JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
8 September 2016 (*)
(Competition — Agreements, decisions and concerted practices — Belgian, German, French and Dutch markets in North Sea shrimp — Decision finding an infringement of Article 101 TFEU — Price fixing and allocation of sales volumes — Admissibility of evidence — Use of secret recordings of telephone conversations as evidence — Assessment of ability to pay — Unlimited jurisdiction)
In Case T‑54/14,
Goldfish BV, established in Zoutkamp (Netherlands),
Heiploeg BV, established in Zoutkamp,
Heiploeg Beheer BV, established in Zoutkamp,
Heiploeg Holding BV, established in Zoutkamp,
represented by P. Glazener and B. Winters, lawyers,
applicants,
v
European Commission, represented initially by F. Ronkes Agerbeek and P. Van Nuffel, and subsequently by P. Van Nuffel and H. van Vliet, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU seeking, first, the annulment of Commission Decision C(2013) 8286 final of 27 November 2013 relating to a proceeding under Article 101 TFEU (Case AT.39633 — Shrimps), in so far as it concerns the applicants, and, secondly, a reduction of the fines imposed on the applicants,
THE GENERAL COURT (Ninth Chamber),
composed of G. Berardis, President, O. Czúcz and A. Popescu (Rapporteur), Judges,
Registrar: J. Plingers, Administrator,
having regard to the written part of the procedure and further to the hearing on 10 December 2015,
gives the following
Judgment
Background to the dispute
1 Goldfish BV, Heiploeg BV, Heiploeg Beheer BV and Heiploeg Holding BV (together, ‘the applicants’ or ‘Heiploeg’) form part of a group of undertakings whose main business is trade in shrimps and other shellfish and crustaceans.
2 The product concerned by this case is the North Sea shrimp (crangon crangon), which is a shrimp species captured in the North Sea. Most of the catch is landed in Denmark, Germany and the Netherlands. It is then purchased by specialised shrimp traders directly (contract fishing) or purchased in the Netherlands at fish auctions (free fishing).
3 The traders thereafter process and handle the North Sea shrimp, which includes peeling, freezing and packaging them. They supply North Sea shrimp for human consumption, peeled or unpeeled, frozen or fresh, to retailers such as supermarkets, seafood wholesalers, food processing undertakings or restaurants.
4 On 14 January 2003, the Dutch Competition Authority (Nederlandse Mededingingsautoriteit or ‘the NMa’) adopted a decision based on national competition law and Article 101 TFEU against several undertakings and associations of undertakings active in the North Sea shrimp industry. The decision concerned minimum price agreements and output restrictions for the period between January 1998 and January 2000 as well as obstacles impeding the entry of new shrimp traders to Dutch fish auctions between October and November 1999. Fines were imposed on Heiploeg BV, Goldfish, Klaas Puul & Zoon BV and L. Kok International Seafood BV.
5 On 28 December 2004, in the context of an administrative appeal, the fines imposed on several small traders, including L. Kok International Seafood, were set aside, while the fines imposed on Heiploeg, Goldfish and Klaas Puul & Zoon were reduced. As to the remainder, the decision of the NMa was mainly upheld by decisions of the Rechtbank Rotterdam (District Court of Rotterdam, Netherlands) and the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal for Trade and Industry, Netherlands, ‘the College van Beroep’).
6 On 13 January 2009, Klaas Puul BV, Klaas Puul Beheer BV and Klaas Puul Holding BV (together, ‘Klaas Puul’), which produced and marketed several types of seafood, informed the Commission of their intention to submit an application for immunity from fines associated with the existence of a cartel in the North Sea shrimp industry. The Commission subsequently granted Klaas Puul a ‘marker’, within the meaning of point 15 of the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17, ‘the 2006 Leniency Notice’), until 26 January 2009 in order to allow it to gather the necessary information and evidence.
7 On 26 January 2009, Klaas Puul submitted a leniency application to the Commission, in accordance with the 2006 Leniency Notice. The Commission granted it conditional immunity on 17 March 2009.
8 On 24, 25 and 26 March 2009, the Commission, acting under Article 20(4) and Article 21 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1), carried out inspections of business premises and private homes in Belgium, Denmark, Germany and the Netherlands. Between 3 August 2009 and 9 March 2012, the Commission issued several requests for information. Klaas Puul continued to cooperate with the Commission, providing it with information, documentation and explanations.
9 On 12 July 2012, the Commission decided to initiate a proceeding against Heiploeg, Holding L.J.M. Kok BV and L. Kok International Seafood (together, ‘Kok Seafood’), Klaas Puul and Stührk Delikatessen Import GmbH & Co. KG (‘Stührk’). On the same day, the Commission adopted a statement of objections against those companies.
10 All addressees of the statement of objections subsequently requested and received a DVD containing the documents available for consultation from the Commission’s file. Only Heiploeg consulted the documents and statements that were accessible at the Commission’s premises; the other addressees of the statement of objections did not wish such access. All addressees of the statement of objections submitted written comments and were heard at a hearing on 7 February 2013.
11 On 27 November 2013, the Commission adopted Decision C(2013) 8286 final of 27 November 2013 relating to a proceeding under Article 101 TFEU (Case AT.39633 — Shrimps) (‘the contested decision’).
Contested decision
12 In the contested decision, the Commission found that, during periods between June 2000 and January 2009, Heiploeg, Klaas Puul, Kok Seafood and Stührk — companies active in the North Sea grey shrimp sector — had participated in various agreements and concerted practices and had exchanged sensitive information, resulting in an infringement of Article 101(1) TFEU.
13 The market concerned by the contested decision was the market for North Sea grey shrimp. The Commission stated that the shrimp in question were mainly supplied to customers in five Member States, namely Belgium, Denmark, Germany, France and the Netherlands. Belgium accounted for approximately 50% of the total North Sea shrimp consumption, Germany for 25% and the Netherlands for most of the remainder. The two largest North Sea shrimp traders in the European Union were Heiploeg and Klaas Puul.
14 The cartel covered by the contested decision involved a single, continuous and complex infringement of Article 101 TFEU. The Commission stated that this cartel consisted of price agreements, concerted practices and exchanges of sensitive information between suppliers of North Sea shrimp. According to the contested decision, the objective of the cartel was to influence jointly the price levels for North Sea shrimp, limit competition and stabilise the market.
15 The arrangement is described in the contested decision as having operated by way of bilateral contacts between the companies. The companies concerned, particularly Heiploeg and Klaas Puul, had long-standing and frequent contacts to discuss their business. Heiploeg and Klaas Puul had, in particular, disclosed and coordinated their conduct on the market and had exchanged sensitive commercial information. Specifically, these two companies had concluded agreements on the prices to be paid to their suppliers, the prices to be invoiced to different customers and the allocation of customers.
16 The Commission found that Stührk had also concluded price-fixing agreements with Heiploeg and had openly avoided competing with Heiploeg and Klaas Puul. Finally, the contested decision stated that Kok Seafood had concluded a long-term agreement with Heiploeg allowing the former to sell its shrimp to the latter at a price set by reference to the resale price that Heiploeg was able to secure. The aim of that agreement was, in particular, to prevent Kok Seafood becoming a competitor on the shrimp market.
