JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
16 September 2013 (*)
(Competition – Agreements, decisions and concerted practices – Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Coordination of price increases and exchange of sensitive business information – Attributability of the unlawful conduct – Fines – 2006 Guidelines on the method of setting fines – Gravity of the infringement – Mitigating circumstances – Economic crisis – 2002 Leniency Notice – Reduction of the fine – Significant added value)
In Case T‑412/10,
Roca, established in Saint-Ouen-l’Aumône (France), represented by P. Vidal Martínez, lawyer,
applicant,
v
European Commission, represented initially by F. Castillo de la Torre, A. Antoniadis and F. Castilla Contreras, and subsequently by F. Castillo de la Torre, A. Antoniadis and F. Jimeno Fernández, acting as Agents,
defendant,
APPLICATION for annulment in part of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39092 – Bathroom Fittings and Fixtures), and for reduction of the fine imposed on the applicant in that decision,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and M. van der Woude, Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 6 March 2013,
gives the following
Judgment (1)
…
Procedure and forms of order sought
30 By application lodged at the Court Registry on 9 September 2010, the applicant brought the present action.
31 Upon hearing the report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of the Rules of Procedure, put a question in writing to the Commission, which replied to it within the period prescribed.
32 The parties presented oral argument and replied to the Court’s written and oral questions at the hearing on 6 March 2013.
33 The applicant claims that the Court should:
– annul Articles 1 and 2 of the contested decision in so far as they relate to it;
– reduce the fine imposed on it;
– order the Commission to pay the costs.
34 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
…
1. The claim for annulment in part of the contested decision
…
Fifth plea in law, relating to the applicant’s cooperation
171 In the context of the fifth plea in law, the applicant submits that the Commission infringed the principle of the protection of legitimate expectations and committed a manifest error in the application of the 2002 Leniency Notice, inasmuch as it did not grant the applicant a reduction of the fine pursuant to the 2002 Leniency Notice. In addition, the applicant requests a reduction of the fine under point 29 of the 2006 Guidelines on account of its cooperation. That second argument must be interpreted as meaning that the applicant maintains that it should have been granted a reduction of the fine on account of its cooperation, by virtue of point 29 of the 2006 Guidelines and that it thus alleges that the Commission made an error in the application of that provision.
Infringement of the principle of the protection of legitimate expectations and infringements and errors in the application of the 2002 Leniency Notice
172 The applicant alleges that the Commission, first, failed to grant it a reduction of the fine despite the fact that, by letter of 8 December 2006, the Commission indicated that the applicant was entitled to a conditional reduction of the fine. On that basis, the applicant claims that the Commission infringed the principle of the protection of legitimate expectations.
173 Second, the applicant disputes the finding that the information it submitted in respect of its application for a reduction of the fine had no significant added value. In that regard, the applicant maintains, in essence, that the information it submitted in respect of its application for a reduction of the fine represented significant added value since, without that information, the Commission would have been unable to prove the ceramics-related infringement committed in France in 2004. Moreover, the applicant claims not to have undermined, by a failure to cooperate, the value of the information submitted, since it did not challenge the facts but rather the legal classification thereof.
174 The Commission contests the merits of the applicant’s arguments. It contends, first, that the added value of the information submitted by the applicant cannot be regarded as significant. The applicant’s submissions were general, whereas Ideal Standard’s submissions were specific and detailed. Moreover, it would have been possible to prove the infringement on the basis of the numerous charts which showed exchanges of information and Ideal Standard’s express and detailed confirmation thereof, which is supported by a document drawn up after a meeting. Second, the Commission claims that the applicant set out, in its reply to the statement of objections, detailed arguments contesting the probative nature of the evidence on which the Commission was relying, in particular the probative nature of the evidence submitted by Ideal Standard concerning the price agreement of February 2004. Moreover, the Commission submits that an undertaking cannot base its application for a reduction of the fine on facts for which the Commission ultimately does not hold the undertaking liable, since the benefit of that cooperation is already reflected in the fact that the Commission decides to withdraw certain objections, as a result of which the undertaking is not held liable or does not receive a fine.
