JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
15 July 2015 (*)
(Competition — Agreements, decisions and concerted practices — European market for prestressing steel — Price fixing, market sharing and the exchange of commercially sensitive information — Decision finding an infringement of Article 101 TFEU — Cooperation during the administrative procedure — Reasonable time)
In Case T‑423/10,
Redaelli Tecna SpA, established in Milan (Italy), represented by R. Zaccà, M. Todino, E. Cruellas Sada and S. Patuzzo, lawyers,
applicant,
v
European Commission, represented initially by B. Gencarelli, L. Prete and V. Bottka, and subsequently by V. Bottka, G. Conte and P. Rossi, acting as Agents,
defendant,
APPLICATION for annulment and variation 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), as amended by Commission Decision C(2010) 6676 final of 30 September 2010 and 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: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 9 July 2014,
gives the following
Judgment (1)
…
1. Content of the contested decision
75 Recitals 1122 to 1125 to the contested decision set out the reasons why the Commission considered that Redaelli should not be granted a reduction under the Leniency Notice of the fine imposed on it, as follows:
‘(1122) Redaelli replied to a request for information on 21 October 2002 and submitted a leniency application on 20 March 2003, admitting mainly the existence of some arrangements at the Italian level from 1990 to 1993 and from 1995 to 2002 and at the pan-European level from 1995 to 2002. Redaelli’s submissions include some contemporaneous evidence. However, they did not add or clarify any important aspect for which the Commission did not already have sufficient evidence. On 19 September 2008 the Commission therefore rejected Redaelli’s leniency application under point 23 of the Leniency Notice.
(1123) In its reply to the [statement of objections] Redaelli contests the Commission’s conclusion that the evidence provided by it did not represent significant added value. It observes that it fully cooperated with the Commission despite difficulties due to the company’s restructuration over the years, by not only providing self-incrimination information in October 2002 and integrating this into a leniency application on 20 March 2003, but also replying to the numerous requests for information of the Commission. It states that the Commission often referred in the [statement of objections] to information provided by this company. It contests the fact that it was not granted a provisional reduction of the fine unlike other companies, and in particular Nedri, who submitted its leniency application on 23 October 2003.
(1124) It is recalled that in order to qualify for a reduction of the fine under the Leniency Notice, a company must provide the Commission with evidence which represents significant added value with respect to the evidence already in the Commission's possession. While the Commission at times referred to Redaelli's evidence and statements in the [statement of objections] and in this Decision, none of the evidence submitted by Redaelli represented such significant added value, contrary to the evidence submitted by other companies, such as Nedri …
(1125) Regarding Redaelli’s claim that it has always fully cooperated with the Commission by replying to the numerous requests for information, the Commission notes that companies have a legal obligation to reply to the Commission’s requests for information. This, therefore, does not entitle them in itself to a reduction of the fine.’
2. The incorrect assessment of the significant added value of the evidence supplied by Redaelli during the administrative procedure
76 In essence, Redaelli observes that it fully cooperated with the Commission during the proceeding. It also submits that the contested decision refers on numerous occasions to documents and statements supplied on that basis. Those documents and statements are sometimes the only evidence on which the Commission relies in support of its argument. A number of examples illustrate the significant added value of that evidence, which justifies a reduction of the amount of the fine in application of the Leniency Notice.
77 In that regard, it should be borne in mind that, in the Leniency Notice (see paragraph 23 above), the Commission defined the conditions on which undertakings that cooperated with it during its investigation of a cartel may be exempted from a fine or benefit from a reduction of the amount of the fine which they would have had to pay.
78 That Notice replaced an initial Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the 1996 Notice’) in order to enable the Commission to modify its policy in the light of experience acquired after five years of implementation. In particular, the Commission considered that, whilst the validity of the principles governing the notice had been confirmed, experience had shown that its effectiveness would be improved by an increase in the transparency and certainty of the conditions on which any reduction of fines would be granted. Likewise, the Commission considered that a closer alignment between the level of reduction of fines and the value of a company’s contribution to establishing the infringement could also increase that effectiveness (Leniency Notice, point 5).
79 The Court must have regard to those developments which the Commission had in mind when it replaced the 1996 Notice by the Leniency Notice.
a) Conditions for obtaining a reduction of the amount of the fine
80 Even if it does not meet the conditions laid down in the Leniency Notice for obtaining immunity from a fine, an undertaking may still be granted a reduction of the amount of the fine that would otherwise have been imposed on it.
81 In order to qualify for such a reduction, it is apparent from point 21 of the Leniency Notice that an undertaking must ‘provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession’ and must ‘terminate its involvement in the suspected infringement no later than the time at which it submits the evidence’.
