1 By its appeal, Pometon SpA asks the Court of Justice to set aside the judgment of the General Court of the European Union of 28 March 2019, Pometon v Commission (T‑433/16, the judgment under appeal, EU:T:2019:201), by which the General Court annulled Article 2 of Commission Decision C(2016) 3121 final of 25 May 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39792 - Steel abrasives) (‘the contested decision’) and set the amount of the fine imposed on Pometon at EUR 3873375.
2 Article 7(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) provides: ‘Where the Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article [101] or of Article [102 TFEU], it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end. …’
3 Under Article 23(2) and (3) of that regulation: ‘2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a) they infringe Article [101] or [102 TFEU] … … For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year. … 3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
4 Article 31 of Regulation No 1/2003 provides: ‘The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’
5 The Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the Guidelines on the method of setting fines’) set out, in points 9 to 35 thereof, the general methodology for the setting of fines.
6 Point 37 of the Guidelines on the method of setting fines states: ‘Although these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21.’
7 In paragraphs 1 to 21 of the judgment under appeal, the General Court set out the background to the dispute. For the purposes of the appeal proceedings, it may be summarised as follows.
8 Pometon is an Italian company specialised in metal treatment. It operated on the steel abrasives market until 16 May 2007, when it sold its business in that sector to a competing French company, Winoa SA.
9 Steel abrasives are steel particles, either in round or angular form, mainly used in the steel, automotive, metallurgy, petrochemical and stonecutting industries. They are produced from steel scrap residue.
10 By the contested decision, the Commission found that, during the period from 3 October 2003 to 16 May 2007, Pometon had participated, either directly or through its representatives or representatives of two of its subsidiaries, Pometon España SA and Pometon Deutschland GmbH, in a cartel consisting of agreements or concerted practices with four other undertakings, namely the American group Ervin Industries Inc. (‘Ervin’), Winoa and two German companies, MTS GmbH and Würth GmbH, aimed, in essence, at coordinating prices of steel abrasives in the European Economic Area (‘the EEA’).
11 Following an application for immunity from fines made by Ervin under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17) and after granting that undertaking conditional immunity, the Commission, from 15 to 17 June 2010, carried out unannounced inspections at the premises of various producers of steel abrasives, including Pometon and its subsidiaries. The Commission subsequently sent several requests for information to the undertakings, which it believed were parties to the cartel.
12 On 16 January 2013, the Commission, in accordance with Article 2 of Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18), initiated the investigation procedure provided for in Article 11(6) of Regulation No 1/2003 in respect of Ervin, Winoa, MTS, Würth and Pometon. It set a time limit for them to indicate in writing to the Commission whether they were prepared to engage in settlement discussions, in terms of Article 10a(1) of Regulation No 773/2004.
13 The five parties to the alleged cartel expressed their willingness to engage in settlement discussions. Between February and December 2013, three rounds of bilateral meetings took place between the Commission and the parties to the cartel, during which the substance of the objections and the evidence underpinning them were set out. The Commission communicated to each party to the cartel the range of the likely fines to be imposed on it.
14 In January 2014, the undertakings concerned forwarded their settlement submissions within the prescribed period, except for Pometon, who decided to withdraw from that procedure.
15 On 13 February 2014, the Commission sent a statement of objections to each of the other four parties to the alleged cartel and, on 2 April 2014, it adopted settlement decision C(2014) 2074 final against them, on the basis of Articles 7 and 23 of Regulation No 1/2003 (‘the settlement decision’).
16 On 3 December 2014, the Commission sent Pometon a statement of objections.
17 On 25 May 2016, the Commission adopted, on the basis of Articles 7 and 23 of Regulation No 1/2003, the contested decision.
18 By that decision, the Commission found, in essence, that Pometon, as well as the other cartel participants, had introduced, in the context of a first limb of the cartel, a uniform method of calculation enabling them to achieve a coordinated increase in the price of steel abrasives based on scrap metal price indices (‘the scrap surcharge’). In the context of a second limb of the cartel, they agreed, at the same time, to coordinate their behaviour with regard to the selling prices of steel abrasives to individual customers, in particular by undertaking not to compete with each other by means of price reductions (recitals 32, 33, 37 and 57 of the contested decision).
19 The Commission took the view that that infringement constituted a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement. Not only did the participants’ anti-competitive arrangements all relate to price coordination and concerned the same products, but they took place under the same terms and conditions throughout the infringement period from 3 October 2003 until 16 May 2007. Finally, the undertakings participating in the infringement and the persons acting on their behalf would have been essentially the same (recitals 107 and 166 of the contested decision).
20 Consequently, the Commission is of the opinion that the object of such a cartel was to restrict competition, and produced significant effects on trade in the product concerned between the Member States and the parties to the EEA Agreement (recitals 142 and 154 of the contested decision).
21 The Commission took the view that Pometon had participated in the cartel as from 3 October 2003 and, relying on the fact that Pometon had not formally disassociated itself from the cartel, the Commission found that that participation continued until 16 May 2007, when Pometon sold its business in the steel abrasives sector to Winoa (recitals 160 and 166 of the contested decision).
22 On the basis of the Guidelines on the method of setting fines, the Commission fixed the basic amount of Pometon’s fine at a sum corresponding to 16% of the value of Pometon’s sales in the markets of the EEA countries in 2006, the last full year of that undertaking’s participation in the infringement at issue.
23 That rate was arrived at by applying a base figure of 15% plus a further 1% to take account of the geographic scope of the infringement covering the entire EEA (recitals 214 to 216 of the contested decision). The variable part of the basic amount of the fine was subsequently increased by a fixed additional amount of 16%, applied to deter undertakings from entering into price coordination agreements (recital 220 of that decision).
24 The basic amount of the fine thus calculated was not increased on the ground of aggravating circumstances. On the contrary, Pometon received a 10% reduction of that amount on account of mitigating circumstances, since it had participated to a lesser extent than the other undertakings in the second limb of the cartel (recital 225 of the contested decision).
25 Finally, pursuant to point 37 of the Guidelines on the method of setting fines, the Commission made a change to the adapted basic amount of the fine (recitals 228 to 231 of the contested decision), consisting of a reduction of 60%.
26 In the light of those factors, the Commission found, in Article 1 of the contested decision, that Pometon had infringed Article 101(1) TFEU and Article 53(1) of the EEA Agreement by participating, between 3 October 2003 and 16 May 2007, in a single and continuous infringement covering the whole of the EEA, concerning price coordination in the steel abrasives sector.
27 In Article 2 of that decision, the Commission imposed a fine of EUR 6197000 on Pometon for that infringement.
28 By application lodged at the Registry of the General Court on 3 August 2016, Pometon brought an action for, in essence, annulment of the contested decision and, in the alternative, for a reduction of the amount of the fine.