17 These findings are based, inter alia, on statements made by Klaas Puul in order to obtain leniency and the supporting documents attached to those statements; on documents that the Commission found at the undertakings during the unannounced inspections (paragraph 8 above), including a number of audio recordings of telephone conversations made by Mr K. and handwritten notes of telephone conversations found at Kok Seafood; and on replies to requests for information and confirmation of certain matters provided by Stührk.
18 The contested decision concluded — based on the evidence referred to in paragraph 17 above — that these varied and complex arrangements between the different companies amounted to coordinated market conduct comprising anticompetitive agreements or concerted practices within the meaning of Article 101 TFEU.
19 The agreements and concerted practices involving Heiploeg were considered to constitute a single continuous infringement spanning the period between 21 June 2000 and 13 January 2009 (‘the relevant period’). However, Heiploeg Holding was held to be liable only in respect of a period of 2 years and 11 months beginning on 3 February 2006.
20 As regards calculation of the fines, in the contested decision the Commission applied the provisions of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2, ‘the Guidelines’). In the case of Heiploeg, the Commission set the basic amount of the fine by reference to the value of sales for the business year 2000-2001 to 2007-2008 (EUR 80 to 90 million) in the light of the seriousness of the infringement (16%), multiplied by the number of years of the undertaking’s participation (8.5 for Heiploeg and 2.91 for Heiploeg Holding). The Commission then added a further amount of 16% under point 25 of the Guidelines. These calculations resulted in a basic fine amount of EUR 124 596 000 (including the fine in respect of Heiploeg Holding).
21 Due to the specific circumstances of the case and pursuant to point 37 of the Guidelines, the fine in respect of Heiploeg was reduced by 75% to take account of the proportion of the total turnover represented by the value of sales of the cartelised product as well as differences in the parties’ individual participation. Following that adjustment, the amount of the fine to be imposed stood at EUR 31 149 000 (including the fine in respect of Heiploeg Holding).
22 In addition, under Article 23(2) of Regulation No 1/2003, which provides that the amount of the fine must not exceed 10% of the total turnover in the year preceding the Commission’s decision, the amount of the fine was set at EUR 27 082 000 (including the fine in respect of Heiploeg Holding).
23 Finally, the Commission refused Heiploeg’s request for a reduction of the fine on account of its inability to pay, under point 35 of the Guidelines.
24 The operative part of the contested decision is worded as follows:
‘Article 1
The following undertakings have infringed Article 101(1) TFEU by participating, for the periods indicated, in a single and continuous infringement in the North Sea shrimp industry in the EU, and which consisted of sales and/or purchase price fixing and the exchange of sensitive commercial information on prices, customers and volumes, and for some of them also market sharing and customer allocations:
(a) Heiploeg from 21 June 2000 until 13 January 2009
(b) Klaas Puul from 21 June 2000 until 13 January 2009
(c) Stührk from 14 March 2003 until 5 November 2007
(d) Kok Seafood from 11 February 2005 until 13 January 2009.
Article 2
For the infringement referred to in Article 1, the following fines are imposed:
(a) Heiploeg BV,
Goldfish BV and
Heiploeg Beheer BV
jointly and severally for: EUR 14 262 000
Heiploeg BV,
Goldfish BV,
Heiploeg Beheer BV and
Heiploeg Holding BV
jointly and severally for: EUR 12 820 000
(b) Klaas Puul BV,
Klaas Puul Beheer BV and
Klaas Puul Holding BV
jointly and severally for: EUR 0
(c) Stührk Delikatessen Import Gmbh & Co. KG: EUR 1 132 000
(d) L. Kok International Seafood BV and
Holding L.J.M. Kok BV
jointly and severally for: EUR 502 000
…’
Procedure and forms of order sought
25 By application lodged at the Court Registry on 23 January 2014, the applicants brought the present action.
26 In the reply, lodged at the Court Registry on 27 May 2014, the applicants informed the Court that they had been declared insolvent by the Rechtbank Noord-Nederland (Court of North Netherlands) on 28 January 2014.
27 By document lodged at the Court Registry on 23 March 2015, the applicants asked the Court to give the case priority treatment.
28 Upon hearing the Report of the Judge-Rapporteur, the General Court (Ninth Chamber) decided to open the oral part of the procedure but did not accede to the applicants’ request for priority treatment.
29 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 10 December 2015, during which it was decided to invite the applicants to provide the Court, after the hearing, with information on the sale value of their various assets and on the continuation of the undertakings after their winding-up. The applicants complied with that request within the time allowed.
30 The oral part of the procedure was closed on 18 January 2016.
31 The applicants claim that the Court should:
– annul the contested decision in whole or in part;
– set aside the fine imposed on them or at least reduce it;
– take such decisions as the Court deems necessary;
– order the Commission to pay the costs.
32 The Commission contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
33 At the hearing, the applicants stated, in reply to a question put to them by the Court, that the third head of claim in the application was not an independent head of claim and that, in consequence, they were not asking the Court to rule on it, formal note of which was made in the minutes of the hearing.
Law
34 In support of their action, the applicants raise three pleas in law alleging, in essence, first, infringement of Article 101 TFEU and Article 2 of Regulation No 1/2003 on account of the Commission’s use of audio recordings made in secret as evidence of an infringement of Article 101 TFEU; secondly, infringement of Article 101 TFEU and Article 2 of Regulation No 1/2003 on account of the Commission’s use of notes relating to the audio recordings made in secret as evidence of an infringement of Article 101 TFEU; and thirdly, that the Commission wrongly refused to take account of the applicants’ inability to pay within the meaning of point 35 of the Guidelines.
35 Since the first and second pleas raise related questions, they should be examined together.
First and second pleas in law, alleging infringement of Article 101 TFEU and Article 2 of Regulation No 1/2003 on account of, respectively, the Commission’s use of audio recordings made in secret and its use of notes relating to those recordings
36 In their first plea, the applicants submit that the secret recordings of telephone conversations constitute unlawful proof of an infringement of Article 101 TFEU and that, consequently, the Commission should not have used them as evidence in the contested decision, on pain of contravening not only that provision but also Article 2 of Regulation No 1/2003.
37 In their second plea, the applicants argue that the notes accompanying the secret recordings of telephone conversations on which the Commission relied in the contested decision are extremely unreliable, with the result that their use as evidence in that decision also infringes Article 101 TFEU and Article 2 of Regulation No 1/2003.
38 First of all, in the light of the complaints raised by the applicant, the Court is called on to examine the conditions under which secret recordings of telephone conversations and related notes may be admitted as evidence of an infringement of Article 101 TFEU.
39 If the Court finds that the Commission is able to use such evidence in the present case, it will be necessary, in the second place, to consider the applicants’ arguments concerning the credibility of the notes relating to those telephone conversations in order to determine whether they call in question the Commission’s observance of the first sentence of Article 2 of Regulation No 1/2003, which provides that the burden of proving an infringement of Article 101 TFEU rests on the Commission.