82 Point 23(a) of the Leniency Notice states in that regard that in any final decision adopted at the end of the administrative procedure the Commission will determine ‘whether the evidence provided by an undertaking represented significant added value with respect to the evidence in the Commission’s possession at that time’.
83 The concept of ‘added value’ is defined as follows in point 22 of the Leniency Notice:
‘The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the facts in question. In this assessment, the Commission will generally consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence subsequently established. Similarly, evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance.’
84 Three bands of reduction of the amount of the fine are set out in the first paragraph of point 23(b) of the Leniency Notice. The first undertaking to meet the condition in point 21 of that notice will benefit from a reduction of 30% to 50%, the second from a reduction of 20% to 30% and subsequent undertakings from a reduction of up to 20%.
85 The second paragraph of point 23(b) of the 2002 Leniency Notice states that, ‘[i]n order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value’ and that ‘[i]t may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission’.
86 The wording of the Leniency Notice therefore assumes that two stages are to be distinguished (see, by analogy, judgment of 17 May 2013 in MRI v Commission, T‑154/09, ECR, EU:T:2013:260, paragraph 320).
87 First, in order to be able to benefit from a reduction of the amount of its fine, the undertaking must provide the Commission with evidence having significant added value with respect to the evidence already in the Commission’s possession. Thus, and as expressly stated by the Commission in its written pleadings (see, for example, defence, paragraph 27, and rejoinder, paragraph 10), in establishing that the evidence supplied by an undertaking ‘represents significant added value with respect to the evidence already in the Commission’s possession’, the Leniency Notice requires that a comparison be made between the evidence already held by the Commission and the evidence acquired by means of the cooperation provided by the leniency applicant.
88 Second, in order to establish the rate of any reduction of the amount of the fine which it would otherwise have imposed, the Commission must take two criteria into account: the date on which the evidence was communicated and the degree of added value which it represents. In carrying out that analysis, the Commission may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission.
89 Where the evidence supplied to the Commission has significant added value and the undertaking is not the first or second undertaking to communicate such evidence, the maximum rate of reduction of the fine which would otherwise have been imposed on it by the Commission will be 20%. The earlier the cooperation and the greater the degree of added value, the more the rate of reduction will increase, up to a maximum of 50% of the amount which the Commission would otherwise have imposed (see, by analogy, judgment in MRI v Commission, cited in paragraph 86 above, EU:T:2013:260, paragraph 322).
90 The chronological order and the speed of the cooperation provided by the members of the cartel therefore constitute fundamental elements of the system put in place by the Leniency Notice (judgments of 5 October 2011 in Transcatab v Commission, T‑39/06, ECR, EU:T:2011:562, paragraph 380, and of 16 September 2013 in Roca v Commission, T‑412/10, ECR (Extracts), EU:T:2013:444, paragraph 183). The same applies to the degree of added value ascribed to the various pieces of evidence supplied by an undertaking in that respect.
91 It should also be borne in mind in that regard that, while the Commission is required to state the reasons for which it considers that information provided by undertakings under the Leniency Notice constitutes a contribution which does or does not justify a reduction of the fine, it is incumbent on undertakings wishing to contest the Commission’s decision in that regard to show that the information provided voluntarily by the undertakings was decisive in enabling the Commission to prove the essential elements of the infringement and therefore adopt a decision imposing fines (see judgment in Roca v Commission, cited in paragraph 90 above, EU:T:2013:444, paragraph 184 and the case-law cited).
92 In view of the rationale for the reduction, the Commission cannot disregard the usefulness of the information provided, which inevitably depends on the evidence already in its possession (see judgment in Roca v Commission, cited in paragraph 90 above, EU:T:2013:444, paragraph 185 and the case-law cited).
93 Where an undertaking which has submitted a leniency application does no more than confirm, in a less precise and explicit manner, certain information that has already been provided by another undertaking by way of cooperation, the extent of the cooperation provided by the former undertaking, while possibly of some benefit to the Commission, cannot be treated as comparable with that provided by the undertaking which was the first to supply that information. A statement which merely corroborates to a certain degree a statement which the Commission already had at its disposal does not facilitate the Commission’s task significantly. Accordingly, it cannot be sufficient to justify a reduction of the fine under the Leniency Notice (see, to that effect, judgments of 17 May 2011 in Arkema France v Commission, T‑343/08, ECR, EU:T:2011:218, paragraph 137, and in Roca v Commission, cited in paragraph 90 above, EU:T:2013:444, paragraph 186).
94 It also follows from the case-law that a statement by one undertaking accused of having participated in a cartel, the accuracy of which is contested by several other undertakings similarly accused, cannot be regarded as constituting adequate proof of an infringement committed by the latter undertakings unless it is supported by other evidence (see judgment in Roca v Commission, cited in paragraph 90 above, EU:T:2013:444, paragraph 187 and the case-law cited).
