JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

15 July 2015(*) (1)

(Competition — Agreements, decisions and concerted practices — European prestressing steel market — Price fixing, market sharing and exchanging of sensitive commercial information — Decision finding an infringement of Article 101 TFEU — Cooperation during the administrative procedure — Article 139(a) of the Rules of Procedure of the General Court)

In Case T‑406/10,

Emesa-Trefilería SA, established in Arteixo (Spain),

Industrias Galycas SA, established in Vitoria (Spain),

represented by A. Creus Carreras and A. Valiente Martin, lawyers,

applicants,

v

European Commission, represented initially by V. Bottka and F. Castilla Contreras, and subsequently by V. Bottka and A. Biolan, acting as Agents, and by M. Gray, Barrister,

defendant,

supported by

Council of the European Union, represented by F. Florindo Gijón and R. Liudvinaviciute-Cordeiro, acting as Agents,

intervener,

APPLICATION for annulment and alteration of Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (case COMP/38344 — Prestressing Steel), amended by Commission Decision C(2010) 6676 final of 30 September 2010, and by Commission Decision C(2011) 2269 final of 4 April 2011,

THE GENERAL COURT (Sixth Chamber),

composed of S. Frimodt Nielsen (Rapporteur), President, F. Dehousse and A.M. Collins, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written procedure and further to the hearing on 26 June 2014,

gives the following

Judgment

 Subject-matter of the dispute

1        This action for partial annulment has been brought against Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (case COMP/38344 — Prestressing Steel; ‘the initial decision’), penalising a cartel between prestressing steel (‘PS’) suppliers that participated in quota fixing, client sharing, price fixing and exchanging of sensitive commercial information relating to price, volume and customers at European, regional and national level.

2        The initial decision was addressed by the European Commission to:

–        ArcelorMittal SA,

–        ArcelorMittal Wire France SA,

–        ArcelorMittal Fontaine SA,

–        ArcelorMittal Verderio Srl,

–        Emesa-Trefilería, SA (‘Emesa’), the first applicant,

–        Industrias Galycas, SA (‘Galycas’), the second applicant,

–        ArcelorMittal España, SA (previously ‘Arcelor España’),

–        Trenzas y Cables de Acero PSC, SL (‘Tycsa’),

–        Trefilerías Quijano, SA (‘TQ’),

–        Moreda-Riviere Trefilerías, SA (‘MRT’),

–        Global Steel Wire, SA (‘GSW’),

–        SOCITREL — Sociedade Industrial de Trefilaria, SA (‘Socitrel’),

–        Companhia Previdente — Sociedade de Controle de Participações Financeiras, SA (‘Companhia Previdente’),

–        voestalpine Austria Draht GmbH (‘Austria Draht’),

–        voestalpine AG,

–        Fapricela Indústria de Trefilaria, SA (‘Fapricela’),

–        Proderac — Productos Derivados del Acero, SA (‘Proderac’),

–        Westfälische Drahtindustrie GmbH (‘WDI’)

–        Westfälische Drahtindustrie Verwaltungsgesellschaft mbH & Co. KG (‘WDV’)

–        Pampus Industriebeteiligungen GmbH & Co. KG (‘Pampus’),

–        Nedri Spanstaal BV (‘Nedri’),

–        Hit Groep BV,

–        DWK Drahtwerk Köln GmbH, Saarstahl AG (together, ‘DWK’),

–        Ovako Hjulsbro AB,

–        Ovako Dalwire Oy AB,

–        Ovako Bright Bar AB,

–        Rautaruukki Oyj,

–        Italcables SpA (‘ITC’),

–        Antonini SpA,

–        Redaelli Tecna SpA (‘Redaelli’),

–        CB Trafilati Acciai SpA (‘CB’),

–        ITAS — Industria Trafileria Applicazioni Speciali SpA (‘Itas’),

–        Siderurgica Latina Martin SpA (‘SLM’),

–        Ori Martin SA,

–        Emme Holding SpA (‘Emme’), formerly and then once again known as Trafileria Meridionali SpA (‘Trame’).

3        The initial decision was amended twice by the Commission.

4        First, the Commission adopted, on 30 September 2010, Decision C(2010) 6676 final amending the initial decision (‘the first amending decision’). In essence, the first amending decision had the effect of reducing the amount of the fines imposed on the following companies: ArcelorMittal Verderio, ArcelorMittal Fontaine and ArcelorMittal Wire France, ArcelorMittal España, WDI and WDV.

5        The first amending decision was notified to all the addressees of the initial decision.

6        Second, the Commission adopted, on 4 April 2011, Decision C(2011) 2269 final amending the initial decision (‘the second amending decision’). In essence, the second amending decision, inter alia, had the effect of reducing the amount of the fines imposed on the following companies: (i) ArcelorMittal, ArcelorMittal Verderio, ArcelorMittal Fontaine and ArcelorMittal Wire France, and (ii) SLM and Ori Martin. Only those companies were addressees of the second amending decision.

7        Where appropriate on the Court’s initiative, all the companies which brought actions against the initial decision received the second amending decision.

8        Emesa and Galycas were questioned by the Court on the consequences which could be drawn from those amendments to the initial decision on the content of their arguments and were afforded the opportunity to adapt their pleas and form of order sought so as to take account of those possible consequences.

9        Thus, the initial decision, as amended by the first and the second amending decisions, constitutes, for the purposes of this action, the ‘contested decision’.

10      Twenty-eight actions were brought against the initial decision, the first amending decision, the second amending decision or the letters sent by the Commission following applications made by some of the addressees of the initial decision for reassessment of their ability to pay (Cases T‑385/10 ArcelorMittal Wire France and Others v Commission; T‑388/10 Productos Derivados del Acero v Commission; T‑389/10 SLM v Commission; T‑391/10 Nedri Spanstaal v Commission; T‑393/10 Westfälische Drahtindustrie and Others v Commission; T‑398/10 Fapricela v Commission; T‑399/10 ArcelorMittal España v Commission; T‑406/10 Emesa-Trefilería and Industrias Galycas v Commission; T‑413/10 Socitrel v Commission; T‑414/10 Companhia Previdente v Commission; T‑418/10 voestalpine and voestalpine Wire Rod Austria v Commission; T‑419/10 Ori Martin v Commission; T‑422/10 Trafilerie Meridionali v Commission; T‑423/10 Redaelli Tecna v Commission; T‑426/10 Moreda-Riviere Trefilerías v Commission; T‑427/10 Trefilerías Quijano v Commission; T‑428/10 Trenzas y Cables de Acero v Commission; T‑429/10 Global Steel Wire v Commission; T‑436/10 Hit Groep v Commission; T‑575/10 Moreda-Riviere Trefilerías v Commission; T‑576/10 Trefilerías Quijano v Commission; T‑577/10 Trenzas y Cables de Acero v Commission; T‑578/10 Global Steel Wire v Commission; T‑438/12 Global Steel Wire v Commission; T‑439/12 Trefilerías Quijano v Commission; T‑440/12 Moreda-Riviere Trefilerías v Commission; T‑441/12 Trenzas y Cables de Acero v Commission; T‑409/13 Companhia Previdente and Socitrel v Commission).

 Background to the dispute

1.     Sector forming the subject-matter of the procedure

 Product

11      The cartel penalised by the Commission concerned PS, which refers to metal wires and strands made of wire rod and, inter alia, first, steel used for prestressed concrete, the latter being used for balconies, foundation piles or pipes and, second, steel used for post-tensioned concrete, the latter being used in structural engineering, underground engineering and bridge building (contested decision, recital 2).

12      The PS product range includes various types of single PS wires (for example smooth, bright or galvanised; indented, ribbed) as well as various types of PS strands (for example bright, indented, polyethylene-coated or metallic-coated strands). PS strands are composed of 3 or 7 wires. PS is sold in several diameters. Special strands, i.e. strand which is galvanised or sheathed — greased or waxed — and stays, i.e. galvanised, coated strand and galvanised wire for bridge building, were not however taken into consideration by the Commission (contested decision, recitals 3 and 4).

13      It is also stated in the contested decision that, in many countries, technical approval by national authorities is mandatory. Certification procedures require approximately six months (contested decision, recital 5).