Lawfulness of using secret recordings of telephone conversations and related notes as evidence of an infringement of Article 101 TFEU
40 In recitals 262 to 268 of the contested decision, the Commission essentially submits, in response to the applicants’ arguments put forward during the administrative procedure challenging the admissibility of the recordings at issue, that those recordings were made in the Netherlands where they do not constitute a criminal offence; that even if private parties had obtained such evidence unlawfully, the Commission would not be prevented from using it, in view of the case-law of the EU Courts and the European Court of Human Rights (‘the ECtHR’); that neither the Commission nor national authorities were responsible for the recordings; and that the undertaking where they were found had no interest in providing such incriminating evidence to the Commission.
41 The applicants claim that, first, secretly recording telephone conversations is an offence in several Member States and, consequently, is unlawful proof of an infringement of Article 101 TFEU; secondly, the use of secret recordings of telephone conversations as proof cannot be justified under the case-law of the ECtHR; thirdly, such use cannot be justified under the Court’s case-law, either; and fourthly, Netherlands law does not permit the use of secret recordings of telephone conversations in the context of competition law.
42 The Court notes that the principle which prevails in EU law is that of the unfettered evaluation of evidence, from which it results, first, that, where evidence has been obtained lawfully, its admissibility cannot be contested before the Court and, secondly, that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility (judgment of 19 December 2013, Siemens v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 128).
43 Given that there is no legislation at EU level governing the concept of proof, any type of evidence admissible under the procedural law of the Member States in similar proceedings is in principle admissible (judgment of 23 March 2000, Met-Trans and Sagpol, C‑310/98 and C‑406/98, EU:C:2000:154, paragraph 29).
44 Nevertheless, some evidence may be removed from the file, particularly where there exists a doubt both as to the actual nature of the contested document and as to whether the person relying on it obtained it by proper means (see, to that effect, judgment of 17 December 1981, Ludwigshafener Walzmühle Erling and Others v Council and Commission, 197/80 to 200/80, 243/80, 245/80 and 247/80, EU:C:1981:311, paragraph 16). However, such removal is not automatic and the EU Courts have, on occasion, agreed to take account of documents which had not been shown to have been obtained by proper means (see, to that effect, judgment of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 78 and the case-law cited).
45 It should also be noted that reviewing the lawfulness of contested evidence does not relieve the institutions of their obligation to respect the fundamental rights of the applicants.
46 It is clear from settled case-law that respect for fundamental rights is a condition of the lawfulness of EU acts and that measures incompatible with respect for fundamental rights are not acceptable in the European Union (see judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 284 and the case-law cited, and of 12 December 2012, Almamet v Commission, T‑410/09, not published, EU:T:2012:676, paragraph 39 and the case-law cited).
47 EU law cannot, in consequence, accept evidence obtained in complete disregard of the procedure laid down for gathering it and designed to protect the fundamental rights of interested persons. The use of that procedure must, therefore, be regarded as an essential procedural requirement within the meaning of Article 263(2) TFEU. According to the case-law, the infringement of an essential procedural requirement has consequences, irrespective of whether it caused harm to the person pleading it (see, to that effect, judgments of 6 April 2000, Commission v ICI, C‑286/95 P, EU:C:2000:188, paragraphs 42 and 52, and of 12 December 2012, Almamet v Commission, T‑410/09, not published, EU:T:2012:676, paragraph 39 and the case-law cited).
48 Moreover, since the entry into force of the Treaty of Lisbon, account must be taken of the Charter of Fundamental Rights of the European Union, which, pursuant to the first subparagraph of Article 6(1) TEU, has ‘the same legal value as the Treaties’.
49 Article 52(3) of the Charter of Fundamental Rights states that, in so far as the Charter contains rights which correspond to those guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (‘the ECHR’), their meaning and scope are to be the same as those laid down by the ECHR. According to the explanation of that provision, the meaning and scope of the guaranteed rights are to be determined not only by reference to the text of the ECHR, but also, inter alia, by reference to the case-law of the ECtHR (judgment of 22 December 2010, DEB, C‑279/09, EU:C:2010:811, paragraph 35).
50 In this case, in view of the nature of the contested evidence, namely recordings of telephone conversations between private parties, it should be recalled that Article 7 of the Charter of Fundamental Rights, concerning the right to respect for private and family life, contains rights which correspond to those guaranteed by Article 8(1) of the ECHR. Accordingly, Article 7 of the Charter should be given the same meaning and the same scope as Article 8(1) of the ECHR, as interpreted by the case-law of the ECtHR (see, to that effect, judgments of 5 October 2010, McB., C‑400/10 PPU, EU:C:2010:582, paragraph 53, and of 15 November 2011, Dereci and Others, C‑256/11, EU:C:2011:734, paragraph 70).
51 Thus, since the interception of telecommunications constitutes an interference with the exercise of the right guaranteed by Article 8(1) of the ECHR (ECtHR, 6 September 1978, Klass and Others v. Germany, CE:ECHR:1978:0906JUD000502971, § 41; ECtHR, 2 August 1984, Malone v. the United Kingdom, CE:ECHR:1984:0802JUD000869179, § 64; ECtHR, 24 April 1990, Kruslin v. France, CE:ECHR:1990:0424JUD001180185, § 26; and ECtHR, 29 June 2006, Weber and Saravia v. Germany, CE:ECHR:2006:0629DEC005493400, § 79), it also constitutes a limitation on the exercise of the corresponding right enshrined in Article 7 of the Charter of Fundamental Rights.
52 It should also be recalled that the first paragraph of Article 47 of the Charter of Fundamental Rights provides that everyone whose rights and freedoms guaranteed by the law of the European Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article. The second paragraph of Article 47 provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.
53 According to the explanations relating to Article 47 of the Charter of Fundamental Rights, which, under the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, must be given due regard in the interpretation of the Charter, that article corresponds to Article 6(1) of the ECHR.
54 As regards the question whether, in a criminal context, evidence obtained unlawfully deprives the accused of a fair trial and infringes Article 6 of the ECHR, the ECtHR has held as follows (ECtHR, 26 April 2007, Popescu v. Romania, CE:ECHR:2007:0426JUD007152501, § 106):
‘While the [ECHR] guarantees, under Article 6, the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for national law. The Court therefore cannot exclude that evidence gathered in breach of national law may be admissible … The Court also recalls that it has already had occasion to find that the use of an illegal recording, moreover as the only item of evidence, does not, in itself, conflict with the principles of fairness laid down in Article 6[(1) of the ECHR], even where that evidence was obtained in breach of the requirements of the [ECHR], particularly those set out in Article 8 …’
55 The ECtHR has also had occasion to state that consideration should be given as to whether the use of an unlawfully obtained recording as evidence deprived the applicant of a fair trial and whether the rights of the defence were respected, particularly by determining whether the applicant was able to challenge the authenticity and use of that recording. It also considered the question whether the recording at issue was the only item of evidence relied on in support of the conviction (ECtHR, 12 July 1988, Schenk v. Switzerland, CE:ECHR:1988:0712JUD001086284, § 48).
56 It is in the light of the above case-law that the Court must examine whether the Commission was fully entitled to use the recordings at issue as evidence in the contested decision.
57 In the present case, it must be recalled, first and foremost, that the Commission obtained the disputed recordings in the course of an inspection of the offices of one of the undertakings involved in the cartel, Kok Seafood, an inspection which was carried out in accordance with Article 20 of Regulation No 1/2003.