95 Last, even though the Commission must be held to have a margin of discretion when it considers whether information provided to it under the Leniency Notice represents significant added value, the fact remains that the Court cannot use that margin of discretion as a basis for dispensing with a thorough review as to matters of law and of fact of the Commission’s assessment in that regard (see judgments in Roca v Commission, cited in paragraph 90 above, EU:T:2013:444, paragraph 188 and the case-law cited, and of 24 October 2013 in Kone and Others v Commission, C‑510/11 P, EU:C:2013:696, paragraphs 24 and 92).
96 That is particularly so where, as here, the Court is itself asked to assess the value that should be placed on the evidence submitted by the applicant during the procedure that led to its being penalised for having committed an infringement of competition law (see paragraph 74 above).
97 It is in the light of the foregoing considerations that the Court must examine the arguments put forward by Redaelli to establish the significant added value of the evidence communicated to the Commission during the administrative procedure.
b) Examination of the arguments relating to significant added value
Preliminary observations on context and chronology
98 In the first place, it should be borne in mind that, in order to be in a position to rule on the arguments relating to significant added value, the Court asked the Commission to supply it, for each aspect of the infringement in respect of which Redaelli claims that its contribution represented significant added value, with the various evidence which it took into consideration in arriving at the conclusion that ‘[that contribution] did not add or clarify any important aspect for which [it] did not already have sufficient evidence’ or that ‘none of the evidence submitted by Redaelli represented such significant added value’ (see contested decision, recitals 1122 and 1124).
99 The Commission complied with that request and communicated the evidence on 28 February 2014 and 16 May 2014.
100 Subsequently, on 8 July 2014, the Commission communicated a new set of documents to the Court in order to supplement its reply to the measures of organisation of procedure adopted on 17 December 2013. Those documents were placed on the file at the hearing (see paragraphs 68 and 69 above). The documents corresponded to the complete versions of the documents supplied by Redaelli during the administrative procedure, which were therefore well known to the applicant. They had previously been produced by the Commission in an incomplete form not containing either the covering letter or the annexes to the covering letter.
101 Although communication of the full version of the abovementioned documents was made at a late stage, it should none the less be observed that the content of those documents had already been explained in detail in Redaelli’s application and that the Court had already, in particular in the course of the proceedings following the replies to the measures of organisation of procedure and the measures of inquiry, acquired a sufficiently precise knowledge of Redaelli’s contribution.
102 It follows from the foregoing that the Court considers that it is in a position to review in a satisfactory manner, in fact and in law, the Commission’s assessments in the contested decision of the significant added value of the various evidence supplied by Redaelli during the administrative procedure in the light of the arguments put forward in that regard by the applicant.
103 In the second place, it should be observed that, in the present case, Redaelli asked the Court only to grant it leniency by including it in the third group of undertakings referred to in point 23 of the Leniency Notice, namely the group of undertakings that may benefit from a reduction of up to 20% of the value of the fine imposed (see paragraphs 74 and 84 above).
104 In so doing, Redaelli does not ask for or dispute the treatment afforded, first, to DWK, which was exempted by the Commission from any fine which it would otherwise have had to pay; second, to ITC, which was regarded by the Commission as the first undertaking to supply it with evidence representing significant added value with respect to the evidence already in the Commission’s possession; or, third, to Nedri, which was regarded by the Commission as the second undertaking to meet the abovementioned condition, set out in point 21 of the Leniency Notice.
105 Redaelli confirmed that that was so in answer to a question from the Court on that point, and a note to that effect was duly placed in the minute of the hearing.
106 In the third place, in the light of the different aspects in respect of which Redaelli claims that its contribution represented significant added value, it is also important to distinguish the evidence relating to Club Italia from that relating to the Zurich Club and its successor, Club Europe, and to take account of the chronology, which plays an essential role in the analysis of the relevant documents.
107 In fact, as regards Club Italia, it is apparent from the contested decision that the Commission had considerable evidence contemporaneous with the facts, obtained during the inspections carried out on 19 and 20 September 2002 or supplied afterwards, in particular by ITC. That evidence enabled the Commission to establish that aspect of the infringement as from 1995 and until 2002, both for Redaelli and for, in particular, three other Italian producers: CB, Itas and ITC.
108 As regards the Zurich Club, the initial phase of the infringement at pan-European level, which brought together one Italian player, Redaelli, and players on other markets (WDI, Nedri, DWK, Tréfileurope …), the quality of the available evidence is lower. For that phase, the Commission puts forward, rather, the statements made by the various leniency applicants or the Emesa notes obtained at a late stage of the procedure, on 28 June 2007.
