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Document 62019TJ0657
Judgment of the General Court (Fourth Chamber, Extended Composition) of 9 November 2022 (Extracts).
Feralpi Holding SpA v European Commission.
Competition – Agreements, decisions and concerted practices – Market for concrete reinforcing bars – Decision finding an infringement of Article 65 CS, after expiry of the ECSC Treaty, on the basis of Regulation (EC) No 1/2003 – Price fixing – Limiting and controlling output and sales – Decision taken following the annulment of earlier decisions – New hearing held in the presence of the competition authorities of the Member States – Rights of the defence – Principle of sound administration – Reasonable time – Obligation to state reasons – Proportionality – Ne bis in idem principle – Plea of illegality – Single, complex and continuous infringement – Evidence of involvement in the cartel – Public distancing – Unlimited jurisdiction.
Case T-657/19.
Judgment of the General Court (Fourth Chamber, Extended Composition) of 9 November 2022 (Extracts).
Feralpi Holding SpA v European Commission.
Competition – Agreements, decisions and concerted practices – Market for concrete reinforcing bars – Decision finding an infringement of Article 65 CS, after expiry of the ECSC Treaty, on the basis of Regulation (EC) No 1/2003 – Price fixing – Limiting and controlling output and sales – Decision taken following the annulment of earlier decisions – New hearing held in the presence of the competition authorities of the Member States – Rights of the defence – Principle of sound administration – Reasonable time – Obligation to state reasons – Proportionality – Ne bis in idem principle – Plea of illegality – Single, complex and continuous infringement – Evidence of involvement in the cartel – Public distancing – Unlimited jurisdiction.
Case T-657/19.
ECLI identifier: ECLI:EU:T:2022:691
Case T‑657/19
(Publication in extract form)
Feralpi Holding SpA
v
European Commission
Judgment of the General Court (Fourth Chamber, Extended Composition), 9 November 2022
(Competition – Agreements, decisions and concerted practices – Market for concrete reinforcing bars – Decision finding an infringement of Article 65 CS, after expiry of the ECSC Treaty, on the basis of Regulation (EC) No 1/2003 – Price fixing – Limiting and controlling output and sales – Decision taken following the annulment of earlier decisions – New hearing held in the presence of the competition authorities of the Member States – Rights of the defence – Principle of sound administration – Reasonable time – Obligation to state reasons – Proportionality – Ne bis in idem principle – Plea of illegality – Single, complex and continuous infringement – Evidence of involvement in the cartel – Public distancing – Unlimited jurisdiction)
1. Actions for annulment – Judgment annulling a measure – Effects – Obligation to implement – Scope – Both the operative part and the grounds of the judgment to be taken into account – Adoption of a new measure on the basis of earlier preparatory measures – Whether permissible
(Art. 266(1) TFEU)
(see paragraphs 48-50, 106, 107)
2. Competition – Administrative procedure – Advisory Committee on Restrictive Practices and Dominant Positions – Obligation to consult – Essential procedural requirement – Scope
(Arts 101 and 102 TFEU; Council Regulation No 1/2003, Art. 14)
(see paragraphs 55-57)
3. Competition – Administrative procedure – Advisory Committee on Restrictive Practices and Dominant Positions – Obligation to consult – Annulment of the decision finding an infringement – Reopening of the procedure at the stage at which the irregularity was found to have occurred – New consultation of the Advisory Committee – Impartiality of the representatives of the competition authorities sitting on the Advisory Committee
(Arts 101 and 102 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(1); Council Regulation No 1/2003, Art. 14)
(see paragraphs 59-61, 63-66)
4. Competition – Administrative procedure – Observance of the rights of the defence – Hearing of undertakings – Right to a collective hearing of undertakings which have received a statement of objections – No such right)
(Council Regulation No 1/2003, Art. 27; Commission Regulation No 773/2004, Art. 14(6))
(see paragraphs 70-73)
5. Competition – Administrative procedure – Observance of the rights of the defence – Hearing of undertakings – Annulment of the decision finding an infringement – Reopening of the procedure at the stage at which the irregularity was found to have occurred – New hearing of undertakings – Obligation to invite other entities which have not expressed an interest in participating in that new hearing – No such obligation – Obligation to publish the decision to hold a new hearing – No such obligation
