Judgment of the General Court (Eighth Chamber) of 16 September 2013 —Galp Energía España and Others v Commission

(Case T‑462/07)

‛Competition — Agreements, decisions and concerted practices — Spanish market for penetration bitumen — Decision finding an infringement of Article 81 EC — Annual market-sharing and price-fixing arrangements — Evidence of participation in the cartel — Calculation of the amount of the fine’

1. Actions for annulment — Judgment annulling a measure — Effects — Annulment of a Commission decision finding a breach of the competition rules — Effects in relation to addressees who have not brought an action — None (Arts 81 EC and 230 EC) (see para. 90)

2. Competition — Administrative procedure — Commission decision finding an infringement — Use as evidence of statements of other undertakings which participated in the infringement — Lawfulness — Probative value of voluntary depositions made by the main participants in a cartel with a view to benefiting from the Leniency Notice (Art. 81(1) EC; Commission Notice 2002/C 45/03) (see paras 111-113, 116-119, 123)

3. Competition — Administrative procedure — Request for information — Powers of the Commission — Participation in a leniency programme — Non-coercive nature (Art. 81 EC; Council Regulation No 1/2003, Arts 18 and 19; Commission Notice 2002/C 45/03) (see paras 114-116)

4. 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 — Judicial review — Scope (Art. 81(1) EC) (see paras 152, 153, 237-242, 298-300, 498)

5. Acts of the institutions — Statement of reasons — Obligation — Scope — Plea based on lack or inadequacy of reasoning — Plea alleging incorrectness of the statement of reasons — Distinction (Art. 253 EC) (see paras 171, 180)

6. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision finding an infringement of the competition rules — No contradiction in reasoning — Implied reasoning — Lawfulness — Conditions — No need for detailed explanations (Arts 81 EC and 253 EC) (see paras 172-175, 184, 198, 203, 207, 210)

7. EU law — Principles — Fundamental rights — Presumption of innocence — Procedures in competition matters — Applicability (Art. 81(1) EC) (see para. 243)

8. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability for the entire infringement to a single undertaking — Conditions — Knowledge or constructive knowledge of the existence of a component of the infringement — Presumption of such knowledge — Not permissible (Art. 81(1) EC) (see paras 277, 284, 285, 288‑292)

9. Actions for annulment — Subject-matter — Grounds of a decision — Exclusion unless exception (Art. 230 EC) (see paras 281, 282)

10. Actions for annulment — Jurisdiction of the EU judicature — Power to vary — Not included — Substitution of the reasoning for an institution’s decision — Not permissible (Art. 230 EC) (see paras 295-297, 614)

11. Agreements, decisions and concerted practices — Prohibition — Infringements — Burden of proof — Burden of proof on Commission — Proof adduced by a number of indicia and coincidences pointing to the existence and duration of continuous anti-competitive practices — Lack of evidence relating to certain specific periods of the overall period considered — No effect (Art. 81(1) EC) (see paras 455, 503-505)

12. Agreements, decisions and concerted practices — Undertaking’s participation in anti-competitive initiatives — Whether sufficient, for an undertaking to be liable, that it tacitly approved without public distancing or denunciation to the competent authorities — Burden of proof on the undertaking (Art. 81(1) EC) (see paras 473, 474)

13. Actions for annulment — Judgment annulling a measure — Scope — Partial annulment of an EU legal measure — Condition — Severable nature of the annullable elements of the contested measure (Arts 81(1) EC and 230, first para., EC) (see paras 522-539)

14. Competition — Fines — Amount — Discretion of the Commission — Judicial review — Unlimited jurisdiction — Effect (Art. 81 EC; Council Regulation No 1/2003, Arts 23 and 31; Commission Notice, 98/C 9/03) (see paras 546, 628, 631, 632, 635)

15. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Mitigating circumstances — Passive or ‘follow-my-leader’ role of the undertaking (Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, point 3) (see paras 560-564, 570)

16. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Conduct deviating from that agreed within the cartel — Assessment (Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03, point 3, second indent) (see paras 581, 582, 586-588)

17. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Infringements classified as very serious on the basis of their inherent nature, the extent of the national geographic market and the long duration of the infringement (Council Regulation No 1/2003, Art. 23; Commission Notice 98/C 9/03) (see paras 598, 601, 603)

18. Competition — Fines — Amount — Whether appropriate — Judicial review — Factors which may be taken into account by the European Union judicature — Information not contained in the decision imposing the fine and not required by the duty to state reasons — Included — Elements relating to the finding of the infringement — Included (Arts 229 EC and 253 EC; Council Regulation No 1/2003, Art. 23) (see paras 619-624)

Re:

APPLICATION, principally, for annulment in whole or in part of Commission Decision C(2007) 4441 final of 3 October 2007 relating to a proceeding under Article 81 [EC] (Case COMP/38.710 — Bitumen (Spain)) and, in the alternative, for reduction of the fine imposed on the applicants.

Operative part

The Court:

1. Annuls Article 1 of Commission Decision C(2007) 4441 final of 3 October 2007 relating to a proceeding under Article 81 [EC] (Case COMP/38.710 — Bitumen Spain) in so far as it finds that Galp Energía España, SA, Petróleos de Portugal (Petrogal), SA, and Galp Energia, SGPS, SA were involved in a complex of agreements and concerted practices in the Spanish market for bitumen, to the extent that that complex includes (i) the system for monitoring the implementation of the market sharing and customer-allocation arrangements and (ii) the compensation mechanism to correct deviations from the market-sharing and customer-allocation arrangements;

2. Annuls Article 3 of Decision C(2007) 4441 final in so far as it requires Galp Energía España, Petróleos de Portugal (Petrogal) and Galp Energia, SGPS to bring to an end the infringement as found in Article 1 of that decision and to refrain from repeating any act or conduct described in that article or having the same or similar object or effect, to the extent that that infringement includes (i) the system for monitoring the implementation of the market-sharing and customer-allocation arrangements and (ii) the compensation mechanism to correct deviations from the market-sharing and customer-allocation arrangements;

3. Sets the amount of the fine imposed on Galp Energía España and on Petróleos de Portugal (Petrogal) in Article 2 of Decision C(2007) 4441 final at EUR 8 277 500, and the amount of the fine imposed on Galp Energia, SGPS in Article 2 of Decision C(2007) 4441 at EUR 6 149 000;

4. Dismisses the remaining heads of claim in the application;