175 In the first place, it is appropriate to recall the conditions under which an undertaking may receive a reduction of its fine pursuant to the 2002 Leniency Notice. In the second place, it must be examined whether the information submitted by the applicant in respect of its application for a reduction of the fine has significant added value before examining, if necessary, third, whether the Commission was entitled to go back on the conclusion – notified by letter of 8 December 2006 – that the applicant was entitled to a conditional reduction of the fine.
176 First, it should be borne in mind that, in the 2002 Leniency Notice, the Commission sets out the conditions under which undertakings cooperating with it during its investigation into a cartel may be exempted from fines, or may be granted a reduction of the fine which would otherwise have been imposed upon them (Case T‑343/08 Arkema France v Commission [2011] ECR II‑2287, paragraph 129).
177 According to point 20 of the 2002 Leniency Notice, ‘[u]ndertakings that do not meet the conditions [to obtain immunity from fines] may be eligible to benefit from a reduction of any fine that would otherwise have been imposed’.
178 Point 21 of the 2002 Leniency Notice provides that, ‘[i]n order to qualify [for a reduction of its fine under point 20 of this notice], an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence’.
179 Point 22 of the 2002 Leniency Notice defines the concept of ‘significant added value’ as follows:
‘The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the facts in question. In this assessment, the Commission will generally consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence subsequently established. Similarly, evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance.’
180 The first paragraph of point 23(b) of the 2002 Leniency Notice provides for three fine-reduction bands. The first undertaking to meet the condition laid down in point 21 of that notice is entitled to receive a reduction of the fine of between 30 and 50%; the second undertaking is entitled to a reduction of its fine of between 20 and 30%; and subsequent undertakings are entitled to a reduction of up to 20% of their fines.
181 The second paragraph of point 23(b) of the 2002 Leniency Notice states that, ‘[i]n order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 21 [of this notice] was submitted and the extent to which it represents added value’ and that ‘[i]t may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission’.
182 It is apparent from the very logic of the 2002 Leniency Notice that the effect sought is to create a climate of uncertainty within cartels by encouraging those participating in them to denounce the cartels to the Commission. That uncertainty results precisely from the fact that the cartel participants know that only one of them can benefit from immunity from fines by denouncing the other participants in the infringement, thereby exposing them to the risk that they face being fined. In the context of that system, and according to the same logic, the undertakings that are quickest to provide their cooperation are supposed to benefit from greater reductions of the fines that would otherwise be imposed on them than those granted to the undertakings that are less quick to cooperate (Case T‑39/06 Transcatab v Commission [2011] ECR II‑6831, paragraph 379).
183 The chronological order and the speed of the cooperation provided by the members of the cartel therefore constitute fundamental elements of the system put in place by the 2002 Leniency Notice (Transcatab v Commission, paragraph 182 above, paragraph 380).
184 It should be borne in mind in that regard that, whilst the Commission is required to state the reasons for which it considers that information provided by undertakings under the 2002 Leniency Notice represents a contribution which does or does not justify a reduction of the fine, it is incumbent on undertakings wishing to contest the Commission’s decision in that regard to show that the information provided voluntarily by the undertakings was decisive in enabling the Commission to prove the essential elements of the infringement and therefore adopt a decision imposing fines (see, to that effect, Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 297, and Arkema France v Commission, paragraph 176 above, paragraph 135).
185 In view of the rationale for the reduction, the Commission cannot disregard the usefulness of the information provided, which will inevitably depend on the evidence already in its possession (Joined Cases T‑456/05 and T‑457/05 Gütermann and Zwicky v Commission [2010] ECR II‑1443, paragraph 220, and Arkema France v Commission, paragraph 176 above, paragraph 136).
