1

By their action based on Article 263 TFEU, the applicants, Lantmännen ek för and Lantmännen Biorefineries AB, request the Court to annul European Commission Decision C(2023) 8320 final of 7 December 2023 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (AT.40054 – Ethanol Benchmarks (‘the contested decision’). In the contested decision, the Commission found that the applicants had infringed those provisions by participating in a single and continuous infringement the object of which was to influence in a coordinated fashion the wholesale price formation mechanism on the European ethanol market, that decision having been adopted in the context of a staggered ‘hybrid’ procedure consisting of the adoption, first, of a settlement decision and, second, of a decision closing the ordinary procedure.

2

Lantmännen ek för is the parent company of Lantmännen Biorefineries, whose business is the production and marketing of ethanol. Ethanol is produced either through the synthesis of water and ethylene or from regenerative raw materials such as sugar, certain cereals, starch or cellulose containing biomasses. Ethanol is used either as an additive in the production of motor fuels or as a traditional ingredient in the production of beverages and the manufacture of pharmaceuticals, chemicals and cosmetics.

3

On 7 December 2015, the Commission initiated an investigation procedure with a view to adopting a decision pursuant to Chapter III of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1). The purpose of that procedure was to determine whether the applicants, together with Alcogroup S.A., Alcodis S.A. (together, ‘Alcogroup’) and Abengoa, had manipulated in a coordinated manner the calculation of the price benchmarks developed and published by S&P Global Platts.

4

In May 2016, the applicants, Abengoa and Alcogroup (together, ‘the parties to the investigation’) expressed their interest in taking part in settlement discussions. The Commission’s meetings with the parties to the investigation with a view to reaching a settlement took place between June 2016 and June 2017. During those meetings, the Commission informed the parties to the investigation of the objections it envisaged raising against them and disclosed the main pieces of evidence in the file on which it intended to rely in order to establish those objections.

5

In June 2017, the Commission communicated to the parties to the investigation the range of potential fines within the meaning of point (d) of the first subparagraph of Article 10a(2)(d) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (OJ 2004 L 123, p. 18).

6

Abengoa and Alcogroup refused to accept the maximum amount of the fine envisaged within the range of potential fines. Accordingly, in April 2018, the ordinary procedure was resumed in respect of them.

7

The applicants, which had been informed in advance of the resumption of the ordinary procedure in respect of Abengoa and Alcogroup, confirmed, in March 2018, that they were ready to accept the maximum amount of the fine and to submit a formal settlement request.

8

On 16 July 2018, the applicants submitted a settlement submission to the Commission.

9

On 24 July 2018, the Commission adopted, under the ordinary procedure, a statement of objections addressed to Abengoa and Alcogroup. They submitted their observations on that statement of objections and participated, in January 2020, in a hearing regarding that statement of objections.

10

On 2 March 2021, the Commission sent Abengoa and Alcogroup a letter of facts substantiating the objections set out in the statement of objections of 24 July 2018, referred to in paragraph 9 above, and, in July 2021, a letter supplementing the letter of facts mentioned above.

11

On 13 September 2021, Abengoa, which stated that it was in financial difficulties, expressed to the Commission its interest in re-entering the settlement procedure in order to benefit from certainty as to the outcome of the procedure relating to the infringement alleged against it and to attract the investments necessary for its restructuring.

12

In that context, the Commission informed Alcogroup of the resumption of the settlement procedure in respect of Abengoa and invited each of Alcogroup and Abengoa to express their interest in resuming it. Only Abengoa, which subsequently submitted a settlement submission on 28 October 2021, accepted the Commission’s invitation.

13

On 11 November 2021, the Commission adopted a statement of objections addressed to both the applicants and to Abengoa in the context of the settlement procedure.

14

On 25 November 2021, the applicants informed the Commission that they had no option but to withdraw from the settlement procedure, since the statement of objections of 11 November 2021 did not reflect either their settlement submission or the settlement discussions. Therefore, only Abengoa participated in the settlement procedure from that point onwards.

15

On 10 December 2021, the Commission adopted Decision C(2021) 8913 final (‘the settlement decision’), imposing on Abengoa, the sole addressee of the settlement decision, a fine of EUR 20 million for its participation in a cartel relating to the wholesale price formation mechanism for the European ethanol market during the period from 6 September 2011 to 16 May 2014.

16

In recital 4 of the settlement decision, the Commission refers to the applicants and Alcogroup using the expression ‘other parties to the investigation’ and states, first, that both the applicants and Alcogroup are not addressees of that decision and, second, that the settlement decision does not establish or seek to establish, even on a preliminary basis, the liability of the ‘other parties to the investigation’ for any participation in any infringement. Other references concerning the settlement decision not having an effect on the classification of the conduct of the ‘other parties to the investigation’ and on their liability in that regard were to be found in recitals 41 and 49 of that decision.

17

The applicants are referred to individually in recitals 4, 13, 18, 24 and 40 of the settlement decision. Similarly, a number of recitals to that decision refer to the ‘other parties to the investigation’ under the headings dealing with introductory remarks (‘1. Introduction’), the description of the administrative procedure (‘3. Procedure’), the description of the unlawful conduct (‘4. Description of the conduct’), the legal assessment of that conduct (‘5. Legal assessment’) and the remedies (‘8. Remedies’). Furthermore, in Article 1 of the operative part of the settlement decision, the Commission found that there had been an infringement by Abengoa of Article 101 TFEU and Article 53 of the EEA Agreement on account of its conduct which was the subject of regular coordination with the ‘other parties to the investigation’.

18

By letter of 28 February 2022, the Commission informed the applicants of its decision to resume the ordinary procedure with regard to them.

19

On 7 July 2022, the Commission adopted a statement of objections addressed to Alcogroup and to the applicants.

20

On 10 November 2022, the applicants submitted their observations on the statement of objections of 7 July 2022. Alcogroup, for its part, submitted its observations on 3 November 2022.

21

On 20 April 2023, the Commission sent a letter to the applicants informing them that, following their exchanges and in the light of the observations on the statement of objections of 7 July 2022, it was considering shortening the duration of the infringement, so that the end date would be 25 March 2014 instead of 16 May 2014, as preliminarily found in the statement of objections. Since such a reduction had an effect on the calculation of the amount of the fine, the Commission informed the applicants that they could submit their observations in that regard within a period of five days.

