for proceedings in the matter of fines, under Article 25(4) of Regulation No 1/2003, the interruption of the limitation period is to apply in respect of all the undertakings or associations of undertakings which have participated in the infringement. In that regard, it follows from Article 25(3) and (4) of Regulation No 1/2003 that where an undertaking has participated in the infringement, that is to say, where that undertaking is identified as such in the contested decision, the interruption of the limitation period as a result of the notification of an action taken for the purposes of the investigation or the proceedings to at least one undertaking also identified as having participated in the infringement (whether it be that undertaking or a different undertaking) takes effect as against that undertaking. Actions interrupting the limitation period thus produce effects erga omnes with regard to all the undertakings having participated in the infringement at issue. (see paras 81, 85)

As regards the time-limitation of proceedings in competition matters, it follows from the first sentence of Article 25(3) of Regulation No 1/2003 that, to interrupt the limitation period within the meaning of that regulation, the action taken by the Commission must in particular be for the purpose of the investigation or proceedings in respect of the infringement. In that regard, as regards the Commission’s leniency programme, it should be noted that, first of all, the leniency programme contributes directly to the full effectiveness of the policy of pursuing infringements of the EU competition rules, for which the Commission is responsible. Next, the decision to grant conditional immunity to an applicant for leniency shows that its application satisfies the prerequisites so that it can, after the administrative procedure, under certain conditions, benefit from definitive immunity. Finally, that procedural status, granted to the applicant for leniency by the decision to grant it conditional immunity, requires the person concerned, in order to claim the benefit of definitive immunity, to follow, until the adoption by the Commission of the final decision, conduct which satisfies the requirements of paragraph 11(a) to (c) of the 2002 Leniency Notice. That conduct of the applicant for leniency is characterised by an obligation, first, to cooperate fully, on a continuous basis and expeditiously throughout the Commission’s administrative procedure and, second, to provide the Commission with all evidence in its possession or available to it relating to the suspected infringement. Consequently, a decision to grant conditional immunity to an applicant for leniency, in that it confers on that applicant such a procedural status, is fundamental in order to enable the Commission to investigate and initiate proceedings against the suspected infringement. Therefore, that procedural measure adopted by the Commission must be regarded as being for the purpose of the investigation or proceedings in respect of an infringement, within the meaning of the first sentence of Article 25(3) of Regulation No 1/2003, and may accordingly be described as an action interrupting the limitation period. (see paras 89, 96, 97)

As regards the time-limitation of proceedings in competition matters, since the fact of categorising an action of the Commission as an action interrupting the limitation period is based on the application of the legislative provisions in particular of Article 25 of Regulation No 1/2003, as interpreted in the last instance by the EU Courts, the Commission’s previous practice cannot preclude it, subject to the review of the EU Courts, from regarding types of actions other than the first request for information as interrupting the limitation period. (see para. 100)