186 Where an undertaking providing cooperation does no more than confirm, in a less precise and explicit manner, certain information that has already been provided by another undertaking by way of cooperation, the extent of the cooperation provided by the former undertaking, while possibly of some benefit to the Commission, cannot be treated as comparable with that provided by the undertaking which was the first to supply that information. A statement which merely corroborates to a certain degree a statement which the Commission already had at its disposal does not facilitate the Commission’s task significantly. Accordingly, it cannot be sufficient to justify a reduction of the fine for cooperation (see Arkema France v Commission, paragraph 176 above, paragraph 137 and the case‑law cited).
187 However, it is also apparent from the case‑law that 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 (JFE Engineering and Others v Commission, paragraph 130 above, paragraph 219; see, to that effect, Case T‑337/94 Enso-Gutzeit v Commission [1998] ECR II‑1571, paragraph 91).
188 Lastly, even though the Commission must be held to have a margin of discretion when it considers whether information provided to it under the 2002 Leniency Notice represents significant added value, the fact remains that the Court cannot use that margin of discretion as a basis for dispensing with a thorough review as to matters of law and of fact of the Commission’s assessment in that regard (see, by analogy, Chalkor v Commission, paragraph 35 above, paragraph 62).
189 Second, it is in the light of paragraphs 176 to 188 above that it is necessary to examine the applicant’s arguments, as set out in paragraph 173 above.
190 In that regard, it must be observed that, in recitals 1291 to 1293, 1295, 1297, 1299 and 1300 to the contested decision, the Commission justified its refusal to grant the applicant a reduction of the fine on the basis of, in essence, three considerations: (i) so far as concerns the information submitted by the applicant in respect of the ceramics‑related infringement in France in 2004, the Commission observed that Ideal Standard had already informed it that detailed information had been exchanged and had, inter alia, submitted charts to it indicating an exchange of information on sales during the summer of 2004. It also observed that the information submitted by the applicant was general and unsubstantiated by contemporaneous evidence and that its probative value had been disputed by several undertakings during the administrative procedure; (ii) as regards the infringement covering taps and fittings in France, the applicant did not provide any information; and (iii) by its conduct subsequent to its application for a reduction of the fine, the applicant diminished or negated the probative value of the information that it had itself submitted and thus failed to demonstrate a genuine spirit of cooperation.
191 In those circumstances, having regard to the grounds of the contested decision that are set out in paragraph 190 above and the applicant’s arguments, as set out in paragraph 173 above, it is necessary to verify, first, whether the information provided by the applicant in respect of its application for a reduction of the fine had significant added value. Second, it must be examined, if necessary, whether the applicant diminished the credibility of that information by calling into question the evidence submitted by Ideal Standard, with the result that that information cannot be considered to have significant added value.
192 In the first place, it must be stated that the applicant does not dispute the Commission’s finding that it did not provide any information in respect of the infringement covering taps and fittings in France. In those circumstances, the examination of the applicant’s arguments must be limited to whether the information that it provided in respect of the ceramics-related infringement in France has added value.
193 Next, it must be noted that, as the Commission states in its written pleadings, no infringement was found, so far as concerns ceramics in France, during the period from 1995 to the beginning of 2004, which the applicant does not, moreover, deny. Accordingly, the Commission was fully entitled not to grant a reduction of the fine in respect of the information provided by the applicant relating to that period.
194 In addition, with regard to the information provided by the applicant in respect of the ceramics-related infringement committed in France in 2004, it must be noted that, as is apparent from recitals 556, 583, 584, 587 and 588 to the contested decision, the Commission based its finding of an infringement on four pieces of evidence: (i) Ideal Standard’s application for a reduction of the fine (recital 583 to the contested decision); (ii) a chart submitted by Ideal Standard annexed to that application (recital 588 to the contested decision); (iii) the applicant’s application for a reduction of the fine (recitals 556, 587 and 588 to the contested decision); and (iv) Duravit’s reply to the statement of objections (recital 584 to the contested decision).