58 It should therefore be noted, as the Commission did, that the recordings at issue were made not by the Commission or by any other public authority, but by a private party who participated in those conversations. Furthermore, this evidence was collected lawfully by the Commission and the applicants did not challenge the legality of the inspection in the course of which it was seized.
59 In the light of the case-law cited in paragraphs 42 to 47 above, evidence that the Commission has properly obtained is, in principle, admissible in an investigation into a breach of competition law.
60 However, the question which arises in the instant case is whether the evidence collected lawfully by the Commission may be used by it even though it was originally obtained by a third party, possibly in an unlawful manner, for example in breach of the right to respect for the private life of the person who was the subject of the disputed recordings.
61 In particular, the applicants claim that the recordings at issue were made by the employee of a competitor in breach of the right to respect for private life, as laid down in Article 8 of the ECHR.
62 Nonetheless, it is apparent from the case-law of the ECtHR, cited in paragraphs 54 and 55 above, that the use of an illegal recording as evidence does not, in itself, conflict with the principles of fairness laid down in Article 6(1) of the ECHR, even where that evidence was obtained in breach of the requirements of Article 8 of the ECHR, provided that, first, the applicant was not deprived of a fair trial or of his rights of the defence and, secondly, the evidence at issue was not the only proof relied on in support of the conviction.
63 In the present case, as indicated in recital 37 of the contested decision, the Commission gave all parties the opportunity during the administrative procedure to access the entire set of audio recordings and written notes accompanying them contained in the file. The applicants do not deny that they were afforded the opportunity to listen to the audio recordings, consult the written notes and make comments on all documents in the file.
64 Furthermore, the applicants do not put forward any other arguments in their pleadings to suggest that the conduct of the administrative procedure in question was unfair.
65 It should also be borne in mind that the disputed recordings were not the only means of proof used by the Commission, since the finding in the contested decision that the applicants infringed Article 101 TFEU is based on a body of evidence obtained by the Commission during the administrative procedure.
66 As observed in paragraph 17 above, that body of evidence comprises, in addition to the recordings of telephone conversations and the written notes accompanying them (found at the offices of Mr K. of Kok Seafood), statements made by Klaas Puul and written documents furnished in support of those statements, as well as other evidence unearthed during the inspections carried out by the Commission and Stührk’s reply to the statement of objections.
67 Therefore, even though a degree of importance was attached to the disputed recordings in the decision of the Commission to impose a fine, they were not the sole basis for the Commission’s belief that the applicants were guilty, in contrast to the applicants’ assertions.
68 In addition, the applicants do no more than challenge, in laconic fashion, the credibility of the recordings and the fact that the Commission did not take sufficient account of the overall situation and the specific context in which they were made.
69 First, it should be noted that the applicants have never denied the content of the disputed recordings or challenged their authenticity.
70 Secondly, the Commission verified that the recordings at issue tallied with the other items of evidence contained in the file.
71 Thirdly, since the recordings in question concern telephone conversations between two competitors, in which they exchanged sensitive commercial information, including information on their prices, these are particularly valuable items of evidence given their immediate and direct link to the subject matter of the relevant investigation.
72 Finally, as the Commission pointed out, the recordings were also harmful to the undertaking that made them, namely Kok Seafood, which sought to oppose their use as evidence. This consideration is not invalidated by the applicants’ argument, which was repeated at the hearing, that Kok Seafood made the recordings at issue in order to use them before the competition authorities, either to the detriment of the applicants or in support of a future leniency application. Suffice it to note in that regard that, besides the fact that no leniency application was ever submitted by the latter, they did not adduce any evidence to show that those were indeed Kok Seafood’s intentions.
73 In the light of the foregoing, it must be concluded that, even if the Court were to hold that the recordings at issue were made unlawfully by one of the applicants’ competitors, the Commission was fully entitled to use them as evidence in the contested decision in order to find that Article 101 TFEU had been infringed, contrary to the applicants’ submissions.
74 The other complaints raised by the applicants regarding the admissibility of the disputed recordings as evidence cannot succeed either.
75 As regards, in particular, the arguments that secretly recording telephone conversations is an offence in several Member States and, in consequence, is unlawful proof of an infringement of Article 101 TFEU, it should be noted that the applicants in no way substantiate their claim that the use of such telephone conversations as evidence in proceedings to establish an infringement of competition law is prohibited under the law of several Member States. Indeed, in their reply, the applicants provide only one specific example, found in a judgment of the Cour de cassation (Court of Cassation, France, full court, 7 January 2011, 09-14.316 09-14.667, published in the Official Gazette). In that judgment, the Cour de cassation (Court of Cassation) held that secret recordings of telephone conversations could not be used as evidence in proceedings to establish an infringement of competition law in France.
76 In addition, there is no provision in EU law that expressly prohibits evidence obtained unlawfully, for example in breach of fundamental rights, from being taken into account in judicial proceedings (see, to that effect, judgment of 8 July 2008, Franchet and Byk v Commission, T‑48/05, EU:T:2008:257, paragraph 75), and, in general terms, it is apparent from the case-law set out in paragraphs 42 to 55 above that, in contrast to the applicants’ assertions, there is no principle that prevents evidence obtained unlawfully from being used in an investigation or in judicial proceedings.
77 It should also be recalled that the Commission’s assessment of the evidence in competition disputes is governed by EU law. The case-law mentioned in paragraphs 42 to 47 above demonstrates that, even though the principle of the unfettered evaluation of evidence prevails, fundamental rights and the general principles of EU law must be taken into account.
78 In that context, it is indeed true that the EU judicature can also draw inspiration from the law of the Member States. However, that does not mean that it is bound to apply the law of the Member State with the strictest rules on the evaluation of evidence, particularly because both national legal systems and EU law are deemed to incorporate the safeguards enshrined in the ECHR.
79 Where no predominant trend on a legal question may be discerned in the legal systems of the Member States of the European Union, the uniform interpretation and application of the principle of the unfettered evaluation of evidence in the European Union are essential in order that inspections by the Commission in cartel proceedings may be carried out under conditions in which the undertakings concerned are treated equally. If that were not the case, the use of rules or legal concepts in national law and deriving from the legislation of a Member State would adversely affect the unity of EU law (see, to that effect and by analogy, judgment of 14 September 2010, Akzo Nobel Chemicals and Akcros Chemicals v Commission, C‑550/07 P, EU:C:2010:512, paragraphs 69 to 76).
80 In any event, the Court must reject the applicants’ argument that, if Netherlands law had to be considered to apply, it would prevent the use of such recordings.
81 Specifically, the applicants submit that it can be inferred from two judgments delivered by the Rechtbank Rotterdam (District Court of Rotterdam), in the context of proceedings between the Nederlandse Autoriteit Consument en Markt (Dutch Authority for the Protection of Consumers and Markets, ‘the ACM’) and private undertakings, that secret recordings of telephone conversations by a competitor are excluded as evidence under Netherlands law (Rechtbank Rotterdam, 13 June 2013, NL:RBROT:2013:CA3079, and Rechtbank Rotterdam, 11 July 2013, NL:RBROT:2013:5042).
