Judgment of the General Court (Third Chamber) of 12 December 2012 — Almamet v Commission

(Case T-410/09)

‛Competition — Agreements, decisions and concerted practices — Market for calcium carbide and magnesium for the steel and gas industries in the EEA, with the exception of Ireland, Spain, Portugal and the United Kingdom — Decision finding an infringement of Article 81 EC — Price-fixing and market-sharing — Rights of the defence — Commission’s powers in inspections — Single and continuous infringement — Fines — Cooperation during the administrative procedure — Proportionality — 2006 Guidelines on the method of setting fines’

1. Competition — Administrative procedure — Observance of the rights of the defence — Possibility of the undertaking concerned fully relying on those rights only after the sending of the statement of objections (Art. 81 EC; Council Regulation No 1/2003) (see paras 21-25)

2. Competition — Administrative procedure — Commission’s power of inspection — Decision ordering an inspection — Obligation to state reasons — Scope — Use of documents seized on the premises of an undertaking outside the scope of the inspection decision — Documents having allowed the Commission’s initial investigation to be enlarged — Defence rights of other undertakings concerned by the investigation but not concerned by the inspection decision — Scope (Art. 81 EC; Council Regulation No 1/2003, Art. 20(4)) (see paras 28-31, 34-36, 59)

3. Competition — Administrative procedure — Commission decision finding an infringement — Admissible evidence — Use of documents seized on the premises of an undertaking outside the scope of the Commission’s inspection decision — Lawfulness — Conditions (Art. 81 EC; Council Regulation No 1/2003, Art. 20) (see paras 39-43, 55, 56, 74-77)

4. European Union law — Principles — Fundamental rights — Presumption of innocence — Procedures in competition matters — Applicability — Degree of probative value required for the evidence on which the Commission relies (Art. 81 EC; Charter of Fundamental Rights of the European Union, Art. 48(1)) (see paras 89-92, 103)

5. 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 EC; Commission Notice 2002/C 45/03) (see paras 93-96, 134)

6. Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Concept — Undertakings that may be held responsible for participating in an overall cartel — Criteria — Infringement concerning various products — No need for products concerned to be identical or substitutable for each other (Art. 81(1) EC) (see paras 152-155, 169-175, 178)

7. Competition — Fines — Amount — Determination — Criteria — Reduction of the amount of the fine in return for cooperation of the undertaking concerned — Conditions — Significant added value of the evidence provided by the undertaking concerned — Assessment (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2002/C 45/03) (see paras 184, 185, 187, 207)

8. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Turnover to be taken into consideration — Turnover for the business year immediately preceding the date on which the fine was imposed — Use of the turnover figure for a previous business year — Lawfulness — Conditions (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, para. 32) (see paras 210-216)

9. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Turnover to be taken into consideration — Overall turnover of the undertaking concerned — Limit — Observance of the principle of proportionality (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, paras 32 and 37) (see paras 225-234)

10. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Distinction between the final amount and the intermediate amount of the fine — Consequences (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 240, 244, 245)

11. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Turnover to be taken into consideration — No obligation to refer only to the audited turnover figure (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, para. 32) (see paras 250-253)

12. Competition — Fines — Amount — Determination — Criteria — No obligation to take the deficit situation of the undertaking concerned into account — Setting the fine at an amount which brings about the insolvency or liquidation of the undertaking concerned as a consequence of the fine — Not prohibited in principle (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2) and (3)) (see paras 266-269)

Re:

APPLICATION for annulment of Commission Decision C(2009) 5791 final of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 ‐ Calcium carbide and magnesium based reagents for the steel and gas industries), in so far as it concerns the applicant, and, in the alternative, a reduction of the fine imposed on the applicant by that decision.

Operative part

The Court:

1. Dismisses the action;