 Supply structure

14      All together and according to the contested decision, the members of the cartel controlled approximately 80% of sales within the European Economic Area (EEA). In most countries several of the larger producers were present along with some local producers. Most of these larger producers belonged to steel groups, which also produce wire rod, a raw material for PS which is the most important cost element of PS. Whilst non-integrated companies were obliged to purchase their raw material on the market, integrated companies mostly relied on supplies within their group. Throughout the entire period of the infringement found in the contested decision, the industry reported substantial and lasting overcapacities of PS (contested decision, recitals 98 and 99).

15      In 2001 the value of PS sales in the EEA was approximately EUR 365 million for a total volume in that year of approximately 600 000 tons. Approximately 20-25% of those sales were accounted for by PS wire and 75-80% by PS strand, with some differences in these averages by country. Italy was the country with the highest PS consumption (approximately 28% of PS sales in the EEA). Other large consuming countries were Spain (16%), the Netherlands, France, Germany and Portugal (each 8-10%) (contested decision, recital 100).

 Demand structure

16      According to the contested decision, the demand structure for PS was very heterogeneous. Producers of prefabricated building material and specialised engineering companies used PS, for example in constructions to stabilise buildings or bridges. The clientele consisted of a very small number of large customers — for example Addtek International Oy AB, which has since become Consolis Oy AB, which accounted for 5-10% of PS consumption in the European Union — and a large number of smaller customers (contested decision, recitals 101 and 102).

17      Commercial habits varied from one Member State to the other. PS producers and their customers often concluded six- or twelve-month framework contracts. Subsequently, depending on demand, customers ordered tonnages within the range of the volume agreed at the agreed price. Contracts were regularly extended after further negotiations (contested decision, recital 103).

 Trade within the European Union and the EEA

18      According to what is stated in the contested decision, the sales volumes of PS during the period concerned by the cartel show that trade between the Member States of the European Union was intensive. PS was produced and marketed throughout the EEA (contested decision, recital 104).

2.     Emesa and Galycas

19      Emesa, a company having its seat at Arteixo (Spain), was set up on 5 December 1984. From 19 October 1989 until 31 March 1995 Emesa was a fully-owned subsidiary of the Spanish State-owned company Empresa Nacional Siderúrgica, SA (also called ‘Ensidesa’).

20      In 1995, following the approval of the restructuring by a Commission decision of 12 April 1994, the Spanish public steel industry was reorganised. On 31 March 1995, Ensidesa transferred its holding in Emesa (and Galycas) by way of a contribution in kind to a newly created company, CSI Productos Largos, SA, Ensidesa remaining active as a steel manufacturer for several years. On 2 April 1995 the Spanish State contributed all the shares of CSI Productos Largos to the newly established holding company, CSI Corporación Siderúrgica, SA, which thus obtained control of Emesa and Galycas. Again on 2 April 1995, the Spanish State acquired (through CSI Corporación Siderúrgica) 100% of the share capital of another newly created company, CSI Planos, SA. The Spanish State remained the 100% indirect owner of Emesa and Galycas (through CSI Corporación Siderúrgica and later through Aceralia) until 23 July 1997, when its entire holding was sold step by step.

21      As of 23 July 1997 CSI Planos, until then a 100% subsidiary of CSI Corporación Siderúrgica, became the sole shareholder of CSI Corporación Siderúrgica and of CSI Productos Largos (and so of Emesa and Galycas too). CSI Planos changed its corporate name to Aceralia Corporación Siderúrgica SA (now ArcelorMittal España SA) on 1 September 1997. On the following day, on 2 September 1997, all the assets and liabilities of CSI Corporación Siderúrgica were transferred to Aceralia, and CSI Corporación Siderúrgica was subsequently dissolved. Therefore, Aceralia (previously called CSI Planos) took over the liabilities of CSI Corporación Siderúrgica for the period from 2 April 1995 to 23 July 1997. Since the end of 1997 Aceralia has no longer been a State-owned company. The privatisation of Aceralia was carried out in three stages. Initially, Arbed SA acquired a 35% share in Aceralia. Subsequently, two Spanish industrial partners, namely Corporación JM Aristrain and Corporación Gestamp, acquired respectively 13.242% and 6.67% of Aceralia. Finally, the remaining shares of the company still in public hands were sold in a public offer on the Spanish Stock Exchange that was finalised on 10 December 1997.

22      Since 18 February 2002, after the merger of Aceralia (now ArcelorMittal España) with Arbed and Usinor SA (now ArcelorMittal France), Aceralia has formed part of the Arcelor Group, headed by Arcelor SA. After the integration of the three groups in February 2002, Arcelor owned more than 95% of the share capital of each of the three subsidiaries, Aceralia, Arbed and Usinor.

23      Emesa continued to be (directly or indirectly) fully owned by Aceralia until 2004, i.e., after the end of the alleged infringement, when Emesa was acquired 100% by Companhia Previdente by Share Purchase Agreement dated 15 April 2004.

24      The total prestressing steel turnover of Emesa in 2001 in the EEA was EUR 24 513 197 and its consolidated world-wide turnover in 2009 was EUR 27 125 319.

25      Galycas, with its registered office in Vitoria (Spain), was founded in 1963 and has existed under its current name and corporate form since 3 July 1972. Ensidesa acquired Galycas on 30 April 1992.

26      Like Emesa, Galycas from 2 April 1995 was a 100% subsidiary first of CSI Corporación Siderúrgica SA (through CSI Productos Largos) and then of Aceralia. From 18 February 2002, Galycas continued to be (directly or indirectly) fully owned by Aceralia (now ArcelorMittal España) until 2004, i.e., after the alleged infringement ended, when it was acquired 100% by Companhia Previdente by a Share Purchase Agreement dated 15 April 2004.

27      In 2001, Galycas’s total PS turnover in the EEA was EUR 6 348 809 and its consolidated world-wide turnover in 2009 was EUR 9 140 514.

3.     Administrative procedure

28      On 9 January 2002, the Bundeskartellamt (German competition authority) handed over documents to the Commission concerning a court case at a German local labour court on the dismissal of a former WDI employee. That employee asserted that he had been involved in an infringement of Article 101 TFEU on PS. In this context, he gave an account of the undertakings involved and first information on the infringement (contested decision, recital 105).

 First leniency application and immunity granted to DWK

29      On 18 June 2002, DWK submitted a memorandum to the Commission about an infringement of Article 101 TFEU regarding PS, involving DWK itself and others. In that context, DWK expressed its expectation to benefit from the Commission notice on immunity from fines and reduction of fines in cartel cases of 19 February 2002 (OJ 2002 C 45, p. 3; ‘the Leniency Notice’) (contested decision, recital 106).

30      On 3 July 2002, representatives of DWK met the Commission and the leniency procedure was discussed. On 19 July 2002, the Commission granted conditional immunity to DWK under point 8(b) of the Leniency Notice as DWK was the first to submit evidence, which in the Commission’s view, enabled it to find an infringement of Article 101 TFEU in connection with an alleged EU-wide cartel of PS producers (contested decision, recital 107).

 Inspections and requests for information

31      On 19 and 20 September 2002, the Commission conducted inspections at the premises, inter alia, of WDI, DWK, Tycsa, Nedri, ITC, Redaelli, Itas, SLM and Edilsider (the company owned by Mr V., the sales agent of Tréfileurope Italia Srl, now ArcelorMittal Verderio), together with their respective subsidiaries or affiliated undertakings, pursuant to Articles 14(2) or (3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [101 TFEU] and [102 TFEU] (OJ, English Special Edition 1959-1962, p. 87) (contested decision, recital 108).

32      As of 19 September 2002, the Commission sent several requests for information, in accordance with Article 11 of Regulation No 17 and Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), to the undertakings to which the initial decision was addressed, their parent companies, other companies, certain individuals (a retired Redaelli employee and subsequently a commercial adviser, and by a sales agent of Tréfileurope Italia through Edilsider) and to certain trade associations (contested decision, recital 109).

33      On 7 and 8 June 2006, the Commission conducted an inspection pursuant to Article 20 of Regulation No 1/2003 at the premises (‘studio’) of a family member of a former employee of Redaelli (contested decision, recital 114).