22

On 20 April 2023, the Commission also sent the applicants a request for information concerning the value of their sales during the infringement period and turnover data for 2022. The applicants replied to that request for information on 27 April 2023.

23

In a letter of 2 May 2023, the Commission informed the applicants that the evidence gathered against Alcogroup as regards its liability for the infringement had not been found to be sufficient for the entire period referred to in the statement of objections of 7 July 2022 (see paragraph 19 above).

24

On 4 May 2023, the applicants submitted their observations on the possible shortening of the infringement duration and on the consequences thereof for the calculation of the amount of the fine (see paragraph 21 above).

25

On 23 May 2023, as the period prescribed for submitting observations on the letter of 2 May 2023 referred to in paragraph 23 above had expired, the Commission adopted Decision C(2023) 3486 final, closing the ordinary procedure as regards Alcogroup.

26

On 12 June 2023, the Commission sent the applicants a letter to clarify how it intended to calculate the value of sales for the purposes of a possible fine. The applicants did not submit any observations in that regard.

27

On 7 December 2023, the Commission adopted the contested decision, in which it was found that the applicants, the sole addressees of that decision, had infringed Article 101(1) TFEU and Article 53(1) of the EEA Agreement by participating in a single and continuous infringement with the aim of influencing in a coordinated manner the wholesale price formation mechanism for the European ethanol sector. The Commission imposed a fine of EUR 47.718 million on the applicants.

28

The product concerned by the infringement referred to in the contested decision is ethanol which, when blended with gasoline, is used for producing biofuels (‘fuel-grade ethanol’).

29

According to the contested decision, contracts for the sale of ethanol on the European market are either long-term or concluded on the ‘spot’ market. Large quantities of ethanol are sold within the European Union under long-term bilateral contracts following tender procedures. The price of those contracts often includes a fixed part and a variable part, the variable part usually being based on the indices published by S&P Global Platts.

30

Transactions on the ‘spot’ market (often referred to as ‘spot trades’) are for instant delivery on a specified ‘spot date’. The most important ‘spot’ market for ethanol in the European Economic Area (EEA) during the relevant period was the ‘Amsterdam-Rotterdam-Antwerp barge market’ (‘the Rotterdam area’), as its trading activity was taken into account by S&P Global Platts when drawing up its price benchmarks.

31

S&P Global, a United States company with its European headquarters in London (United Kingdom), was, during the relevant period, organised in a number of divisions, including S&P Global Platts, the most important price-reporting agency for the ethanol market. During the relevant period, 90% of bilateral contracts for the sale of ethanol used the indices published by S&P Global Platts as a reference.

32

S&P Global Platts makes publicly available price benchmarks on the European ethanol market (Platts ethanol benchmarks) which aim to reflect the price of ethanol traded in the Rotterdam area. To that end, S&P Global Platts uses a process to produce its benchmarks called ‘market-on-close’ (‘the MOC process’).

33

The MOC process is based on the information gathered from participants, including all bids, offers, intentions to trade and confirmed trades communicated voluntarily during the day and, in particular, during the time interval between 16:00 and 16:30 (London time), known as the MOC window (‘MOC window’).

34

While S&P Global Platts brings together information from various sources when developing its ethanol price benchmarks, it prioritises data obtained during the ‘MOC window’.

35

According to the Commission, given that ethanol price indices are often used as a benchmark in long-term contracts for the sale of ethanol, a distortion – even if minimal – in the prices communicated for the purpose of drawing up those benchmarks is likely to have an appreciable effect on the market price of ethanol and, therefore, on the revenues of undertakings party to such long-term sale contracts.

36

In the contested decision, a finding is made that the applicants, Abengoa and Alcogroup entered into agreements or engaged in concerted practices with the aim artificially to increase, maintain or prevent from decreasing the level of ethanol benchmarks published by S&P Global Platts.

37

According to the Commission’s analysis, the infringing conduct has two aspects. First, the applicants coordinated their trading conduct before, during and after the ‘MOC window’ with Abengoa and Alcogroup. Second, the applicants agreed with Abengoa and Alcogroup to limit the supply of physical ethanol in the Rotterdam area which could be available for negotiations in the ‘MOC window’. In order to implement the infringing conduct, the applicants regularly exchanged commercially sensitive information with Abengoa and Alcogroup.

38

The Commission concluded that the purpose of the coordinated conduct described in paragraph 37 above had the aim to, and was likely to, lead to higher prices for sales of ethanol by the applicants, Abengoa and Alcogroup under the ethanol supply contracts concluded with their customers, those contracts being referenced to benchmarks published by S&P Global Platts.

39

The applicants claim that the General Court should:

40

The Commission contends that the Court should:

41

In support of their action, the applicants raise two pleas in law alleging, first, failure to respect the presumption of innocence and, second, failure by the Commission to respect the duty of impartiality arising from the principle of sound administration.

42

In support of its first plea, the applicants maintain that, by choosing to use a staggered ‘hybrid’ procedure when there was only one settling party and by adopting the Abengoa settlement decision, the Commission has failed to respect the principle of the presumption of innocence. The case against them and, ultimately, the contested decision are therefore inherently flawed.

43

Specific expression of the detriment to the applicants’ presumption of innocence is found in the fact that the Commission made two principal, deep-seated errors which cannot be rectified and which justify the contested decision being set aside.

44

First, in the applicants’ view, the Commission chose, incorrectly to employ a staggered ‘hybrid’ procedure with only one settling undertaking (first and third parts of the first plea). In that context, the applicants state that the Commission could not adopt the settlement decision in respect of Abengoa before the end of the ordinary procedure without adversely affecting their right to be presumed innocent.

45

Second, the applicants are of the view that the Commission adversely affected their right to be presumed innocent when drafting the settlement decision, in so far as that decision contained clear and unambiguous references to the participation of the ‘other parties to the investigation’ which had not settled as regards the unlawful conduct covered by that decision and to their liability for that conduct, references which were not necessary in order to establish Abengoa’s liability (second part of the first plea).

46

In the context of the first and third parts of the first plea, which will be examined together, the applicants maintain, first, that the use of a ‘hybrid’ procedure staggered over time, while only Abengoa participated in the settlement procedure, entails a breach of their right to be presumed innocent and, second, that no valid justification was provided for using such a procedure in the circumstances of the present case.