82 However, as the Commission rightly points out, the present case concerns the discovery by the Commission, through legal means, of telephone conversations recorded in secret by an undertaking and the use of those recordings in its investigation, while the judgments of the Rechtbank Rotterdam (District Court of Rotterdam) concern the forwarding of telephone conversations recorded by the Openbaar Ministerie (Public Prosecution Service, Netherlands) to the ACM.
83 It should also be pointed out, as discussed at the hearing, that the judgments of the Rechtbank Rotterdam (District Court of Rotterdam) were overturned by two judgments of 9 July 2015 of the College van Beroep (College van Beroep voor het bedrijfsleven, 9 July 2015, NL:CBB:2015:192, and College van Beroep voor het bedrijfsleven, 9 July 2015, NL:CBB:2015:193). Unlike the Rechtbank Rotterdam (District Court of Rotterdam), which had annulled the fines because it had not been demonstrated why the recordings had been provided to the ACM, the College van Beroep found that the ACM was entitled to use information deriving from recordings lawfully collected by the Public Prosecution Service in the context of a criminal investigation.
84 The College van Beroep stated, inter alia, that the recordings provided to the ACM could be regarded as criminal information and that there was no legal provision requiring the Public Prosecution Service to conduct a preliminary investigation before providing the ACM with information which could be considered by any court. It explained that the only precondition for forwarding recordings was that such transmission had to be necessary for substantial public interest reasons. The College van Beroep considered that the prohibition on cartels was a substantial public interest objective, since it concerned the country’s economic well-being. Finally, it stated that the ACM was unable to obtain such information in a different or less intrusive manner.
85 In the light of the foregoing, it must be concluded that the Commission did not commit any illegality in using the disputed telephone recordings to establish an infringement of Article 101 TFEU.
86 The same conclusion holds for the notes relating to those recordings, the admissibility of which is also disputed by the applicants. The applicants simply submit that their arguments concerning the use of the recordings apply mutatis mutandis to those notes.
87 In those circumstances, the Court must also reject the applicants’ arguments on this point based on the considerations set out in paragraphs 42 to 85 above. However, their arguments concerning the credibility of the notes in question will be addressed in paragraphs 88 et seq. below.
Credibility of the notes relating to the telephone conversations and the Commission’s compliance with the burden of proof in that regard
88 In recitals 312 to 334 of the contested decision, the Commission essentially submits, in response to the applicants’ arguments put forward during the administrative procedure challenging the credibility of the notes relating to the telephone conversations, that it closely examined the written notes in the light of the original audio recordings, to the extent that these were available. The Commission indicates that it also took account of the fact that the written notes were not necessarily an exact copy of the telephone conversations and that the author had occasionally added personal comments or omitted sections he did not consider to be sufficiently important. Furthermore, the Commission states that its interpretation of the notes was objective and reasonable and was checked against other material in the file.
89 The applicants essentially raise five complaints in order to challenge the credibility of the notes relating to the telephone conversations. First, the notes concerning those conversations are subjective interpretations. Secondly, the date and the list of the persons who participated in the conversations are not clear. Thirdly, the Commission erred in apportioning the burden of proof. Fourthly, the Commission should have checked the content of the conversations by sending requests for information to the interlocutors of the person who recorded the conversations, namely Mr K. Fifthly, if the audio recordings and the written notes had to be excluded as evidence, the action brought against Heiploeg would collapse.
90 It is apparent from Article 2 of Regulation No 1/2003 and from settled case-law that, in the area of competition law, where there is a dispute as to the existence of an infringement, it is incumbent on the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement. In that regard, it must produce sufficiently precise and coherent proof to establish that the alleged infringement took place (see judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 38 and the case-law cited).
91 Where, in establishing an infringement of Articles 101 and 102 TFEU, the Commission relies on documentary evidence, the burden is on the undertakings concerned not merely to submit an alternative explanation for the facts found by the Commission, but to show that the evidence relied on in the contested decision is insufficient to establish the existence of an infringement. It must be considered that, where the Commission relies on direct evidence, the burden is on the undertakings concerned to show that such evidence is insufficient. Such a reversal of the burden of proof does not infringe the principle of the presumption of innocence (see judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 39 and the case-law cited).
92 However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets that requirement (see judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 40 and the case-law cited).
93 The items of evidence on which the Commission relies in the decision in order to prove the existence of an infringement of Article 101(1) TFEU by an undertaking must not be assessed separately, but as a whole (see judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 41 and the case-law cited).
94 It is also necessary to take account of the fact that anticompetitive activities take place clandestinely, and accordingly, 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 (see judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 42 and the case-law cited).
95 As recalled in paragraph 42 above, the only relevant criterion for assessing freely adduced evidence relates to its credibility. According to the generally applicable rules on evidence, the credibility and, therefore, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and the soundness and reliable nature of its contents. In particular, great importance must be attached to the fact that a document has been drawn up in close connection with the events or by a direct witness of those events. Furthermore, it should be noted that the mere fact that the information has been provided by undertakings which sought to benefit from the 2006 Leniency Notice does not call its probative value into question (see judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 45 and the case-law cited).
96 It is settled case-law that no provision or any general principle of EU law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Articles 101 and 102 TFEU, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the TFEU (see judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 46 and the case-law cited).
97 Some caution as to the evidence provided voluntarily by the main participants in an unlawful cartel is understandable, since those participants might tend to play down the importance of their contribution to the infringement and maximise that of others. Nonetheless, in view of the inherent logic of the procedure provided for in the 2006 Leniency Notice, the fact of seeking to benefit from its application in order to obtain a reduction of the fine does not necessarily create an incentive to submit distorted evidence as to the other participants in the cartel. Indeed, any attempt to mislead the Commission could call into question the sincerity and the completeness of cooperation of the undertaking, and thereby jeopardise its chances of benefiting fully under the Leniency Notice (see, by analogy, judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 47 and the case-law cited).
98 In particular, where a person admits that he committed an infringement and thus admits the existence of facts going beyond those whose existence could be directly inferred from the documentary evidence, that implies, a priori, in the absence of special circumstances indicating otherwise, that that person has resolved to tell the truth. Thus, statements which run counter to the interests of the declarant must in principle be regarded as particularly reliable evidence (see judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 48 and the case-law cited).
99 Nonetheless, statements made by the undertakings concerned in the context of an application for leniency pursuant to the 2006 Leniency Notice must be assessed with caution and, in general, cannot be regarded as particularly reliable evidence if they have not been corroborated by other evidence (judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 49).
100 According to settled case-law, an admission by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter unless it is supported by other evidence (see judgment of 27 June 2012, Coats Holdings v Commission, T‑439/07, EU:T:2012:320, paragraph 50 and the case-law cited).
101 It is in the light of the case-law set out in paragraphs 90 to 100 above that the Court must determine whether the Commission was fully entitled to use the written notes relating to the audio recordings in the contested decision as sufficiently credible evidence.
102 In the case in point, recitals 31 to 39 of the contested decision state that the Commission carried out inspections at the premises of the undertakings concerned and at private premises as part of its investigation. During those inspections, the Commission found, among other things, audio recordings of telephone conversations between Heiploeg and Kok Seafood, as well as notes of those recordings, made unbeknownst to Heiploeg by Kok Seafood (see recitals 262, 266 and 268 of the contested decision). As pointed out in paragraph 58 above, the applicants do not dispute the lawfulness of that inspection.
