Case C‑154/14 P

SKW Stahl-Metallurgie GmbH

and

SKW Stahl-Metallurgie Holding AG

v

European Commission

‛Appeal — Competition — Agreements, decisions and concerted practices — Article 81 EC — Markets for calcium carbide powder, calcium carbide granulates and magnesium granulates in a substantial part of the European Economic Area — Price fixing, market sharing and exchange of information — Regulation (EC) No 773/2004 — Articles 12 and 14 — Right to be heard — In camera hearing’

Summary — Judgment of the Court (Fifth Chamber), 16 June 2016

1. Appeal — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted

   (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

2. Acts of the institutions — Statement of reasons — Obligation — Scope — Plea alleging absence or inadequacy of the statement of reasons — Ground alleging lack of a basis of the statement of reasons — Distinction

   (Arts 256(1), first para., TFEU and 296 TFEU)

3. Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the duty to state reasons by reference to the circumstances of the case

   (Art. 296, second para., TFEU)

4. Competition — Fines — Joint and several liability for payment — Determination of the share of the fine to be borne by the joint and several co-debtors — Jurisdiction of the national courts

   (Art. 81(1) EC; Council Regulation No 1/2003, Arts 23(2) and (3) and 31)

5. Competition — Administrative procedure — Observance of the rights of the defence — Hearing of undertakings — Rejection of the application of an undertaking to present its case in camera because of the risk of infringement of the rights of defence of another undertaking — Infringement of the right to be heard of the applicant undertaking

   (Council Regulation No 1/2003, Art. 27; Commission Regulation No 773/2004, Art. 12(1) and 14(1) and (6))

6. Appeal — Grounds — Ground of a judgment vitiated by an infringement of Community law — Operative part well founded for other legal reasons — Dismissal of the appeal

   (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.)

1.  See the text of the decision.

   (see para. 33)

2.  The obligation to state reasons provided for in the second paragraph of Article 296 TFEU is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect. It follows that objections and arguments intended to establish that a measure is not well founded are irrelevant in the context of a ground of appeal alleging breach of Article 296 TFEU.

   (see para. 39)

3.  See the text of the decision.

   (see para. 40)

4.  See the text of the decision.

   (see paras 50, 51)

5.  In a case of application of procedural rules for breach of EU competition rules, the General Court erred in law and infringed the appellants’ right to be heard, by holding that the Hearing Officer could refuse to hold an in camera hearing on the grounds that such a hearing could have harmed the rights of defence of an undertaking even though it was a third party to the proceedings in respect of the infringement period. Even if some of the evidence communicated to the Commission might have subsequently led it to hold that third party liable for the infringement concerned for a longer period than that originally considered, the Commission is required, in any event, to issue that third party company with a supplementary statement of objections so as to enable that company to present its observations on that evidence.

   (see paras 66-68)

6.  An infringement of the rights of defence results in the annulment of the contested measure only if, in the absence of that irregularity, the outcome of the procedure might have been different, which it is for the undertaking concerned to show. There was a failure to show this in so far as the General Court found, in its assessment of the facts, that imputing liability for an infringement of the competition rules to a holding company of a group of companies, in spite of a breach of the right of the companies of that group to be heard, could, in any event, be grounded on several factors which were by themselves sufficient as a basis for the conclusion that that holding company, which held 100% of the capital of one of its subsidiaries, exercised decisive influence over that subsidiary, directly responsible for the infringement.

   (see paras 69, 72, 75, 77)