Case T-24/07

ThyssenKrupp Stainless AG

v

Commission of the European Communities

‛Competition — Agreements, decisions and concerted practices — Stainless steel flat products — Decision finding an infringement of Article 65 CS after expiry of the ECSC Treaty, pursuant to Regulation (EC) No 1/2003 — Alloy surcharge — Powers of the Commission — Imputability of the unlawful conduct — Res judicata — Rights of the defence — Access to the file — Limitation period — Principle of non bis in idem — Cooperation during the administrative procedure’

Judgment of the Court of First Instance (Fifth Chamber), 1 July 2009 II ‐ 2318

Summary of the Judgment

Within the Community legal order, the institutions have conferred powers only. For that reason, Community measures refer in their preamble to the legal basis which enables the institution concerned to act in the field in question. The choice of the appropriate legal basis has constitutional significance. Furthermore, Community legislation must be clear and its application foreseeable for all interested parties. As a result of that requirement for legal certainty, the binding nature of any act intended to have legal effects must be derived from a provision of Community law which prescribes the legal form to be taken by that act and which must be expressly indicated therein as its legal basis. Moreover, a penalty, even of a non-criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis. Finally, the provision constituting the legal basis of a measure and empowering the Community institution to adopt the measure in question must be in force at the moment of its adoption. The legal basis of a decision by which the Commission finds, after expiry of the ECSC Treaty, that an undertaking has committed an infringement of Article 65(1) CS and imposes a fine on it is to be found in Article 7(1) of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty as regards the finding of the infringement, and in Article 23(2) of that regulation as regards the imposition of the fine, without Article 65 CS. Such a decision may, moreover, refer to Article 65(1) CS, the substantive provision addressed to undertakings and associations of undertakings prohibiting anti-competitive conduct. It may also refer to the applicability of Article 65(5) CS in the context of a discussion of the principle of lex mitior for the purposes of justifying the application of that provision instead of Article 23(2) of Regulation No 1/2003 in calculating the amount of the fine. (see paras 64, 69, 70, 74, 160, 163, 168)

Although the succession of the legal framework of the EC Treaty to that of the ECSC Treaty has led, since 24 July 2002, to a change of legal bases, procedures and applicable substantive rules, that succession is part of the unity and continuity of the Community legal order and its objectives. In that regard, the putting in place and maintaining of a system of free competition, within which the normal competitive conditions are ensured and on which, in particular, the rules in the field of cartels between undertakings are based, constitute one of the essential objectives of both the EC Treaty and the ECSC Treaty. In that context, although the rules of the ECSC and EC Treaties governing the field of cartels between undertakings differ to a certain extent, the meaning of agreement and concerted practices under Article 65(1) CS corresponds to that of agreement and concerted practices for the purposes of Article 81 EC, and those two provisions have been interpreted in the same way by the Community judicature. Thus, the pursuit of the objective of undistorted competition in the sectors which initially fell within the common market in coal and steel is not suspended by the fact that the ECSC Treaty has expired, since that objective is also pursued in the context of the EC Treaty by the same institution, the Commission, the administrative body responsible for the implementation and development of competition policy in the general interest of the Community. The continuity of the Community legal order and the objectives which govern its functioning thus require that, in so far as it succeeds the European Coal and Steel Community and in its own procedural framework, the European Community ensures, in respect of situations which came into being under the ECSC Treaty, compliance with the rights and obligations which applied eo tempore to both Member States and individuals under the ECSC Treaty and the rules adopted for its application. That requirement applies all the more in so far as the distortion of competition resulting from the non-compliance with the rules in the field of cartels between undertakings is liable, under the EC Treaty, to expand its effects over time after the expiry of the ECSC Treaty. It follows that Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty and, specifically, Article 7(1) and Article 23(2) thereof, must be interpreted as enabling the Commission, after 23 July 2002, to identify, and to impose penalties in respect of, cartels in the fields falling within the scope of the ECSC Treaty ratione materiae and ratione temporis, notwithstanding the fact that the provisions of that regulation referred to above do not expressly mention Article 65 CS. (see paras 80-84)