 Other leniency applications and replies given by the Commission

34      Among the addressees of the contested decision, some of them, such as ITC, Nedri, SLM, Redaelli and WDI, made formal applications for leniency under the Leniency Notice. Tycsa confirmed the existence of anti-competitive arrangements without applying for leniency (contested decision, recital 110).

35      ITC applied for leniency on 21 September 2002, submitting contemporaneous evidence with regard to the meetings between PS producers between 1979 and 2002. It also submitted a corporate statement on 11 November 2002. The Commission granted provisional reduction of fines in the order of 30-50% on 10 January 2003 on the condition that ITC would continue satisfying the conditions foreseen under point 21 of the Leniency Notice (contested decision, recital 111).

36      On 17 October 2002, Tycsa sent a reply to a request for information, admitting the facts and supplying self-incriminating evidence. On 21 October 2002, replying to a request for information, Redaelli submitted self-incriminating evidence, and it submitted a formal request to benefit from the Leniency Notice on 20 March 2003. On 23 October 2002, replying to a request for information, Nedri submitted evidence and requested to benefit from the Leniency Notice. On 25 October 2002, Emesa submitted evidence including certain self-incriminating statements. On 30 October 2002, replying to a request for information, SLM applied for a fine reduction. On 4 November 2002 and, subsequently, on 6 March and 11 June 2003, Tréfileurope submitted self-incriminating information in reply to a request for information and submitted a corporate statement for the application of the Leniency Notice. On 17 March 2004, Galycas replied to a request for information, admitting the facts and supplying certain incriminating statements. On 19 May 2004, WDI submitted a corporate statement for the application of the Leniency Notice. On 28 June 2007, among other contacts with the Commission, ArcelorMittal submitted a leniency application, containing mainly contemporaneous hand-written notebooks covering the period 1992-2002 of a former Emesa employee (‘the Emesa notebooks’) (contested decision, recital 112).

37      Following the leniency applications, the Commission addressed letters to Nedri and WDI, dated 19 September 2008, informing them that immunity from fines was not available and that, pursuant to point 26 of the Leniency Notice, it intended to apply a reduction of a fine within a specified band as provided for in point 23(b) of that notice. On the same day, the Commission also addressed letters to Redaelli and SLM, rejecting their leniency applications (contested decision, recital 113).

 Initiation of the procedure and statement of objections

38      On 30 September 2008, the Commission adopted a statement of objections directed at several companies, including Emesa and Galycas.

39      All the addressees of the statement of objections submitted written comments on the objections raised by the Commission.

 Access to the file and oral hearing

40      The addressees of the statement of objections were able to obtain access to the Commission’s file in the form of a copy of a DVD. With the DVD, those companies received a list specifying the documents contained in the investigation file and indicating the degree of accessibility of each document. They were informed that the DVD gave them full access to all the documents obtained by the Commission during the investigation, except for those documents or parts of documents containing business secrets and other confidential information. Access to leniency documents was granted at the Commission’s premises.

41      An oral hearing was held on 11 and 12 February 2009. All the undertakings to which the statement of objections was addressed, with the exception of HIT Groep, Emesa and Galycas, took part in it.

42      Fourteen undertakings also invoked inability to pay within the meaning of point 35 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). They provided evidence in support of this request.

 Further requests for information

43      Subsequently, the Commission addressed requests for information to GSW, MRT, Tycsa, TQ, Companhia Previdente and Socitrel to clarify certain issues relating inter alia to their corporate structures. Those companies replied between 6 March and 15 April 2009.

44      The Commission also addressed requests for information to all the addressees of the initial decision in order to establish the value of sales in the relevant products as well as the turnover of the groups. All addressees responded to these requests.

4.     Contested decision

45      The contested decision relates to a cartel of PS suppliers that participated in quota fixing, customer sharing, price fixing and exchanging of sensitive commercial information relating to price, volume and customers at European, regional and national level. According to recital 1 of the contested decision, those undertakings thereby committed a single and continuous infringement of Article 101(1) TFEU and, from 1 January 1994, of Article 53(1) of the EEA Agreement. The illegal conduct lasted from at least the beginning of 1984 until 19 September 2002.

46      The investigation involved 18 undertakings. In recitals 122 to 133 of the contested decision, the cartel arrangements forming the subject-matter of the procedure are described in general terms. Those recitals are summarised below, in so far as the facts there described allow a better understanding of the background to the dispute.

47      At least from the early 1980s (1984) until the inspections by the Commission on 19 and 20 September 2002, several companies active in the PS sector were, partly or constantly, involved in a pan-European arrangement, consisting of a ‘Zurich’ and a ‘European’ phase, or, as the case might be, in national or regional arrangements. The pan-European and the national or regional arrangements had the same overall aim of maintaining equilibrium in order to avoid falling prices in an evolving European market, characterised by excess production capacities. The companies constantly attempted, therefore, to avoid fierce competition in the home market or in export markets, by agreeing on quotas, prices or customer allocation.

 Zurich Club and regional arrangements

48      The first phase of the pan-European arrangement is referred to as the Zurich Club. Thus, from 1 January 1984 until 9 January 1996, following strong pressure on price at that time, Tréfileurope SA, Nedri, WDI, DWK (or their predecessors) and Redaelli, the latter representing several other Italian companies (at least as of 1993 and 1995), fixed quotas per country (Germany, Spain, France, Italy, Austria and Benelux), shared customers, fixed prices and exchanged sensitive commercial information. They were joined by the Spanish producers Emesa in 1992 and Tycsa in 1993 (which around the same time, also started meeting on a regional level regarding the Iberian market, first with other Spanish and then also with Portuguese producers in ‘Club España’. In the 1980s, the Zurich Club meetings took mainly place in Zurich (Switzerland), and as of the 1990s in Düsseldorf (Germany).

49      At the latest from 23 January 1995 onwards and throughout the rest of 1995, the Italian companies Redaelli, ITC, CB and Itas (the latter three often represented by Redaelli) negotiated a (revised) quota arrangement with the other Zurich Club producers, which was to cover the sales of the Italian producers and the other Zurich Club producers in Italy and in the rest of Europe. In the end no agreement could be reached because the export quotas claimed by the Italian producers were considered too high. This contributed to the breakup of the Zurich Club, the last recorded meeting of which took place on 9 January 1996.

50      On 5 December 1995 the Italian companies Redaelli, ITC, CB and Itas nevertheless concluded among themselves an agreement fixing quotas both within the Italian market and concerning exports from Italy to the rest of Europe (‘Club Italia’). Those Italian companies were later on joined (again) by Tréfileurope and Tréfileurope Italia, SLM, Trame, Tycsa, DWK and Austria Draht. They regularly met in order to monitor the implementation of the quota arrangement, to fix prices (including a surcharge, the so-called ‘extras’), to share/allocate customers and to exchange sensitive commercial information, all of which took place until the Commission’s inspection. The stakeholders operated a sophisticated monitoring system through an independent third party, who regularly checked prices and actual volume sold to customers in Italy.

51      There existed specific coordination between the Zurich Club and Club Italia. Redaelli, and later on Tréfileurope, kept the members of the pan-European arrangement informed. Participants in Club Italia were also informed of relevant developments in the pan-European arrangement through Redaelli and then through Tréfileurope, DWK and Tycsa, which participated in both Clubs.

52      In parallel, throughout 1996, the Italian companies (at least Redaelli, CB, ITC and Itas), Tycsa and Tréfileurope negotiated and reached a specific agreement at the end of 1996, ‘the Southern Agreement’, fixing the penetration rate of each of the participants in the Southern countries (Belgium, Spain, France, Italy and Luxembourg) and laying down an undertaking to negotiate quotas jointly with the other Northern European producers.

 Club Europe and regional agreements

53      In order to overcome the Zurich Club crisis, its former participants (with, however, less regular participation of the Italian producers, in particular Redaelli) also continued meeting regularly between January 1996 and May 1997. Tréfileurope, Nedri, WDI, DWK, Tycsa and Emesa (‘the permanent members’) finally agreed on a revised pan-European arrangement in May 1997, by which they shared quotas that were calculated on the basis of figures for a specific reference area and a specific reference period (from the fourth quarter of 1995 to the first quarter of 1997). This second phase of the pan-European arrangement is referred to as ‘Club Europe’.