103 As regards the first complaint that the written notes are subjective interpretations, suffice it to recall that the only relevant criterion for assessing freely adduced evidence relates to its credibility (see paragraph 42 above).
104 In the present case, the Commission acknowledges that the written notes are not necessarily an exact transcription of the telephone conversations and that some recordings were destroyed (see recital 315 of the contested decision), something which it indeed took into account when it analysed the notes alongside the fact that the author of the notes occasionally added personal comments (see, inter alia, recitals 321, 322, 324 and 325 of the contested decision).
105 The Commission also examined the written notes against the audio recordings, where these were available, and had Kok Seafood confirm its interpretation of the notes (see, inter alia, recitals 138, 182 and 325 of the contested decision).
106 The applicants also take issue with the Commission for having failed to take account of the words ‘with Klaas Puul’, which they claim were inserted by Mr K. in the written notes mentioned in recital 206 of the contested decision and alter the meaning of the remarks made. This argument cannot succeed as the addition of such words does not alter the probative value of the notes at all. Irrespective of the insertion, the notes at issue demonstrate that there were contacts between Heiploeg and Klaas Puul for the purpose of agreeing on an increase in sales prices, as the Commission rightly pointed out in recitals 207 and 208 of the contested decision.
107 The applicants have not put forward any convincing evidence to show that the insertion confers a different meaning on the notes in question. It should also be noted that these notes are consistent with other documents in the file, such as the statements and supporting documents of Klaas Puul (see recital 333 of the contested decision).
108 Accordingly, the applicants’ first complaint must be rejected.
109 As regards the second complaint, that the date and the list of persons who participated in the conversations are rather unclear, the applicants do not provide any specific examples to support this claim. The only example given concerns the insertion of the words ‘with Klaas Puul’, referred to in recital 206 of the contested decision. As the Court found in paragraph 106 above, the extract of the notes referred to in that recital confirms the existence of contacts between Heiploeg and Klaas Puul intended to coordinate their strategy on sales prices.
110 In any event, contrary to the applicants’ claims, it is possible to infer from the abovementioned notes the identity of the persons who took part in the conversations referred to therein as well as when the conversations took place, as was rightly pointed out, in particular, in recitals 96 and 207 of the contested decision.
111 In the light of the foregoing, the second complaint must be rejected.
112 As regards the third complaint, alleging that the Commission erred in apportioning the burden of proof, it should be observed that, according to the case-law, when the Commission relies on evidence which is in principle sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned on account of the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, on the one hand, the existence of the circumstance relied on by it and, on the other, that that circumstance calls in question the probative value of the evidence relied on by the Commission (see judgment of 6 February 2014, AC-Treuhand v Commission, T‑27/10, EU:T:2014:59, paragraph 64 and the case-law cited).
113 The Commission relied on written evidence deriving directly from the undertakings targeted by the contested decision in order to establish the factual circumstances of the infringement of which the applicants are accused.
114 The Commission is therefore right to point out that, where it relies on direct evidence, the undertaking concerned is required not only to put forward a plausible alternative to the Commission’s position, but also to show that the evidence submitted to establish the infringement is insufficient (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 81 and the case-law cited, and of 6 February 2014, AC-Treuhand v Commission, T‑27/10, EU:T:2014:59, paragraphs 63 and 64 and the case-law cited).
115 It must nevertheless be noted that, as the Commission rightly points out, particularly in recitals 334 and 342 of the contested decision, the applicants directed only vague criticism at the evidence in itself and did not object to the findings of the Commission resulting from it. Nor did they provide a plausible alternative explanation for those findings or show that the evidence was insufficient to establish the infringement.
116 Accordingly, the third complaint must be rejected.
117 As regards the fourth complaint, that the Commission should have checked the content of the conversations by sending requests for information to the persons who had participated in them, it must be noted, as the Commission did, that all of the undertakings concerned, including Heiploeg and Kok Seafood, had the opportunity to verify the Commission’s interpretations and to submit alternative explanations.
118 Recitals 37 and 38 of the contested decision refer to the fact that the addressees of the contested decision all received a DVD containing documents from the Commission’s file and that Heiploeg even consulted other documents at the Commission’s premises. All addressees of the statement of objections also submitted written comments and were heard at a hearing that took place on 7 February 2013.
119 Furthermore, Heiploeg had access during the administrative procedure to the notes at issue and the audio recordings, as evidenced by the fact that counsel for Heiploeg requested and received a copy of various audio recordings.
120 Even though some of the recordings were destroyed (see recital 315 of the contested decision), the applicants had ample opportunity to check the accuracy of the written notes against the recordings and at no point did they claim to have experienced difficulties in that regard. In any event, the fact that the Commission did not send requests for information to the persons who had participated in the telephone conversations cannot undermine the credibility of the notes found at the premises of Kok Seafood.
121 Therefore, the fourth complaint cannot succeed either.
122 As regards the fifth complaint, the applicants assert that, if the audio recordings and related notes were excluded as evidence, the action brought against Heiploeg would collapse, since the only remaining evidence would be the statements made by Klaas Puul in order to obtain leniency.
123 As recalled in the case-law cited in paragraph 96 above, no provision or general principle of EU law prohibits the Commission from relying, as against an undertaking, on statements made by other incriminated undertakings. If that were not the case, the burden of proving conduct contrary to Articles 101 and 102 TFEU, which is borne by the Commission, would be unsustainable and incompatible with the task of supervising the proper application of those provisions which is entrusted to it by the Treaty.
124 According to the applicants, a statement made by an undertaking accused of having participated in a cartel cannot be regarded as constituting sufficient proof of the existence of an infringement committed by them unless it is supported by additional evidence.
125 It is apparent from the case-law mentioned in paragraph 100 above that the accuracy of a statement by a cartel participant must be challenged by several other undertakings similarly accused if doubt is to be cast on the probative value of the statement in question. In the present case, it is sufficient to note that the applicants simply object to the use of the statements by Klaas Puul and do not put forward any arguments challenging the accuracy of the findings of fact resulting from them. In addition, none of the other cartel participants challenge the accuracy of those statements (see recitals 300 to 311 of the contested decision).
126 Moreover, the applicants wrongly take the view that, if the audio recordings and related notes were not taken into account, the only remaining evidence would be the statements made by Klaas Puul in order to obtain leniency. As pointed out in paragraphs 17 and 66 above, the contested decision also relies on other evidence, the relevance of which is not disputed by the applicants in these proceedings, namely, inter alia, the remaining inspection material, Stührk’s reply to the statement of objections and the incriminating written evidence submitted by Klaas Puul in support of its statements (see recitals 55 to 224 of the contested decision).
127 As is apparent from the case-law referred to in paragraph 93 above, and as the Commission rightly pointed out, the items of evidence on which the Commission relies in a decision in order to prove the existence of an infringement of Article 101(1) TFEU by an undertaking must not be assessed separately, but as a whole.
128 Accordingly, the fifth complaint cannot succeed.
129 In the light of all of the foregoing, it must be concluded that it has not been established that the Commission infringed Article 101 TFEU or Article 2 of Regulation No 1/2003 by using, in the present case, the disputed recordings of the telephone conversations at issue or the related notes.