109 As regards Club Europe, the second phase of the infringement at pan-European level, the contested decision mentions numerous sources for the evidence, the evidence from particular sources frequently corroborating that from other sources. In that regard, it may be observed that Redaelli is referred to in the contested decision as an undertaking that confirmed the participation of other undertakings in that aspect of the infringement.
110 In the present case too, and in the light of the abovementioned distinction between the different aspects of the infringement, it is necessary to take account of the fact that two sets of documents submitted during the administrative procedure were examined by the Court: those submitted by Redaelli, which, it maintains, establish the significant added value of its contribution, and those submitted by the Commission to show that it already had sufficient evidence to support its conclusion that Redaelli’s contribution did not represent significant added value.
111 Redaelli’s contribution consists of four documents: first, the reply of 21 October 2002 to a request for information; second, the leniency application of 20 March 2003; third, the reply of 6 September 2006 to a request for information; and, fourth, the reply of 15 June 2007 to a request for information.
112 The various evidence on which the Commission relies to show that Redaelli’s contribution did not represent significant added value comes, first, from DWK’s leniency application of 18 June 2002, which preceded the inspections, and from the statements subsequently made by that undertaking; second, from the documents seized during the inspections of 19 and 20 September 2002, in particular during the inspection carried out at Redaelli’s premises; third, from the leniency applications submitted following the inspections, in particular by ITC, on 21 September 2002, by Nedri, on 23 October 2002, by Emesa, on 25 October 2002, and by Tréfileurope, on 4 November 2002, and also from the Emesa notes handed to the Commission on 28 June 2007, or after the date of submission of the last document on which Redaelli relies in order to establish the content of its contribution.
113 It is in that context, and particularly in consideration of the chronological data set out above, that the Court must examine the arguments put forward by Redaelli in order to establish the significant added value of the documents communicated to the Commission during the administrative procedure.
114 In order to undertake such an examination, the Court must place itself at the time when the documents in question were communicated to the Commission, in order to take into account the other evidence then available.
Analysis of the relevant documents
115 It is appropriate to examine, in turn, the various arguments put forward by Redaelli in order to establish that its contribution represented significant added value.
– Representation of CB, Itas and ITC in the Zurich Club between 1993 and 1995
116 Redaelli claims that its contribution enabled the Commission to find that ITC, Itas and CB participated in the Zurich Club in 1993 to 1995. Thus, Redaelli was the first and only undertaking to disclose its role as representative of ITC, Itas and CB at the Zurich Club meetings held during that period. Likewise, as regards the meaning of the expression ‘Assider group’, it was Redaelli, and not Nedri, that revealed that that expression identified a limited group of Italian producers involved in the cartel and not all the members of the trade association bearing that name.
117 A priori, that is one of the most noteworthy aspects of Redaelli’s contribution, since, on the basis of the such information, the applicant claims that the Commission was in a stronger position to establish the facts and find that CB, Itas and ITC had participated over a longer period and in a different aspect of the infringement than it could previously have envisaged.
118 However, in the light of the contested decision and the evidence set out therein, it must be stated that the applicant is under a misapprehension as to the role played by its contribution during the administrative procedure.
119 In fact, the Commission convincingly shows that, well before the date indicated by Redaelli, 15 June 2007, when the procedure had reached an advanced stage and when it received Redaelli’s reply to a request for information, it was aware of the identity of the three Italian PS producers, former members of the trade association Assider, which had ceased to exist in 1988, who were likely to have participated in the Zurich Club through Redaelli.
120 First, at the stage of DWK’s leniency application of 18 June 2002, the Commission was in a position to be aware that Redaelli represented three other Italian PS producers (see contested decision, recital 153).
121 Second, in the light of Nedri’s leniency application of 23 October 2002, the Commission was also aware that, so far as that undertaking was concerned, Redaelli represented Assider at the Zurich meetings (see contested decision, recital 153).
122 Taken as a whole, that information provided the Commission with essential information, namely that at the Zurich meetings Redaelli also represented Assider, that is to say, three other Italian producers.
123 At the same time, the Commission was aware that Redaelli and three Italian producers (CB, Itas and ITC) were having discussions within Club Italia about an agreement with the members of the Zurich Club. That is apparent, in particular, from a draft agreement of 23 January 1995 discovered by the Commission during the inspection at Redaelli’s premises on 19 and 20 September 2002, where it is indicated that Redaelli was given a mandate to represent CB, Itas and ITC with the pan-European producers (see contested decision, recital 166).