47

The Commission disputes the applicants’ arguments.

48

In that regard, it must be stated, in the first place, that the applicants’ line of argument is based on the premiss that to use a staggered ‘hybrid’ procedure for only one undertaking participating in the settlement procedure could constitute a breach of the presumption of innocence regardless of a case-specific analysis of the settlement decision. In the light of the case-law, such a premiss is incorrect.

49

First, it should be noted that Article 10a of Regulation No 773/2004 does not exclude and does not preclude the possibility for the Commission to follow a ‘hybrid’ procedure in the context of the application of Article 101 TFEU (see, to that effect, judgment of 2 February 2022, Scania and Others v Commission, T‑799/17, EU:T:2022:48, paragraphs 98 and 99).

50

The Commission is entitled to use a ‘hybrid’ approach and to implement a settlement procedure in respect of undertakings which put forward settlement submissions, while continuing the procedure governed by the general provisions of Regulation No 773/2004, instead of those governing the settlement procedure for undertakings which do not wish to enter into a settlement (see, to that effect, judgment of 20 May 2015, Timab Industries and CFPR v Commission, T‑456/10, EU:T:2015:296, paragraphs 70, 71 and 104).

51

The EU Courts have held that the Commission is entitled to adopt, as a first step, a settlement decision with regard to the parties which have decided to enter into a settlement and, as a second step, a decision taken at the end of the ordinary procedure with regard to the parties which have decided not to enter into a settlement, provided, however, that it ensures, when adopting the settlement decision, that the principle of the presumption of innocence with regard to non-settling parties is observed (see, to that effect, judgment of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraphs 64 and 65, and of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraphs 88 and 89.

52

In that context, the Commission enjoys a broad margin of discretion to determine in which cases it may appropriately explore the parties’ interest to engage in settlement discussions, as well as to decide to engage in such discussions or discontinue them or to reach a final settlement of the case, as is apparent from recital 4 of Commission Regulation (EC) No 622/2008 of 30 June 2008 amending Regulation No 773/2004, as regards the conduct of settlement procedures in cartel cases (OJ 2008 L 171, p. 3) (see, to that effect, judgment of 29 February 2016, Deutsche Bahn and Others v Commission, T‑267/12, not published, EU:T:2016:110, paragraph 417).

53

In addition, it may be objectively necessary for the Commission to address, in the decision terminating the settlement procedure, certain facts and behaviour concerning participants in the alleged cartel which are the subject of the standard procedure (judgments of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 65, and of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 89). In that context, none of the references to the non-settling parties can be definitive as regards their participation in the conduct in question.

54

Second, as regards more specifically the presumption of innocence, that constitutes a general principle of EU law, currently laid down in Article 48(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’) (judgments of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 72, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 60). Article 48 of the Charter corresponds to Article 6(2) and (3) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, as is apparent from the explanations relating to that provision of the Charter. It follows, in accordance with Article 52(3) of the Charter, that it is necessary to take account of Article 6(2) and (3) of the Convention for the Protection of Human Rights and Fundamental Freedoms for the purpose of interpreting Article 48 of the Charter, as a minimum threshold of protection (judgment of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 41, and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 61).

55

In those circumstances, the principle of the presumption of innocence will be infringed if a judicial decision or a statement by a public official concerning a person charged with a criminal offence contains a clear declaration, in the absence of a final conviction, that the person concerned has committed the offence in question. In that context, that court underlined the importance of the choice of words by the judicial authorities and of the particular circumstances in which those words were formulated and of the nature and context of the proceedings at issue (see, to that effect, judgments of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 43; of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 79 and the case-law cited; and ECtHR, 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, § 63).

56

Third, and in consequence, it is only in the light of a case-specific analysis of the settlement decision and the assessments made therein that it is possible to assess whether there has been any breach of the applicants’ right to be presumed innocent. The criticisms of the use of a ‘hybrid’ procedure staggered over time for only one settling party are therefore not, in themselves, capable of demonstrating that such a breach exists.

57

In addition, as regards, more specifically, the criticism that the procedural choice preferred by the Commission inherently entailed finding that the applicants participated in the infringement at issue and that they were guilty in relation to the conduct referred to in the settlement decision, it must be recalled that it is apparent from the case-law relating to complex criminal proceedings, which applies mutatis mutandis to the present case (see, to that effect, judgment of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 64), that the adoption of a settlement decision in respect of only one accused person, while the conduct covered by that decision presupposes collective participation, does not, in itself, entail a breach of the right to be presumed innocent for other persons who have not entered into a settlement (see, to that effect, judgment of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 45), and order of 28 May 2020, UL and VM, C‑709/18, not published, EU:C:2020:411, paragraph 35).

58

In that regard, the applicants err in maintaining that, in essence, the settlement decision required the Commission to adopt a decision once the ordinary procedure came to an end. The settlement procedure is an administrative procedure which is an alternative to the ordinary procedure, is distinct from that procedure and has certain special features. In the settlement procedure, if the undertaking concerned does not put forward a settlement proposal, the procedure leading to the final decision is governed by the general provisions of Regulation No 773/2004, rather than those governing the settlement procedure. As regards, by contrast, the ordinary procedure, in which liabilities have yet to be determined, the Commission is only bound by the statement of objections and is required to take into consideration the new information brought to its attention during that procedure (see, to that effect, judgments of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraph 136, and of 1 February 2024, Scania and Others v Commission, C‑251/22 P, EU:C:2024:103, paragraph 75).

59

Accordingly, contrary to the applicants’ assertions, the adoption of the settlement decision does not, in itself, entail any legal consequence affecting decisions taken at a later stage in the ordinary procedure as regards a non-settling party.

60

Consequently, the adoption of the settlement decision did not determine the outcome of the ordinary procedure, as evidenced by the decision adopted in respect of Alcogroup, in which the Commission ultimately reached the conclusion that the evidence on the file was not sufficiently conclusive to support the conclusion that Alcogroup had participated in the infringement after 14 March 2013, with the result that the Commission was time-barred from imposing a fine on it. It is important to make clear, as regards that point, that there was nothing to prevent the Commission from adopting a decision similar to that concerning Alcogroup as regards the applicants following the examination of the evidence on the file in the ordinary procedure, even after the ordinary procedure in respect of Alcogroup has been closed.