195 Lastly, contrary to what it states in its written pleadings, the Commission considered, in essence, in the contested decision, that it could not base its finding of a ceramics-related infringement in France in 2004 solely on Ideal Standard’s oral statement made in respect of its application for a reduction of the fine and the chart annexed to that application. The Commission stated, in recital 588 to the contested decision, as follows:
‘The Commission has not claimed that the chart submitted by Ideal Standard in support of its [application for a reduction of the fine] qualifies as [a] contemporaneous document. It represents, nonetheless, Ideal Standard’s attempt to provide the most detailed account of the facts explained in its submission. Even if this item of evidence were to be discounted, proof of coordination of minimum prices at the AFICS meeting of February 2004 can be established on the basis of the three leniency submissions [that is to say, the application for a reduction of the fine made by Ideal Standard, that of the applicant and, lastly, Duravit’s reply to the statement of objections].’
196 Accordingly, it must be found that, in the contested decision, the Commission itself relied, for the purpose of proving a ceramics-related infringement in France in 2004, on the information submitted by the applicant in its application for a reduction of the fine. It is therefore apparent from the contested decision that the information submitted by the applicant was of objective use to the Commission.
197 Moreover, it must be found that, without the information provided by the applicant, the Commission would not have been able to prove, on the sole basis of the evidence submitted by Ideal Standard with its application for a reduction of the fine, the ceramics-related infringement committed in France in 2004. While it is true that, as stated in recitals 584 and 587 to the contested decision, Duravit confirmed, in its reply to the statement of objections, that discussions on minimum prices took place at the AFICS meeting referred to by Ideal Standard, Duravit nevertheless, as is clear from the oral submissions it made at the hearing before the Commission held on 12 November 2007, also called in question the probative value of the chart provided by Ideal Standard.
198 In the light of the foregoing considerations, it must be found that the information provided by the applicant in its application for a reduction of the fine has significant added value. That information enabled the Commission to make a finding of a ceramics-related infringement in France in 2004, since it confirmed that discussions on minimum prices for ceramics at the lower end of the market had taken place during the AFICS meeting of 25 February 2004 (recital 588 to the contested decision). The Commission was therefore wrong in refusing to acknowledge the significant added value of the statement made by the applicant in the context of its application for a reduction of the fine and grant it a reduction of the fine on that basis.
199 The conclusion drawn in paragraph 198 above is not called in question by the Commission’s arguments purporting to show that the information provided by the applicant had no significant added value.
200 The Commission’s argument that the information provided by the applicant in support of its application for a reduction of the fine was general, whereas the information provided by Ideal Standard was specific and detailed, cannot be upheld. Ideal Standard’s application for a reduction of the fine under the 2002 Leniency Notice was not, in view, in particular, of the fact that the probative value of the evidence provided by Ideal Standard in that connection was disputed, in itself sufficient to support the finding of a ceramics-related infringement in France in 2004. In addition, despite the general nature of the information provided by the applicant, that information nevertheless corroborated the evidence provided by Ideal Standard and thus enabled the Commission to make that finding. As is apparent from paragraph 197 above, without the information provided by the applicant, the Commission would not have been able to prove, on the sole basis of the evidence submitted by Ideal Standard in its application for a reduction of the fine, the ceramics-related infringement committed in France in 2004.
201 Furthermore, the Court finds unfounded the Commission’s argument that it would have been able to prove the infringement on the basis of numerous charts which showed exchanges of information and Ideal Standard’s express and detailed confirmation thereof, which is supported by a document drawn up after a meeting. It should be borne in mind that, in recital 588 to the contested decision, the Commission considered, in essence, that it was not able to base its finding of a ceramics‑related infringement in France in 2004 on Ideal Standard’s oral statement made in the context of its application for a reduction of the fine and on the chart annexed to that application (see paragraph 195 above).
202 In the light of all the foregoing considerations and having regard to recitals 556, 587 and 588 to the contested decision, from which it is apparent that the evidence provided by the applicant did in fact enable the Commission to make a finding of a ceramics-related infringement in France in 2004, the conclusion must be that the Commission made an error in its assessment of the added value of the evidence provided by the applicant in its application for a reduction of the fine, as that application was evaluated at the end of the administrative procedure.