124 Third, the applicant itself mentions, in its reply, the content of the statement made by DWK on 8 May 2007, from which it is apparent that, at Zurich Club meetings, Redaelli, in its own words, represented three Italian producers (see contested decision, recital 153). That statement also makes clear that, in the recollection of one of the representatives of DWK at those meetings, Redaelli had not specified which producers it was representing and that that representative had not concerned himself with the matter, while stating that his suspicions centred on the producers CB, Itas and ITC, since the other Italian producers were smaller or no longer existed (for example SLM).
125 It follows from the foregoing that, even before the information supplied by Redaelli on 15 June 2007, the Commission was aware that Redaelli had stated at the Zurich Club meetings that it represented three other Italian producers. The Commission was also in a position to know who those three producers might be.
126 In any event, it should be observed that the information supplied by Redaelli on 15 June 2007 precedes that which emerges from the Emesa notes shortly afterwards, on 28 June 2007. In fact, it is in the light of the Emesa notes submitted by ArcelorMittal that the Commission is able to consider that, at the Zurich Club meeting held on 8 and 9 June 1994, in the presence of Tréfileurope, DWK, WDI, Tycsa, Nedri and Emesa, Redaelli’s representative stated that he was representing three undertakings, namely CB, Itas and ITC (see contested decision, recital 159). Contrary to the Commission’s contention, however, the Emesa notes should not be taken into account at this point, as only the evidence communicated before 15 June 2007 is relevant for the purpose of establishing the significant added value of Redaelli’s contribution.
127 It should be observed, moreover, that the foregoing information does not have the effect claimed by Redaelli, which maintains that its contribution enabled the Commission to consider that ITC, Itas and CB participated in the Zurich Club between 1993 and 1995.
128 As regards CB, it follows from the contested decision that that undertaking denied having taken part in the Zurich Club or in a pan-European arrangement. It maintains that Redaelli had ‘appointed itself’ as representative of the other Italian producers in that respect. In the light of that objection, and although it observed, on the basis of information supplied by ITC in its leniency application, that CB, as well as Redaelli, Itas, ITC, Tréfileurope Italia, DWK and Tycsa, participated in a meeting of Club Italia with the Zurich Club producers, which was held on 24 February 1993 and at which not only prices and sales on the Italian market, but also PS consumption on the other European markets, were discussed, the Commission preferred to consider that CB began to participate in the infringement only on 23 January 1995, owing, in particular, to the draft agreement which it discovered during the inspections on 19 and 20 September 2002 (see paragraph 123 above).
129 It was therefore only from 23 January 1995, and on the basis of evidence other than that put forward by Redaelli in connection with its leniency application, that CB’s participation in the cartel was established (see contested decision, in particular recitals 155, 165, 166 and 849 to 855).
130 As regards Itas, the contested decision also mentions that that undertaking denied having participated in the Zurich Club between 1993 and 1994, because it did not obtain the necessary certifications until 1995 for Germany and subsequently for other countries. Unlike in the case of CB, and for the reasons stated in the contested decision, the Commission considered that Itas’s participation in the infringement was established as from its participation in the Club Italia meeting with the Zurich Club producers held on 24 February 1993. In that regard, the Commission also mentioned Itas’s participation, like that of Redaelli and ITC, in a Club Italia meeting of 7 May 1993, concerning which ITC supplied information in its leniency application. That meeting had covered, in particular, four proposals relating to the pan-European producers. While the contested decision further states that Itas was ‘represented by Redaelli at the Zurich Club meetings’ which followed the meeting of 24 February 1993, it follows from the foregoing that such information can perfectly well be inferred from the evidence communicated by DWK and Nedri before the date of the contribution made by Redaelli on 15 June 2007 (see contested decision, in particular recitals 155, 163, 164 and 856 to 861).
131 In such a situation, in view of the fact that it had much evidence to establish the beginning of Itas’s participation in the infringement, including the information supplied by ITC in its leniency application, which supplied a handwritten minute of the meeting of Club Italia and the Zurich Club producers held on 24 February 1993, which is essential, and the information submitted by DWK and Nedri concerning the role played by Redaelli within the Zurich Club, the Commission was entitled to consider that the contribution made by Redaelli on 15 June 2007 did not represent significant added value with respect to the evidence already in its possession.
132 As regards ITC, it is apparent from the contested decision that that undertaking approved the content of the statement of objections addressed to it, confirming that that statement of objections was ‘in line with the statements and accounts of the facts provided in [its] leniency application and subsequent communications’ and therefore that it had participated directly in the cartel, in particular in the Zurich Club, Club Italia and the integration of the Italian producers within Club Europe between 24 February 1993 and 19 September 2002 (see contested decision, in particular recitals 841 and 843).