29 Pometon raised five pleas in law before the General Court.
30 The first plea alleged breach of the principle of impartiality of the procedure, of the principle of the presumption of innocence and of the rights of the defence, in that, in the settlement decision, the Commission attributed specific conduct to the appellant, thus predetermining the accusations subsequently made against it in the contested decision.
31 The second plea alleged infringement of Article 101 TFEU and Article 53 of the EEA Agreement, the inadequacy and contradictory nature of the statement of reasons and infringement of the rights of the defence and the rules on the burden of proof, in that the Commission attributed to it, in the absence of evidence, participation in a cartel in which it never took part.
32 The third plea alleged infringement of Article 101 TFEU and Article 53 of the EEA Agreement, in that the Commission considered that the cartel constituted a restriction of competition by object.
33 By its fourth plea, Pometon contested the duration of its participation in the cartel and claimed that it was time-barred.
34 Finally, by its fifth plea in law raised in support of its application for annulment or reduction of the amount of the fine, Pometon alleged a breach of the duty to state reasons and of the principles of proportionality and equal treatment, as regards the exceptional adaptation of the basic amount of the fine made by the Commission pursuant to point 37 of the Guidelines on the method of setting fines.
35 By the judgment under appeal, the General Court dismissed the first four pleas in law and upheld the fifth plea.
36 The General Court therefore annulled Article 2 of the contested decision and set the amount of the fine imposed on Pometon at EUR 3873375, while dismissing the action as to the remainder.
37 Pometon claims that the Court should: - primarily, set aside the judgment under appeal and annul the contested decision; - in the alternative, set aside the judgment under appeal in so far as the General Court did not find that Pometon had ceased all participation in the cartel at issue between 18 November 2005 and 20 March 2007 and reduce, as a consequence, the amount of the fine imposed on it and, in any event, reduce that amount; and - order the Commission to pay the costs of the proceedings at first instance and on appeal.
38 The Commission contends that the Court should: - dismiss the appeal as inadmissible in part and unfounded in part; - order Pometon to pay the costs.
39 In support of its appeal, Pometon relies on four grounds of appeal. The first ground of appeal alleges an error of law on the part of the General Court in that it did not consider that the Commission had infringed the principle of impartiality and the presumption of innocence. The second and third grounds of appeal relate, first, to the incorrect application of the rules on the burden of proof and the presumption of innocence and, second, to the contradictory or insufficient grounds of the judgment under appeal as regards, respectively, that undertaking’s participation in the first limb of the cartel and the duration of its participation in the cartel. The fourth ground of appeal concerns infringement of the principle of equal treatment and the allegedly contradictory or insufficient grounds of the judgment under appeal as regards the setting of the amount of the fine imposed on Pometon.
40 By its first ground of appeal, Pometon submits, in essence, that the General Court erred in law, in paragraphs 63 to 103 of the judgment under appeal, in finding that the Commission had not infringed, in adopting the contested decision, the principle of impartiality and the presumption of innocence, as interpreted by the case-law resulting, in particular, from the judgment of the European Court of Human Rights (‘ECtHR’) of 27 February 2014, Karaman v. Germany (CE:ECHR:2014:0227JUD001710310) and the judgment of the General Court of 10 November 2017, Icap and Others v Commission (T 180/15, EU:T:2017:795).
41 According to Pometon, contrary to what the General Court held in paragraph 103 of the judgment under appeal, the contested decision is vitiated by illegality on the ground that, as from the time of adoption of the settlement decision and as is apparent from recitals 26, 28, 29, 31 and 36 to 38 of that decision, the Commission attributed to Pometon specific unlawful conduct. Pometon takes the view that, in those circumstances, the Commission was unable to make an impartial assessment during the procedure which led to the adoption of the contested decision.
42 In the first place, the fact, which is alleged to be incorrect, noted in paragraphs 65 and 76 of the judgment under appeal, that the Commission, in footnote 4 of the settlement decision, expressly excluded Pometon’s guilt, is not such as to avoid misunderstandings as to Pometon’s liability. Furthermore, on that point, the present case differs from that which gave rise to the judgment of 10 November 2017, Icap and Others v Commission (T‑180/15, EU:T:2017:795).
43 In the second place, Pometon submits that the General Court, by holding, in paragraphs 79, 81 and 83 of the judgment under appeal, that the Commission had acted in accordance with the judgment of the ECtHR of 27 February 2014, Karaman v. Germany (CE:ECHR:2014:0227JUD001710310), failed to have regard to the criteria set out in paragraph 64 of that judgment. According to those criteria, in order to respect the presumption of innocence, the references made to Pometon should have been necessary or indispensable in order to assess the guilt of the addressees of the settlement decision. However, that was not so in the present case and the General Court should have agreed to take account of references which might ‘prove objectively useful’ or which were ‘intended to establish sole responsibility’ for the parties who had settled.
44 More specifically, first, the Commission’s finding, in paragraph 31 of the settlement decision, that the contacts continued with Pometon until 16 May 2007, related only to an element of liability attributable to Pometon and was irrelevant for the purpose of assessing the guilt of the other cartel participants. In so far as the General Court held, in paragraph 89 of the judgment under appeal, that, by that finding, the Commission merely specified the development over time of the cartel and that the undertakings which had settled admitted to having participated in the cartel until 2010, Pometon claims that the reference to that fact was not indispensable. In addition, if the Commission wanted to mention the transfer of Pometon’s business to Winoa, the reference to that transfer would have been sufficient.
45 Moreover, in paragraph 89 of the judgment under appeal, the General Court also found that the reference made to Pometon in paragraph 31 of the settlement decision was ‘not intended to establish [Pometon]’s liability for the infringement’. In that regard, Pometon submits that it follows from paragraphs 41 and 65 of the judgment of the ECtHR of 27 February 2014, Karaman v. Germany (CE:ECHR:2014:0227JUD001710310), that the presumption of innocence is infringed since the statement of reasons for a decision suggests that the Commission considered the person concerned to be guilty or that such a reference gave rise to doubts as to a possible prejudgment on guilt.
46 For the same reason, secondly, the statement in paragraph 81 of the judgment under appeal that the references to Pometon, which are mentioned solely in section 4 of the settlement decision, entitled ‘Description of the events’, ‘do not contain any legal classification of the conduct of that undertaking’, is also irrelevant. In addition, it is incorrect since the Commission did not confine itself to referring to certain facts attributable to Pometon, but classified its conduct as an ‘agreement’ or as a cartel in section 29 of that decision. Furthermore, Pometon points out that, in the judgment of 10 November 2017, Icap and Others v Commission (T‑180/15, EU:T:2017:795), the General Court held that the Commission had infringed the presumption of innocence on account of a third party in a settlement decision, despite the fact that the contested passages appeared in the part of that decision relating to the summary of the facts and that they did not contain any legal characterisation under Article 101(1) TFEU.