203 In those circumstances, consideration must be given, in the second place, to whether, by its conduct subsequent to its application for a reduction of the fine, the applicant called in question, as the Commission in essence asserts in the contested decision and in its written pleadings, the significant added value of the information that it submitted.
204 In that regard, it must be noted that, in recital 1300 to the contested decision, the Commission states that the Roca group ‘has not … exhibited a genuine spirit of cooperation during the [administrative] proceedings’, but, on the contrary, its conduct ‘tainted the value of the evidence that [the Roca group had] originally purported to offer’.
205 In addition, it is stated, in recital 1295 to the contested decision, that [the applicant] and Laufen [Austria] … both have fiercely disputed the facts as set out in the [statement of objections] (see for example recitals [360 to 365 and 579 to 582 to the contested decision]), therefore casting significant doubts on the anti-competitive nature of the conduct that [the Roca group] was meant to contribute to prove through leniency submissions’. In that respect, it should be added that recitals 360 to 365 to the contested decision set out the arguments put forward by Laufen Austria in its reply to the statement of objections in relation to unlawful conduct on the Austrian market. Recitals 579 to 582 to the contested decision set out the submissions of the Roca group on unlawful practices covering taps and fittings in France.
206 Moreover, it should be observed that, in recital 586 to the contested decision, the Commission stated as follows:
‘[The Roca group] provides a contradictory account of the facts. While confirming the exchanges on minimum prices within AFICS between 2002 and 2004 in general, it also attempts to discredit Ideal Standard’s corroborative submission, with a view to concluding that the Commission should reconsider whether proof of coordination of minimum prices can be established. In particular, [the Roca group] claims that the description of Ideal Standard as to the coordination of minimum prices at the meeting of 25 February 2004 has not been confirmed by other leniency applicants. Moreover, it states that the chart submitted by Ideal Standard cannot be relied upon as conclusive. According to [the Roca group], this evidence points at a possible confusion of Ideal Standard between the practices that took place in France and the practices that took place in Italy (as indicated by the fact that the document is in Italian).’
207 It can thus be seen from the recitals to the contested decision referred to in paragraphs 204 to 206 above that the information originally provided by the applicant was no longer regarded as having significant added value in view of the fact that the applicant had itself diminished the usefulness of that information by casting doubt on its credibility.
208 In that regard, first, it must be observed that it is apparent from the application for a reduction of the fine, as formulated in the letters of 17 and 20 January 2006, that it was not made on behalf of the Roca group as a whole, but rather on the applicant’s own behalf and that of the Laufen group, in so far as the activities of the Laufen group in France had been integrated into the Roca group. The statements made by Laufen Austria during the administrative procedure are therefore relevant for establishing whether the applicant diminished the added value of the information that it submitted to the Commission only to the extent that they concern anti-competitive practices on the French market. However, as has been stated in paragraph 205 above, recitals 360 to 365 to the contested decision, to which the Commission refers in recital 1295 to that decision, concern only the Austrian market. Accordingly, those recitals do not show that any challenge was made to the information provided by the applicant in the context of its application for a reduction of the fine so far as the French market was concerned.
209 Second, recitals 579 to 582 to the contested decision concern, as has been stated in paragraph 205 above, the statements made by the Roca group on unlawful practices relating to taps and fittings in France. Accordingly, those recitals do not demonstrate that the applicant, by those statements, called in question the added value of the evidence that it had itself provided to the Commission, since that evidence concerned only the ceramics-related infringement in France.
210 Third, the matters referred to in recital 586 to the contested decision, as elaborated upon by the Commission in its written pleadings, do not support the conclusion that the applicant discredited the information that it had itself submitted. It is apparent from both the contested decision and the Commission’s written pleadings that the applicant confirmed that discussions on minimum prices for ceramics at the lower end of the market had taken place within AFICS, in particular in 2004, a fact which is not disputed. It is true that the applicant questioned the probative value of Ideal Standard’s statement relating to the AFICS meeting of 25 February 2004 and the document submitted by Ideal Standard in support of that statement. Nevertheless, it must be observed that, in so doing, the applicant merely submitted arguments to the Commission that were intended to prove that the evidence put forward by Ideal Standard was not sufficient to establish the existence of a ceramics‑related infringement in France in 2004, in order to demonstrate that the information that the applicant had itself submitted in its application for a reduction of the fine was necessary for the Commission to prove that infringement and, therefore, of significant added value.