(Charter of Fundamental Rights of the European Union, Art. 41(1); Council Regulation No 1/2003, Art. 27; Commission Regulation No 773/2004, Arts 12 and 13(1), (2) and (3))
(see paragraphs 78-105, 108-125, 135-141)
6. Competition – Administrative procedure – Obligations of the Commission – Duty to act within a reasonable time – Annulment of the decision finding an infringement – Reopening of the procedure at the stage at which the irregularity was found to have occurred – Reopening preceded by an analysis of its compatibility with the reasonable time principle – Failure to act within a reasonable time – No such failure
(Charter of Fundamental Rights of the European Union, Art. 41)
(see paragraphs 146-148, 157-176, 178, 179)
7. Competition – Administrative procedure – Obligations of the Commission – Duty to act within a reasonable time – Failure to comply – Consequences – Annulment of the decision finding an infringement because of the procedure’s excessive duration – Condition – Harm to the rights of the defence of the undertakings concerned
(Arts 101 and 102 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(1))
(see paragraphs 172, 182, 186, 187, 189-208, 211-216, 218-235)
8. Acts of the institutions – Statement of reasons – Obligation – Scope – Decision to apply competition rules – Decision finding an infringement adopted after the annulment of an earlier decision having the same subject matter – Decision showing the reasoning followed in order to justify the adoption of a new decision
(Arts 101 and 102 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(1); Council Regulation No 1/2003, Art. 23(2))
(see paragraphs 238-253, 255-260)
9. EU law – Principles – Proportionality – Scope – Annulment of a decision finding an infringement – Reopening of the procedure at the stage at which the irregularity was found to have occurred – Adoption of a new decision finding an infringement – Breach – No such breach
(Art. 5(4) TEU)
(see paragraphs 269-281)
10. Competition – Fines – Amount – Determination – Discretion of the Commission – Judicial review – Unlimited jurisdiction of the EU judicature – Scope
(Arts 101, 261 and 263 TFEU; Council Regulation No 1/2003, Art. 31; Commission Notice 2006/C 210/02)
(see paragraphs 283-287)
11. Competition – Administrative procedure – Decision finding an infringement adopted after the annulment of an initial decision concerning the same undertaking and the same infringement – Failure to observe the ne bis in idem principle – No such failure)
(Charter of Fundamental Rights of the European Union, Art. 50; Council Regulation No 1/2003, Art. 23)
(see paragraphs 303-312)
12. Competition – Administrative procedure – Limitation period with regard to proceedings – Rules governing interruption and suspension of the limitation period – Discretion of the EU legislature – No rules laying down an absolute maximum limitation period – Whether permissible
(Charter of Fundamental Rights of the European Union, Art. 41(1); Council Regulation No 1/2003, Art. 25(3) and (6))
(see paragraphs 316-322)
13. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof – Degree of precision required of the evidence used by the Commission – Body of evidence – Judicial review – Scope – Decision leaving a doubt in the mind of the court – Observance of the principle of the presumption of innocence
(Art. 65 CS)
(see paragraphs 330-333)
14. Agreements, decisions and concerted practices – Concerted practice – Definition – Need for a causal link between the concerted action and the conduct of the undertakings on the market – Presumption that the causal link exists – Burden of rebutting that presumption incumbent on the undertaking concerned – Evidence
(Art. 65 CS)
(see paragraphs 337-344)
15. Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices constituting a single infringement – Attribution of liability for the entire infringement to a single undertaking – Conditions – No evidence of active participation in the cartel for a period of time and no evidence of participation in certain meetings – Irrelevant
(Art. 65 CS)
(see paragraphs 345, 346, 354, 465)
16. Competition – Administrative procedure – Commission decision finding an infringement – Burden of proving the infringement and its duration on the Commission – Extent of the burden of proof – Proof adduced by a number of indicia and coincidences pointing to the existence and duration of continuous anticompetitive practices – Whether permissible
(Art. 65 CS)
(see paragraphs 368-373)