Although procedural rules are generally held to apply to all disputes pending at the time when they enter into force, this is not the case with substantive rules. The latter must be interpreted, in order to ensure respect for the principles of legal certainty and the protection of legitimate expectations, as applying to situations existing before their entry into force only in so far as it clearly follows from their wording, objectives or general scheme that such an effect must be given to them. From that point of view, the continuity of the Community legal order and the requirements relating to the principles of legal certainty and the protection of legitimate expectations require the application of substantive provisions drawn from the ECSC Treaty to the facts which fall within their scope of application ratione materiae and ratione temporis. The fact that, by reason of the expiry of the ECSC Treaty, the regulatory framework in question is no longer in force at the time when the assessment of the factual situation is carried out is irrelevant, since that assessment concerns a legal situation which was definitively established at a time when substantive provisions adopted under the ECSC Treaty were applicable. As regards a Commission decision adopted after expiry of the ECSC Treaty on the basis of Article 7(1) and Article 23(2) of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, following a procedure carried out in accordance with that regulation, since the provisions concerning the legal basis and the procedure followed until the adoption of the decision fall within the scope of procedural rules, the rules which apply are those contained in Regulation No 1/2003. Article 23 of Regulation No 1/2003, which empowers the Commission to fine undertakings and associations of undertakings which have contravened Articles 81 EC and 82 EC, does not lay down a substantive rule; such a rule, by definition, is not intended to provide a legal basis for the Commission’s action. Furthermore, as regards substantive rules, in so far as that decision relates to a legal situation which was definitively established before the expiry of the ECSC Treaty, in the absence of any retroactive effect of the substantive competition law applicable since 24 July 2002, Article 65(1) CS is the substantive rule applicable, bearing in mind that it follows precisely from the lex generalis nature of the EC Treaty in relation to the ECSC Treaty, enshrined in Article 305 EC, that the specific regime of the ECSC Treaty and the rules enacted for its implementation is, in accordance with the principle lex specialis derogat legi generali, applicable only to situations existing prior to . (see paras 85-89, 165)

The question of the force of res judicata is a matter of public policy and must, consequently, be raised by the Community judicature of its own motion. The principle of res judicata is of fundamental importance, both for the Community legal order and national legal systems. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called into question. The principle of res judicata extends only to matters of fact and law actually or necessarily settled by the judicial decision in question. It is not attached only to the operative part of an annulment judgment, but is also attached to the ratio decidendi which is inseparable from it. Where – after annulling in part a decision imposing penalties on an undertaking for infringement of Community rules on competition on the ground that, although the Commission is exceptionally entitled, in view of an undertaking’s statement, to attribute to that undertaking liability for the conduct imputed to another undertaking, it is not observing the rights of the defence if it fails to give the undertaking an opportunity to comment on that conduct – the Community judicature is, in a second action, requested to rule on the lawfulness of the measure replacing the partly annulled decision, the point of law regarding the validity of the aforementioned statement as a legal basis for imputing the second undertaking’s conduct to the first has already been considered and definitively settled by the Community judicature and is therefore res judicata, notwithstanding the fact that the second action relates to a measure which is technically different from the first decision. (see paras 94, 112, 113, 139, 140, 143, 144)

The principle non bis in idem, which is a fundamental principle of Community law also enshrined in Article 4(1) of Protocol No 7 to the European Convention on Human Rights, precludes, in competition matters, an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision. The application of the principle non bis in idem is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. Where the Community judicature takes the view that, in view of the statement of an undertaking assuming liability for the unlawful conduct of a second undertaking, the Commission is exceptionally entitled to attribute to the first undertaking liability for the conduct of the second, then, having noted the existence of a procedural defect based on the infringement of the first undertaking’s rights of defence, annuls the decision in so far as it attributes to the first undertaking responsibility for the infringement committed by the second, in consequence reduces its fine by the amount which had been imposed on it in respect of the infringement committed by the second undertaking, and sets the fine imposed on the first undertaking for its own anti-competitive conduct at a certain amount, it is for the Commission, according to Article 233 EC, to remedy an illegality found by the Community judicature. The Commission is, therefore, entitled to adopt a decision, the sole purpose of which, having corrected the procedural defect, is to attribute to the first undertaking on the basis of the aforementioned statement liability for the infringement of the competition rules committed by the second undertaking and to impose on it, in consequence, a fine. Such a decision does not in any way constitute a second penalty for the unlawful conduct of the first undertaking which had already been dealt with definitively by the first decision. In addition, the assumption of liability by that statement does not reduce the two infringements committed by the undertakings in question to a single infringement. Furthermore, by referring once again and exclusively to the anti-competitive conduct of the second undertaking, such a decision does not infringe the principle non bis in idem. Finally, the principle non bis in idem does not in itself preclude the resumption of proceedings in respect of the same anti-competitive conduct where the first decision was annulled for procedural reasons without any ruling having been given on the substance of the facts alleged, since the annulment decision cannot in such circumstances be regarded as an ‘acquittal’ within the meaning given to that expression in penal matters. In such a case, the penalties imposed by the new decision are not added to those imposed by the annulled decision but replace them. (see paras 141, 178, 179, 183-190)

