Case T‑398/10

(publication by extracts)

Fapricela — Indústria de Trefilaria, SA

v

European Commission

(Competition — Agreements, decisions and concerted practices — European market for prestressing steel — Price-fixing, market-sharing and exchange of commercially sensitive information — Decision finding an infringement of Article 101 TFEU — Cooperation during the administrative procedure)

Summary — Judgment of the General Court (Sixth Chamber), 15 July 2015

1.      Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Degree of precision required of the evidence used by the Commission — Body of evidence — Judicial review — Scope — Decision leaving a doubt in the mind of the court — Compliance with the principle of the presumption of innocence

(Art 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 48; Council Regulation No 1/2003, Art. 2)

2.      Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Documentary proof — Assessment of the probative value of a document — Criteria — Document established in immediate connection with the facts or by a direct witness of those facts — Declarations against the interests of the person making them — High probative value

(Art. 101 TFEU; EEA Agreement, Art. 53; Council Regulation No 1/2003, Art. 2)

3.      Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the duty to state reasons by reference to the circumstances of the case — No need to specify all the relevant factual and legal elements

(Art. 296 TFEU)

4.      Agreements, decisions and concerted practices — Agreements and concerted practices constituting a single infringement — Undertakings that may be held responsible for participating in an overall cartel — Criteria — Single objective and overall plan — Not aware of all the aspects of the cartel — Consequences

(Art. 101 TFEU; EEA Agreement, Art. 53; Council Regulation No 1/2003, Art. 2)

5.      Agreements, decisions and concerted practices — Participation in meetings having an anti-competitive object — Circumstances from which, where the undertaking concerned has not distanced itself from the decisions adopted, it may be concluded that it participated in the ensuing cartel — Public distancing — Assessment

(Art. 101 TFEU; EEA Agreement, Art. 53)

6.      Agreements, decisions and concerted practices — Agreements between undertakings — Participation allegedly under pressure — Matter not providing a justification for an undertaking which did not make use of the possibility of lodging a complaint with the competent authorities

(Art. 101 TFEU; EEA Agreement, Art. 53)

7.      Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — New plea — Concept — Arguments closely linked to a plea set out in the application initiating proceedings — Not included

(Rules of Procedure of the General Court (1991), Art. 48(2))

8.      Competition — Fines — Amount — Determination — Fixing of the base amount — Gravity of the infringement — Criteria for assessment — Commission’s margin of discretion — Limits — Compliance with the principle of proportionality and the principle that penalties must fit the offender

(Art. 101 TFEU; EEA Agreement, Art. 53; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 13 and 19 to 23)

9.      Competition — Fines — Amount — Determination — Fixing of the base amount — Determination of the value of sales — Account taken only of the value of sales carried out in direct or indirect relation to the infringement in the geographical sector concerned — Turnover of the offending undertaking — Irrelevant

(Art. 101 TFEU; EEA Agreement, Art. 53; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 13)

10.    Competition — Fines — Amount — Determination — Fixing of the base amount — Gravity of the infringement — Determination of degrees of gravity graded with regard to different categories of undertaking committing a single infringement — Reduced disparity between the degrees applied to undertakings committing the infringement — Respect for the principle of equal treatment — Assessment

(Art. 101 TFEU; EEA Agreement, Art. 53; Council Regulation No 1/2003, Art. 23(2) and (3))

11.    Competition — Fines — Amount — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Effect — Not subject to the Guidelines for the calculation of fines — Circumstances to be taken into consideration

(Arts 101 TFEU, 102 TFEU and 261 TFEU; EEA Agreement, Art. 53(1); Council Regulation No 1/2003, Arts 23(3), and 31; Commission Notice 2006/C 210/02)

1.      See the text of the decision.

(see paras 86-89, 91-93, 124)

2.      See the text of the decision.

(see paras 88, 90)

3.      See the text of the decision.

(see paras 94, 213)

4.      In competition matters, restrictive practices can be regarded as constituent elements of a single anti-competitive agreement only if it is established that they form part of an overall plan pursuing a common objective. In addition, only where the undertaking knew, or ought to have known, when it participated in those practices, that it was taking part in the single agreement, can its participation in them constitute the expression of its accession to that agreement.