61

In the second place, as regards the Commission’s alleged failure to justify the use of a ‘hybrid’ procedure staggered over time, none of the other arguments of the applicants can succeed.

62

First, contrary to the applicants’ assertions, the judgment of 5 September 2019, AH and Others (Presumption of innocence) (C‑377/18, EU:C:2019:670), does not mean that the Commission is required to demonstrate that the use of a staggered ‘hybrid’ procedure is ‘indispensable’, the applicants having argued that it was not indispensable in the present case.

63

It is true that the case-law arising from the judgment of 5 September 2019, AH and Others (Presumption of innocence) (C‑377/18, EU:C:2019:670), is relevant, mutatis mutandis, where the Commission adopts, in relation to one and the same cartel, two decisions which have different addressees following two separate procedures, namely, first, a decision taken following a settlement procedure and addressed to the undertakings which have entered into a settlement agreement and, second, a decision taken at the end of an ordinary procedure and addressed to the other undertakings having participated in the cartel (see paragraph 57 above).

64

However, the case-law arising from the judgment of 5 September 2019, AH and Others (Presumption of innocence) (C‑377/18, EU:C:2019:670), cannot be interpreted as requiring the Commission to prove in each case that the use of a staggered ‘hybrid’ procedure is ‘indispensable’. The Commission is supposed to exercise its discretion to examine whether the use of a staggered ‘hybrid’ procedure allows it to ensure that the case is dealt with more quickly and more efficiently for the undertakings which have chosen to enter into a settlement, while observing the limits imposed by the applicable rules, including the right to be presumed innocent for undertakings which have not entered into a settlement (see above paragraphs 51 to 53).

65

Second, the applicants have not demonstrated how the reasons which justified the use in the present case of a staggered ‘hybrid’ procedure, as referred to in recitals 428 to 448 of the contested decision, failed to have regard to their right to be presumed innocent.

66

In the contested decision, it is stated that, at the time Abengoa decided to re-enter the settlement procedure, the applicants were still participating in the settlement, so that there was a possibility of completing that procedure for the majority of the parties under investigation (recital 441 of the contested decision).

67

Indeed, the adoption of a settlement decision including Abengoa made it possible to cover the entire period of the infringement, which entailed clear benefits for the Commission as compared with the adoption of a settlement decision addressed exclusively to the applicants (recital 442 of the contested decision).

68

According to recital 443 of the contested decision, the Commission’s envisaged approach was then aimed at finalising the administrative procedure as swiftly as possible, focusing first on the settlement procedure and then applying its resources to the adoption of the decision terminating the ordinary procedure, which was expected to be appealed by Alcogroup.

69

As regards the risk for the applicants of being exposed to damages claims by third parties as a result of the staggered adoption of the settlement decision and of the decision closing the ordinary procedure, the Commission states that the settlement decision was intended to be streamlined and to be published only in a non-confidential version, which was to significantly reduce that risk (recital 444 of the contested decision).

70

As is apparent from recital 445 of the contested decision, the advantages of the approach envisaged by the Commission were discussed beforehand with the applicants, which the applicants do not dispute.

71

Furthermore, according to recital 447 of the contested decision, the adoption of the settlement decision solely addressed to Abengoa was justified by efficiency considerations. Even though Abengoa re-entered the settlement procedure at a late stage, the adoption of that decision made it possible to generate significant efficiencies, including the possibility to prepare a much shorter settlement decision than would have been required in the ordinary procedure and the lowering of the probability of Abengoa challenging the settlement decision.

72

Given their content, none of the recitals of the contested decision referred to above supports the conclusion that the Commission failed to have regard to the applicants’ right to be presumed innocent when it decided to use a staggered ‘hybrid’ procedure.

73

In any event, to delay or abandon a settlement procedure on the ground that one of the undertakings concerned has decided not to participate in settlement discussions would run counter to the objective pursued by the settlement procedure, as set out in recital 4 of Regulation No 622/2008, which is to ensure a more expeditious and efficient handling of the case with those undertakings which have chosen to settle (see, to that effect, judgment of 2 February 2022, Scania and Others v Commission, T‑799/17, EU:T:2022:48, paragraph 102).

74

Third, the argument relating to the breach of the clause regarding synchronised timing agreed between the Commission and the applicants in the settlement procedure, whereby the final decisions of the settlement procedure and the ordinary procedure were to be adopted ‘at or around the same time’, is merely an element of background context to which the applicants refer, and is of no consequence when examining the lawfulness of the contested decision.

75

Indeed, as is apparent from their written responses to the measures of organisation of procedure, the applicants do not submit that there was any breach of any of the rules governing the settlement procedure or plead that such rules concerning the Commission’s failure to comply with the clause regarding synchronised timing were unlawful.

76

The same applies to the failure to comply with the reverse review clause, which provides that the settlement is conditional on the Commission not addressing to the participants in the ordinary procedure a decision which is more favourable than the settlement decision.

77

In any event, as the Commission points out, without being challenged by the applicants, the statement of objections of 11 November 2021 relating to the settlement reflected the applicants’ settlement submission as regards the object of the infringement, its implementation, the main facts and their legal qualification, including the applicants’ role and the duration of their participation in the infringement. The statement of objections accordingly reflected the content of the settlement submission as regards the elements referred to in point 20(a) of the Commission Notice on the conduct of settlement procedures in view of the adoption of decisions pursuant to Articles 7 and 23 of Regulation No 1/2003 in cartel cases (OJ 2008 C 167, p. 1). Those elements do not include commitments such as the clause regarding synchronised timing or the reverse review clause.

78

Therefore, in accordance with point 22 of the Commission Notice on the conduct of settlement procedures, the Commission’s statement of objections is deemed to have endorsed the applicants’ settlement submission.

79

In the light of the foregoing, none of the arguments raised by the applicants in the first and third parts of the first plea makes it possible to establish that the Commission failed to have regard to their right to be presumed innocent, with the result that those parts must be rejected.

80

According to the applicants, the Commission failed to have regard to their right to be presumed innocent when it adopted the settlement decision, which contains clear and unambiguous references to the participation in the infringement in question and the alleged liability of the non-settling undertakings, when such references were not necessary to establish Abengoa’s liability.