54      The permanent members moreover allocated customers and fixed prices (both country and customer specific). They agreed on co-ordination rules, including the appointment of co-ordinators responsible for implementation of the arrangements in the individual countries and for co-ordination with other interested companies active in the same countries or in respect of the same customers. Moreover, their representatives regularly met at different levels (directors and sales representatives) to monitor the implementation of the arrangements. They exchanged sensitive commercial information. In the case of discrepancy with the agreed trade behaviour, an appropriate compensation scheme was applied.

55      Within this pan-European arrangement, the permanent members, occasionally joined by the Italian producers and Fundia Hjulsbro AB (Fundia), also had bilateral (or multilateral) contacts and participated in price fixing and customer allocation on an ad hoc basis, if they had an interest (depending on their presence on the discussed market).

56      In the period from at least September 2000 until the Commission’s inspections in September 2002, the permanent members and ITC, CB, Redaelli, Itas and SLM met regularly with the aim of integrating the Italian companies into Club Europe, as permanent members.

57      In the same period, in addition to the general territorial quota fixing, the distribution of quotas by customers was discussed. The company that traditionally co-ordinated a certain country would also manage the negotiation for detailed customer quota allocation in that country.

58      In parallel, the members of Club Europe attempted to integrate not only the Italian producers, but also all other significant PS producers, with which they previously had bilateral or multilateral arrangements or contacts, within their Club as permanent members and to reallocate the European quotas by country as had been done in the Zurich Club.

59      Also in parallel with the pan-European arrangement and with Club Italia, five Spanish companies (TQ, Tycsa, Emesa, Galycas and Proderac (the latter as from May 1994)) and two Portuguese companies (Socitrel (as from April 1994) and Fapricela (as from December 1998)) agreed, for Spain and Portugal, to keep their market shares stable and to fix quotas, to allocate customers, including public works, and to fix prices and payment conditions. Moreover, they exchanged sensitive commercial information (Club España).

60      The pan-European and regional (Club Italia/España/Southern Agreement) arrangements continued in force until the inspections conducted by the Commission in September 2002.

61      Emesa is held liable for its participation in the cartel for the period from 30 November 1992 to 19 September 2002 and Galycas for the period from 15 December 1992 to 19 September 2002 (Article 1 of the contested decision). For that infringement, a fine of EUR 36 720 000 was imposed on ArcelorMittal España, of which, firstly, Emesa was held jointly and severally liable for the amount of EUR 2 576 400 and, secondly, Galycas was held jointly and severally liable for the amount of EUR 868 300.

 Procedure and forms of order sought

62      By application lodged at the Court Registry on 15 September 2010, Emesa and Galycas brought the present action.

63      By a document lodged at the Court Registry on 5 November 2010, the Council of the European Union sought leave to intervene in the proceedings in support of the form of order sought by the Commission; leave to intervene was granted by order of the President of the First Chamber of the Court by order of 10 March 2011.

64      By decision of 6 June 2011, the Court asked the Commission to provide it with the second amending decision. The Commission complied with that request on 14 June 2011.

65      The applicants, by letter registered at the Registry on 16 August 2011, stated that they did not wish to adapt their pleas in law following the adoption of the second amending decision.

66      The written procedure was concluded on 20 October 2011, with the filing, by the Commission, of the rejoinder in the language of the case.

67      The composition of the Chambers of the Court was changed with effect from 23 September 2013 and the Judge-Rapporteur was assigned to the Sixth Chamber, to which the present case was therefore assigned on 3 October 2013.

68      The preliminary report referred to in Article 52(2) of the Rules of Procedure of the General Court of 2 May 1991 was communicated to the Sixth Chamber on 8 November 2013.

69      On 18 December 2013, by way of measures of organisation of procedure provided for under Article 64 of the Rules of Procedure of 2 May 1991, the Court put a number of questions to the applicants and the Commission. The parties were questioned in particular about the possible consequences of the judgment of 18 July 2013 in Schindler Holding and Others v Commission (C‑501/11 P, ECR, EU:C:2013:522) on the first plea in law put forward by the applicants in support of the action.

70      By letters of 30 and 31 January 2014, the Council, the applicants and the Commission complied with those measures. However, the Commission stated in its response that it could not entirely comply with some of the requests for the production of documents because some of the documents requested, of a confidential nature, had been sent to it in the context of dealing with the leniency applications.

71      On 14 May 2014, upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure.

72      By order of 16 May 2014, the Court ordered the Commission to produce the confidential version of the documents forming the subject-matter of the measures of organisation of procedure of 18 December 2013 which had not yet been sent to the Court.

73      On 23 May 2014, the Commission produced a non-confidential version of those documents.

74      By order of 12 June 2014, the Court ordered the Commission to produce the confidential version of those documents.

75      The Commission complied with that request on 16 June 2014.

76      The parties presented oral argument and answered written and oral questions put by the Court at the hearing on 26 June 2014.

77      By order of 17 July 2014, the Court decided to order that the oral procedure be reopened, in accordance with Article 62 of the Rules of Procedure of 2 May 1991, following the production of documents by the Commission and of observations by it on the minutes of the hearing.

78      The Council submitted its observations on 24 July 2014.

79      The applicants submitted their observations on 1 August 2014 on the documents communicated by the Commission and on the minutes of the hearing.

80      The Council submitted its observations on the applicants’ observations on 2 September 2014.

81      The Commission submitted its observations on the applicants’ observations on 3 September 2014.

82      By decision of 9 September 2014, the Court again closed the oral procedure.

83      Emesa and Galycas claim that the Court should:

–        partially annul the contested decision in so far as it concerns them;

–        in the alternative, cancel or reduce the amount of the fine imposed on them;

–        order the Commission to pay the costs.

84      The Commission, supported by the Council, contends that the Court should:

–        dismiss the action;

–        order Emesa and Galycas to pay the costs.

 Law

85      Emesa and Galycas raise three pleas in law in support of the action.

86      First, they submit in essence that the procedure followed by the Commission concerning cartels and the punishment of undertakings held liable for the commission of a breach of competition law infringes Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’), Article 47 of the Charter of Fundamental Rights of the European Union and the right to an impartial tribunal.

87      Secondly, they claim that the Commission was wrong to consider that they were not entitled to benefit from the leniency application made by Arcelor España for the disclosure, by the latter, of the ‘Emesa notebooks’ under the Leniency Notice.

88      Thirdly, they plead infringement of point 23 of that notice, in that the Commission, wrongly, based its decision on evidence which they had provided to it in the context of the leniency application in order for the period of their participation in the infringement to be determined.

1.     The first plea, alleging infringement of Article 6 of the ECHR, Article 47 of the Charter of Fundamental Rights and of the right to an impartial tribunal

 Arguments of the parties

89      Emesa and Galycas claim that the procedure followed by the Commission — and by the Court — until the adoption of the contested decision does not comply with the requirements of Article 6(1) of the ECHR.

90      They observe as a preliminary point that the EU institutions are required to apply the ECHR. It was held in the judgment of 14 September 2004 in Aristrain v Commission (T‑156/94, EU:T:2004:261) that the Union must respect fundamental rights, as guaranteed by the ECHR and as arising from the constitutional traditions common to the Member States, as general principles of EU law.

91      In their submission, that principle must now be adapted to the new legal environment brought about by the entry into force of the Treaty of Lisbon.

92      First, they argue that, in its case-law, the European Court of Human Rights (‘the Eur. Court H.R.’) applies the guarantees of a fair trial to companies.

93      Second, they submit in essence that it is apparent from the case-law of the Eur. Court H.R. that the European competition law procedures and fines should be regarded as being criminal in nature.

94      According to Emesa and Galycas, two recent decisions of the Eur. Court H.R. (Eur. Court H.R. Canal Plus and Others v. France, No 29408/08, 21 December 2010, and Compagnie des gaz de pétrole Primagaz v. France, No 29613/08, 21 December 2010) concerning competition cases in France — but relating to both French and European competition law — have confirmed that position.

95      Thus, in their view, if national authorities are bound to apply Article 6 of the ECHR when they apply Articles 101 TFEU and 102 TFEU, the Commission and the Council may not claim that the Commission is not bound by Article 6 of the ECHR. They add, in essence, that the Commission and the Council cannot argue that Article 6 of the ECHR is not applicable in its entirety to competition law procedures and that only certain rights laid down by that provision are guaranteed.