Conversely, if an undertaking has directly taken part in one or more of the forms of anti-competitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives, or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk. However, that cannot relieve that undertaking of liability for conduct in which it has undeniably taken part or for conduct for which it can undeniably be held responsible. Nor is the fact that an undertaking did not take part in all aspects of an anti-competitive arrangement or that it played only a minor role in the aspects in which it did participate material for the purposes of establishing the existence of an infringement on its part, given that those factors need to be taken into consideration only when the gravity of the infringement is assessed and only if and when it comes to determining the fine.

However, a Commission decision categorising a global cartel as a single and continuous infringement can be divided in that manner only if the undertaking in question has been put in a position, during the administrative procedure, to understand that it is also alleged to have engaged in each of the forms of conduct comprising that infringement, hence to defend itself on that point, and only if the decision is sufficiently clear in that regard. It follows that, where the conditions set out in the preceding paragraph are satisfied, if the EU judicature finds that the Commission has not proved to the requisite legal standard that, when participating in one of the forms of anti-competitive conduct comprising a single and continuous infringement, the undertaking was aware of the other anti-competitive conduct adopted by the other participants in the cartel in pursuit of the same objectives or could reasonably have foreseen that conduct and was prepared to take the risk, the only inference which that Court must draw is that the undertaking may not be attributed liability for that other conduct and, in consequence, may not be attributed liability for the single and continuous infringement as a whole, and, to that extent alone, the contested decision must be held to be unfounded.

(see paras 133, 135-138)

5.      See the text of the decision.

(see paras 146, 209, 282)

6.      See the text of the decision.

(see para. 206)

7.      See the text of the decision.

(see paras 220, 221)

8.      In competition matters, when fixing the amount of the fines, regard must be had to all the factors capable of affecting the assessment of the gravity of the infringements, such as, in particular, the role played by each of the parties to the infringement and the threat that infringements of this type pose to the objectives of the EU. Where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined.

In that regard, the fact that an undertaking has not taken part in all aspects of an anti-competitive scheme or that it played a minor role in the aspects in which it did participate must be taken into consideration when the gravity of the infringement is assessed and, where appropriate, when the fine is determined.

Moreover, in the calculation of the amount of fines imposed on undertakings which have participated in an infringement, differentiated treatment of the undertakings concerned is inherent in the exercise of the Commission’s power in that area. In exercising its discretion, the Commission is required to fit the penalty to the individual conduct and specific characteristics of the undertakings concerned in order to ensure that, in each case, the rules of EU competition law are fully effective.

Furthermore, the principle of proportionality requires that the measures adopted by the institutions must not exceed what is appropriate and necessary for attaining the objective pursued. In the context of calculating fines, the gravity of infringements has to be determined by reference to numerous factors and it is important not to confer on one or other of those factors an importance which is disproportionate in relation to other factors. In that context, the principle of proportionality requires the Commission to set the fine proportionately to the factors taken into account for the purpose of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified.

(see paras 254-257)

9.      See the text of the decision.

(see para. 267)

10.    See the text of the decision.

(see paras 291, 294, 296-300)

11.    In competition law matters, the unlimited jurisdiction conferred on the General Court by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU authorises that Court, in addition to carrying out a simple review of the legality of the penalty, which merely permits dismissal of the action for annulment or annulment of the contested measure, to substitute its own appraisal for the Commission’s and, consequently, to vary the contested measure, even without annulling it, and, taking into account all of the factual circumstances, to amend, in particular, the fine imposed where it is requested to appraise the amount of the fine.

Furthermore, under Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement. In order to determine the amount of a fine, it is necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the European Union. In that regard, objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements.

The fixing of a fine by the EU judicature is not an arithmetically precise exercise. The Court is not bound by the Commission’s calculations, or by its Guidelines, when it exercises its unlimited jurisdiction, but must carry out its own appraisal, taking all the circumstances of the case into account.

(see paras 420-425)