133 Here too, and even though the contested decision states at recitals 153 and 155 that ITC did not deny being represented by Redaelli within the Zurich Club, the Commission had other evidence, including that communicated by ITC itself, and also that communicated by DWK and Nedri, to establish the beginning of ITC’s participation in the infringement. Faced with such a situation, the Commission was entitled to consider that the contribution made by Redaelli on 15 June 2007 did not meet the conditions defined in the Leniency Notice to represent significant added value with respect to the evidence already in its possession.
134 In the light of the arguments put forward by the parties and the documents submitted, it must be held that the Commission was indeed in a position to consider that, for that aspect of the infringement, it already had sufficient evidence, from both the material and the chronological viewpoint, to establish the facts in question. The evidence put forward by Redaelli in that regard therefore did not present the requisite significant added value for that undertaking to be able to benefit from a reduction of the amount of the fine under the Leniency Notice.
– Other aspects of the infringement
135 Redaelli maintains that its contribution was one of the first to confirm the existence of the system for monitoring the cartel and to provide a complete description of it. That was done on 21 October 2002 in the applicant’s reply to a request for information and in its leniency application of 20 March 2003.
136 However, on the basis of the reasons stated in the contested decision and in the light of the evidence supplied in that regard by the Commission, it must be held that the Commission already had ample evidence following the inspections carried out on 19 and 20 September 2002, ITC’s leniency application of 21 September 2002 and Tréfileurope’s leniency application of 4 November 2002 (see contested decision, recitals 450 to 455).
137 In particular, as regards the chronology of the events, it must be borne in mind that in its reply of 21 October 2002 to a request for information, Redaelli merely referred to a commercial adviser, Mr Pr., who was responsible for collecting data on the movement of sales of the various producers. At that time, the Commission had, in particular, contemporaneous documents of the facts drawn up by Mr PR., discovered during the inspections carried out on 19 and 20 September 2002, which clearly mentioned the information referred to by Redaelli.
138 In its leniency application of 20 March 2003, Redaelli provides further detail about the role played by Mr Pr., stating, in particular, that he could confirm the purchases made by each of the customers of the producers concerned. His role involved not only monitoring the quantities sold but determining the potential represented by each customer. While it is true that this second part of the role played by Mr Pr. is mentioned in the contested decision, in recital 452, where it is stated that the relevant information comes from Redaelli, the fact none the less remains that the essential part of Mr Pr.’s role was indeed, as the Commission asserts, relying on the documents discovered during the inspections, surveillance and monitoring.
139 The evidence which Redaelli put forward in that regard therefore did not represent the requisite significant added value for that undertaking to qualify for a reduction of the amount of the fine under the Leniency Notice.
140 In addition, Redaelli claims that its contribution was the first to confirm that a number of meetings took place and what was discussed at them, including the Club Italia meetings of 1 February 2002, 1 March 2002 and 26 August 2002 and the Club Europe meetings of 28 and 29 February 2000, 8 and 9 May 2000, 15 May 2001, 4 September 2001 and 24 July 2002.
141 In that regard too, it is apparent from the file that, overall, the Commission had ample information about the period concerned (2000 to 2002) with regard to both Club Italia and Club Europe (see contested decision, Annexes 2 and 3 for the descriptions of the meetings referred to). In fact, the contribution on which Redaelli relies on that point adds nothing or very little to the Commission’s ability to establish the facts in question, whether in relation to the relevant period, the clubs concerned or even the content of the meetings to which Redaelli refers, in respect of which the Commission already had evidence discovered during the inspections or supplied in a timely fashion by other undertakings, such as ITC, CB, Tréfileurope, Nedri or DWK, or was in a position to consider that the evidence supplied by Redaelli did not establish the anti-competitive nature of the meeting to which it related (such as the alleged meeting held on 8 and 9 May 2000, which turned out to be just a meeting of the Eurostress Information Service (ESIS), one of the PS trade associations).
142 Redaelli’s contribution in respect of the abovementioned meetings cannot therefore be regarded as presenting significant added value within the meaning of the Leniency Notice.
143 Last, Redaelli also claims to have been the first to confirm what is briefly mentioned in the Leniency Notice concerning the link between the quota-fixing agreement at European level (the Zurich Club) and the agreement at Italian level (Club Italia); to have been the first to describe the dynamics of Club Italia at the beginning of the 1990s as regards, in particular, the dropping of the quota-fixing practice following ITC’s refusal to joint that initiative; to have made a significant contribution as regards the date on which Tréfileurope began to participate in Club Italia and to have been at the origin of the distinction made in the contested decision between exclusive customers and common customers in the case of club or as regards the pan-European meetings held ‘in the margin of ESIS meetings’.
144 On those points, it must be held that, as the Commission correctly stated in reply to the measures of organisation of procedure and the measures of inquiry adopted by the Court, that the evidence put forward in that regard by Redaelli was not decisive or relates to minor aspects of the infringement which are not relevant as such with respect to the evidence already in the Commission’s possession, which came from a number of sources which corroborated each other.