47 Thirdly, in paragraph 83 of the judgment under appeal, the General Court attached undue importance to the fact that the references to Pometon were based on the factual evidence recognised by the four undertakings which had agreed to settle. The General Court thus attempted to justify the content of the settlement decision by stating that it reproduced the content of the settlement submissions signed by the parties which had agreed to enter into a settlement. Pometon submits that those proposals were in fact made by the Commission. Moreover, according to Pometon, the Commission’s prejudgment in that regard is clear from the very wording of those proposals, which classifies the conduct attributed to Pometon as a ‘cartel’ and ‘anticompetitive contacts’.
48 In that regard, Pometon states, in its reply, that its arguments relating to settlement submissions are necessary in view of the General Court’s assessments and cannot therefore be regarded as inadmissible.
49 In its defence, the Commission contends that that ground of appeal is inadmissible, in so far as it seeks to challenge factual assessments relating to the administrative procedure, that it seeks to obtain a fresh assessment by the Court of Justice of the merits of a plea on which the General Court has already ruled and that it introduces new complaints which were not put forward at first instance. In any event, that ground is unfounded.
50 It should be recalled, according to settled case-law of the Court, first, that the General Court has exclusive jurisdiction to find and appraise the relevant facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (judgment of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraph 153).
51 Furthermore, in an appeal, review by the Court of Justice is limited to review of the findings of law on the pleas argued before the General Court. Accordingly, a party may not put forward for the first time before the Court of Justice pleas in law or arguments which it did not raise before the first courts (see, to that effect, judgments of 8 November 2016, BSH v EUIPO, C‑43/15 P, EU:C:2016:837, paragraph 43, and of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 26).
52 Finally, although an appeal is inadmissible in so far as it merely repeats the pleas in law and arguments previously submitted to the General Court, provided that an appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, that appeal would be deprived of part of its purpose (see, to that effect, judgment of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraphs 154 and 155 and the case-law cited).
53 In the present case, by its first ground of appeal, Pometon takes the view that the General Court committed several errors of law when it held, on the basis of incorrect criteria, that the plea alleging infringement of the principle of impartiality and of the presumption of innocence had been infringed.
54 Contrary to the Commission’s assertions, such a ground of appeal concerns points of law which may be examined at the appeal stage.
55 However, as the Commission rightly points out, Pometon raises, in support of the first ground of appeal, a new argument in the appeal, claiming that the Commission prepared settlement proposals and their effects, whereas it could have relied on them before the General Court. However, in accordance with the case-law referred to in paragraph 51 of the present judgment, that argument is not admissible.
56 Consequently, the first ground of appeal is admissible in so far as it does not relate to that argument.
57 By its first ground of appeal, Pometon submits that the General Court erred in law in holding, in paragraph 103 of the judgment under appeal, that, both by the drafting precautions taken by the Commission in the settlement decision and by their substantive content, the references to Pometon in that decision cannot be regarded as evidence of a lack of impartiality on the part of that institution vis-à-vis Pometon and a failure to respect the presumption of innocence in the contested decision.
58 In that regard, it should be borne in mind that the Commission is required, during the administrative procedure, to respect the fundamental rights of the undertakings concerned. These include the right to good administration, enshrined in Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’), according to which every person has the right, inter alia, to have his or her affairs handled impartially by the institutions of the European Union. That requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned (see, to that effect, judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraphs 154 and 155).
59 The principle of impartiality, which is part of the right to good administration, must be distinguished from the principle of the presumption of innocence, which applies, having regard to the nature of the infringements in question and to the nature and degree of severity of the ensuing penalties, to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (judgments of 8 July 1999, Hüls v Commission, C‑199/92 P, EU:C:1999:358, paragraph 150, and of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 73).
60 The presumption of innocence constitutes a general principle of EU law, laid down in Article 48(1) of the Charter (judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 72).
61 Article 48 of the Charter corresponds to Article 6(2) and (3) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), as is apparent from the explanations relating to that provision of the Charter. It follows, in accordance with Article 52(3) of the Charter, that it is necessary to take account of Article 6(2) and (3) of the ECHR for the purposes of interpreting Article 48 of the Charter, as a minimum threshold of protection (judgment of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 41).
62 In that regard, it must be recalled that the principle of the presumption of innocence will be infringed if a judicial decision or a statement by a public official concerning a person charged with a criminal offence contains a clear declaration, in the absence of a final conviction that the person concerned has committed the crime in question. In that context, it should be underlined that the importance of the choice of words by the judicial authorities and of the particular circumstances in which they were made and of the nature and context of the proceedings at issue (see, to that effect, judgment of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 43, see also, to that effect, judgment of the ECtHR of 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, paragraph 63).
63 Accordingly, in complex criminal proceedings involving several persons who cannot be tried together, references by the competent court to the participation of third persons, who may later be tried separately, may be indispensable for the assessment of the guilt of those who are on trial separately. However, if facts related to the involvement of third parties have to be introduced, the relevant court should avoid giving more information than necessary for the assessment of the legal responsibility of those persons who are accused in the trial before it. In addition, the reasoning of judicial decisions must be worded in such a way as to avoid a potential prejudgment about the guilt of the third parties concerned, capable of jeopardising the fair examination of the charges brought against them in the separate proceedings (see, to that effect, judgment of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 44; see also, to that effect, judgment of the ECtHR of 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, paragraphs 64 and 65).
64 In the light of paragraphs 59 to 61 of the present judgment, the case-law relating to the presumption of innocence, set out in paragraphs 62 and 63 of the present judgment, is relevant, mutatis mutandis, where the Commission adopts, in relation to one and the same cartel, two decisions which have different addressees following two separate procedures, namely, first, a decision taken following a settlement procedure and addressed to the undertakings which have entered into a settlement agreement and, second, a decision taken at the end of an ordinary procedure and addressed to the other undertakings having participated in the cartel.
65 In such a case, described as a ‘hybrid’ procedure, which leads to the adoption of successive decisions, it may be objectively necessary for the Commission to address, in the decision terminating the settlement procedure, certain facts and behaviour concerning participants in the alleged cartel which are the subject of the standard procedure. In the light of the case-law cited in paragraphs 62 and 63 of the present judgment, it is nevertheless for the Commission to ensure, in the decision concluding the settlement procedure, to preserve the presumption of innocence of undertakings which have refused to enter into a settlement and which are the subject of an ordinary procedure.
66 In order to review the Commission’s observance of the presumption of innocence, it is for the EU judicature to analyse a decision bringing the settlement procedure to an end and its reasoning as a whole and in the light of the particular circumstances in which that decision has been adopted. Any explicit reference, in certain parts of that decision, to the absence of guilt of the other participants to the alleged cartel would be devoid of sense if other parts of that decision were likely to be understood as a premature expression of their guilt (see, by analogy, judgment of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 46).