81

First, the settlement decision contains a prejudgment since it refers to the applicants being among the undertakings referred to as the ‘other parties to the investigation’ whose liability was declared in Article 1 of the operative part of that decision and since that decision refers to their conduct, including as part of its legal assessment. In addition, the fact that the investigation against Alcogroup was subsequently abandoned strengthened the impression that the settlement decision involved the applicants sharing responsibility with Abengoa. Lastly, the disclaimer clauses are not sufficient to remedy those references.

82

Second, the approach taken by the Commission departs from its previous practice in ‘hybrid’ procedures.

83

Third, the references in the settlement decision go beyond what the Court considered necessary to express and classify the liability of the settling parties.

84

The Commission disputes the applicants’ arguments.

85

As is apparent from the case-law cited in paragraph 55 above, the presumption of innocence will not be observed where a judicial decision or statement by a public official concerning a person charged with a criminal offence contains a clear declaration, in the absence of a final conviction, that the person concerned has committed the offence in question, hence the importance of the terms used by the authorities concerned and the particular circumstances in which they were formulated, together with the nature and context of the procedure in question.

86

In complex criminal proceedings involving a number of persons who cannot be tried together, it has already been accepted that references by the competent court to the participation of third persons, who may later be tried separately, may be indispensable for the assessment of the guilt of those who are on trial. However, if facts related to the involvement of third parties have to be introduced, the relevant court should avoid giving more information than necessary for the assessment of the legal responsibility of those persons who are accused in the trial before it. In addition, the reasoning of judicial decisions must be worded in such a way as avoid a potential prejudgment about the guilt of the third parties concerned, capable of jeopardising the fair examination of the charges brought against them in the separate proceedings (see, to that effect, judgment of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 44; and of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 63; and judgment of the European Court of Human Rights (ECtHR), 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, §§ 64 and 65).

87

As stated in paragraph 57 above, the presumption of innocence also applies where the Commission adopts, in relation to one and the same cartel, two decisions which have different addressees following two separate procedures, namely, first, a decision taken following a settlement procedure and addressed to the undertakings which have entered into a settlement agreement and, second, a decision taken at the end of an ordinary procedure and addressed to the other undertakings having participated in the cartel (judgments of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 64, and of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 88).

88

In that context, the Commission is required to comply with the duty to state reasons for legal acts, laid down in the second paragraph of Article 296 TFEU, the content of which must enable the persons concerned to know the grounds on which the decision is based and provide a judicial authority with sufficient material for it to exercise its power of review in the context of an action (see, by analogy, judgment of 26 November 2013, Groupe Gascogne v Commission, C‑58/12 P, EU:C:2013:770, paragraph 37).

89

As noted in paragraph 53 above, it may be objectively necessary for the Commission to address, in the decision terminating the settlement procedure, certain facts and conduct concerning participants in the alleged cartel which are the subject of the ordinary procedure, without any of the references to them being capable of being definitive as regards their participation in the conduct in question.

90

It is for the Commission to ensure, in the decision terminating the settlement procedure, that the right to be presumed innocent of undertakings which have refused to enter into a settlement and which are the subject of an ordinary procedure is preserved. In that context, a failure by the Commission to observe non-settling undertakings’ right to be presumed innocent, the effect of which is to disregard the fundamental rights of the undertakings concerned, constitutes a sufficiently serious infringement capable of vitiating the entire procedure which led to the adoption of the decision terminating the ordinary procedure (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 95).

91

In order to review the Commission’s observance of the presumption of innocence, it is for the EU Courts to analyse a decision bringing the settlement procedure to an end and its reasoning as a whole and in the light of the particular circumstances in which that decision has been adopted. Any explicit reference, in certain parts of that decision, to the absence of guilt of the other participants to the alleged cartel would be devoid of sense if other parts of that decision were likely to be understood as a premature expression of their guilt (judgments of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 66, and of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 90).

92

Consequently, it is necessary to examine, first, whether the Commission took sufficient drafting precautions in the settlement decision in order to avoid a premature judgement as to the applicants’ participation in the cartel and, second, whether the references to the applicants in the settlement decision were necessary (see, to that effect, judgments of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 68, and of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 219).

93

In the present case, it is apparent from the applicants’ written responses to the measures of organisation of procedure addressed to them by the Court that they do not dispute the Commission’s drafting precautions in the settlement decision, but maintain that those precautions were insufficient.

94

In that regard, it must be noted that in recital 4 of the settlement decision the Commission established the defined term ‘other parties to the investigation’ in order to refer to the applicants and Alcogroup jointly. Next, the Commission stated that the ‘other parties to the investigation’ were not the addressees of the settlement decision and that that decision neither established nor sought to establish, even on a preliminary basis, any liability of those other parties for any participation in any infringement. It is also stated therein that the description of the conduct involving the ‘other parties to the investigation’ was used exclusively, to the extent necessary, to establish the liability of Abengoa.

95

Other similar expressions concerning the ‘other parties to the investigation’ and their lack of liability as a result of the adoption of the settlement decision are to be found in recitals 41 and 49 of that decision.

96

By the references in paragraphs 94 and 95 above, the Commission clearly showed that it was not required to rule on the liability of the ‘other parties to the investigation’, with the result that it must be found that drafting precautions were in fact taken as regards the applicants.

97

That having been said, it is necessary to ascertain whether other passages of the settlement decision are likely to be understood as a premature expression of the applicants’ liability, which could deprive the drafting precautions taken by the Commission of their effectiveness, as referred to in the case-law cited in paragraph 91 above.

98

As set out in paragraphs 60 to 63 of the application, the references to the ‘other parties to the investigation’ which disclose a breach of the applicants’ right to be presumed innocent are, in particular, found in recitals 33, 35, 46, 47, 53 to 55 and 60 of the settlement decision and in Article 1 of the operative part of that decision.

99

In that regard, it must be stated, in the first place, that the references to the ‘other parties to the investigation’ under the headings describing Abengoa’s infringing conduct, including the references in recitals 33 and 35 of the settlement decision, are, in accordance with their purpose, purely descriptive of the conduct covered by the settlement decision as regards Abengoa.

100

Furthermore, none of the references cited in paragraph 99 above entails, either explicitly or implicitly, a legal classification of the applicants’ conduct, with the result that those references may be regarded as compatible with the case-law cited in paragraph 91 above.