17. Agreements, decisions and concerted practices – Agreements between undertakings – Definition – Participation in meetings having an anticompetitive object – Included – Condition – Undertaking concerned not distancing itself from the decisions adopted – Public distancing – Criteria for assessment
(Art. 65 CS)
(see paragraphs 410, 460)
18. Agreements, decisions and concerted practices – Concerted practice – Definition – Coordination and cooperation incompatible with the obligation on each undertaking to determine independently its conduct on the market – Exchange of information between competitors – Exchange capable of removing uncertainty as to the intended conduct of the undertakings concerned
(Art. 65(1) CS)
(see paragraphs 513-518)
19. Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices constituting a single infringement – Attribution of liability for the entire infringement to a single undertaking – Conditions – Unlawful practices and conduct forming part of an overall plan – Assessment – Criteria – Contribution to the single objective of the infringement – Requirement for a link of complementarity between the practices complained of – No such requirement
(Art. 65(1) CS)
(see paragraphs 534-538)
Résumé
The General Court confirms the penalties ranging from EUR 2.2 million to EUR 5.1 million imposed by the Commission on four undertakings for their participation in a cartel on the Italian market for concrete reinforcing bars
By decision of 17 December 2002, the European Commission found that eight undertakings and an association of undertakings had infringed Article 65(1) of the Treaty establishing the European Coal and Steel Community (‘CS’) by participating, between December 1989 and July 2000, in a cartel on the Italian market for concrete reinforcing bars which had as its object or effect the fixing of prices and the limitation and control of output (‘the first decision’). (1)
The General Court annulled that decision on the ground that its legal basis, namely Article 65(4) and (5) CS, was no longer in force at the time of its adoption, the CS having expired on 23 July 2002. (2) Accordingly, the Commission adopted a fresh decision on 30 September and 8 December 2009 finding that the same infringement had been committed but on the basis of the EC Treaty and Regulation (EC) No 1/2003 (3) (‘the second decision’). (4)
That second decision, confirmed by the General Court by judgments of 9 December 2014 (‘the judgments of 9 December 2014’), (5) was annulled by the Court of Justice. According to the Court of Justice, the General Court had erred in law in finding that the Commission was not required to hold a new hearing in the procedure leading to the adoption of the second decision (6) and that the failure to hold such a hearing constituted an infringement of essential procedural requirements. Thus, the Court of Justice considered that the first hearing held for the purpose of adopting the first decision did not fulfil the procedural requirements in relation to the adoption of a decision on the basis of Regulation No 1/2003, since the competition authorities of the Member States had not participated in it. The Court of Justice therefore set aside the judgments of 9 December 2014 in their entirety.
Resuming the procedure at the stage at which the Court of Justice had found the irregularity to have occurred, the Commission held a new hearing and, by decision of 4 July 2019 (‘the contested decision’), (7) again found that the infringement forming the subject matter of the second decision had been committed. However, on account of the duration of the procedure, all the fines imposed on the undertakings to which the decision was addressed were reduced by 50%.
Four of the eight undertakings concerned, namely Ferriera Valsabbia SpA and Valsabbia Investimenti SpA, Alfa Acciai SpA, Feralpi Holdings SpA and Ferriere Nord SpA (‘the applicants’), brought actions for annulment of the contested decision, which imposed on them penalties ranging from EUR 2.2 million to EUR 5.1 million. (8) The Fourth Chamber, Extended Composition, of the General Court dismisses all those actions and, in that context, clarifies the conditions under which the Commission may adopt a penalty decision almost 30 years after the facts constituting the infringement commenced, without harming the rights of the defence of the parties concerned or undermining the reasonable time principle. The Court also adjudicates on the legality of the rules governing interruption and suspension of the limitation period for the imposition of fines and on the conditions for taking repeated infringements into account when calculating fines.