67 It is in the light of that case-law that it is necessary to determine whether, as Pometon claims, the General Court erred in law in its assessment of the first plea raised before it, alleging infringement by the Commission of the principle of impartiality and of the presumption of innocence.
68 In that regard, it should be noted that, in the judgment under appeal, the General Court examined, in essence, first, whether the Commission took sufficient drafting precautions in the settlement decision in order to avoid a premature judgment as to Pometon’s participation in the cartel and, second, whether the references to Pometon in the settlement decision were necessary.
69 In the first place, as regards drafting precautions, the General Court held, in paragraphs 65 and 76 of the judgment under appeal, that the Commission, in particular in footnote 4 of the settlement decision, had expressly excluded, at that stage of the proceedings, Pometon’s guilt, emphasising that that decision was addressed exclusively to the four undertakings which had agreed to settle, and that the file concerning Pometon would be dealt with subsequently, in a separate and adversarial procedure.
70 The General Court also noted, in paragraphs 67, 81 and 82 of that judgment, that the reasons for the settlement decision did not contain any legal classification of the facts relating to Pometon, which was mentioned only in section 4, entitled ‘Description of the events’, of that decision, and that that decision designated Pometon, in paragraph 2.25, not as a party to the settlement procedure and addressee of that decision, but as an undertaking subject to the investigation procedure initiated in respect of the participants in the alleged cartel.
71 Pometon’s arguments are not capable of establishing that those findings are vitiated by an error of law.
72 First, as regards Pometon’s argument summarised in paragraph 42 of the present judgment, it must be noted that, even if Pometon intended to rely on a misreading by the General Court of footnote 4 of the settlement decision and, therefore, a distortion of that decision, such an argument cannot succeed.
73 Although it is true that that footnote does not expressly state that Pometon cannot be held liable for participation in the alleged cartel, the fact remains that it states unequivocally that Pometon is not an addressee of the settlement decision, that it is the subject of separate proceedings and that the references to Pometon in that decision are used exclusively to establish the liability of the other participants in the cartel. Accordingly, the General Court did not misread that footnote when it stated, in paragraph 65 of the judgment under appeal, that the Commission had excluded Pometon’s guilt in the same footnote, bearing in mind that the General Court was careful to state that that exclusion had been made only ‘at that stage of the procedure’.
74 In those circumstances, it is also necessary to reject Pometon’s argument that, in essence, the General Court erred in law in finding that the exclusion of Pometon’s guilt in footnote 4 of the settlement decision made it possible to avoid misunderstandings as to the liability of that undertaking for the infringement.
75 Secondly, in so far as Pometon claims that, in particular in paragraph 29 of the settlement decision, the Commission referred to an ‘agreement’ between the parties to the settlement procedure and Pometon and categorised the conduct attributed to Pometon, it must be observed that, as the General Court rightly pointed out in paragraphs 67, 81 and 82 of the judgment under appeal, the Commission did not in any way, in the settlement decision, categorise Pometon’s conduct as anticompetitive conduct. On the contrary, the Commission confined itself to referring to the conduct of that undertaking in the context of the description of the facts. Moreover, contrary to Pometon’s assertions, the Commission avoided using the term ‘cartel’ in that context.
76 In the light of those factors, the General Court was entitled, without erring in law, to consider, in particular in paragraph 103 of the judgment under appeal, that the Commission had taken sufficient precautions in drafting. That institution displayed the required caution in drafting, highlighting the fact that it was not called upon to rule on Pometon’s participation in the alleged cartel in order not only to avoid, as the General Court observed in paragraphs 76 and 84 of the judgment under appeal, any deliberate, or even definitive, bias of Pometon’s liability, but also, in accordance with the case-law cited in paragraph 63 of the present judgment, any prejudgment, even if potential, of that liability.
77 In the second place, as regards the assessment of the necessity of the references made to Pometon in the settlement decision, it should be noted that, in the context of a hybrid procedure leading to the adoption of successive decisions, the Commission must, subject to review by the General Court, avoid disclosing more information about the involvement of a third party in such a decision, such as Pometon, than is necessary for the classification of liability of the addressees of that decision (see, by analogy, judgment of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 44).
78 In the present case, the General Court stated, in paragraph 77 of the judgment under appeal, that it was necessary to assess whether the references to Pometon in the settlement decision could in fact be regarded as necessary for a description as complete as possible of the facts giving rise to the cartel at issue.
79 In that context, it noted, in paragraph 79 of the judgment under appeal, that, in the case of a hybrid procedure which led to the successive adoption of two decisions, the references to certain conduct of Pometon in the settlement decision could ‘be objectively relevant to the description of the origin of the cartel as a whole’. In paragraphs 81 to 83 of that judgment, it held, inter alia, that the grounds on which those references were based did not set out any legal classification of that undertaking’s conduct in view of the drafting precautions taken by the Commission. In paragraphs 88 and 89 of that judgment, it rejected Pometon’s arguments that the references made to that undertaking in recitals 31 and 37 of that decision were not necessary.
80 The arguments put forward by Pometon in the appeal are not such as to call those findings into question.
81 First, although the General Court stated, in paragraph 79 of the judgment under appeal, that the references made to Pometon may prove to be objectively relevant to the description of the origin of the cartel as a whole, thereby setting out a more flexible criterion than that of the necessity required by the case-law referred to in paragraph 77 of the present judgment, it is nevertheless clear from a reading of paragraphs 79 and 80 of the judgment under appeal that the General Court did not draw any conclusion from the assessment of the objective relevance of those references and that, on the contrary, in particular in paragraphs 85 and 88 of the judgment under appeal, it examined, in the light of the judgment of the European Court of Human Rights of 27 February 2014, Karaman v. Germany (CE:ECHR:20140227JUD001710310, paragraph 63), whether or not those references were necessary.
82 Secondly, in so far as Pometon challenges the assessment of the necessity of the references relating to it, it should be clarified that that part criticises solely the assessment, in paragraph 89 of the judgment under appeal, of the reference made to it in recital 31 of the settlement decision.
83 In that recital, the Commission found that ‘the contacts continued with Pometon until 16 May 2007 when it sold the steel abrasives business to … Winoa and exited the business’. That recital forms part of the fourth chapter of the settlement decision, entitled ‘Description of the events’ and, more particularly, in the first part of that chapter entitled ‘Nature and scope of behaviour’, which begins, in recital 26 of that decision, with a reference to frequent contacts between Erwin, Winoa, MTS, Würth and Pometon. According to recital 32 of that decision, it was in the summer of 2007, in other words after 16 May 2007, that the other cartel participants revised the scrap surcharge. The reference to Pometon in recital 31 of that decision thus explains how the conduct alleged against the other cartel participants, to which that decision relates, evolved.