130 The first and second pleas in law must therefore be dismissed.
Third plea in law, alleging that the Commission wrongly refused to take account of the applicants’ inability to pay within the meaning of point 35 of the Guidelines
131 In this plea, the applicants submit that the Commission committed several errors of fact and of law by refusing their request for a reduction of the fine on the ground of their inability to pay. They argue, first, that payment of the fine would jeopardise their viability; secondly, that such payment would cause the undertaking’s assets to lose a significant proportion of their value; and thirdly, that the social and economic context of the instant case is very specific.
132 Point 35 of the Guidelines, which deals with the impact that the ability to pay of an undertaking penalised for having infringed Article 101 TFEU may have on the calculation of the fine that may be imposed on it, is worded as follows:
‘In exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. It will not base any reduction granted for this reason in the fine on the mere finding of an adverse or loss-making financial situation. A reduction could be granted solely on the basis of objective evidence that imposition of the fine as provided for in these Guidelines would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value.’
133 According to settled case-law, in adopting rules of conduct such as the Guidelines and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules on pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (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, paragraph 211, and of 12 December 2012, Ecka Granulate and non ferrum Metallpulver v Commission, T‑400/09, not published, EU:T:2012:675, paragraph 40).
134 It should be noted from the outset that a fine reduction may be granted under point 35 of the Guidelines only in exceptional cases and in accordance with the conditions laid down in that point. Thus, it must be shown that the fine imposed ‘would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value’. In addition, the existence of a ‘specific social and economic context’ must also be established. It should further be borne in mind that those two sets of conditions were initially identified by the EU Courts.
135 As regards the first set of conditions, it has been held that the Commission is not in principle required, when determining the amount of the fine to be imposed for an infringement of the competition rules, to take into account the loss-making financial situation of an undertaking, since recognition of such an obligation would be tantamount to giving an unjustified competitive advantage to undertakings least well adapted to market conditions (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, paragraph 327, and of 12 December 2012, Ecka Granulate and non ferrum Metallpulver v Commission, T‑400/09, not published, EU:T:2012:675, paragraph 94).
136 Accordingly, the mere finding that the undertaking concerned is in an adverse or loss-making financial situation is not a sufficient basis for a request seeking to have the Commission take account of the undertaking’s inability to pay in order to grant a reduction of the fine.
137 Furthermore, it has consistently been held that the fact that a measure taken by an EU authority leads to the insolvency or liquidation of a given undertaking is not prohibited as such by EU law. Although such insolvency or liquidation may adversely affect the financial interests of the owners or shareholders, that does not mean that the personal, tangible and intangible elements represented by the undertaking would also lose their value (judgments of 29 April 2004, Tokai Carbon and Others v Commission, T‑236/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01, EU:T:2004:118, paragraph 372, and of 12 December 2012, Ecka Granulate and non ferrum Metallpulver v Commission, T‑400/09, not published, EU:T:2012:675, paragraph 50).
138 It cannot be accepted that, in adopting point 35 of the Guidelines, the Commission imposed on itself any obligation that runs counter to that case-law. This is evidenced by the fact that point 35 makes no reference to the insolvency of an undertaking but covers situations arising ‘in a specific social and economic context’ in which the imposition of a fine ‘would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value’ (judgment of 12 December 2012, Novácke chemické závody v Commission, T‑352/09, EU:T:2012:673, paragraph 188).
139 It follows from this that the mere fact that the imposition of a fine for infringements of the competition rules might give rise to the insolvency of the undertaking concerned is not sufficient cause for the application of point 35 of the Guidelines. The liquidation of a company does not necessarily entail the disappearance of the undertaking in question. That undertaking may continue to exist as such, either where it is re-capitalised or where all the elements of its assets are taken over by another entity. Such a takeover may arise either by a voluntary purchase or by a forced sale of the assets of the company as a going concern (judgment of 12 December 2012, Novácke chemické závody v Commission, T‑352/09, EU:T:2012:673, paragraph 189).
140 The reference in point 35 of the Guidelines to assets of the undertaking concerned losing all value must therefore be understood as envisaging the situation in which a takeover of the undertaking in the circumstances described in paragraph 139 above seems unlikely, or indeed impossible. In such a situation, the elements of that undertaking’s assets will be offered for sale separately and it is likely that many of them will not find a buyer or, at best, will be sold only at a considerably reduced price (judgment of 12 December 2012, Ecka Granulate and non ferrum Metallpulver v Commission, T‑400/09, not published, EU:T:2012:675, paragraph 98).
141 As for the second set of conditions relating to the existence of a specific economic and social context, it refers, according to the case-law, to the consequences which payment of the fine could have, in particular by leading to an increase in unemployment or deterioration in the economic sectors upstream and downstream of the undertaking concerned (judgments of 29 June 2006, SGL Carbon v Commission, C‑308/04 P, EU:C:2006:433, paragraph 106, and of 12 December 2012, Ecka Granulate and non ferrum Metallpulver v Commission, T‑400/09, not published, EU:T:2012:675, paragraph 99).
142 Accordingly, if the cumulative conditions contemplated above are satisfied, the imposition of a fine that might cause the disappearance of an undertaking would be contrary to the objective pursued by point 35 of the Guidelines. The application of that point to the undertakings concerned thus constitutes a specific interpretation of the principle of proportionality in relation to penalties for infringements of competition law (see, to that effect, judgment of 12 December 2012, Ecka Granulate and non ferrum Metallpulver v Commission, T‑400/09, not published, EU:T:2012:675, paragraph 100).
143 Finally, as the Commission correctly observed on a number of occasions in the course of the proceedings before the Court, since the application of point 35 of the Guidelines is the last factor taken into account in determining the amount of the fines imposed for a breach of the competition rules applicable to undertakings, the appraisal of the ability to pay of the undertakings on which penalties have been imposed falls within the unlimited jurisdiction provided for in Article 261 TFEU and Article 31 of Regulation No 1/2003.
144 As regards the scope of that jurisdiction, it should be borne in mind that it constitutes a means of implementing the principle of effective judicial protection, a general principle of EU law to which expression is now given by Article 47 of the Charter of Fundamental Rights and corresponds, in EU law, to Article 6 of the ECHR (see, to that effect, judgments of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 51; of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 47; and of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 36).
145 According to the case-law, in administrative proceedings, the obligation to comply with Article 6 of the ECHR does not preclude a ‘penalty’ from being imposed by an administrative authority in the first instance. For that to be possible, however, decisions taken by administrative authorities which do not themselves satisfy the requirements laid down in Article 6(1) of the ECHR must be subject to subsequent review by a judicial body that has full jurisdiction. The characteristics of such a body include the power to quash in all respects, on questions of fact and law, the decision taken. The judicial body must in particular have jurisdiction to examine all questions of fact and law relevant to the dispute before it (judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 35).
146 Moreover, failure to review the whole of the contested decision of the Court’s own motion does not contravene the principle of effective judicial protection. Compliance with that principle does not require that the Court — which is indeed obliged to respond to the pleas in law raised and to carry out a review of both the law and the facts — should be obliged to undertake of its own motion a new and comprehensive investigation of the file (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 66).