Although, in principle, it is incumbent upon the natural or legal person running the undertaking concerned at the time of the infringement of the Community rules on competition to answer for it, even if, at the time of the adoption of the decision finding an infringement, another person had been made responsible for running the undertaking, it is – exceptionally – not the case if the person now responsible for running the undertaking has stated that he agrees to be held liable for the matters alleged against his predecessor. The person within whose sphere of responsibility the running of the undertaking has now been brought is therefore legally deemed to have committed the infringement in question himself. It is for him alone to answer for the infringement which can legally be imputed to him having regard to the statement made. In those circumstances, in order to consider whether a Commission decision penalising an undertaking which has made such a statement was taken in conformity with the limitation rules, it is necessary to ascertain whether, on the date on which the decision was adopted, the Commission was still entitled to impose a fine on that undertaking, since the issue is not whether the penalty could have been imposed on the ‘predecessor in law’ of that undertaking. (see paras 200, 202, 203, 207, 208)

The statement of objections must be couched in terms that, albeit succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of by the Commission. Due observance of the rights of the defence in a proceeding in which sanctions for infringement of competition rules may be imposed requires that the undertakings and associations of undertakings concerned must have been afforded the opportunity during the administrative procedure to make known their views effectively on the truth and relevance of the facts and circumstances alleged and objections raised by the Commission. That requirement is satisfied if the decision does not allege that those concerned have committed infringements other than those referred to in the statement of objections and only takes into consideration facts on which they have had the opportunity of making known their views. It follows that the Commission may adopt only objections on which those undertakings and associations of undertakings have had the opportunity to make known their views. In principle only those documents which have been cited or mentioned in the statement of objections are admissible evidence as against the addressee of the statement of objections. With regard to compliance with a judgment which finds the existence of a procedural defect based on the infringement of the rights of the defence and annuls a Commission decision in so far as it attributes to an undertaking responsibility for an infringement committed by another, the Commission’s only obligation, pursuant to Article 233 EC, is to eliminate illegality in the measure intended to replace the annulled measure. The procedure for replacing a measure which has been annulled must, in principle, be resumed at the very point at which the illegality occurred. In compliance with such a judgment, the Commission is, therefore, entitled to send a new statement of objections to the undertaking whose rights of defence have been infringed, and, since the facts and legal issues are the same as in the original procedure, to include in an annex the earlier statement of objections and the annexes thereto. (see paras 225, 228, 230-233, 235 )

The Notice on the rules for access to the Commission file in cases pursuant to Articles 81 EC and 82 EC, Articles 53, 54 and 57 of the EEA Agreement and Regulation No 139/2004 states that the Commission’s file may contain accessible and non-accessible documents, the latter including, in particular, documents containing two categories of information, namely business secrets and other confidential information to which access may be partly or wholly restricted and which are defined in paragraphs 18 and 19 of that notice. According to the last sentence of paragraph 23 of that notice, ‘[a]s a general rule, the Commission presumes that information pertaining to the parties’ turnover, sales, market-share data and similar information which is more than five years old is no longer confidential. The words ‘[a]s a general rule’ and ‘presumes’ in that sentence preclude any automaticity in the categorisation of a document that is more than five years old. The Commission’s refusal to give access to a document cannot, therefore, be regarded as unjustified merely because that document is more than 10 years old and has therefore lost its confidential nature. (see paras 257-260, 270)