84 The General Court did not, therefore, err in law when it considered that that reference was intended solely to clarify the development over time of the cartel in which the four undertakings party to the settlement procedure admitted to having participated and, in essence, considered that it was necessary.
85 Thirdly, in so far as Pometon claims that, in the grounds of the settlement decision, the Commission classified its conduct in law, Pometon’s argument must be rejected for the reason set out in paragraph 75 above.
86 Lastly, as regards Pometon’s arguments relating to the comparison of the present case with that which gave rise to the judgment of the General Court of 10 November 2017, Icap and Others v Commission (T‑180/15, EU:T:2017:795), it is sufficient to recall that, as is apparent from the case-law cited in paragraph 66 of the present judgment, the question whether the Commission disregarded the presumption of innocence depends on the settlement decisions specific to each case, including their reasoning, and the particular circumstances in which those decisions have been adopted.
87 It follows from all the foregoing considerations that the first ground of appeal must be dismissed as in part inadmissible and in part unfounded.
88 By its second ground of appeal, Pometon submits, in essence, that, in paragraphs 129 to 160 of the judgment under appeal, the General Court erred in law by misapplying the principles relating to the burden of proof and by failing to apply the principle of the presumption of innocence. It also maintains that that judgment is, in that regard, reasoned in a contradictory or insufficient manner.
89 In the first place, in paragraphs 129 to 147 of that judgment, the General Court indicated as undisputed facts and liability which Pometon challenged in its application at first instance. Pometon refers, in that regard, to certain specific paragraphs of that application.
90 In the second place, Pometon submits that the General Court found, in paragraphs 142, 144 and 145 of that judgment, that it had participated in the cartel on the basis of assumptions or assessments based on the reasonableness or likelihood of certain events. In doing so, the General Court failed to have regard to the case-law according to which, first, the participation of an undertaking in a cartel cannot be inferred from speculation based on imprecise evidence; second, the evidence must be sufficiently credible, precise and consistent to support the firm conviction that the applicant has participated in the cartel and must allow it to be concluded beyond all reasonable doubt that an infringement has been committed; and, third, that doubt in the mind of the General Court should operate to the advantage of the undertaking concerned.
91 The Commission contends that the second ground of appeal is inadmissible, in so far as it relates to findings of fact, that it is directed against the contested decision and that it is in part a repetition of the arguments put forward in support of the second plea in the application at first instance. In any event, that ground in its view is unfounded.
92 As a preliminary point, it should be noted that, by the second ground of appeal, Pometon submits, in essence, that the General Court erred in law in its application of the principles governing the burden of proof in respect of infringements in the field of competition law and infringed its obligation to state reasons. Since that ground of appeal raises points of law which may be examined by the Court of Justice on appeal, it is admissible.
93 It should be noted that, in paragraphs 129 to 160 of the judgment under appeal, the General Court assessed Pometon’s arguments seeking to challenge the evidence of its participation in the first limb of the cartel, relating to the method of calculating the scrap surcharge.
94 In that regard, the General Court found, in paragraph 129 of the judgment under appeal, that Pometon did not call into question its ‘initial liability’ for that limb of the cartel, on account of its participation in the conclusion of an agreement on the method for calculating the scrap surcharge and the preparation of that agreement. It held, in paragraphs 132 to 147 of that judgment, that the Commission had established to the requisite legal standard that the scrap surcharge was automatically applicable between the participants in the cartel. In the light of that automatic applicable surcharge and the evidence in the file, the General Court rejected, in paragraphs 148 to 159 of that judgment, Pometon’s argument that participation in meetings and other contacts were necessary for the implementation of the first limb of the cartel from 2004 onwards. In the light of those factors, the General Court concluded, in paragraph 160 of that judgment, that Pometon’s participation in that limb was amply demonstrated.
95 In the first place, it must be held that, in so doing, the General Court stated reasons to the requisite legal standard for its assessment of the arguments put before it by Pometon. It follows that Pometon’s argument claiming that the statement of reasons is insufficient or contradictory, which is, moreover, hardly substantiated, must be rejected as unfounded.
96 In the second place, as regards the claims of errors of law regarding the application of the rules of evidence in the field of competition law, it must be noted, first, that Pometon’s argument that the General Court erred in holding certain facts and ‘liability’ to be uncontested is based on a partial and erroneous reading of the judgment under appeal.
97 Admittedly, in paragraph 129 of the judgment under appeal, the General Court stated that Pometon ‘[did] not deny its initial liability for the first limb of the cartel’, which, taken out of context, could be understood as meaning that, according to the General Court, Pometon did not dispute its liability, and thus its participation, in the cartel. However, it is clear from a reading of paragraphs 129 to 160 of that judgment as a whole that, in that paragraph 129, the General Court intended to state that Pometon did not dispute, as such, the fact that it had contributed to the implementation of the scrap surcharge system and not that it did not deny that it had participated in the cartel.
98 Furthermore, even if Pometon is seeking to criticise the General Court for having thus distorted its application at first instance, it must be observed that, in the passages of that application referred to in the context of the present ground of appeal, Pometon disputed, in general terms, its participation in the cartel without, however, calling into question its presence at the meeting of 3 October 2003, during which the method of calculating the scrap surcharge was introduced. Moreover, Pometon even confirmed its presence at that meeting in its reply lodged before the Court.
99 Secondly, in so far as Pometon complains that the General Court failed to have regard, in particular in paragraphs 142, 144 and 145 of the judgment under appeal, to the case-law relating to the burden of proof in the field of competition law, it should be noted that, in paragraphs 132 to 147 of that judgment, the General Court duly examined the evidence produced by the Commission. It inferred from all those factors that the Commission had established to the requisite legal standard the automatic application of the scrap surcharge.
100 That finding cannot be called into question by the fact that, in paragraphs 142, 144 and 145 of the judgment under appeal, specifically referred to by Pometon, the General Court used nuanced formulations, using terms akin to ‘likelihood’ or ‘presumption’.
101 Those paragraphs of the judgment under appeal form part of an assessment of the documentary evidence of the Commission’s file, by which the General Court, in essence, confirmed the body of evidence adduced by the Commission, in accordance with the case-law on proof of infringements in the field of competition law. According to that case-law, that evidence may be provided by the Commission, by means of a body of objective and consistent evidence, which, viewed as a whole, may, in the absence of another plausible explanation, constitute evidence of such an infringement even if one or another piece of that body of evidence is not, in itself, sufficient in this respect (see, to that effect, judgment of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraphs 50 to 52).