147 Thus, subject to the pleas relating to matters of public interest which they must examine and, where appropriate, raise of their own motion, the EU Courts must carry out their review on the basis of the evidence adduced by the applicant in support of the pleas in law put forward and cannot use the Commission’s discretion as regards the evaluation of that evidence as a basis for dispensing with the conduct of an in-depth review of the law and of the facts (see, to that effect, judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 62).
148 Finally, a Court exercising unlimited jurisdiction must, in principle and subject to examination of the evidence submitted to it by the parties, take account of the legal and factual situation prevailing on the date on which it makes its determination where it considers it proper to exercise its power to vary a decision (see, to that effect, judgment of 6 March 1974, Istituto Chemioterapico Italiano and Commercial Solvents v Commission, 6/73 and 7/73, EU:C:1974:18, paragraphs 51 and 52; of 14 July 1995, CB v Commission, T‑275/94, EU:T:1995:141, paragraph 61; and of 5 October 2011, Romana Tabacchi v Commission, T‑11/06, EU:T:2011:560, paragraphs 282 to 285).
149 It is on the basis of this case-law and in the light of the arguments submitted by the parties before the Court and the information provided by the applicants after the hearing that the reasoning set out in the contested decision must be assessed.
150 In recitals 562 to 566 of the contested decision, the Commission refused the applicants’ request for a reduction of the fine due to their inability to pay, pointing out, in essence, that, first, a reduction of the fine would not mitigate the risk of insolvency and, secondly, the applicants had not shown that, after any potential winding-up, their assets would no longer be used in the industry with the result that the loss of value of those assets would be substantial. In the Commission’s view, it was likely that Heiploeg, or at least some of the companies in the Heiploeg group, would be taken over and would continue business ‘as a going concern’. It found that, in any event, even if Heiploeg’s assets were sold individually, they would be sold to a competing undertaking or a newcomer to the sector and would continue to be used in the industry.
151 First, the applicants dispute the Commission’s line of argument that their financial situation was already so desperate that insolvency was possible even in the absence of a fine. The applicants rely on an updated version of an expert report dated 24 October 2012 drawn up by an audit firm (‘report P’), which was provided to the Commission during the administrative procedure.
152 It is apparent from report P that, even before the Commission imposed the fine, the applicants were in a particularly difficult financial situation which had brought them to the brink of insolvency.
153 Report P states that the financial restructuring that took place in June 2012 had barely provided the applicants with enough financing, subject to certain conditions, to manage their day-to-day business.
154 The same document also states that the ratio of debt to earnings before interest, taxes, depreciation and amortisation, which is a measure of the undertaking’s ability to repay its debt, was particularly high (16.2 in 2011) and that earnings before interest, taxes, depreciation and amortisation for the first six months of the financial year 2012-2013 fell below forecasts (EUR 0.7 million instead of EUR 3.9 million).
155 Against that background, contrary to the applicants’ assertions, report P does not show that the applicants would have avoided insolvency had the fine not been imposed on them.
156 It is true, as the applicants submit, that the imposition of the fine increased the risks of insolvency. However, as recalled in paragraph 137 above, the fact that a measure taken by an EU authority leads to the insolvency or liquidation of a given undertaking is not prohibited as such by EU law.
157 In addition, for the purpose of applying point 35 of the Guidelines, it is not sufficient to show that the undertaking concerned would be declared insolvent if a fine were imposed. In the words of point 35, there must be ‘objective evidence that imposition of the fine … would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value’, which is not automatically the case where the companies operating the undertaking in question are declared insolvent (see paragraph 138 above).
158 It follows that the Commission was right to find that a reduction of the fine would not mitigate the risk of insolvency.
159 Secondly, as regards the applicants’ argument that payment of the fine would result in the undertaking’s assets losing a significant proportion of their value, this does not justify taking into account the applicants’ ability to pay in order to reduce the fine imposed on them.
160 It should be noted that the net book value of Heiploeg, which stood at EUR 178 million according to report P, had been calculated as at 31 March 2012, that is to say almost two years before the undertaking’s insolvency, which occurred at the end of January 2014. Consequently, in view of Heiploeg’s financial difficulties, it cannot be ruled out that its net book value was lower at the beginning of 2014, when it was declared insolvent.
161 It is true, as the applicants contend, that report P found that the value of the undertaking’s assets would fall by 50% in the event of insolvency and that the information the applicants provided after the hearing show that the total proceeds from the sale of Heiploeg’s various assets after its winding-up were less than EUR 70 million.
162 However, both the report of the administrators in the winding-up and the information supplied by the applicants after the hearing show that a significant proportion of the assets at issue, such as, in particular, the processing site at Zoutkamp (Netherlands), were taken over by purchasers who continued the undertaking’s business in the sector for the processing of and trade in North Sea shrimp.
163 Consequently, Heiploeg’s liquidation did not entail its disappearance. On the contrary, it remained in existence, since its business was continued by other entities.
164 In those circumstances, contrary to the applicants’ contentions, the assets of the undertaking concerned did not lose all their value due to the imposition of the fine, within the meaning of point 35 of the Guidelines.
165 Thirdly, as regards the applicants’ arguments that the social and economic context in which they operated was specific, it should be noted that the contested decision does not contain any analysis in that respect.
166 However, since the Commission rightly found — as pointed out in paragraphs 150 to 164 above — that the first set of cumulative conditions for a reduction of the fine on the ground of inability to pay was not satisfied, it did not err in considering that there was no need to analyse the second set of conditions.
167 In any event, although it is true that report P forecast job losses and, therefore, an increase in unemployment throughout the province of Groningen (Netherlands) should Heiploeg be wound up, the fact remains that, in truth, the report of the administrators in the winding-up stated that the takeover of Heiploeg’s business by another entity, whereby the undertaking’s head office and processing site remained in Zoutkamp, made it possible to maintain, to a large extent, employment levels in the region and jobs for some 200 shrimp fishermen.
168 In the light of all the foregoing considerations, it must be concluded that the applicants have not proven that the conditions for the grant of a reduction of the fine on the ground of their alleged inability to pay within the meaning of point 35 of the Guidelines were satisfied. The third plea in law must therefore be dismissed.
169 It follows from the above that since none of the pleas put forward by the applicants in support of the claims for both annulment and variation is well founded, the action must be dismissed in its entirety.
Costs
170 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby:
1. Dismisses the action;
2. Orders Goldfish BV, Heiploeg BV, Heiploeg Beheer BV and Heiploeg Holding BV to pay the costs.
Delivered in open court in Luxembourg on 8 September 2016.
[Signatures]
Table of contents
Background to the dispute
Contested decision
Procedure and forms of order sought
Law
First and second pleas in law, alleging infringement of Article 101 TFEU and Article 2 of Regulation No 1/2003 on account of, respectively, the Commission’s use of audio recordings made in secret and its use of notes relating to those recordings
Lawfulness of using secret recordings of telephone conversations and related notes as evidence of an infringement of Article 101 TFEU
Credibility of the notes relating to the telephone conversations and the Commission’s compliance with the burden of proof in that regard
Third plea in law, alleging that the Commission wrongly refused to take account of the applicants’ inability to pay within the meaning of point 35 of the Guidelines
Costs