145 Thus, as regards the link between the Zurich Club and Club Italia, although the part of the contested decision to which Redaelli refers, namely recital 401 et seq., actually mentions documents produced by Redaelli, it is also apparent from the file that other documents were seized during the inspections or indeed communicated by ITC, in particular the most relevant document in that respect, namely the agreement of 5 December 1995 between Redaelli, CB, Itas and ITC.
146 Likewise, as regards the description of the dynamics of club at the beginning of the 1990s, it should be borne in mind that the Commission found that Redaelli, CB, Itas and ITC began their participation in Club Italia only as from 23 January 1995, the date of the oldest draft agreement in the Commission’s possession following the inspections (see contested decision, recitals 402 and 456). The information communicated by Redaelli concerning the previous situation therefore has no impact on the Commission’s ability to establish the facts. As for the date on which Tréfileurope began to participate in Club Italia, it is clear from recital 460 to the contested decision that the Commission already had sufficient evidence to fix that date at 3 April 1995, the documents referred to in that respect having been supplied by ITC. As regards the distinction which the contested decision makes between exclusive customers and common customers, it is equally clear from recitals 445 and 447 of the contested decision that the Commission was already aware of that distinction, through documents discovered during the inspections and from the observations made by Tréfileurope.
147 Last, as regards the references to pan-European meetings held ‘in the margin of ESIS meetings’, that information was already clear from the documents supplied by the Bundeskartellamt at the initial stage of the procedure and from documents discovered during the inspections.
c) Conclusion
148 It follows from the foregoing that the first part of the first plea must be rejected as unfounded in its entirety.
3. Breach of the principle of protection of legitimate expectations
149 In essence, Redaelli claims that the Commission breached the principle of protection of legitimate expectations, because it did not examine the applicant’s leniency application against the criteria defined in the Leniency Notice. When it rejected that application, on 19 September 2008, the Commission was in fact influenced by its new, and stricter, Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17). During the period when the Leniency Notice was in force, and as is clear from decisions adopted in order to penalise other cartels, the Commission was more prepared to grant a reduction of the amount of the fine to applications based mainly on statements and the threshold of ‘added value’ was lower than that subsequently used.
150 Contrary to Redaelli’s contention, however, and as is apparent from paragraphs 76 to 148 above, when determining Redaelli’s leniency application the Commission correctly applied the criteria defined in the Leniency Notice.
151 Nor can Redaelli merely refer to the solutions applied by the Commission in other cases to seek to benefit from those solutions without stating the slightest factor on which it could be established that there was any similarity between the factual situations as regards both the infringements in question and the evidence submitted by the undertakings concerned in support of the leniency applications.
152 In any event, even on the assumption that they were taken into account, the details provided on the concept of ‘added value’ by the Notice on immunity from fines and reduction of fines in cartel cases adopted in 2006 are scarcely capable of undermining the alleged legitimate expectation on which Redaelli relies. In leniency matters, there can be no right to a reduction of the amount of the fine on the sole ground that statements or evidence were supplied to the Commission.
153 In the case of each of those notices, what is required is to determine the significant added value of such factors, with respect, in particular, to the evidence already in the Commission’s possession, and it is that added value that forms the basis of the decision whether or not to grant a reduction of the amount of the fine under the leniency programme.
154 Likewise, in each of those notices, it is expressly recognised that evidence originating from the period of time to which the facts pertain has a greater value than evidence subsequently established.
155 It follows from the foregoing that the second part of the first plea must be rejected as unfounded.
4. Breach of the principle of equal treatment
156 Redaelli claims that the Commission breached the principle of equal treatment by granting reductions of 5% of the amount of the fines to undertakings, Emesa/Galycas and WDI, whose cooperation was more modest.
157 As regards Emesa and Galycas, Redaelli observes that the reduction was granted on the basis of information supplied in reply to requests for information by the Commission. In their contribution, Emesa and Galycas merely admitted that anti-competitive meetings took place between European producers and Spanish and Portuguese producers ‘in the margin’ of meetings of trade associations, for which they also submitted two lists of meetings setting out the date, place and names of participants ‘without providing any description of their content and without being supported by any documentary evidence’ (see contested decision, recital 1095). While acknowledging the limited nature of that contribution, which was too vague to constitute proof of the infringement as such, the Commission none the less considered that it represented significant added value in so far as it strengthened the Commission’s ability to prove the facts pertaining to the cartel if corroborated by other evidence.