102 In the light of all the foregoing considerations, the second ground of appeal must be dismissed as being unfounded.
103 By its third ground of appeal, Pometon submits that, in paragraphs 289 to 316 and 373 of the judgment under appeal, the General Court, first, infringed the rules on the burden of proof and the presumption of innocence and, second, failed to comply with its obligation to state reasons in its analysis of the duration of the alleged participation in the infringement.
104 In the first place, according to Pometon, the General Court reversed the burden of proof by holding, in paragraphs 308 and 309 of the judgment under appeal, that the absence of collusive contacts between Pometon and the other parties to the cartel did not permit the inference that Pometon had interrupted its participation in the cartel and that Pometon did not rely on any evidence to suggest that collusive contacts were necessary in order to continue its participation in the cartel. In so doing, the General Court disregarded its own case-law, according to which the finding that there is no evidence or indications which might suggest that the infringement had been interrupted regards an applicant cannot become relevant before the Commission has discharged its burden of proof by adducing evidence relating to facts sufficiently close in time so that it may reasonably be assumed that an infringement continued uninterruptedly between two specific dates.
105 In the second place, Pometon submits that, in the light of the characteristics of the cartel, which, according to the Commission, was put in place by means of frequent, continuous and recurrent contacts, the fact that it did not participate in the twelve meetings which took place, between 2005 and 2007, between the other parties to the cartel should lead to the conclusion that it interrupted its participation in that cartel.
106 Such a finding is all the more compelling given that, in other cases, the General Court acknowledged that participation in a cartel has been interrupted in the absence of collusive contacts or activities for a period of less than one year or a period of 16 months.
107 The Commission contends that the third ground of appeal is inadmissible on the ground that the question of the interruption of Pometon’s participation in the cartel falls within the scope of a factual assessment, and that it is, in any event, unfounded.
108 As a preliminary point, as regards the admissibility of the third ground of appeal, first, it should be recalled that the question of the allocation of the burden of proof, although it may have an impact on the findings of fact made by the General Court, is a question of law (judgment of 6 January 2004, BAI and Commission v Bayer, C‑2/01 P and C‑3/01 P, EU:C:2004:2, paragraph 61). It follows that, in so far as Pometon complains, in essence, that the General Court reversed the burden of proof as regards the duration of its participation in the infringement, that ground of appeal is admissible.
109 Secondly, by claiming that its participation in the infringement was interrupted, Pometon seeks a fresh assessment of the facts, which, in accordance with the case-law referred to in paragraph 50 above, falls outside the jurisdiction of the Court of Justice on appeal. It follows that, to that extent, the third ground of appeal is inadmissible.
110 As regards the merits of that ground of appeal, in so far as it has been held to be admissible, it should be recalled that the Court has already held that, in most cases, the existence of an anticompetitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 70 and the case-law cited).
111 Such coincidences and indicia, when evaluated overall, may provide information not just about the mere existence of anti-competitive practices or agreements, but also about the duration of continuous anti‑competitive practices or the period of application of anti‑competitive agreements (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 71 and the case-law cited).
112 As regards the lack of evidence of an agreement during certain specific periods or, at least, the lack of evidence of its implementation by an undertaking during a given period, it should be recalled that the fact that such evidence has not been produced in relation to certain specific periods does not preclude the infringement from being regarded as established during a longer overall period than those periods, provided that such a finding is supported by objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that the agreement is shown to have applied during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the agreement, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 72 and the case-law cited).
113 It is also apparent from the case-law that a party which tacitly approves of an unlawful initiative, without publicly distancing itself from the content of that initiative or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery. That complicity constitutes a passive mode of participation in the infringement which is capable of rendering the undertaking concerned liable (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 73 and the case-law cited).
114 It follows from that case-law that the Commission may assume that the infringement - or the participation of an undertaking in the infringement - has not been interrupted, even if it has no evidence of the infringement in relation to certain specific periods, provided that the various actions which form part of the infringement pursue a single purpose and are capable of falling within the framework of a single and continuous infringement; and where the undertaking concerned has not relied on indicia or evidence establishing that, on the contrary, the infringement, or its participation in it, has not been pursued during those periods.
115 In the present case, it should be noted that, in paragraphs 266 and 267 of the judgment under appeal, which are not contested in the present appeal, the General Court, after examining the second plea raised before it, found that the Commission had established Pometon’s liability for the single and continuous infringement forming the subject matter of the contested decision, without having examined, at that stage, the duration of Pometon’s participation in that infringement.
116 In that regard, in the context of its unlimited jurisdiction to assess the facts and which is not disputed at the appeal stage, the General Court found, in paragraph 304 of that judgment, that the Commission had established that Pometon had been directly involved in collusive contacts concerning the two limbs of the cartel between 3 October 2003 and 18 November 2005 and during the two months prior to its exit from the market on 16 May 2007, but that the Commission had no evidence of anticompetitive contacts involving Pometon during the period between 18 November 2005 and March 2007 (‘the period at issue’).
117 The General Court nevertheless held, in paragraph 308 of the judgment under appeal, that, having regard to the characteristics of the cartel, namely the automatic application of the scrap surcharge and the lack of structured organisation of the contacts between the participants to implement coordination in respect of individual customers, with ad hoc contacts taking place only in the event of disagreement, the absence of collusive contacts between Pometon and the other parties to that cartel during the period at issue did not permit the inference that Pometon had interrupted its participation in that cartel. In paragraph 309 of that judgment, the General Court added that Pometon had not put forward any evidence to suggest that collusive contacts were nevertheless necessary in order to pursue, without interruption, its participation in the cartel.
118 It follows from the foregoing that the General Court clearly set out the reasons why it considered that Pometon’s participation in the single and continuous infringement had not been interrupted during the period at issue. It is therefore necessary to reject Pometon’s arguments claiming infringement of the obligation to state reasons.
119 It is also apparent from the judgment under appeal that the General Court based its assessment of the duration of Pometon’s participation in the infringement on the consideration, which was not disputed in the present appeal, first, that the Commission had proved to the requisite legal standard the collusive contacts involving Pometon before and after the period at issue, second, that the application of the scrap surcharge was automatic and did not require contacts and, third, that the two limbs of the cartel had close links. The General Court inferred, in essence, from those factors that the Commission was entitled to find that Pometon had participated without interruption in the single and continuous infringement during the period in question, without prejudice to the possibility for Pometon to demonstrate that that participation had been interrupted, since Pometon had not put forward any evidence or argument capable of demonstrating that that participation had been interrupted.
120 It is therefore without disregarding the rules on the burden of proof that the General Court, on the basis of the case-law referred to in paragraphs 110 to 114 of the present judgment, found that Pometon had participated continuously in the unlawful conduct of which it was accused.
121 In the light of all the foregoing considerations, the third ground of appeal must be dismissed as being in part inadmissible and in part unfounded.