101

In the second place, it is necessary to analyse the references in the section relating to the legal assessment of Abengoa’s conduct (‘Legal assessment’) and, more specifically, the references in recitals 46, 47, 53 to 55 and 60 of the settlement decision. Those references are found in the parts of the decision which relate to the application, in the present case, of the principles relating to Article 101 TFEU and Article 53 of the EEA Agreement (section 5.1.2, recitals 46 and 47 of the settlement decision), the principles relating to the existence of a single and continuous infringement (section 5.2.2, recitals 53 to 55 of the settlement decision) and the principles relating to the restriction of competition (section 5.3.2, recital 60 of the settlement decision).

102

In that regard, first, it must be recalled that, as observed in paragraph 57 above, the use of a staggered ‘hybrid’ procedure with only one undertaking participating in the settlement procedure does not require the conclusion to be drawn that the applicants committed the infringement referred to in the settlement decision.

103

Furthermore, as is apparent from the case-law cited in paragraphs 86, 87 and 89 above, the references to undertakings which have not settled are not, in themselves, problematic and may be objectively necessary in order to describe and classify the settling undertaking’s participation in the cartel, in so far as they do not entail a premature attribution of liability to the participants in the ordinary procedure.

104

In that context, the fact that the Commission refers to the applicants and Alcogroup by the defined term ‘other parties to the investigation’ supports the conclusion that it did not intend to make a classification of their liability having regard to the conduct covered by the settlement decision (see, to that effect, ECtHR, 17 September 2024, C.O. v. Germany, CE:ECHR:2024:0917JUD001667822, § 68).

105

It must also be observed that, both in the public version of the settlement decision at issue in the case which gave rise to the judgment of 18 March 2021, Pometon v Commission (C‑440/19 P, EU:C:2021:214), and in the version at issue in the case which gave rise to the judgment of 12 January 2023, HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2023:11), the Commission used the defined term ‘parties’ to refer to all of the undertakings concerned by the investigation.

106

By contrast, in the settlement decision at issue in the present case, the Commission used the defined term ‘other parties to the investigation’, which makes it possible to distinguish more clearly the references concerning the addressee of that decision and the references concerning non-settling undertakings. Moreover, the settlement decision contains no explicit reference to the applicants in the description of the infringing conduct, unlike recitals 26, 28, 29 and 31 of the settlement decision at issue in the case which gave rise to the judgment of 18 March 2021, Pometon v Commission (C‑440/19 P, EU:C:2021:214).

107

Second, even though the ‘other parties to the investigation’ are referred to in the part dealing with the legal classification of Abengoa’s conduct, the Commission’s established position regarding the applicants’ participation in the infringement at issue and the legal classification of their conduct together with their incurring liability for that infringement is not clearly apparent from a reading of the settlement decision (see, to that effect, judgment of 10 November 2017, Icap and Others v Commission, T‑180/15, EU:T:2017:795, paragraphs 259 and 260).

108

It is, accordingly, apparent from a number of elements in the settlement decision, read in the light of the drafting precautions referred to in paragraphs 94 and 95 above, that:

109

In addition, the reference to the non-settling parties in the part dealing with the legal classification of the conduct in question has already been, albeit implicitly, considered by the EU Courts to be acceptable (see, to that effect, first, recitals 50 to 55 of the settlement decision at issue in the case which gave rise to the judgment of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, namely Commission Decision C(2014) 2074 final, and, second, judgment of 20 December 2023, Crédit agricole and Crédit agricole Corporate and Investment Bank v Commission, T‑113/17, under appeal, EU:T:2023:847, paragraph 96 (not published), as regards recitals 53, 57 to 59 of the settlement decision at issue in the case which also gave rise to the judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, namely Commission Decision C(2013) 8512 final).

110

In the third place, the reference to the ‘other parties to the investigation’ in Article 1 of the operative part of the settlement decision does not constitute a clear declaration that those parties committed the infringement in question.

111

First, simply referring to ‘other parties to the investigation’ in the operative part does not mean that information concerning them was provided, as referred to in the case-law cited in paragraph 86 above. As was recalled in paragraph 103 above, the references to undertakings which have not settled are not, in themselves, problematic and may be objectively necessary in order to describe and classify the settling undertaking’s participation in the cartel, in so far as they do not entail a premature attribution of liability to the participants in the ordinary procedure.

112

Second, the reference to the ‘other parties to the investigation’ in the operative part does not, in itself, imply a prejudgment regarding the applicants’ guilt, capable of jeopardising the fair examination of the charges brought against them in the ordinary procedure.

113

In that regard, it must be observed that the operative part of the settlement decision has legal effects only as regards Abengoa, in its capacity as addressee of that decision.

114

Furthermore, in Article 1 of the operative part of the settlement decision, the Commission concludes that only Abengoa infringed the applicable cartel rules.

115

In addition, in accordance with the content of the operative part of the settlement decision, only Abengoa is liable for the infringement at issue, as is apparent in particular from Articles 2, 4 and 5 of that decision.

116

Accordingly, it is in no way apparent from the operative part of the settlement decision that the Commission intended to make a classification of the conduct of the ‘other parties to the investigation’ as regards their participation in the cartel at issue.

117

In the fourth place, it is true that the scope of some of the disputed statements, including, in particular, those to be found in recitals 46, 53 to 55 and 60 of the settlement decision, could be regarded as lacking precision as to whether the legal classification made therein extends not only to the conduct of Abengoa, but also to the conduct of the ‘other parties to the investigation’.

118

However, the references to the ‘other parties to the investigation’ in the recitals of the settlement decision referred to above – although relating to the legal classification of the conduct which the settling party, namely Abengoa, has been found to have carried out – constitute, at most, drafting errors, which do not, in themselves, entail any clear, explicit or implicit assessment of the guilt of the non-settling parties (see, to that effect, judgments of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraphs 79 and 231, and of 20 December 2023, Crédit agricole and Crédit agricole Corporate and Investment Bank v Commission, T‑113/17, under appeal, EU:T:2023:847, paragraph 97 (not published).

119

Indeed, first, the examination of whether the settlement decision contains a legal classification of the applicants’ conduct cannot be limited to making a finding that the ‘other parties to the investigation’ are referred to in the part dealing with the legal classification of the conduct which Abengoa is found to have implemented (see, to that effect, judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 231).