158 By comparison, Redaelli’s contribution is much more significant. Before even submitting a formal leniency application with other evidence, on 21 October 2002, or before Emesa and Galycas did so, Redaelli admitted that anti-competitive meetings had taken place between European and Italian producers. Redaelli also supplied a description of those meetings and a list stating the date, place and participants, which was more detailed than that supplied by Emesa and Galycas. Last, Redaelli’s statements were used by the Commission with respect to CB, Itas and Tréfileurope in order to impute liability for part of the cartel to them.
159 As regards WDI, it is apparent from the contested decision that that undertaking’s contribution was very limited and did not relate to decisive questions. WDI’s statement of 19 May 2004 contains the first information about certain aspects of the organisation of the Zurich Club and about the fact that that club followed the Italian example. WDI was also the first to confirm DWK’s statements about the existence of a company responsible for collecting data on behalf of the Zurich Club and Club Europe and the first to confirm Nedri’s statements about the Zurich Club’s compensation scheme, which were mere statements without any probative written documents.
160 By comparison, Redaelli’s contribution does not seem in any way less than WDI’s. Redaelli too was the first to provide information about certain aspects of the cartel (in particular its role as representative of a number of Italian undertakings and the situation of Club Italia at the beginning of the 1990s) and the first to confirm the statements or documents submitted by other undertakings (in particular those relating to the monitoring system, the link between the Zurich Club and Club Italia and those relating to the pan-European and Italian meetings). In addition, Redaelli contributed to the investigation by submitting a range of information and explanations, which were lacking in WDI’s application.
161 In that regard, it should be observed that it follows from settled case-law that the principle of equal treatment is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified (judgments of 13 December 1984 in Sermide, 106/83, ECR, EU:C:1984:394, paragraph 28, and of 5 October 2011 in Romana Tabacchi v Commission, T‑11/06, ECR, EU:T:2011:560, paragraph 102).
162 In the present case, none of the evidence submitted by Redaelli permits the conclusion that it did not receive the same treatment as Emesa/Galycas or WDI.
163 Redaelli has not put forward any arguments capable of calling into question the significant added value which the Commission ascribed to the contributions made by Emesa/Galycas and WDI during the administrative procedure.
164 In fact, it was after assessing the intrinsic and relative value of the various statements or documents submitted by Emesa/Galycas and WDI that the Commission concluded, as explained in the contested decision, that there were grounds for reducing by 5% the amount of the fine imposed on each of those undertakings. Redaelli’s arguments do not concern that added value recognised by the Commission but the added value that ought to have been placed on its own contribution, on the ground that its added value is ‘much more significant’ than that attributed to Emesa/Galycas or does not appear ‘in any event to be lower’ than that attributed to WDI.
165 In that regard, it is apparent from the contested decision that the significant added value which the Commission placed on the contributions of Emesa/Galycas and WDI met the conditions in points 21 to 23 of the Leniency Notice. In particular, recitals 1094 and 1096 to the contested decision, and also Annex 4 thereto, reveal the role played by the contribution made by Emesa/Galycas, which was the first evidence that enabled the Commission to establish the unlawful content of a number of Club España meetings. Likewise, the Commission sets out in recital 1113 to the contested decision the reasons why it considered that WDI’s contribution had clarified a number of questions relating, in particular, to the organisation of the Zurich Club.
166 In addition, it must be pointed out that Redaelli’s arguments do not permit a proper comparison of the significant added value which it claims with the significant added value recognised by the Commission as regards the contributions of Emesa/Galycas and WDI.
167 Although the contributions are similar as regards their form, since they were essentially made in the form of statements, the particular features of the participation of each of those undertakings in the cartel meant that the reasons why the Commission arrived at the conclusion referred to above with respect to Emesa/Galycas and WDI differ profoundly from one undertaking to the other. Emesa/Galycas is a Spanish undertaking which participated, in particular, in Club Europe and Club España, WDI is a German undertaking which participated in Club Europe and Redaelli is an Italian undertaking which participated in Club Europe and Club Italia. Their activities and the extent of their involvement in the cartel, as set out in the contested decision in the light, in particular, of the evidence then in the Commission’s possession, diverge in such a way that it is not possible to compare the situation with one of them with the situation of another.
168 Consequently, if Redaelli was refused a reduction of the amount of the fine under the leniency programme, that was not because of the significant added value which the Commission attributed to the contributions made by Emesa/Galycas and by WDI, but because its own contribution did not represent significant added value within the meaning of points 21 to 23 of the Leniency Notice.
169 It follows from the foregoing that the third part of the first plea, and therefore that plea in its entirety, must be rejected.
…
Costs
…
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Redaelli Tecna SpA to bear its own costs and to pay those incurred by the European Commission.
Frimodt Nielsen | Dehousse | Collins |
Delivered in open court in Luxembourg on 15 July 2015.
[Signatures]