96      Third, the applicants argue that, to determine the applicability of Article 6 of the ECHR in its criminal aspect, it is necessary to have regard to the criteria established by the judgment of the Eur. Court H.R. in Engel and Others v. Netherlands (8 June 1976, Series A No 22) and reaffirmed in its judgment in Jussila v. Finland (No 73053/01, ECHR 2006-XIV).

97      In the first place, those criteria relate to the classification of the infringement in national law, which is, however, of only relative importance. It is true that the fine imposed by the Commission is not of a criminal nature in EU law, but it has such a nature in, for example, the United Kingdom.

98      Emesa and Galycas state that the key element in distinguishing an administrative decision from a criminal measure is not how it is defined by the drafter of the measure (in the present case Article 23(5) of Regulation No 1/2003, which states that decisions imposing a fine are not to be of a criminal nature), but how that measure must be objectively assessed according to its content.

99      In the second place, it is necessary to have regard to the nature of the penalty. The applicants observe that competition rules are general legal rules of a binding nature, that their purpose is to punish and deter, and that they give rise to a ‘criminal record’ in so far as the concept of recidivism, which is undoubtedly a concept of criminal law, exists.

100    In the third place, it is necessary to take into account the nature and severity of the penalty. A financial penalty of up to 10% of the (worldwide) turnover of a company is a very serious penalty. Moreover, no national legislation imposes fines of such a level for infringement of competition law.

101    Finally, Emesa and Galycas submit that, in the light of the order of 16 December 1999 in Hüls v Commission (C‑137/92 P-DEP, EU:C:1999:610), the fines imposed by the Commission must be regarded as being of a criminal nature.

102    Fourth, Emesa and Galycas submit that Regulation No 1/2003 grants the Commission not only the power to investigate, but also the power to find an infringement of Article 101 TFEU and to impose pecuniary penalties on the perpetrators of what it classifies as infringements. Such confusion of functions leads, in their submission, to a clear infringement of the right to an impartial tribunal. They submit that the whole process is vitiated, in so far as the officials who took part in the investigation are unavoidably biased by those activities when drawing up the statement of objections or the final decision imposing a penalty and in so far as they also bias the other participants in the decision-making.

103    No provision guarantees a clear distinction between the Commission’s acts as an investigator, a prosecutor and a decision-maker when imposing penalties for infringements of European Union competition law.

104    On the contrary, it is clear, in their view, that the Competition Commissioner supervises investigations, decides the undertaking’s indictment, formulates the objections and decides the penalties to be imposed, without the undertakings being able to put their arguments before the College of Commissioners. The entanglement of the Commission’s roles thus increases the risk of inappropriate and unreasonable penalties and is contrary to the principle of good administration and the right to be heard before any individual measure is taken against an undertaking.

105    Fifth, Emesa and Galycas submit that the Court does not carry out a sufficiently extensive review to compensate for the failings of the procedure followed by the Commission.

106    According to the applicants, in the first place, the Court limits its review to the pleas raised by the parties, regardless of any illegalities vitiating the contested decision, in the second place, it does not carry out its own investigation into the facts, in the third place, there is no obligation for the Commission’s entire case-file to be sent to the Court — by contrast with what was provided for under the ECSC Treaty — and, in the fourth place, the contested decision is not genuinely suspended, for interest on the amounts due continues to accrue during suspension.

107    Sixth, Emesa and Galycas claim in essence that the Court does not exercise a genuine full review, for it does not rule erga omnes, leading to the annulment of the contested decision in respect of all its addressees if the same infringements affect persons other than the applicant.

108    Thus, according to the applicants, the administrative file should be closed only by a decision of the Court, which would set the fine based on an assessment not only of the pleas in law but also of the whole case-file and all the factors in the case. In such a case, Commission decisions could not be enforced before the Court’s decision was given, which would make it possible to avoid the obligation to provide a bank guarantee.

109    Emesa and Galycas state that they are calling into question not the legality of Article 105 TFEU, but only the illegality of the procedure, implemented on the basis of that article, in the light of Article 6 of the ECHR.

110    Those considerations therefore establish, in their submission, an infringement of the right to an impartial tribunal and, therefore, of Article 6 of the ECHR.

111    Lastly, seventh, the applicants stated at the hearing that, notwithstanding the judgment in Schindler Holding and Others v Commission, paragraph 69 above (EU:C:2013:522), they intended to maintain their first plea in law and they observed, in essence, that, in their view, a system having been chosen in which an impartial tribunal has unlimited jurisdiction to adjudicate, it is the decision taken by the Court which brings the procedure to an end, and not the decision of the Commission, which is not an independent tribunal. Only this way would the system genuinely comply with the Charter of Fundamental Rights and the ECHR. They submit that it is therefore that decision of the Court too that must be taken into account for the purposes of Article 25 of Regulation No 1/2003. In this case, the limitation period, which is 10 years from the termination of the infringement, expired on 19 September 2012. Proceedings are therefore time barred, according to the applicants, since the Court had not given its ruling by that date.

112    The Commission and the Council dispute that line of argument.

 Findings of the Court

113    The first plea in law alleges, in essence, that the procedure followed concerning infringements of competition law is illegal in the light of Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights, in so far as, since a procedure of a criminal nature is involved, the Commission cannot be entrusted simultaneously with the functions of investigator, prosecutor and decision-maker by which it imposes a penalty without the Court’s exercising full review over those decisions, which, the applicants claim, is not the case.

 Outline of the principles

114    It should be recalled that, in its judgment in Schindler Holding and Others v Commission, paragraph 69 above (EU:C:2013:522), the Court held as follows:

‘33. … [c]ontrary to the appellants’ submissions, the fact that decisions imposing fines in competition matters are adopted by the Commission is not in itself contrary to Article 6 of the ECHR as interpreted by the European Court of Human Rights. It is to be noted in this connection that, in its judgment in A. Menarini Diagnostics v. Italy, relating to a penalty imposed by the Italian competition authority for anti-competitive practices similar to those of which the appellants were accused, the European Court of Human Rights considered that, given that the fine imposed was high, the penalty, because of its severity, fell within the criminal sphere.

34. It pointed out, however, in paragraph 58 of that judgment, that, entrusting the prosecution and punishment of breaches of the competition rules to administrative authorities is not inconsistent with the ECHR in so far as the person concerned has an opportunity to challenge any decision made against him before a tribunal that offers the guarantees provided for in Article 6 of the ECHR.

35. In paragraph 59 of its judgment in A. Menarini Diagnostics v. Italy, the European Court of Human Rights explained that, 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 this 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 of the body below. The judicial body must in particular have jurisdiction to examine all questions of fact and law relevant to the dispute before it.

36. Ruling on 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 which corresponds, in EU law, to Article 6(1) of the ECHR, the Court of Justice has held that, in addition to the review of legality provided for by the FEU Treaty, the European Union judicature has the unlimited jurisdiction which it is afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU, and which empowers it to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed ([judgment of 8 December 2001 in Chalkor v Commission, C‑386/10 P, ECR, EU:C:2011:815],paragraph 63).

37. As regards the review of legality, the Court has pointed out that the European Union judicature must carry it out on the basis of the evidence adduced by the applicant in support of the pleas in law put forward and that it cannot use the Commission’s margin of discretion — either as regards the choice of factors taken into account in the application of the criteria mentioned in the 1998 Guidelines or as regards the assessment of those factors — as a basis for dispensing with the conduct of an in-depth review of the law and of the facts ([judgment in] Chalkor v Commission, [EU:C:2011:815], paragraph 62).

38. As the review provided for by the Treaties involves review by the European Union judicature of both the law and the facts, and means that it has the power to assess the evidence, to annul the contested decision and to alter the amount of a fine, the Court has concluded that the review of legality provided for under Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for under Article 31 of Regulation No 1/2003, is not contrary to the requirements of the principle of effective judicial protection which is currently set out in Article 47 of the Charter [of Fundamental Rights] ([judgment in] Chalkor v Commission [EU:C:2011:815], paragraph 67).’

