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

Riva Fire v Commission

(Case T‑83/10)

‛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 — Legal basis — Consultation of the Advisory Committee on Restrictive Practices and Monopolies — Rights of the defence — Definition of the geographical market — Application of the principle of lex mitior — Infringement of Article 65 CS — Fines — Gravity and duration of the infringement — Extenuating circumstances — Proportionality — Application of the 1996 Leniency Notice’

1. 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 53-55, 75)

2. EU law — Principles — Principle of retroactive application of the lightest penalty — Principle amongst the general principles of EU law and enshrined in the Charter of Fundamental Rights of the European Union — Determination of the lex mitior — Criteria — Law the most favourable (Charter of Fundamental Rights of the European Union, Art. 49(1)) (see paras 83, 85)

3. 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 — Strong presumption that competition affected (Art. 65(1) CS; Art. 81(1) EC) (see paras 88-91, 93-95, 97, 130)

4. 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 (Art. 36, first para., CS, Art. 65(1) CS) (see para. 104)

5. 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 (Art. 65(1), (4) and (5) CS; Council Regulation No 1/2003, Art. 27(1)) (see paras 112-122, 124, 211)

6. 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 137-140, 161-166)

7. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Presumption of innocence — Reliance on a body of evidence — Degree of probative value required for the evidence on which the Commission relies — Evidential obligations on undertakings disputing the existence of the infringement (Art. 65(1) CS; Council Regulation No 1/2003, Art. 2) (see paras 142-151)

8. 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 (Arts 15 CS and 65(1) CS) (see paras 154, 155)

9. Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Documentary proof — Assessment of the probative value of a document — Criteria — Author and origin unknown — No effect (Art. 65 CS) (see para. 157)

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 paras 159, 209)

11. ECSC — Prices — Price tables — Compulsory publicity — Compatibility with the prohibition of cartels (Arts 60 CS and 65(1) CS) (see paras 170, 171, 187)

12. Agreements, decisions and concerted practices — Prohibition — Infringements — Price fixing — Concept — Cartels concerning the fixing of part of the final price — Supplements — Included (Art. 65(1) CS) (see paras 181-186)

13. Acts of the institutions — Statement of reasons — Obligation — Scope — Individual decisions — Decision to apply competition rules (Arts 15 CS and 65(1) CS) (see paras 191, 192)

14. 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 seriousness of the infringement (Art. 65(1) CS) (see paras 213, 214, 216, 219, 220)

15. Competition — Fines — Amount — Determination — Criteria — Duration of the infringement — Account not taken of an undertaking’s non-participation in one of the aspects of the cartel over a part of the period in question that cannot be classified as short — 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 219, 220, op. part 1)

16. 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. 227)

17. 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. 244)

18. 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 244, 254-258)

19. 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 246-248)

20. Competition — Fines — Amount — Determination — Deterrent effect — Account taken of the size and global resources of the fined undertaking — Relevance — Application of a multiplier to the starting amount — Date to be taken into consideration (Art. 65 CS; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, point 1A) (see paras 266-272)

21. Agreements, decisions and concerted practices — Agreements, decisions and concerted practices falling within the scope of the ECSC Treaty — Expiry of the ECSC 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 para. 273)

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 Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 98/C 9/03, point 3) (see paras 284, 285, 287)

23. Competition — Fines — Amount — Determination — Legal context — Guidelines adopted by the Commission — Communication of the Commission on immunity form fines and reduction in their amount for cooperation of the undertakings concerned — Discretion of the Commission — Judicial review — Scope (Council Regulation No 1/2003, Art. 23(2); Commission Notice 96/C 207/04) (see paras 301-311)

24. Competition — Fines — Amount — Determination — Criteria — Reduction of the amount of the fine for cooperation of the undertaking concerned — Conditions — Introduction of an application for leniency — Need for conduct which facilitated the Commission’s finding of an infringement — Assessment (Council Regulation No 1/2003, Art. 23(2); Commission Notice 96/C 207/04) (see paras 312-319)

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 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 Riva Fire SpA at EUR 26 093 000;

2. Dismisses the action as to the remainder;