Case T‑406/10

(publication by extracts)

Emesa-Trefilería SA
and
Industrias Galycas SA

v

European Commission

(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)

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

1.      EU law — Principles — Right to effective judicial protection — Judicial review of decisions adopted by the Commission in competition matters — Review of legality and unlimited jurisdiction, in law and in fact — Infringement — None

(Arts 261 TFEU and 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Art. 31)

2.      EU law — Principles — Right to effective judicial protection — Judicial review of decisions adopted by the Commission in competition matters — Annulling judgments not having effects erga omnes — Infringement — None

(Arts 261 TFEU and 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Art. 31)

3.      Competition — Fines — Amount — Determination — Adjustment of the basic amount — Leniency rules — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Conditions — Parent company and subsidiaries — Need for economic unity at the time of the cooperation

(Art. 101 TFEU; EEA Agreement, Art. 53; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03, points 7, 11(a), and 23(b))

4.      Judicial proceedings — Costs — Recoverable costs — Avoidable costs provoked by a party and incurred by the Court — Costs provoked by the failure of the Commission to produce a non-confidential version of documents

(Rules of Procedure of the General Court (1991), Art. 139(a))

1.      See the text of the decision.

(see paras 114, 115, 123, 124, 127)

2.      As regards the relative scope of judgments by which measures are annulled, the annulment of an individual decision has an erga omnes effect and is binding on everyone, but, unlike the annulment of an act of general application. 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. In that regard, if an addressee of a decision decides to bring an action for annulment, the matter to be tried by the EU 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. As to the remainder, the decision remains therefore binding on those addressees which have not applied for its annulment.

However, 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 capable, in certain circumstances, of having certain consequences for parties other than the applicant in the procedure which led to that annulment judgment.

Having regard to those factors, the procedure applied by the Commission and by the Court in competition matters does not, by reason of the absence of any erga omnes effects, infringe Article 6 of the European Convention on Human Rights, laying down the principle of effective judicial protection.

(see paras 116-118, 126)

3.      In competition matters, 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. In the light of the objective pursued by the Leniency Notice, consisting in promoting the detection of conduct contrary to EU 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.

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. 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. In that respect, exclusion from the benefit of leniency applies 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. Not extending that benefit to companies not entitled thereto does infringe either the principle of sound administration and Article 41 of the Charter of Fundamental Rights of the European Union, or the principles of equal treatment and fairness.

(see paras 152-154, 157, 159, 171)

4.      See the text of the decision.

(see paras 190-195)