211 In the light of the foregoing considerations, it must be found that the Commission wrongly concluded, in recital 1300 to the contested decision, that the applicant had, by its conduct subsequent to its application for a reduction of the fine, diminished the value of the evidence that it had originally submitted.
212 That conclusion has not been called in question by the Commission’s arguments in that regard.
213 In the first place, the Commission’s argument that the applicant failed to fulfil its obligation to cooperate inasmuch as it challenged the probative nature of both Ideal Standard’s statement on the AFICS meeting of 25 February 2004 and the document submitted by Ideal Standard in support of that statement is unfounded. The applicant merely questioned whether the evidence put forward by Ideal Standard was sufficient to establish the existence of a ceramics-related infringement in France in 2004. In so doing, the applicant merely submitted evidence capable of establishing the significant added value of the information that it had itself submitted in the context of its application for a reduction of the fine.
214 In the second place, the Commission’s argument that an undertaking cannot base its application for a reduction of the fine on facts in respect of which the Commission does not ultimately hold the undertaking responsible is unfounded. While it is true that the Commission found no ceramics-related infringement in France for the period from 1995 until the beginning of 2004, the fact remains that the applicant was nevertheless held to be liable for the ceramics-related infringement committed in France in 2004. It should be borne in mind that, as has been stated in paragraph 198 above, the information provided by the applicant did in fact enable the Commission to make that finding of an infringement.
215 The fifth plea in law must therefore be upheld, in so far as it relates to the incorrect assessment of the applicant’s application for a reduction of the fine.
216 In those circumstances, there is no longer any need to examine the applicant’s argument that the Commission infringed its rights of defence in so far as it did not have access to Duravit’s reply to the statement of objections. It is clear from the applicant’s written pleadings that that argument is inherently linked to challenging the Commission’s conclusion that the applicant had not provided information of significant added value. The applicant’s arguments in respect of that challenge were upheld in paragraphs 202, 211 and 215 above.
217 Since the fifth plea in law has been upheld in so far as it concerns the incorrect assessment of the applicant’s application for a reduction of the fine (see paragraph 215 above), it is not necessary to examine the applicant’s argument, set out in paragraph 172 above, that the Commission infringed the principle of the protection of legitimate expectations by deciding, in the contested decision, to revoke the conditional reduction of which it had informed the applicant in the letter of 8 December 2006.
218 The Court will determine the consequences of the illegality found in paragraph 215 above for the fine imposed on the applicant when it comes to examine, in paragraph 232 et seq., the applicant’s claim for variation of the amount of the fine.
Error in the application of the 2006 Guidelines
219 The applicant maintains that the Commission made an error in so far as it did not grant it a reduction for cooperation as a mitigating circumstance within the meaning of point 29 of the 2006 Guidelines.
220 The Commission contests the merits of the applicant’s argument on that point.
221 It should be borne in mind, first of all, that, according to the case‑law, it is clear from the fourth indent of point 29 of the 2006 Guidelines that the Commission undertook, within the framework of its discretion regarding the mitigating circumstances which it is required to take into account when setting fines, to grant a reduction of the fine when an undertaking ‘has effectively cooperated with [it] outside the scope of the Leniency Notice and beyond its legal obligation to do so’ (Arkema France v Commission, paragraph 176 above, paragraph 168).
222 However, the application of the fourth indent of point 29 of the 2006 Guidelines cannot have the consequence of depriving the 2002 Leniency Notice of its practical effect. The 2002 Leniency Notice provides that that notice sets out the framework for rewarding cooperation in the Commission investigation by undertakings which are or have been party to secret cartels. It therefore follows from the wording and the structure of that notice that undertakings can, in principle, obtain a reduction of the fine for cooperation only where they satisfy the strict conditions laid down in that notice.