122 By the fourth ground of appeal, Pometon submits that, in paragraphs 365 to 396 of the judgment under appeal, the General Court infringed the principle of equal treatment and the obligation to state reasons when it varied the amount of the fine imposed on it.
123 Pometon observes that the General Court set the amount of that fine by departing from the method used by the Commission to determine the rate of additional reduction under point 37 of the Guidelines on the method of setting fines. It follows from the analysis of the three factors mentioned in paragraph 376 of the judgment under appeal, and in particular from paragraphs 379 to 383, 386, 387 and 390 of that judgment, that, although the infringement attributable to Pometon was less serious than that committed by Winoa, the General Court granted Pometon the same rate of reduction of 75% as that which the Commission had granted Winoa.
124 The General Court therefore treated two separate situations in the same way, without objectively justifying that difference in treatment, in breach of the principle of equal treatment.
125 Pometon adds that the General Court accepted, in paragraphs 382 and 386 of the judgment under appeal, that its situation is similar to that of MTS, which benefited from a reduction of 90%. The only factor differentiating the two undertakings is their size, which, however, cannot in itself justify the significant difference in the rates of reduction applied to them.
126 Therefore, the rate of reduction granted to Pometon should be between 75% and 90%.
127 The Commission contends that the fourth ground of appeal is inadmissible and, in any event, unfounded.
128 According to the Commission, this ground of appeal is inadmissible because, in reality, it leads the Court of Justice to review the substance of the fine set by the General Court, which exceeds the powers conferred on the Court of Justice. The Court of Justice cannot, on grounds of fairness, substitute its own assessment for that of the General Court ruling, in the exercise of its unlimited jurisdiction, on the amount of the fines imposed on undertakings on account of their infringement of EU law. That is all the more true where the General Court has exercised its unlimited jurisdiction in order itself to ensure compliance with the principle of equal treatment.
129 As regards the substance, the Commission observes that, following the annulment of the contested decision, it was for the General Court, as that Court points out in paragraph 369 of the judgment under appeal, to determine the appropriate amount of the exceptional adaptation of the basic amount of the fine, taking account of all the circumstances of the case.
130 In that context, it follows from paragraph 376 of the judgment under appeal that, for each of the various factors analysed, the General Court did in fact compare Pometon’s liability and individual situation with those of the other parties to the cartel. The Commission takes the view that the General Court used the criteria relating to the gravity and duration of Pometon’s participation in the infringement to ensure that the fine was proportionate.
131 The fact that Pometon received a lower percentage reduction than that granted to MTS is not sufficient to demonstrate unlawfulness of treatment and inconsistency of the grounds of the judgment under appeal. It is apparent from paragraph 390 of the judgment under appeal that the General Court relied in that regard on Pometon’s turnover, which far exceeds that of MTS, so that the two undertakings were not in comparable situations in view of their size and, therefore, the gravity of their respective participation in the infringement. The Commission accordingly states that it is settled case-law that the total turnover of the undertaking gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power.
132 According to the Commission, observance of the principle of equal treatment requires account to be taken of all the elements which characterise one undertaking in relation to another, whereas the direct and illustrative comparison between two sanctions is not relevant. The General Court did not therefore infringe the principle of equal treatment by granting Pometon the same rate of reduction of the basic amount of the fine as that applied to Winoa.
133 The application of the same rate to those two undertakings is also explained by the higher degree of concentration of Winoa’s sales as compared to those of Pometon. The Commission produces, in that regard, as Annex B/2 to its defence, a table summarising the calculation made.
134 Finally, the Commission submits that the General Court stated reasons to the requisite legal standard for its decision as regards the setting of the amount of the fine.
135 It should be borne in mind, from the outset, that, in accordance with Article 261 TFEU and with Article 31 of Regulation No 1/2003, the General Court has unlimited jurisdiction with regard to the fines imposed by the Commission.
136 The General Court is therefore empowered, in addition to carrying out a mere review of the lawfulness of those fines, to substitute its own appraisal for that of the Commission and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph124 and the case-law cited).
137 In contrast, it is true that it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of EU law. Accordingly, only inasmuch as the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, would it have to find that the General Court erred in law, due to the inappropriateness of the amount of a fine (judgments of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraphs 125 and 126 and the case-law cited, and of 25 July 2018, Orange Polska v Commission, C‑123/16 P, EU:C:2018:590, paragraph 115).
138 Furthermore, it is settled case-law that the General Court is bound, when exercising its unlimited jurisdiction, by certain requirements, including the requirement to state reasons, imposed on it by Article 36 of the Statute of the Court of Justice, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute, and the principle of equal treatment. When the amount of the fine imposed on them is determined, the exercise of unlimited jurisdiction cannot result in discrimination between undertakings which have participated in an infringement of the competition rules (judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 77 and the case-law cited).
139 The Commission contends that the fourth ground of appeal is inadmissible in that it requests the Court of Justice to review the substance of the amount of the fine set by the General Court.
140 That argument is based on a misunderstanding of that ground of appeal.
141 It is apparent from Pometon’s arguments put forward in support of that ground of appeal that it does not seek to call into question, on grounds of lack of fairness or inappropriateness, the amount of the fine imposed on it by the General Court in the exercise of its unlimited jurisdiction, which, in the light of the case-law cited in paragraph 137 of the present judgment, falls outside the jurisdiction of the Court of Justice ruling on appeal. On the contrary, that ground of appeal is clearly based on an infringement, by the General Court, of the principle of equal treatment and of its obligation to state reasons.
142 However, having regard to the case-law referred to in paragraph 138 of the present judgment, such a ground of appeal is admissible, including, contrary to the Commission’s arguments, where the General Court itself, in the exercise of its unlimited jurisdiction, determined the amount of the fine (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraphs 77, 81, 85 and 86).
143 It should also be added that it is only if the Court were to uphold the present ground of appeal that Pometon invites it to exercise its unlimited jurisdiction itself. In that regard, it should be pointed out that the Court of Justice may cancel, reduce or increase the fine or periodic penalty payment imposed only by itself giving final judgment in the dispute before the General Court (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 88 and the case-law cited).
144 It follows from the foregoing that the fourth ground of appeal is admissible.
145 As has been pointed out in paragraph 138 of the present judgment, the General Court is required, in the exercise of its unlimited jurisdiction, to comply with the obligation to state reasons for its decisions and the principle of equal treatment.
146 Those requirements are also binding on the General Court where it departs from the indicative rules laid down by the Commission in its Guidelines on the method of setting fines, which are not binding on the EU courts but are capable of guiding them when they exercise their unlimited jurisdiction (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 90 and the case-law cited).