115    Moreover, the 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 General 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 (judgments of 8 December 2011 in Chalkor v Commission in C‑386/10 P, ECR, EU:C:2011:815, paragraph 66, and of 26 October 2013 in Kone and Others v Commission, C‑510/11 P, EU:C:2013:696, paragraph 32).

116    As regards the relative scope of judgments by which measures are annulled, the Court of Justice has repeatedly held that a decision adopted in a competition matter with respect to several undertakings, although drafted and published in the form of a single decision, must be seen as a set of individual decisions finding that each of the addressees is guilty of the infringement or infringements of which they are accused and imposing on them, where appropriate, a fine (judgments of 14 September 1999 in Commission v AssiDomän Kraft Products and Others, C‑310/97 P, ECR, EU:C:1999:407, paragraph 49 et seq., and of 15 October 2002 in Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, ECR, EU:C:2002:582, paragraph 100).

117    In its judgment of 11 July 2013 in Team Relocations and Others v Commission (C‑444/11 P, EU:C:2013:464), the Court of Justice held that if an addressee of a decision decides to bring an action for annulment, the matter to be tried by the European Union judicature relates only to those aspects of the decision which concern that addressee, whereas aspects concerning other addressees do not form part of the matter to be tried by the Union judicature, subject however to particular circumstances and it referred in that regard to its judgment of 22 January 2013 in Commission v Tomkins (C‑286/11 P, ECR, EU:C:2013:29, paragraphs 43 and 49).

118    As to the remainder, the decision remains therefore binding on those addressees which have not applied for its annulment (see, to that effect, judgment in Limburgse Vinyl Maatschappij and Others v Commission, paragraph 116 above, EU:C:2002:582, paragraph 100).

119    Moreover, it has been held that the procedural guarantees which must attach to the procedure followed in cases of infringement of the rules on competition do not require the Commission to adopt an internal organisation precluding the same official from acting as investigator and rapporteur in the same case (see judgment of 11 March 1999 in Aristrain v Commission, T‑156/94, ECR, EU:T:1999:53, paragraph 26 and the case-law cited).

120    The Court of Justice has moreover held that there was nothing to prevent the members of the Commission who were responsible for taking a decision imposing fines from being informed of the outcome of the hearing by such persons as the Commission had appointed to conduct it (judgment of 15 July 1970 in Buchler v Commission, 44/69, ECR, EU:C:1970:72, paragraphs 19 to 23).

 The merits of the first plea in law

121    On 18 December 2013, by way of measures of organisation of procedure under Article 64 of the Rules of Procedure of 2 May 1991, the Court decided to put a written question to the applicants concerning the possible consequences of the judgment in Schindler Holding and Others v Commission, paragraph 69 above (EU:C:2013:522), on the first plea in law raised in support of the action. The applicants complied with that request on 30 January 2014.

122    The applicants stated on that occasion that, notwithstanding the judgment in Schindler Holding and Others v Commission, paragraph 69 above (EU:C:2013:522), they intended to maintain their first plea in law (see paragraph 111 above).

123    First, it is necessary, in the light of the case-law recalled in paragraph 114 et seq. above, to reject all the complaints alleging incompatibility with Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights of the procedure followed by the Commission as regards cartels as that procedure is laid down in Regulation No 1/2003 and alleging failure by the Court to carry out a review of unlimited jurisdiction in that area.

124    The case-law recalled in paragraph 115 above leads also to the rejection of the complaints alleging failure by the Court to review the whole of the contested decision of its own motion.

125    It is also necessary to reject the applicants’ line of argument that, in essence, the absence of any erga omnes effects of judgments annulling an individual decision in the area of competition imposing a fine on the addressee thereof is incompatible with the requirement of full review by the Court and makes the entire procedure applied by the Commission and by the Court incompatible with the requirements of Article 6(1) of the ECHR.

126    In the first place, it must be observed that the annulment of an individual decision has an erga omnes effect and is binding on everyone, but, on the basis of the case-law recalled in paragraph 116 above, such annulment does not benefit everyone — unlike the annulment of an act of general application — subject however to certain particular circumstances (judgment in Commission v Tomkins, paragraph 117 above, EU:C:2013:29, paragraphs 43 and 49). A judgment annulling a decision forming part of a set of individual decisions in a procedure carried out by the Commission in the area of cartels is therefore capable, in certain circumstances, of having certain consequences for parties other than the applicant in the procedure which led to that annulment judgment.

127    In the second place, it must be stated that, in the judgment in Schindler Holding and Others v Commission, paragraph 69 above (EU:C:2013:522), the Court of Justice sought to uphold the compatibility with Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights of the entire procedure carried out, in the area of cartels, by the Commission and the General Court. That conclusion cannot therefore be called in question by the applicants’ claims that the General Court does not exercise full review over the Commission’s decision in the absence of any erga omnes effects of its annulling judgments, since the Court of Justice must have taken into account its settled case-law recalled in paragraphs 116 to 118 above when giving judgment in Schindler Holding and Others v Commission, paragraph 69 above (EU:C:2013:522).

128    Lastly, in the third place, and in so far as is necessary, it should be recalled that, according to settled case-law, it is not in any event for the Union judicature to usurp the function of the founding authority of the Union in order to change the system of legal remedies and procedures established by the Treaty (see judgment of 21 April 2005 in Holcim (Deutschland) v Commission, T‑28/03, ECR, EU:T:2005:139, paragraph 34 and the case-law cited).

129    Consequently, the complaint alleging the absence of any erga omnes effects of decisions by annulling judgments must be rejected.

130    Second, with respect to the line of argument put forward by the applicants in response to the written questions put by the Court, and to the questions put to them in this regard at the hearing, it must be held that it is, in any event, unfounded.

131    It must be observed that Regulation No 1/2003 does not provide that the decision bringing the administrative procedure to an end is one which might be made by the Court. That de lege ferenda line of argument — which the applicants moreover acknowledged at the hearing — has no basis in the legislation applicable to these proceedings and cannot therefore found an action for annulment of a Commission decision.

132    Moreover, it should be observed that, admittedly, Article 25(5) of Regulation No 1/2003 provides that the limitation period is to expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a periodic penalty payment. Furthermore, Article 25(5) specifies that the maximum period of 10 years is to be extended by the time during which limitation is suspended pursuant to Article 25(6). Article 25(6) of that regulation provides that the limitation period for the imposition of fines or periodic penalty payments is to be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Union.

133    In the present case, it is not disputed that the Commission adopted a decision imposing a fine on the applicants before the expiry of the period of 10 years laid down in Article 25(5) du Regulation No 1/2003.

134    Accordingly, to the extent that the applicants seek to claim that the limitation period has expired so far as they are concerned, the Court observes that they brought their action on 15 September 2010 and that the limitation period was therefore suspended from that date, in accordance with Article 25(6) of Regulation No 1/2003.

135    The first plea must therefore be rejected in its entirety.

2.     The second plea, alleging infringement of the principles of equal treatment and good administration and of Article 41(1) of the Charter of Fundamental Rights, in that the Commission wrongly denied the applicants the benefit of the leniency application made by Arcelor España

 The contested decision

136    It is apparent from recitals 112 and 1089 to 1092 of the contested decision that the Commission denied Emesa and Galycas the benefit of the leniency application made by Arcelor España on its own behalf, but also on behalf of its former subsidiaries, since those subsidiaries no longer constituted a single undertaking with their former parent company at the time that the leniency application was made and that it ruled out any unequal treatment with Saarstahl, which benefitted from the immunity granted to DWK, as DWK and Saarstahl were part of the same undertaking at the time of the immunity application.

137    Emesa and Galycas were none the less granted a reduction of 5% in the amount of the fine in the light of the information that they provided on 25 October 2002 (recitals 1093 and 1098 of the contested decision). The benefit of that reduction in the amount of the fine was moreover granted by the Commission to Arcelor España, which, at the time of the submission of the evidence by Emesa and Galycas in 2002, formed part of the same undertaking as Emesa and Galycas (recital 1098 of the contested decision).

 Arguments of the parties

138    Emesa and Galycas claim, in essence, that the Commission was wrong to merely grant them a reduction in the amount of the fine of 5% under the Leniency Notice and to refuse them a reduction of 20%, when such a reduction was granted to their former parent company, ArcelorMittal España, following the submission of the Emesa notebooks as part of its leniency application.