Findings of the Court
In Cases T‑655/19, T‑656/19, T‑657/19 and T‑667/19, the Court rejects the plea alleging that there were irregularities in the Commission’s organisation of the new hearing.
Noting that the annulment of an act bringing an end to an administrative procedure does not affect all the stages preceding the adoption of that act, but only those to which the grounds for annulment relate, the Court confirms, in the present case, that it was open to the Commission to resume the procedure at the hearing stage.
In that context, the Court rejects, in the first place, the applicants’ argument that the impartiality of the representatives of the Member States’ competition authorities sitting on the Advisory Committee was not guaranteed at the new hearing, since those representatives were aware of the Commission’s first and second decisions and the position taken by the Court in the judgments of 9 December 2014.
In that regard, the Court points out that, when an act is annulled, it disappears from the legal order and is deemed never to have existed. Similarly, judgments of the Court retroactively disappear from the legal order when they are set aside on appeal. Consequently, both the Commission’s decisions and the judgments of 9 December 2014 had disappeared, with retroactive effect, from the legal order of the European Union when the Advisory Committee issued its opinion. Moreover, since knowledge of the approach taken by the Court in its annulment judgment is an integral part of the obligation to give due effect to that judgment, it cannot be inferred from this that the competition authorities concerned lacked impartiality.
In the second place, the Court dismisses the complaint that, by failing to invite to the hearing various entities which had played an important role in the examination of the case, the Commission had harmed the applicants’ rights of the defence.
As regards, more specifically, the absence of entities which had waived at an earlier stage of the procedure their right to challenge the first or second decision addressed to them, (9) the Court considers that, since that decision had become final with regard to them, the Commission did not err in excluding them from the new hearing. Concerning the absence of a third party whose right to participate in the administrative procedure had been recognised in 2002, the Court takes the view that the Commission correctly found that, as that entity had participated in the first hearing but did not attend the second, held when the first decision was adopted, it had lost its interest in intervening again.
In the third place, the Court rejects the argument that the changes in the identity of the operators and in the structure of the market as a result of the time elapsed prevented a new hearing being held under the same conditions as those prevailing in 2002. According to the Court, the Commission carried out a correct assessment in concluding, in the light of the circumstances existing when the procedure was resumed, that the continuation of that procedure was still an appropriate way forward.
The pleas alleging failure to observe the reasonable time principle are rejected. The applicants took issue with the Commission for failing to consider whether the adoption of the contested decision continued to be compatible with the reasonable time principle. They also challenged the duration of the procedure which led to the adoption of that decision.
In that regard, the Court finds, in the first place, that the Commission examined the length of the administrative procedure before adopting the contested decision, as well as the possible reasons for the duration of the procedure and the inferences that might be drawn from it. Accordingly, it fulfilled its obligation to take account of the requirements flowing from the reasonable time principle when assessing whether it was appropriate to initiate proceedings and to adopt a decision under the competition rules.
As regards the duration of the procedure, the Court observes, in the second place, that exceeding a reasonable time limit can lead to the annulment of a decision only on the twofold condition that the length of the procedure was unreasonable and that the excessive time taken interfered with the exercise of the rights of the defence.
In the light of the importance of the case for the parties concerned, its complexity, the conduct of the applicants and that of the competent authorities, the duration of the administrative stages of the procedure was not unreasonable in this instance. Furthermore, the overall duration of the procedure was attributable in part to the interruptions due to judicial review linked to the number of actions brought before the EU Courts on the various aspects of the case. In addition, since the applicants had had, on at least seven occasions, the opportunity to express their views and put forward their arguments in the course of the procedure as a whole, their rights of the defence were not impaired.
According to the Court, the Commission also fulfilled its obligation to state reasons with regard to the taking into account of the duration of the proceedings. The Commission specifically justified the adoption of a new decision establishing the existence of the infringement and imposing a fine on the undertakings concerned in order to meet the objective of not leaving those undertakings unpunished and to deter them from committing a similar infringement in the future.