223 Therefore, in order to maintain the practical effect of the 2002 Leniency Notice, it can only be in exceptional situations that the Commission is required to grant a reduction of the fine to an undertaking on the basis of the fourth indent of point 29 of the 2006 Guidelines. That is the case, in particular, where cooperation provided by an undertaking, which goes beyond its legal obligation to cooperate, but does not give rise to the right to a reduction of the fine under the 2002 Leniency Notice, is of objective use to the Commission. It must be found to be of such use where the Commission relies in its final decision on evidence which an undertaking has submitted to it in the context of its cooperation, without which the Commission would not have been in a position to penalise the infringement concerned in whole or in part (Arkema France v Commission, paragraph 176 above, paragraph 170).
224 In the present case, it should be borne in mind that, as is apparent from paragraphs 202 and 211 above, the Commission was wrong to find, in the contested decision, that the evidence provided by the applicant in respect of its application for a reduction of the fine had no significant added value and that the applicant, owing to its failure to have acted in a genuine spirit of cooperation, was not entitled to a reduction of the fine under the 2002 Leniency Notice. According to the case‑law cited in paragraph 223 above, it is only in exceptional situations and, in particular, where cooperation provided by an undertaking does not give rise to the right to a reduction of the fine under that notice that the Commission may be required to grant a reduction of the fine to an undertaking on the basis of the fourth indent of point 29 of the 2006 Guidelines. Therefore, having regard to the finding, made in paragraph 211 above, by virtue of which the Commission should have granted the applicant a reduction of the fine under the 2002 Leniency Notice, it must be concluded that the Commission was not required to grant a reduction of the fine on the basis of the fourth indent of point 29 of the 2006 Guidelines. In any event, the applicant has failed to establish the existence of any exceptional circumstances to warrant the Commission examining the applicant’s cooperation in the light of that provision.
225 It must therefore be concluded that the applicant has not established that the Commission made an error in not granting it a reduction of the fine on the basis of the fourth indent of point 29 of the 2006 Guidelines. The fifth plea in law, in so far as it is based on that provision, must therefore be rejected as unfounded.
226 In the light of the foregoing considerations, the fifth plea in law must be upheld in part, in so far as the applicant claims that the Commission made an error in its assessment of the added value of the evidence provided by the applicant in its application for reduction of the fine, and must be dismissed as to the remainder.
227 It is apparent from the Court’s examination of the pleas in law relied on by the applicant that the fifth plea in law must be upheld, in so far as it alleges an error in the assessment of the added value of the evidence provided by the applicant in its application for a reduction of the fine, and must be dismissed, together with the other pleas in law, as to the remainder.
228 So far as concerns the conclusions to be drawn in respect of the claim for annulment in part of the contested decision, it must be noted that, with regard to Article 1 of the contested decision, the Commission found, in paragraph 3 of that article, that the applicant had breached Article 101 TFEU and Article 53 of the EEA Agreement by participating, from 10 December 2002 to 9 November 2004, in an infringement in France and Austria. In that regard, it must be found that, since none of the pleas in law relied on by the applicant have called that finding into question, that article is not unlawful. The claim for annulment in part – so far as concerns Article 1(3) of the contested decision – must therefore be dismissed.
229 By contrast, having regard to the conclusion drawn in paragraphs 226 and 227 above, Article 2(4)(b) of the contested decision must be annulled in so far as the Commission set the fine imposed on the applicant without taking account of its cooperation.
230 Since, by its second head of claim, the applicant requests, in the alternative, that the Court reduce the fine imposed on it, the Court will determine the amount thereof when it examines that head of claim.
2. The claim for reduction of the fine imposed on the applicant
231 Having regard to the second head of claim, by which the applicant asks, in the alternative, the Court to reduce the fine imposed on it (see paragraph 33 above), it is for the Court, in the exercise of its unlimited jurisdiction, to examine (i) the consequences of the error made by the Commission, set out in paragraphs 202 and 211 above, on the calculation of the amount of the fine imposed on the applicant and (ii) the other arguments put forward by the applicant in support of its request that the Court reduce the fine imposed on it.