139    The applicants observe that they were owned by Arcelor España (which became ArcelorMittal España in November 2007) for a significant period of the infringement and that they were sold, after the end of the infringement, to Companhia Previdente in 2004.

140    They state that, during the pre-sale period, decisions were taken at the level of the corporate services of Arcelor España and that, if the Emesa Notebooks were not provided to the Commission before, it was because Arcelor España had so decided and not because Emesa and Galycas hid or retained them. They add that the Emesa Notebooks had to be initially in their possession and that, if they reached their parent company, it was because they delivered them to their parent company. However, they are not able to specify where and by whom they were kept, or why they were retained and then delivered.

141    Moreover, the applicants submit that, under the sale and purchase agreement between Arcelor España and Companhia Previdente, it was stipulated that liability for the entire fine would be borne by Arcelor España which would ensure those companies’ rights of defence for the purposes of the proceedings, as Arcelor España informed the Commission in its leniency application. Arcelor España submitted the Emesa notebooks in an annex to a joint application for leniency made on 28 June 2007 by Arcelor España and its subsidiaries, Mittal Steel Company NV and its subsidiaries, including Arcelor, and Tréfileurope and its subsidiaries, on their behalf and on behalf of their former subsidiaries Emesa and Galycas.

142    The applicants state however that the duty to keep the existence of a leniency application secret prevented ArcelorMittal España from submitting the Emesa notebooks to the Commission jointly with them.

143    The applicants also specified that ArcelorMittal España only informed them after the statement of objections that it had submitted the Emesa notebooks as part of its leniency application, that point in time coinciding with the lifting of the secrecy concerning the leniency application made by Arcelor España.

144    According to Emesa and Galycas, as soon as that duty was lifted, and following the adoption of the statement of objections, they asked in their response to that statement to join the leniency application of their former parent company.

145    Emesa and Galycas submit that they should therefore also benefit from the leniency granted to ArcelorMittal España, since the Emesa notebooks, drawn up by a former employee of Emesa, originate from them and had a significant bearing on the duration and gravity of the infringement, as the Commission indeed acknowledges.

146    They submit that, for ‘reasons of fairness’, in order to preserve the incentive of the leniency programme and in accordance with the principle of equal treatment, they should be entitled to the same reduction as their former parent company.

147    Emesa and Galycas argue that, having regard to the concept of an undertaking and of a single economic unit, parent companies are held jointly liable for the conduct of their subsidiary on account of the decisive influence which they exert on the latter. The principles of fairness and equal treatment — which should take precedence over the Leniency Notice — imply that the same reasoning is required if the policy of the parent company ‘involves a discharge’, even if the former subsidiaries are no longer part of the group at the time of the leniency application.

148    Emesa and Galycas submit in that regard that the factual situation underlying the judgment of 30 September 2009 in Hoechst v Commission (T‑161/05, ECR, EU:T:2009:366), on which the Commission relies in support of its case, is not comparable to their situation.

149    The Commission disputes that line of argument.

150    The Commission contends in essence that it is apparent from the case-law that Emesa and Galycas were not entitled to the leniency granted to their former parent company, since those companies were no longer part of the same undertaking when the leniency application was made by Arcelor España, which alone cooperated with the Commission in the context of that application.

151    Moreover, the Commission contended at the hearing that it was apparent, at least implicitly, from the letter that it sent to ArcelorMittal España on 19 September 2008 in response to the leniency application that it did not intend to grant ArcelorMittal España’s request to extend the benefit of leniency to Emesa and Galycas.

 Findings of the Court

 Outline of the principles

152    It should be pointed out that, according to settled case-law, only an undertaking which has cooperated with the Commission on the basis of the Leniency Notice can be granted, under that notice, a reduction of the fine which would have been imposed without that cooperation. That reduction cannot be extended to a company which, for part of the duration of the infringement in question, had formed part of the economic unit constituted by an undertaking, but no longer formed part of it at the time when the undertaking cooperated with the Commission. A contrary interpretation would thus mean, inter alia, that, in instances where one undertaking succeeds another, a company which participated initially in an infringement, as the parent company of a subsidiary directly involved in it, and which then transferred that subsidiary to another undertaking would benefit, as the case may be, from a fine reduction granted to the latter undertaking in respect of its cooperation with the Commission, although that company neither contributed itself to the detection of the infringement in question nor exercised decisive influence at the time of that cooperation on its former subsidiary. In the light of the objective pursued by the Leniency Notice, consisting in promoting the detection of conduct contrary to European Union competition law, and in order to ensure effective application of that law, there is nothing to justify extending a fine reduction granted to an undertaking in respect of its cooperation with the Commission to an undertaking which, whilst having controlled, in the past, the area of activity involved in the infringement in question, did not itself contribute to detection of the infringement (see, to that effect, judgments of 30 April 2014 in FLSmidth v Commission, C‑238/12 P, ECR, EU:C:2014:284, paragraphs 83 and 85; of 19 June 2014 in FLS Plast v Commission, C‑243/12 P, ECR, EU:C:2014:2006, paragraphs 85 and 87; and in Hoechst v Commission, paragraph 148 above, EU:T:2009:366, paragraph 76).

153    It follows from that case-law that the criterion that must be taken into consideration in order to assess whether leniency should be granted to an undertaking is its effective contribution to the detection or establishment of the infringement.

154    It also follows from that case-law that leniency is granted to an undertaking, that is to say the economic unit which exists at the time that the leniency application is submitted to the Commission.

155    The principle of effective cooperation of the undertaking is reflected in point 7 of the Leniency Notice and in point 11(a) thereof, relating to immunity from fines, according to which the undertaking is to cooperate fully, on a continuous basis and expeditiously throughout the Commission’s administrative procedure, and by the second paragraph of point 23(b) of that notice, relating to the reduction of the fine, which provides that the Commission may take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission.

156    Consequently, no reduction in the amount of the fine can be granted to an undertaking in the absence of effective cooperation on its part in establishing the infringement.

157    On that basis, the Court of Justice, in the judgments mentioned in paragraph 152 above, therefore considered that a company which, for part of the duration of the infringement in question, had formed part of the economic unit constituted by an undertaking, but no longer formed part of it at the time when the undertaking cooperated with the Commission, could not benefit from the leniency granted to the economic unit that cooperates effectively with the Commission.

158    It is also on that basis that the Court of Justice held that there is nothing to justify extending a fine reduction granted to an undertaking in respect of its cooperation with the Commission to an undertaking which, whilst having controlled, in the past, the area of activity involved in the infringement in question, did not itself contribute to detection of the infringement.

159    It must be held that exclusion — justified by the absence of any contribution to the detection of the infringement and of effective cooperation — from the benefit of leniency applies, to that extent, both in respect of a former subsidiary when a leniency application has been made by its former parent company and of a former parent company following a leniency application made by its former subsidiary.

 Assessment in the present case

160    In the present case, the Court would first of all point out that the leniency application from which the applicants claim that they are entitled to benefit was made on 28 June 2007 by Arcelor España and its subsidiaries, Mittal Steel Company and its subsidiaries, including Arcelor, and Tréfileurope and its subsidiaries, that application requesting expressly that any immunity or fine reduction granted to Arcelor España also be extended to Emesa and Galycas, with Arcelor España ensuring their rights of defence, in accordance with the sale and purchase agreement between Arcelor España and Companhia Previdente.

161    However, it must be stated that, despite the explicit references to Emesa and Galycas in the leniency application of 28 June 2007, formally, they were not part of the undertaking constituted by the leniency applicants, and the applicants do not indeed claim that they were.

162    It is apparent from the case-law cited in paragraph 152 above that a company may benefit from a leniency application in respect of which it is not formally an applicant only if, at the time that that application was made, it formed part of the same undertaking as the leniency applicant.

163    In that regard, it must be stated that, since Emesa and Galycas were acquired by Companhia Previdente in 2004, they no longer formed part of Arcelor España when the latter filed its leniency application in 2007. The Commission was therefore right to find, in the contested decision, that they no longer formed part of the undertaking which submitted a leniency application to it.

164    The Court observes that the 5% reduction granted to Emesa and Galycas in respect of the information that they themselves provided to the Commission in 2002 was extended to Arcelor España because, at the time that the applicants communicated that information, Arcelor España and the applicants did indeed form part of the same undertaking.