120

Second, as is apparent from the case-law of the European Court of Human Rights, notwithstanding the importance of the choice of words used by the authorities concerned, the use of some unfortunate language cannot, in itself, be decisive for any finding of infringement of the right to be presumed innocent, having regard to the nature and context of the proceedings concerned (see, to that effect, ECtHR, 27 February 2014, Karaman v. Germany, CE:ECHR:2014:0227JUD001710310, § 63, and of 25 November 2021, Mucha v. Slovakia, CE:ECHR:2021:1125JUD006370319, § 57).

121

It follows that, in the light of their reasoning and context, none of the references to ‘other parties to the investigation’ to be found in the settlement decision is capable of being understood as a clear declaration implying the premature expression of the applicants’ guilt.

122

Therefore, it must be concluded that the drafting precautions taken by the Commission have not been rendered devoid of sense and must, in the light of their content (see paragraph 91 above), be regarded as being sufficient.

123

In addition, it is necessary to examine whether the Commission gave more information relating to the applicants’ involvement than was necessary for the purposes of Abengoa incurring liability.

124

In that regard, it should be noted that none of the references at issue constitutes a description or classification of the applicants’ conduct on an individual basis.

125

The only individual references concerning the applicants to be found in the settlement decision are those in recitals 4, 13, 18, 24 and 40 of that decision, which relate, in essence, to the description of the settlement procedure, the content of which the applicants do not dispute as regards the breach of their right to be presumed innocent.

126

By contrast, the disputed references to the ‘other parties to the investigation’ in the settlement decision, including those referred to in paragraph 101 above, were, without exception, references to the parties and Abengoa jointly, the latter being presented as the party mainly responsible for the unlawful conduct. Accordingly, those references are used only to describe and classify Abengoa’s conduct and may therefore be regarded as objectively necessary for that purpose.

127

In that context, it is precisely the fact that the infringement which is the subject of the settlement decision necessarily involves collective behaviour that justifies the need for references to ‘other parties to the investigation’ (see, to that effect, ECtHR, 17 September 2024, C.O. v. Germany, CE:ECHR:2024:0917JUD001667822, § 63; see also, by analogy, judgment of 5 September 2019, AH and Others (Presumption of innocence), C‑377/18, EU:C:2019:670, paragraph 47).

128

The same applies to the reference to the ‘other parties to the investigation’ found in the operative part of the settlement decision.

129

In that regard, it is important to distinguish the case at issue from the cases which gave rise to the judgments of 18 March 2021, Pometon v Commission (C‑440/19 P, EU:C:2021:214), and of 12 January 2023, HSBC Holdings and Others v Commission (C‑883/19 P, EU:C:2023:11), in which the settlement decisions did not include references in their operative part to non-settling parties. In the present case, only Abengoa participated in the settlement, so that there was a greater need to mention the ‘other parties to the investigation’ in order to be able to classify the unlawful conduct referred to in the settlement decision with regard to Abengoa, which had decided to enter into a settlement.

130

In any event, the question whether the Commission infringed the applicants’ right to be presumed innocent depends on the settlement decisions specific to each case, including their reasoning, and the particular circumstances in which those decisions have been adopted (judgment of 18 March 2021, Pometon v Commission, C‑440/19 P, EU:C:2021:214, paragraph 86).

131

In the light of their reasoning and context, the references to the ‘other parties to the investigation’ to be found in the disputed passages of the settlement decision are objectively necessary to describe the genesis of the cartel as a whole.

132

Consequently, the arguments put forward by the applicants in support of the second part of the first plea cannot succeed and must be rejected.

133

It follows from all the foregoing considerations that the first plea must be rejected in its entirety as being unfounded.

134

The applicants maintain, in the alternative, that the choice of a staggered ‘hybrid’ procedure and the adoption of a settlement decision for Abengoa prior to the ordinary procedure being closed undermined the Commission’s impartiality and constituted a breach of their rights of defence.

135

First, the early adoption of the settlement decision required the Commission to find at least one other undertaking liable.

136

Second, in the circumstances referred to in paragraph 135 above, it is impossible to ‘exclude any legitimate doubt’, in accordance with the case-law, regarding the Commission’s ability to be objectively impartial in relation to the question of the applicants’ participation in the anticompetitive conduct referred to in the settlement decision. That is why the Commission could not comply with the so-called ‘tabula rasa’ principle in the present case.

137

Third, the applicants maintain that the reasoning followed by the Commission in a number of passages of the contested decision, in particular in recitals 556, 557 and 560, and in certain exchanges with them during the entire ordinary procedure illustrates that lack of impartiality.

138

Fourth and lastly, the applicants submit that the Commission’s assertions regarding its impartiality are ineffective and, in any event, unconvincing, contest the Commission’s argument that it should be presumed to have acted in good faith, and point out that, in accordance with the case-law, it is sufficient for there to be legitimate doubts as to its impartiality.

139

The Commission disputes the applicants’ arguments.

140

In that regard, it should be borne in mind that the Commission is required, during the administrative procedure, to respect the fundamental rights of the undertakings concerned. On that basis, the principle of impartiality, which is part of the right to good administration, must be distinguished from the presumption of innocence (judgments of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 76, and of 1 February 2024, Scania and Others v Commission, C‑251/22 P, EU:C:2024:103, paragraph 69).

141

The right to good administration, enshrined in Article 41 of the Charter, provides that every person has the right, inter alia, to have his or her affairs handled impartially by the institutions of the European Union. That requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned (judgment of 12 January 2023, HSBC Holdings and Others v Commission, C‑883/19 P, EU:C:2023:11, paragraph 77, and of 1 February 2024, Scania and Others v Commission, C‑251/22 P, EU:C:2024:103, paragraph 70).

142

In the present case, the second plea covers solely the concept of ‘objective impartiality’.

143

As regards the concept of ‘objective impartiality’, the Court of Justice has clarified that, in order to show that the organisation of an administrative procedure does not ensure sufficient guarantees to exclude any legitimate doubt as to possible bias, it is not necessary to prove lack of impartiality. It is sufficient for a legitimate doubt to arise which cannot be dispelled (see, to that effect, judgments of 27 March 2019, August Wolff and Remedia v Commission, C‑680/16 P, EU:C:2019:257, paragraph 37, and of 21 October 2021, Parliament v UZ, C‑894/19 P, EU:C:2021:863, paragraph 54).