In Cases T‑657/19 and T‑667/19, the Court also rejects the pleas alleging failure to observe the ne bis in idem principle and those challenging the legality of the rules governing interruption and suspension of the limitation period laid down in Article 25(3) to (6) of Regulation No 1/2003.
As a reminder, the ne bis in idem principle precludes an undertaking from being found guilty or from having proceedings brought against it a second time on the grounds of anticompetitive conduct in respect of which it has been penalised or declared not liable by an earlier decision that can no longer be challenged. However, where a first decision has been annulled for procedural reasons without any ruling having been given on the substance of the facts alleged, that principle does not preclude the resumption of proceedings in respect of the same anticompetitive conduct, provided that the penalties imposed by the new decision are not added to those imposed by the annulled decision but replace them.
In that regard, the Court notes that both the first decision and the second decision were annulled without a definitive position having been adopted on the substance. Moreover, even though, in its judgments of 9 December 2014, the General Court had ruled on the substantive pleas raised by the applicants, those judgments were set aside in their entirety by the Court of Justice. In addition, the penalties imposed by the contested decision replaced those imposed by the second decision which, themselves, had replaced the penalties imposed by the first decision. The Court concludes from this that the Commission did not infringe the ne bis in idem principle when it adopted the contested decision.
By raising a plea of illegality in respect of the rules governing interruption and suspension of the applicable limitation period, the applicants also challenged the absence of an absolute maximum period, determined by the EU legislature, beyond which any proceedings by the Commission would be precluded, notwithstanding any suspensions or interruptions of the initial limitation period.
Under Article 25 of Regulation No 1/2003, the five-year limitation period for the imposition of fines or periodic penalty payments is to be suspended for the duration of review proceedings brought before the Court against the Commission’s decision, in which case that limitation period is extended by the time for which the suspension lasted. According to the Court, those rules are the result of the reconciliation by the EU legislature of two separate objectives, namely the need to ensure legal certainty and the requirement to ensure observance of the law by pursuing, establishing and penalising infringements of EU law. In carrying out that balancing exercise, the EU legislature did not exceed the discretion which it must be allowed in that context.
In the Court’s view, although the limitation period is suspended when an action is brought before the EU Courts, the fact remains that, if that possibility is to be triggered, it requires a step to be taken by the undertakings themselves. Accordingly, the EU legislature cannot be criticised if, after the bringing of several actions by the undertakings concerned, the decision taken at the end of the procedure is adopted after a certain period of time. Moreover, individuals who complain that a procedure was unreasonably long may challenge its duration by seeking annulment of the decision adopted at the end of that procedure, provided that the excessive time taken interfered with the exercise of the rights of the defence. Where no such interference has occurred, individuals may then bring an action for damages before the EU Courts.
In Cases T‑657/19 and T‑667/19, the Court, exercising its unlimited jurisdiction, considers that account should be taken, when determining the amount of the fines imposed on the applicants, of the lessening of their deterrent effect on account of the period of almost 20 years elapsed between the end of the infringement and the adoption of the contested decision, thus confirming, by way of substitution of grounds, the need for a fine to be imposed on the applicants. It takes the view in that regard that the reduction of 50% of that amount, granted by the Commission, was appropriate for that purpose.
Lastly, in Case T‑667/19, the Court rejects Ferriere Nord SpA’s plea alleging that the increase in the amount of the fine imposed for repeated infringement was unlawful.
As regards observance of the rights of the defence of Ferriere Nord SpA, the Court points out that, where the Commission intends to impute an infringement of competition law to a legal person and seeks, in that context, to invoke repeated infringement against it as an aggravating circumstance, the statement of objections addressed to that person must contain all the information enabling it to defend itself, in particular the information demonstrating that the conditions for a finding of repeated infringement are satisfied.
