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

Ferriere Nord v Commission

(Case T‑90/10)

‛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 — Competence of the Commission — Rights of the defence — Finding of an infringement — Fines — Repeated infringements — Extenuating circumstances — Cooperation — Unlimited jurisdiction’

1. 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 59, 63)

2. 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 64-80)

3. 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 legality of sanctions — 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 81, 82, 85-87, 121)

4. EU law — Principles — Principle of retroactive application of the lightest penalty — Principle counting amongst the general principles of EU law and included in the Charter of Fundamental Rights of the European Union (Charter of Fundamental Rights of the European Union, Art. 49(1)) (see para. 90)

5. 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 detriment effect taken in isolation — Cartels extending to the whole territory of a Member State — Existence of a strong presumption that competition affected (Art. 65(1) CS; Art. 81(1) EC) (see paras 92-95, 98-103)

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 expressly to repeat that a hearing by the Hearing Officer may be requested (Art. 65 CS) (see paras 118, 119, 122-124, 130, 139-141)

7. 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 having regard to the right to be heard on the determination of the amount of the fine — No obligation expressly to mention the intention to apply the aggravating circumstance of repeat infringement (Council Regulation No 1/2003, Art. 27(1)) (see paras 132-135)

8. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Repeated infringement — No decree of a limitation period excluding infringement of the principle of proportionality (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03) (see para. 137)

9. Commission — Principle of collegiality — Scope — Decision to apply competition rules — Detailed rules for applying the Commission’s internal rules establishing the applicable language regime — Disregard — No effect — Notification without annexes — No infringement of the collegiality principle — Matters sufficiently referred to in the text of the decision (Art. 219 EC; Internal Commission Regulation, Arts 15 and 16) (see paras 158, 166-168)

10. Acts of the institutions — Acts of the Commission — Powers — Scope — Power to adopt a measure including the power to amend it in compliance with the rules on jurisdiction and forms laid down by the Treaty (see para. 189)

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 — Presumption that the information used to determine market conduct — No direct link between the concerted practice and consumer prices — No effect (Art. 65(1) CS) (see paras 202-206, 248, 252, 307)

12. Agreements, decisions and concerted practices — Complex infringement comprising elements both of an agreement and of a concerted practice — Single classification as an ‘agreement and/or concerted practice’ — Lawfulness (Art. 65(1) CS) (see paras 206, 207, 209)

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 the overall assessment of a bundle of indicators (Art. 65 CS) (see paras 208-210)

14. Competition — Administrative procedure — Commission decision finding an infringement — No finding of an infringement concerning another operator in a similar situation — No effect (Art. 65 CS; Council Regulation No 1/2003, Art. 23) (see paras 247, 277)

15. 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. 251)

16. ECSC — Prices — Price tables — Public distancing — Compatibility with the prohibition of cartels (Arts 60 CS and 65(1) CS) (see paras 267-269)

17. Acts of the institutions — Statement of reasons — Obligation — Scope (Arts 15 CS and 36 CS) (see para. 275)

18. 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. 286)

19. 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 286, 296-298)

20. 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 288-290)

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 paras 303, 304, 308)

22. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Responsibility for conduct of other undertakings in the context of the same infringement — Lawfulness — Criteria — Account taken when assessing the gravity of the infringement (Art. 65(1) CS) (see para. 316)

23. Competition — Fines — Amount — Determination — Criteria — Duration of the infringement — Account not taken of the non-participation of an undertaking in one of the aspects of the cartel during part of the period in question — Not permissible — Exercise by the EU judicature of its unlimited jurisdiction — Reduction of the fine (Council Regulation No 1/2003, Art. 23(2)) (see paras 317, 320-325, op. part 1)

24. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Passive or ‘follow-my-leader’ role of the undertaking — Criteria for assessment — No passive or ‘follow-my-leader’ role (Council Regulation No 1/2003, Art. 23(3); Commission Notice 98/C 9/03, point 3) (see paras 327, 328, 330)

25. 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. 329)

26. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Repeated infringement — Concept — No time-limit — No breach of the principle of legal certainty — Discretion of the Commission — Account taken of time elapsing between infringement and repetition — Criteria (Council Regulation No 1/2003, Art. 23(2)); Commission Notice 98/C 9/03, point 2) (see paras 335, 340-349)

27. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Repeated infringement — Concept of infringements of the same type — Infringements of both the EC Treaty and the ECSC Treaty — Included — First infringement less serious than the repetition — Irrelevant to the finding of existence of repetition (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 2) (see paras 350, 351, 354-360)

28. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines — Indication of the factors which led the Commission to assess the gravity and the duration of the infringement — Sufficient indication (Art. 15 CS; Council Regulation No 1/2003, Art. 23) (see paras 363-365)

29. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Repeated infringement — Rate of increase of the basic amount of the fine — Commission’s margin of discretion — Judicial review — Passive or ‘follow-my-leader’ role of an undertaking — Not relevant to the increase in the amount of the fine for repeat infringement (Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 2) (see paras 367-373)

30. Competition — Fines — Legal context — Determination — Commission’s previous decision-making practice — Indicative nature — Principle of equal treatment — Conditions for taking into account — Circumstances identical to those of earlier cases (Art. 65 CS; Council Regulation No 1/2003, Art. 23(2)) (see paras 374, 410)

31. Judicial proceedings — Application initiating proceedings — Formal requirements — Identification of the subject-matter of the dispute — Brief summary of the pleas in law on which the application is based — Similar requirements for claims invoked in support of a plea (Rules of Procedure of the General Court, Art. 44(1)) (see paras 378, 379)

32. Competition — Fines — Amount — Determination — Criteria — Reduction of the amount of the fine for cooperation of the undertaking concerned — Conditions — Discretion of the Commission — Judicial review — Scope — Manifest exceeding of the Commission’s discretion (Council Regulation No 1/2003, Art. 23(2); Commission Notice 96/C 207/04) (see paras 386-396)

33. Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned — First undertaking having provided decisive evidence, capable of being used as primary evidential basis — No condition relating to the sufficiency of the evidence adduced (Council Regulation No 1/2003, Art. 23(2); Commission Notice 96/C 207/04, point B(b)) (see paras 401-405)

34. Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Need for conduct which facilitated the Commission’s finding of an infringement — Discretion of the Commission — Challenge to the factual allegations — No facilitation (Council Regulation No 1/2003, Art. 23(2); Commission Notice 96/C 207/04, point D) (see paras 411-415)

Re:

Primarily, 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 by Commission Decision C(2009) 9912 final of 8 December 2009, and in the alternative application for partial annulment of that decision and application for a reduction in the amount of the fine imposed on the applicant.

Operative part

The Court:

1. Fixes the amount of the fine imposed on Ferriere Nord SpA at EUR 3 421 440;

2. Dismisses the action as to the remainder;