147 In the judgment under appeal, in order to calculate the amount of the fine imposed on Pometon, the General Court endorsed the Commission’s assessments which served as the basis for calculating the fines imposed on the undertakings having participated in the cartel, with the exception of those relating to the application of point 37 of the Guidelines on the method of setting fines, under which the Commission may, on account of the particularities of a given case or the need to achieve deterrence in a particular case, depart from the general methodology set out in those guidelines.
148 In that regard, the General Court, in paragraphs 376 and 377 of the judgment under appeal, considered it appropriate to take account of three factors which, while partially overlapping with those taken into consideration by the Commission, enabled, in its view, the gravity of the infringement attributable to each of the parties to be better identified. Thus, while comparing Pometon’s situation with that of the other cartel participants, the General Court first examined, in paragraphs 378 to 382 of that judgment, Pometon’s individual liability for participating in the cartel, then, in paragraphs 383 to 387 of that judgment, the actual impact of its unlawful conduct on price competition and, lastly, in paragraphs 388 to 390 of that judgment, the size of that undertaking arising from its total turnover.
149 After weighing those factors, in paragraphs 391 and 392 of the judgment under appeal, the General Court held, in paragraph 393 of that judgment, that it was appropriate to grant Pometon an exceptional reduction of 75% on the basic amount of the fine. As Pometon submits, the rate of that reduction is identical to that which the Commission had granted to Winoa in the settlement decision.
150 According to the findings of fact made by the General Court, which it is not for the Court of Justice to review on appeal, it should be noted that Pometon and Winoa were in different situations in the light of the factors examined by that court. It follows from the findings in paragraphs 382 to 384 and 390 of the judgment under appeal that Pometon had ‘a more limited role overall in the cartel’ than Winoa, that its influence in the infringement was substantially less than that of Winoa and that its turnover did not reach one third of Winoa’s.
151 In the light of those factors, it was for the General Court to set out the reasons why, despite that difference in situation, it was consistent with the principle of equal treatment to grant Pometon a rate of reduction identical to that granted to Winoa.
152 However, those reasons are not apparent from the judgment under appeal. Although the General Court held, in paragraphs 391 and 392 of the judgment under appeal, that the different rates of reduction granted by the Commission to the undertakings to which the settlement decision was addressed were not relevant in the present case for the purposes of setting the rate of reduction applicable to Pometon, on the ground that they resulted from a calculation method from which it departed, it did not set out the reasons why it considered that the rate of 75% which it applied was consistent with the principle of equal treatment.
153 Consequently, the fourth ground of appeal must be upheld.
154 In the light of all the foregoing considerations, paragraph 2 of the operative part of the judgment under appeal, by which the General Court set the amount of the fine imposed on Pometon at EUR 3873375, and paragraph 4 of the operative part, by which the General Court ruled on costs, must be set aside and the appeal dismissed as to the remainder.
155 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, in the event that the Court of Justice sets aside the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits.
156 That is the position in the present case, since the Court has all the information necessary in order to rule on the action.
157 It is nonetheless necessary to clarify the scope of the Court’s review. In that regard, it should be noted that, having regard to paragraph 154 of the present judgment, the judgment under appeal was set aside in so far as, in paragraph 2 of the operative part of the judgment under appeal, the General Court set the amount of the fine imposed on Pometon at EUR 3873375. It is therefore for the Court to examine the dispute only in so far as it relates to the application for a reduction of the amount of the fine.
158 Therefore, the Court must rule, in accordance with the unlimited jurisdiction conferred on it by Article 261 TFEU and Article 31 of Regulation No 1/2003, on the amount of the fine to be imposed on Pometon (see, to that effect, judgments of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 73 and the case-law cited, and of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 87).
159 In this regard, it must be noted that the Court, when itself giving final judgment in the matter, in accordance with the second sentence of the first paragraph of Article 61 of its Statute, is empowered, in the exercise of its unlimited jurisdiction, to substitute its own appraisal for that of the Commission and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 88 and the case-law cited).
160 In order to determine the amount of the fine imposed, it is for the Court to assess the circumstances of the case and the nature of the infringement in question. That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment, and without the Court being bound by the indicative rules defined by the Commission in its Guidelines on the method of setting fines, even where the latter may give guidance to the EU Courts when they exercise their unlimited jurisdiction (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraphs 89 and 90 and the case-law cited).
161 In the present case, for the purposes of setting the amount of the fine to be imposed on Pometon, the Court intends, in the first place, to adopt the Commission’s assessment of the basic amount of the fine, assessed at EUR 15493500 in the light of the duration and gravity of the infringement committed by Pometon, before applying point 37 of the Guidelines on the method of setting fines. Apart from the fact that that assessment was not challenged at all, it must be held that, in order to ensure equal treatment of Pometon with regard to the other cartel participants, it is inappropriate to adjust it.
162 In the second place, in the light of all the evidence in the file and in the absence of any specific challenge by the parties, the Court of Justice also intends to endorse the General Court’s assessment of the factors taken into account for the purposes of assessing the rate of the additional reduction, as set out in paragraph 376 of the judgment under appeal, and the comparative assessments made, in that regard, by the General Court in paragraphs 378 to 390 of that judgment.
163 First, it follows from those findings that, in the light of those factors and as the Advocate General also observed in points 123, 124 and 129 of his Opinion, Pometon’s situation is comparable overall to that of MTS, in so far as those two undertakings played a relatively limited role in the cartel and in so far as their overall weight in the cartel was also proportionally low having regard to the value of their specific sales in the EEA. Their situations differ, however, as Pometon’s total turnover for 2006 (EUR 99890000) is considerably higher than that of MTS for 2009 (EUR 25082293), it being noted that those years correspond to the last year of their respective participation in the cartel.
164 As such, as the Advocate General noted in point 125 of his Opinion and as Pometon claims, while it is permissible, for the purpose of setting the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover, accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement (see, in this sense, judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, 257, as well as from 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, point 54), disproportionate importance must not be attributed to that turnover by comparison with other relevant factors (judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 257).
165 Second, as is apparent from paragraph 150 of the present judgment, Pometon and Winoa are in different situations having regard to all the factors examined by the General Court.
166 In those circumstances, account being taken of all of the circumstances of the case, it must be held that those circumstances will be fairly assessed by applying to the basic amount calculated by the Commission an additional reduction of 83%. Consequently, the amount of the fine imposed on Pometon is set at EUR 2633895.
167 Under Article 184(2) of the Rules of Procedure of the Court, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs.
168 Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Article 138(3) of those rules provides, however, that where each party succeeds on some and fails on other heads, the Court may order that the costs be shared or that the parties bear their own costs.
169 In the present case, first, since Pometon has been partially successful in the appeal proceedings, it is appropriate to order each party to bear its own costs relating to those proceedings.
170 Secondly, since each party has been unsuccessful in part in its submissions during the proceedings before the General Court, each party must be ordered to bear its own costs relating to those proceedings.