In the light of the examination of all the circumstances of the case, the Court finds that the Commission’s intention to take into account, under the head of repeated infringement, the penalty decision previously addressed to Ferriere Nord SpA was sufficiently foreseeable. The applicant had, moreover, the opportunity to submit its observations in that regard during the procedure which led to the adoption of the contested decision.
As for the complaints based on the time elapsed between the two infringements taken into account under the head of repeated infringement, the Court states that even though no limitation period precludes such a finding, the fact remains that, if the principle of proportionality is to be observed, the Commission cannot take into consideration previous decisions penalising an undertaking without any limitation in time. That being so, given the short amount of time which had elapsed between the two infringements at issue, namely three years and eight months, the Commission was right to find that an increase in the basic amount of the fine for repeated infringement was justified, given Ferriere Nord SpA’s propensity to infringe the competition rules, despite the fact that the investigation had lasted some time.
In the light of all the foregoing, the applicants’ actions are dismissed in their entirety.
1 Decision C(2002) 5087 final of 17 December 2002 relating to a proceeding under Article 65 of the ECSC Treaty (COMP/37.956 – Reinforcing bars).
2 Judgments of 25 October 2007, SP and Others v Commission (T‑27/03, T‑46/03, T‑58/03, T‑79/03, T‑80/03, T‑97/03 and T‑98/03, EU:T:2007:317); of 25 October 2007, Ferriere Nord v Commission (T‑94/03, not published, EU:T:2007:320); of 25 October 2007, Feralpi Siderurgica v Commission (T‑77/03, not published, EU:T:2007:319); and of 25 October 2007, Riva Acciaio v Commission (T‑45/03, not published, EU:T:2007:318).
3 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).
4 Decision C(2009) 7492 final of 30 September 2009 relating to a proceeding under Article 65 of the ECSC Treaty (Case COMP/37.956 – Reinforcing bars), as amended by the Commission decision of 8 December 2009.
5 Judgments of 9 December 2014, Ferriera Valsabbia and Valsabbia Investimenti v Commission (T‑92/10, not published, EU:T:2014:1032); of 9 December 2014, Alfa Acciai v Commission (T‑85/10, not published, EU:T:2014:1037); of 9 December 2014, Feralpi v Commission (T‑70/10, not published, EU:T:2014:1031); of 9 December 2014, Ferriere Nord v Commission (T‑90/10, not published, EU:T:2014:1035); of 9 December 2014, Riva Fire v Commission (T‑83/10, not published, EU:T:2014:1034); of 9 December 2014, Lucchini v Commission (T‑91/10, EU:T:2014:1033); of 9 December 2014, SP v Commission (T‑472/09 and T‑55/10, EU:T:2014:1040); of 9 December 2014, IRO v Commission (T‑69/10, not published, EU:T:2014:1030); and of 9 December 2014, Leali and Acciaierie e Ferriere Leali Luigi v Commission (T‑489/09, T‑490/09 and T‑56/10, not published, EU:T:2014:1039).
6 Judgments of 21 September 2017, Ferriera Valsabbia and Others v Commission (C‑86/15 P and C‑87/15 P, EU:C:2017:717); of 21 September 2017, Feralpi v Commission (C‑85/15 P, EU:C:2017:709); of 21 September 2017, Ferriere Nord v Commission (C‑88/15 P, EU:C:2017:716); and of 21 September 2017, Riva Fire v Commission (C‑89/15 P, EU:C:2017:713).
7 Decision C(2019) 4969 final of 4 July 2019 relating to a proceeding under Article 65 of the ECSC Treaty (Case AT.37956 – Reinforcing bars).
8 Ferriera Valsabbia SpA and Valsabbia Investimenti SpA received a fine of EUR 5.125 million, Alfa Acciai SpA a fine of EUR 3.587 million, Feralpi Holdings SpA a fine of EUR 5.125 million, and Ferriere Nord SpA a fine of EUR 2.237 million.
9 One of those entities did not bring an action for annulment of the first decision. Three others, which had challenged that first decision, were addressees of the second, which they challenged before the Court. However, they did not appeal against the judgments of 9 December 2014 concerning them.