165    Next, it is necessary to examine whether, in the light of the specific circumstances of the case and notwithstanding the foregoing considerations, the Commission ought to have granted the benefit of the leniency application made by Arcelor España to the applicants.

166    In that regard, it should be noted, in the first place, that the applicants’ active cooperation with the Commission in the procedure which led to the adoption of the contested decision is limited to the information that they supplied to the Commission in their own leniency application lodged on 25 October 2002, in respect of which the Commission granted a fine reduction of 5%.

167    It is true that the applicants state that the Emesa notebooks communicated by Arcelor España in the leniency application of 28 June 2007 originate from them, having been drawn up contemporaneously by a former Emesa employee, and that they had a significant bearing on the duration and gravity of the infringement.

168    However, the Court observes that the provenance of those notebooks and their indisputable added value does not establish active cooperation on the part of the applicants in respect of the Commission. It is apparent on the contrary from the documents before the Court — and the applicants do not contest this — that the Emesa notebooks communicated to the Commission by Arcelor España were in the latter’s and not the applicants’ possession and it is not disputed that the applicants were unaware of the leniency application made by Arcelor España, that application having been kept confidential by Arcelor España in accordance with the applicable rules.

169    In the second place, the conduct of the Commission, which, contrary to the Commission’s claims, did not inform Arcelor España in due time and specifically that its leniency application could not be extended to cover Emesa and Galycas, is not however capable of creating an entitlement for the applicants to benefit from Arcelor España’s leniency application.

170    It is true that ArcelorMittal España could have complained, from the point of view of the principle of good administration, that the Commission replied to Arcelor España’s leniency application of 28 June 2007 only on 19 September 2008 without expressly rejecting the application for extension of the benefit of that application to Emesa and Galycas; however, this has no bearing on the possibility for the applicants to benefit from a leniency application to which they did not actively contribute.

171    For all those reasons, it must be held that the Commission did not infringe the principle of good administration and Article 41 of the Charter of Fundamental Rights or the principles of equal treatment and fairness by not extending to Emesa and Galycas — which had no entitlement thereto — the benefit of the leniency application made by Arcelor España and, accordingly, by not granting them a fine reduction similar in amount to that which the Commission had granted to ArcelorMittal España.

172    The second plea must therefore be rejected in its entirety.

3.     The third plea, alleging infringement of point 23 of the Leniency Notice

 Arguments of the parties

173    Emesa and Galycas argue, in essence, that the Emesa notebooks had a decisive influence on the determination of the duration and gravity of the infringement. They refer in that respect to annexes 2 and 4 to the contested decision, which list the meetings held in the context of Club Europe and Club España, and submit that most of the pages of the decision concerning Club España and several of those concerning Club Europe could have been written only on the basis of those notebooks. The added value of that evidence — also acknowledged by the Commission in the contested decision — is therefore indisputable, in their view.

174    They state that the Emesa notebooks are the only evidence of the infringement committed by them from 11 November 1992 to April 1997.

175    Emesa and Galycas submit that they should have also been granted partial immunity for the period from 11 November 1992 to April 1997, having regard to the content of point 23 of the Leniency Notice, since that evidence made it possible to establish new facts and had a significant added value in that it made it possible to extend the duration of the infringement and to increase its gravity. They add in that respect that it would be unreasonable to require, in order to allow that evidence to be regarded as relating to facts unknown to the Commission, the Commission to have had no information whatsoever in relation to those facts. What matters instead is the bearing on the duration and the gravity of the infringement.

176    They submit that, if they are not granted the benefit of such partial immunity, this could constitute misinterpretation of the facts contained in the Emesa notebooks and breach of the principle of equal treatment.

177    Emesa and Galycas also argue that, the establishment of the existence of the Spanish agreement being wholly dependent on the submission of the Emesa notebooks, Club España should not be taken into account for the purpose of determining the ‘gravity multiplier’ and that the multiplier, which is 19%, should be reduced accordingly for Club España.

178    Finally, they submit, in essence, that the Commission’s decision-making practice confirms that partial immunity should have been granted to them.

179    The Commission disputes those arguments.

 Findings of the Court

180    According to the third paragraph of point 23 of the Leniency Notice:

‘ … [i]f an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’

181    It should be recalled that the second plea must be rejected, in so far as the applicants cannot claim entitlement to the reduction in the amount of the fine granted to their former parent company, ArcelorMittal España.

182    Emesa and Galycas may not therefore rely on point 23 of that notice, since they are not the undertaking which provided the documents to the Commission for the purposes of that point.

183    The fact that the documents were drawn up by Emesa is not capable of calling that assessment in question.

184    The decision-making practice relied upon by the applicants, which relates to the fine reduction granted to the undertaking which provides evidence making it possible to establish new facts and having a significant added value in that it makes it possible to extend the duration of the infringement and to increase its gravity, is also irrelevant. The applicants were not the undertaking which provided such evidence to the Commission.

185    Moreover, the applicants’ situation is in no way comparable to that of ArcelorMittal under point 23 of the Leniency Notice, since ArcelorMittal was the leniency applicant.

186    The third plea in law must therefore be rejected.

187    It is apparent from all of the foregoing that none of the pleas in law put forward by the applicants is well founded. The action for annulment must therefore be dismissed in its entirety, without it being necessary, in the circumstances of the case, for the Court to exercise its unlimited jurisdiction to adjust the amount of the fine imposed on the applicants.

 Costs

188    Under the first subparagraph of Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

189    Since the applicants have been unsuccessful and the Commission and the Council have applied for costs, the applicants must be ordered to bear their own costs and to pay those incurred by the Commission and the Council.

190    Moreover, Article 139(a) of the Rules of Procedures provides that where a party has caused the General Court to incur avoidable costs, in particular where the action is manifestly an abuse of process, the General Court may order that party to refund them.

191    It should be recalled that, in the present case, by order of 16 May 2014, the Court ordered the Commission to produce the confidential version of the documents which were the subject of the measures of organisation of the procedure of 17 December 2013 which had not yet been forwarded to the Court by the Commission.

192    On 23 May 2014, the Commission communicated a non-confidential version of those documents to the Tribunal.

193    By order of 12 June 2014, the Court ordered the Commission to produce the confidential version of those documents.

194    The Commission complied with that order on 16 June 2014.

195    It is therefore appropriate, in the light of the amount of the costs which the Court had to incur and which could have been avoided, to order the Commission to refund to the Court a part of those costs in an amount of EUR 1 500.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Dismisses the action.

2.      Orders Emesa-Trefilería, SA and Industrias Galycas, SA to bear their own costs and to pay those of the European Commission and the Council of the European Union.

3.      Orders the Commission to pay the General Court the sum of EUR 1 500 under Article 139(a) of its Rules of Procedure, in order to refund part of the costs which the Court had to incur.

Frimodt Nielsen Dehousse Collins

Delivered in open court in Luxembourg on 15 July 2015.

[Signatures]

Table of contents

Subject-matter of the dispute

Background to the dispute

1.  Sector forming the subject-matter of the procedure

Product

Supply structure

Demand structure

Trade within the European Union and the EEA

2.  Emesa and Galycas

3.  Administrative procedure

First leniency application and immunity granted to DWK

Inspections and requests for information

Other leniency applications and replies given by the Commission

Initiation of the procedure and statement of objections

Access to the file and oral hearing

Further requests for information

4.  Contested decision

Zurich Club and regional arrangements

Club Europe and regional agreements

Procedure and forms of order sought

Law

1.  The first plea, alleging infringement of Article 6 of the ECHR, Article 47 of the Charter of Fundamental Rights and of the right to an impartial tribunal

Arguments of the parties

Findings of the Court

Outline of the principles

The merits of the first plea in law

2.  The second plea, alleging infringement of the principles of equal treatment and good administration and of Article 41(1) of the Charter of Fundamental Rights, in that the Commission wrongly denied the applicants the benefit of the leniency application made by Arcelor España

The contested decision

Arguments of the parties

Findings of the Court

Outline of the principles

Assessment in the present case

3.  The third plea, alleging infringement of point 23 of the Leniency Notice

Arguments of the parties

Findings of the Court

Costs

* Language of the case: English.

1 — This judgment is published in extract form.