The consequences which follow from the error made by the Commission when assessing the value of the evidence put forward in support of the applicant’s application for a reduction of the fine
232 So far as concerns the incorrect assessment of the value of the applicant’s application for a reduction of the fine, as established in paragraph 215 above, the Commission submits that, if the Court were to find that the applicant had provided evidence of significant added value and had demonstrated a sincere and genuine spirit of cooperation, the reduction applicable should not exceed 3% because, in the present case, the extent of the cooperation was very limited since it related only to ceramics and the French market.
233 In that regard, the Court notes that, although the 2002 Leniency Notice does not prejudge the assessment of the reduction of the fine by the Courts of the Union when they adjudicate in the exercise of their unlimited jurisdiction, the Court deems it appropriate in the present case to draw on it in recalculating the fine, in particular because it allows all the relevant elements of the case in point to be taken into account and proportionate fines to be imposed on all the undertakings that have participated in the infringement in issue.
234 In that regard, it should be borne in mind that the first paragraph of point 23(b) of the 2002 Leniency Notice provides for three fine-reduction bands. The first undertaking to meet the condition laid down in point 21 of that notice is entitled to receive a reduction of the fine of between 30 and 50%; the second undertaking is entitled to a reduction of its fine of between 20 and 30%; and subsequent undertakings are entitled to a reduction of up to 20% of their fines.
235 The second paragraph of point 23(b) of the 2002 Leniency Notice states that ‘[i]n order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 21 [of this notice] was submitted and the extent to which it represents added value’ and that ‘[i]t may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission’.
236 In the present case, first of all, it should be noted that, as stated in recital 1289 to the contested decision, the applicant belonged to the third undertaking to submit an application for a reduction of the fine after Grohe and its subsidiaries and Ideal Standard and its subsidiaries, since Masco and its subsidiaries were awarded immunity from fines. In those circumstances, the applicant is eligible, under the third indent of the first paragraph of point 23(b) of the 2002 Leniency Notice, for a maximum 20% reduction of the fine, which it does not moreover dispute.
237 Next, the applicant’s application for a reduction of the fine was submitted on 17 January 2006 (see paragraph 9 above), that is to say, approximately one year and six months after the application for immunity submitted by Masco and its subsidiaries (see paragraph 5 above) and approximately one year and two months after the applications for a reduction of their fines were submitted by Grohe and its subsidiaries and Ideal Standard and its subsidiaries respectively (see paragraph 7 above), but before the statement of objections was issued.
238 Lastly, it must be observed that the applicant’s submissions in support of its application for a reduction of the fine are of a general nature and do not concern any meeting in particular. Moreover, those submissions led to a finding of infringement only in respect of eight months in 2004 and only in relation to ceramics and the French market.
239 The Court therefore considers it appropriate, in the light of all the circumstances of the case, and in particular the circumstances referred to in paragraphs 236 to 238 above, to grant the applicant a reduction of 6% of the fine imposed on it, that is to say, a reduction of EUR 402 000.
240 In the light of the conclusions set out in paragraph 239 above, the Court therefore sets the total amount of the fine to be imposed on the applicant jointly and severally, in respect of the infringement in which it participated in France, at EUR 6 298 000.
…
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Annuls Article 2(4)(b) of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39092 – Bathroom Fittings and Fixtures) in so far as the European Commission set the amount of the fine to be imposed on Roca jointly and severally without taking account of its cooperation;
2. Sets the amount of the fine imposed on Roca in Article 2(4)(b) of Decision C(2010) 4185 final at EUR 6 298 000;
3. Dismisses the action as to the remainder;
4. Orders the Commission to pay one third of the costs incurred by Roca and to bear its own costs;
5. Orders Roca to bear two thirds of its own costs.
Pelikánová | Jürimäe | Van der Woude |
Delivered in open court in Luxembourg on 16 September 2013.
[Signatures]