Judgment of the General Court (Eighth Chamber) of 16 September 2013 — PROAS v Commission

(Case T‑495/07)

‛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 agreements — Translation of the statement of objections — Calculation of the amount of the fine — Reasonable time — Res judicata’

1. Competition — Fines — Amount — Determination — Infringements classified as very serious on the basis of their nature alone — No requirement to determine their impact and their geographical extent (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) (see paras 133, 134, 140-142)

2. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Approval or tolerance of the infringement in national law or by the national authorities (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) (see para. 138)

3. Competition — Fines — Amount — Determination — No obligation on the Commission to adhere to its previous decision-making practice (Art. 81(1) EC; Council Regulation No 17, Art. 15(2)) (see paras 161-163)

4. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Effective capacity to cause significant damage to competition on the market concerned — Relevance of the market shares of the undertaking concerned (Art. 81(1) EC; Council Regulation No 17, Art. 15(2) (see paras 178, 179, 183)

5. Judicial proceedings — Introduction of new pleas during the proceedings — Plea raised for the first time at the hearing — Inadmissibility (Rules of Procedure of the General Court, Art. 48(2), first para.) (see para. 209)

6. Competition — Fines — Amount — Determination — Turnover taken into consideration — Reference year — Last complete year of the infringement (Council Regulation No 17, Art. 15) (see paras 223, 224)

7. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Role of leader in the infringement — Concept — Criteria for assessment (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 2) (see paras 243‑249)

8. Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Account taken of the chronological element of the cooperation provided — Scope (Council Regulation No 17, Art. 15(2); Commission Notice 2002/C 45/03, points 21 and 23(b)) (see paras 306, 317-322)

9. Competition — Fines — Amount — Determination — Criteria — Account taken of the incriminated undertaking’s cooperation with the Commission outside the framework fixed by the Leniency Notice — Conditions — Limits (Council Regulation No 17, Art. 15(2); Commission Notices 96/C 207/04 and 98/C 9/03, point 3) (see para. 358)

10. Competition — Administrative procedure — Obligations of the Commission — Duty to act within a reasonable time — Annulment of the decision finding an infringement by reason of excessive duration of the procedure — Condition — Harm to the rights of defence of the undertakings concerned — None — Compliance with the limitation period laid down by Regulation No 1/2003 — Inapplicability of considerations linked to the principle that action must be taken within a reasonable time (Charter of Fundamental Rights of the European Union, Art. 41(1); Council Regulation No 1/2003, Art. 25) (see paras 372, 373, 383, 384)

11. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Turnover to be taken into consideration — Cumulative turnover of all the companies constituting the economic entity operating as an undertaking (Art. 81 EC; Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2)) (see para. 412)

12. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Rebuttable — Burden of proof (Art. 81 EC; Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2)) (see paras 416-421)

13. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision finding an infringement of the competition rules (Arts 81 EC and 253 EC) (see paras 436-438)

14. Actions for annulment — Judgment annulling a measure — Scope — Absolute authority of res judicata — Scope — Both operative part and grounds to be taken into account (see paras 457, 458, 463-465, 467)

15. 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 — Account taken by the Court in the action brought by the parent company of the outcome of the action brought by the subsidiary (Arts 81 EC and 230 EC) (see paras 459, 460)

Re:

APPLICATION for annulment of Decision C(2007) 4441 final of the Commission, of 3 October 2007, relating to a procedure of application of Article 81 (EC) (Case COMP/38.710 — Bitumen (Spain)), and the reduction of the amount of the fine imposed on the applicant by that decision.

Operative part

The Court:

1. Dismisses the action;

2. Dismisses the claim of the European Commission seeking an increase of the amount of the fine;