Case T‑376/10

(publication by extracts)

Mamoli Robinetteria SpA

v

European Commission

(Competition — Agreements, decisions and concerted practices — Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Coordination of price increases and exchange of sensitive business information — Rights of the defence — 2002 Leniency Notice — Plea of illegality — Concept of agreements, decisions and concerted practices — Calculation of the fine — 2006 Guidelines on the method of setting fines — Gravity — Application of a multiplier to the additional sum)

Summary — Judgment of the General Court (Fourth Chamber), 16 September 2013

1.      Plea of illegality — Scope — Measures the illegality of which may be pleaded — Leniency Notice — Included — Conditions

(Arts 263 TFEU and 277 TFEU; Council Regulation No 1/2003, Art. 7; Commission Notice 2002/C 45/03, points 8 to 27 and 29)

2.      Competition — Fines — Amount — Determination — Legal context — Article 23(2) of Regulation No 1/2003 — Discretion conferred on the Commission by that article — Leniency Notice — No lack of legal basis — No infringement of the principle of separation of powers — No infringement of the principles of transparency, sound administration and equal treatment

(Art. 101(1), TFEU; Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(2) and (3); Commission Notice 2002/C 45/03)

1.      Article 277 TFEU expresses a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision addressed to that party or which is of direct and individual concern to it, the validity of previous acts of the institutions which, although they are not in the form of a regulation, form the legal basis of the decision under challenge, if that party was not entitled under Article 263 TFEU to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void. Since Article 277 TFEU is not intended to enable a party to contest the applicability of any measure of general application in support of any action whatsoever, the general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general measure in question.

So far as concerns the Commission Notice on immunity of fines and reduction of fines in cartel cases, it must be observed (i) that the Commission lays down therein, in a general and abstract manner, the conditions which undertakings must meet in order to receive a total or partial reduction in the amount of fines in respect of infringements of Article 101 TFEU (points 8 to 27 of the 2002 Leniency Notice) and (ii) that that notice creates legitimate expectations on the part of undertakings. While it is true that the Commission does not adopt decisions finding a breach of the competition rules on the basis of the 2002 Leniency Notice, since such decisions are based on Article 7 of Regulation No 1/2003, a direct legal connection may none the less exist between such decisions and the general act constituted by the Leniency Notice. That is in particular the case where, on the basis of applications for reduction made by competitors under the Leniency Notice, the Commission receives information enabling it to carry out inspections and gather information and evidence leading it to adopt its decision.

Since an undertaking is not in a position to ask that the 2002 Leniency Notice, as a general measure, be declared void, the notice may form the subject-matter of a plea of illegality.

(see paras 48-52)

2.      In competition matters, Article 15(2) of Council Regulation No 17, now Article 23(2) of Regulation No 1/2003, does not lay down an exhaustive list of the criteria which the Commission may take into account when setting the amount of the fine. For that reason, the conduct of the undertaking during the administrative procedure may be one of the factors to be taken into account when setting that fine. The purpose of reducing, in whole or in part, pursuant to the 2002 Leniency Notice, the amount of fines to be paid by undertakings is to enable the Commission to identify and penalise undertakings participating in secret cartels. That being so, it is in keeping with Article 15(2) of Regulation No 17 for the Commission, with a view to ensuring transparency and equal treatment, to set out the conditions under which undertakings cooperating with it could be granted a total or partial reduction in the amount of fines.

Arguments claiming lack of legal basis for adopting the Leniency Notice, and infringement of the principles of separation of powers, transparency, sound administration and equal treatment must therefore be rejected.

(see paras 54-59)