144

In that regard, it must be observed at the outset that the applicants are not claiming any breach of their rights of defence which is separate from the breach on which they rely in respect of the duty of impartiality.

145

As is apparent from the written pleadings, the responses to the measures of organisation of procedure and the oral submissions, the applicants are of the view that the Commission’s breach of their rights of defence stems from the Commission’s breach of its duty of impartiality.

146

Consequently, in accordance with the case-law cited in paragraph 141 above, it is necessary to examine whether the applicants’ arguments support the conclusion that there are legitimate doubts as to possible bias on the part of the Commission as regards their guilt in relation to the infringement at issue.

147

In the first place, it is necessary to reject the applicants’ argument that the fact that the settlement decision was addressed exclusively to only one undertaking meant that the Commission ought to have concluded that at least one of the ‘other parties to the investigation’ had participated in the infringement, in order to avoid the legal logic and legal basis underlying the settlement decision becoming lost.

148

As is apparent from the case-law cited in paragraph 58 above, in the context of the ordinary procedure, the Commission is only bound by the statement of objections and is required to take into consideration the new information brought to its attention during that procedure.

149

As noted in paragraph 60 above, the adoption of a settlement decision did not affect the outcome of the ordinary procedure, with the result that there was nothing to prevent the Commission from adopting a decision similar to that concerning Alcogroup in respect of the applicants, following the examination of the evidence placed on the file in the context of the ordinary procedure, even after that procedure had been closed in respect of Alcogroup.

150

Consequently, the applicants err in maintaining that the legal logic and legal basis of the settlement decision would have become lost if the Commission had not found them guilty in the contested decision.

151

The same applies to the argument that the Commission’s interest in protecting the attractiveness of the settlement mechanism proves its lack of objective impartiality in the procedure at issue in the present case.

152

Such an argument, which is formulated in abstract terms and is based on the applicants’ interpretation of the Commission’s interests when establishing competition policy, cannot succeed, since it does not, in itself, support a finding that the organisation of the procedure at issue in the present case did not ensure sufficient guarantees to exclude any legitimate doubt as to possible bias.

153

In the second place, it is necessary to reject the argument that the Commission’s reasoning in a number of passages of the contested decision and during certain exchanges with the applicants during the ordinary procedure illustrated the Commission’s lack of impartiality.

154

According to the applicants, it is apparent from recitals 556 and 557 of the contested decision that the purpose of the examination carried out by the Commission was to assess whether the context justified anticompetitive conduct which it regarded as already legally established. That demonstrates the circular reasoning found in recital 560 of that decision, in which the Commission started from the premiss that the applicants coordinated with the other two undertakings under investigation with the aim of artificially increasing, maintaining or preventing a decrease in, the level of the ethanol benchmarks published by S&P Global Platts.

155

In that regard, it is sufficient to state that the applicants have not disputed the determination of the facts made in the contested decision or the conclusions drawn from the legal analysis carried out in respect of them in that decision.

156

It is not possible to uphold the applicants’ allegation that the ‘starting point’ for the Commission’s analysis was their guilt, since that allegation in no way calls into question the soundness or merits of the contested decision.

157

In any event, the applicants’ arguments relating to the content of the contested decision cannot succeed.

158

First, in recitals 556 and 557 of the contested decision, the Commission indicates that it carried out a detailed analysis of the ethanol market and of the functioning of the benchmarks developed and published by S&P Global Platts, as is apparent from section 2 of that decision, entitled ‘The ethanol industry’ (recitals 6 to 86 of the contested decision). That analysis was the basis for the description of the infringing conduct in section 5 of that decision (recitals 213 to 401), the evidence of which was set out in section 5.2 of that decision (‘Chronology of [the applicants’] infringement period’, recitals 254 to 390 of the contested decision) and the findings drawn from that evidence were to be found in sections 5.3 (‘Findings regarding the evidence’, recitals 391 to 393 of the contested decision) and 5.4 of the contested decision (‘Findings from Platts’ data’, recitals 394 to 401 of the contested decision).

159

Accordingly, none of the recitals referred to in paragraph 158 above demonstrates that the starting point for the Commission’s analysis was the applicants’ guilt. Rather, those recitals demonstrate the level of detail in the Commission’s analysis of their participation in the cartel.

160

The same applies to, second, recital 560 of the contested decision, in which the Commission analyses the conduct of the applicants which was coordinated with the ‘other parties to the investigation’ on the basis of the assessments to be found in recitals 470 to 474 of that decision, which are based on a body of substantial and conclusive evidence (see, by way of illustration, recitals 472 and 473 of the contested decision), and not, as the applicants maintain, on a prejudgment of their guilt.

161

Therefore, the arguments put forward by the applicants do not demonstrate that the Commission failed to organise the administrative procedure so as to ensure sufficient guarantees to exclude any legitimate doubt as to possible bias.

162

Such a conclusion cannot be invalidated by taking into consideration the case-law arising from the judgment of 14 March 2024, D & A Pharma v Commissionand EMA (C‑291/22 P, EU:C:2024:228). In the view of the applicants, that case-law supports the conclusion that it is not for them to prove bias on the part of the Commission, but it is for the General Court to assess, as a matter of law, whether the approach adopted by the Commission raises legitimate doubts as to its impartiality.

163

According to the case-law referred to above, persons whose affairs are handled by an EU institution, body, office or agency cannot be required to provide, in support of their argument that the requirement of objective impartiality was not complied with during an EU administrative procedure, proof of specific indications of bias (judgment of 14 March 2024, D & A Pharma v Commissionand EMA, C‑291/22 P, EU:C:2024:228, paragraphs 77 and 80).

164

However, in the light of the conclusion in paragraph 161 above, the case-law relied upon by the applicants is not applicable in the present case, since the Commission’s lack of objective impartiality has not been established and where it is not apparent from any of the documents in the file submitted to the Court for assessment that the administrative procedure was not organised so as to ensure sufficient guarantees sufficient to exclude any legitimate doubt as to possible bias.

165

It follows that the second plea must be rejected as being unfounded. As a result, the action must be dismissed in its entirety.

166

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

167

Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Third Chamber, sitting with five Judges)

hereby: