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Document C:2020:312:FULL

Official Journal of the European Union, C 312, 21 September 2020


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ISSN 1977-091X

Official Journal

of the European Union

C 312

European flag  

English edition

Information and Notices

Volume 63
21 September 2020


Contents

page

 

II   Information

 

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

 

European Commission

2020/C 312/01

Non-opposition to a notified concentration (Case M.9479 – PSA/SAFT/ACC) ( 1 )

1


 

IV   Notices

 

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

 

European Commission

2020/C 312/02

Euro exchange rates — 18 September 2020

2

2020/C 312/03

Commission notice on current State aid recovery interest rates and reference/discount rates applicable as from 1 October 2020 (Published in accordance with Article 10 of Commission Regulation (EC) No 794/2004 of 21 April 2004 ( OJ L 140, 30.4.2004, p. 1 ))

3

2020/C 312/04

Opinion of the Advisory Committee on restrictive practices and dominant positions at its meeting on 27 June 2019 concerning a draft decision in Case AT.37956 – Ronds à Beton Rapporteur: Austria

4

2020/C 312/05

Opinion of the Advisory Committee on restrictive practices and dominant positions at its meeting on 1 July 2019 concerning a draft decision in Case AT.37956(2) – Ronds à Beton Rapporteur: Austria

6

2020/C 312/06

Final Report of the Hearing Officer Case AT.37956 – Reinforcing bars

7

2020/C 312/07

Summary of Commission Decision of 4 July 2019 relating to a proceeding under Article 65 of the ECSC Treaty (Case AT.37956) (notified under document C(2019) 4969)  ( 1 )

13


 


 

(1)   Text with EEA relevance.

EN

 


II Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

21.9.2020   

EN

Official Journal of the European Union

C 312/1


Non-opposition to a notified concentration

(Case M.9479 – PSA/SAFT/ACC)

(Text with EEA relevance)

(2020/C 312/01)

On 7 February 2020, the Commission decided not to oppose the above notified concentration and to declare it compatible with the internal market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004 (1). The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32020M9479. EUR-Lex is the online access to European law.


(1)  OJ L 24, 29.1.2004, p. 1.


IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

21.9.2020   

EN

Official Journal of the European Union

C 312/2


Euro exchange rates (1)

18 September 2020

(2020/C 312/02)

1 euro =


 

Currency

Exchange rate

USD

US dollar

1,1833

JPY

Japanese yen

123,49

DKK

Danish krone

7,4403

GBP

Pound sterling

0,91318

SEK

Swedish krona

10,3990

CHF

Swiss franc

1,0776

ISK

Iceland króna

160,80

NOK

Norwegian krone

10,7538

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

26,727

HUF

Hungarian forint

360,78

PLN

Polish zloty

4,4602

RON

Romanian leu

4,8580

TRY

Turkish lira

8,9600

AUD

Australian dollar

1,6242

CAD

Canadian dollar

1,5601

HKD

Hong Kong dollar

9,1707

NZD

New Zealand dollar

1,7489

SGD

Singapore dollar

1,6082

KRW

South Korean won

1 375,96

ZAR

South African rand

19,1520

CNY

Chinese yuan renminbi

8,0146

HRK

Croatian kuna

7,5415

IDR

Indonesian rupiah

17 435,93

MYR

Malaysian ringgit

4,8687

PHP

Philippine peso

57,306

RUB

Russian rouble

89,1439

THB

Thai baht

36,889

BRL

Brazilian real

6,2176

MXN

Mexican peso

24,7344

INR

Indian rupee

87,0140


(1)  Source: reference exchange rate published by the ECB.


21.9.2020   

EN

Official Journal of the European Union

C 312/3


Commission notice on current State aid recovery interest rates and reference/discount rates applicable as from 1 October 2020

(Published in accordance with Article 10 of Commission Regulation (EC) No 794/2004 of 21 April 2004 (OJ L 140, 30.4.2004, p. 1))

(2020/C 312/03)

Base rates calculated in accordance with the Communication from the Commission on the revision of the method for setting the reference and discount rates (OJ C 14, 19.1.2008, p. 6.). Depending on the use of the reference rate, the appropriate margins have still to be added as defined in this communication. For the discount rate this means that a margin of 100 basis points has to be added. The Commission Regulation (EC) No 271/2008 of 30 January 2008 amending Regulation (EC) No 794/2004 foresees that, unless otherwise provided for in a specific decision, the recovery rate will also be calculated by adding 100 basis points to the base rate.

Modified rates are indicated in bold.

Previous table published in OJ C 299, 9.9.2020, p. 2.

From

To

AT

BE

BG

CY

CZ

DE

DK

EE

EL

ES

FI

FR

HR

HU

IE

IT

LT

LU

LV

MT

NL

PL

PT

RO

SE

SI

SK

UK

1.10.2020

-0,26

-0,26

0,00

-0,26

0,46

-0,26

0,18

-0,26

-0,26

-0,26

-0,26

-0,26

0,22

0,72

-0,26

-0,26

-0,26

-0,26

-0,26

-0,26

-0,26

0,29

-0,26

2,54

0,12

-0,26

-0,26

0,38

1.9.2020

30.9.2020

-0,17

-0,17

0,00

-0,17

0,46

-0,17

0,22

-0,17

-0,17

-0,17

-0,17

-0,17

0,22

0,93

-0,17

-0,17

-0,17

-0,17

-0,17

-0,17

-0,17

0,44

-0,17

2,54

0,20

-0,17

-0,17

0,51

1.8.2020

31.8.2020

-0,11

-0,11

0,00

-0,11

0,62

-0,11

0,22

-0,11

-0,11

-0,11

-0,11

-0,11

0,22

0,93

-0,11

-0,11

-0,11

-0,11

-0,11

-0,11

-0,11

0,61

-0,11

2,54

0,32

-0,11

-0,11

0,75

1.7.2020

31.7.2020

-0,15

-0,15

0,00

-0,15

1,13

-0,15

0,14

-0,15

-0,15

-0,15

-0,15

-0,15

0,26

0,93

-0,15

-0,15

-0,15

-0,15

-0,15

-0,15

-0,15

0,98

-0,15

3,21

0,32

-0,15

-0,15

0,75

1.6.2020

30.6.2020

-0,22

-0,22

0,00

-0,22

1,77

-0,22

0,05

-0,22

-0,22

-0,22

-0,22

-0,22

0,26

0,78

-0,22

-0,22

-0,22

-0,22

-0,22

-0,22

-0,22

1,35

-0,22

3,21

0,32

-0,22

-0,22

0,94

1.5.2020

31.5.2020

-0,31

-0,31

0,00

-0,31

2,25

-0,31

-0,05

-0,31

-0,31

-0,31

-0,31

-0,31

0,26

0,52

-0,31

-0,31

-0,31

-0,31

-0,31

-0,31

-0,31

1,84

-0,31

3,21

0,26

-0,31

-0,31

0,94

1.4.2020

30.4.2020

-0,31

-0,31

0,00

-0,31

2,25

-0,31

-0,05

-0,31

-0,31

-0,31

-0,31

-0,31

0,26

0,40

-0,31

-0,31

-0,31

-0,31

-0,31

-0,31

-0,31

1,84

-0,31

3,21

0,26

-0,31

-0,31

0,94

1.3.2020

31.3.2020

-0,31

-0,31

0,00

-0,31

2,25

-0,31

-0,05

-0,31

-0,31

-0,31

-0,31

-0,31

0,26

0,30

-0,31

-0,31

-0,31

-0,31

-0,31

-0,31

-0,31

1,84

-0,31

3,21

0,26

-0,31

-0,31

0,94

1.2.2020

29.2.2020

-0,31

-0,31

0,00

-0,31

2,25

-0,31

-0,07

-0,31

-0,31

-0,31

-0,31

-0,31

0,26

0,30

-0,31

-0,31

-0,31

-0,31

-0,31

-0,31

-0,31

1,84

-0,31

3,21

0,18

-0,31

-0,31

0,94

1.1.2020

31.1.2020

-0,31

-0,31

0,00

-0,31

2,25

-0,31

-0,12

-0,31

-0,31

-0,31

-0,31

-0,31

0,26

0,30

-0,31

-0,31

-0,31

-0,31

-0,31

-0,31

-0,31

1,84

-0,31

3,21

0,11

-0,31

-0,31

0,94


21.9.2020   

EN

Official Journal of the European Union

C 312/4


Opinion of the Advisory Committee on restrictive practices and dominant positions at its meeting on 27 June 2019 concerning a draft decision in Case AT.37956 – Ronds à Beton

Rapporteur: Austria

(2020/C 312/04)

1.   

The Advisory Committee (8 Member States) agrees with the Commission that the anticompetitive behaviour covered by the draft decision constitutes an agreement and/or concerted practices between undertakings within the meaning of Article 65(1) of the ECSC Treaty, which was in force at the time of the facts.

2.   

The Advisory Committee (8 Member States) agrees with the Commission’s assessment of the product and geographic market of the agreements and/or concerted practices contained in the draft decision.

3.   

The Advisory Committee (8 Member States) agrees with the Commission that the undertakings concerned by the draft decision participated in a single, complex and continuous infringement of Article 65(1) of the ECSC Treaty, as spelled out in the draft decision.

4.   

The Advisory Committee (8 Member States) agrees with the Commission that the object and/or the effect of the agreements and/or concerted practices was to restrict competition within the meaning of Article 65(1) of the ECSC Treaty.

5.   

The Advisory Committee (8 Member States) agrees with the Commission that the agreements and/or concerted practices were capable of appreciably affecting trade between the Member States of the EU.

6.   

The Advisory Committee (8 Member States) agrees with the Commission on the applicability of Articles 7(1) and 23(2) of Regulation No 1/2003 as legal basis.

7.   

The Advisory Committee (8 Member States) agrees with the Commission on the applicability of Article 65(1) of the ECSC Treaty as substantive law despite its expiry.

8.   

The Advisory Committee (8 Member States) agrees with the Commission’s assessment as regards the duration of the infringement.

9.   

The Advisory Committee (8 Member States) agrees with the Commission that the oral hearing of 23 April 2018 remedied the procedural error identified by the European Court of Justice in its judgments of 21 September 2017.

10.   

The Advisory Committee (8 Member States) agrees with the Commission on the continuation of proceedings.

11.   

The Advisory Committee (8 Member States) agrees with the Commission that the arguments raised by the parties after the continuation of proceedings are appropriately addressed in the draft decision.

12.   

The Advisory Committee (8 Member States) agrees with the Commission that, for the reasons described in the draft decision, when balancing the general interest against the interest of the undertakings concerned, it is the effective implementation of the competition rules in the European Union that has to be ensured.

13.   

The Advisory Committee (8 Member States) agrees on the re-adoption of the decision by the European Commission.

14.   

The Advisory Committee (8 Member States) recommends the publication of its Opinion in the Official Journal of the European Union.

I hereby confirm that Spain and Italy participated in this Advisory Committee meeting via videoconferencing link and asked me to sign the Opinion of the Advisory Committee on their behalf.

Konstantina STROUVALI

Chair of the Advisory Committee meeting


21.9.2020   

EN

Official Journal of the European Union

C 312/6


Opinion of the Advisory Committee on restrictive practices and dominant positions at its meeting on 1 July 2019 concerning a draft decision in Case AT.37956(2) – Ronds à Beton

Rapporteur: Austria

(2020/C 312/05)

1.   

The Advisory Committee (4 Member States) agrees with the Commission’s finding that the limitation period has not expired.

2.   

The Advisory Committee (4 Member States) agrees with the Commission that a fine should be imposed on the addressees of the draft decision.

3.   

The Advisory Committee (4 Member States) agrees with the Commission on the basic amounts of the fines.

4.   

The Advisory Committee (4 Member States) agrees with the Commission on the increase of the basic amount due to an aggravating circumstance for one of the parties.

5.   

The Advisory Committee (4 Member States) agrees with the application of mitigating circumstances for two parties for their non-participation, for a limited period, in one of the limbs of the conduct.

6.   

The Advisory Committee (4 Member States) agrees with the Commission on the application of an extraordinary mitigating circumstance in this case.

7.   

The Advisory Committee (4 Member States) agrees with the Commission on the amount of the extraordinary mitigating circumstance.

8.   

The Advisory Committee (4 Member States) agrees with the Commission on the amount of the reduction of the fine based on the 1996 Commission Notice on the non-imposition or reduction of fines in cartel cases for one of the parties.

9.   

The Advisory Committee (4 Member States) agrees with the Commission on the final amounts of the fines.

10.   

The Advisory Committee (4 Member States) recommends the publication of its Opinion in the Official Journal of the European Union.


21.9.2020   

EN

Official Journal of the European Union

C 312/7


Final Report of the Hearing Officer (1)

Case AT.37956 – Reinforcing bars

(2020/C 312/06)

(1)   

The draft decision aims at re-adopting an earlier Commission decision of 30 September 2009 (the ‘2009 Decision’) (2) – annulled by the Court of Justice in 2017 – which was itself the re-adoption of an earlier decision of 17 December 2002 (the ‘2002 Decision’) (3) – annulled by the General Court in 2007.

(2)   

The draft decision finds a cartel in the Italian market of steel reinforcing bars for concrete during 1989-2000, in breach of Article 65 of the Treaty establishing the European Coal and Steel Community (the ‘ECSC Treaty’). It is addressed to five undertakings (together referred to as ‘the Parties’):

1.

Alfa Acciai S.p.A. (‘Alfa’);

2.

Feralpi Holding S.p.A. (‘Feralpi’);

3.

Ferriere Nord S.p.A. (‘Ferriere Nord’);

4.

Partecipazioni Industriali S.p.A. in Amministrazione Straordinaria – ex Riva Fire S.p.A. (‘Partecipazioni Industriali’); and

5.

Ferriera Valsabbia S.p.A. and Valsabbia Investimenti S.p.A. (together ‘Valsabbia’).

(3)   

Following the judgments of the Court of Justice of 21 September 2017 (‘the judgments of 21 September 2017’) (4) that annulled the 2009 Decision, the Commission resumed the proceedings in Case AT.37956 – Reinforcing bars. A brief account of these proceedings is necessary to understand the draft decision:

The 2002 Decision was addressed to eight Italian manufacturers of steel reinforcing bars for concrete, as well as the Italian steel producers' association Federacciai. It was annulled by the General Court on 25 October 2007 because the legal basis used in it, namely Article 65 of the ECSC Treaty, was no longer in force at the moment of its adoption (5). The 2002 Decision has become final insofar as it concerns Federacciai, which did not bring an application for annulment before the General Court;

By its 2009 Decision, the Commission re-adopted a decision finding the infringement and imposing fines on the eight undertakings that had challenged the 2002 Decision (6). All of them applied for annulment of the 2009 Decision before the General Court, which upheld the Decision and granted small fine reductions to two undertakings (‘the judgments of 9 December 2014’) (7). Five of the eight undertakings appealed the judgments of 9 December 2014. The 2009 Decision has become final insofar as it concerns the three undertakings that did not appeal the judgments of 9 December 2014 (8);

The latter were set aside by the Court of Justice on 21 September 2017, annulling the 2009 Decision insofar as it concerned the appellants. The Court of Justice held that the 2009 Decision infringed an essential procedural requirement flowing from Regulation 1/2003 and Regulation 773/2004 (9) in that no oral hearing had been held on the substance of the case to which the competition authorities of the Member States had been invited. Indeed, the competition authorities of the Member States had not been invited to participate in the first oral hearing of 13 June 2002, which concerned the substance of the case and which took place before the expiry of the ECSC Treaty (10). They were invited to the second oral hearing of 30 September 2002, but that oral hearing dealt only with the legal consequences of the expiry of the ECSC Treaty for the continuation of the proceedings.

(4)   

By letter of 15 December 2017, the Directorate General for Competition (‘DG Competition’) explained to each of the Parties the conclusions it drew from the judgments of 21 September 2017 and the basis on which it intended to resume the proceedings with the aim of reaching a final position on the case. The letter explained that, in accordance with the judgment of the Court in Limburgse Vinyl Maatschappij and Others v Commission (the ‘PVC II case-law’), following an annulment of a Commission decision, the case could be resumed from the point where the procedural error was identified (11). In the present case, the annulment of the 2002 Decision did not affect the preparatory acts of the decision, but only the oral hearing. In the same letters, the addressees of the decision were accordingly invited to express their interest in participating in a new oral hearing covering also the substance of the case. All the Parties responded on 1 February 2018 and expressed their interest in participating in the oral hearing.

(5)   

By subsequent letters of 22 March and 13 April 2018, DG Competition clarified that the correct legal basis for assessing the infringement was Article 65 of the ECSC Treaty, whereas, following the expiry of the ECSC Treaty, Regulation 1/2003 was the correct legal basis as regards the procedure. The letters further clarified that, in the event of adopting a new fining decision in this case, the Commission would follow the 1998 Fining Guidelines together with the considerations made in its letters of 30 June 2008 (that it would not impose fines which would be higher than those imposed in 2002).

(6)   

At the request of Alfa and Valsabbia, DG Competition informed the Parties that, ahead of the new oral hearing, the competition authorities of the Member States had received the statement of objections, supplementary statement of objections and their respective replies, together with the letters of 15 December 2017, the replies to such letters and the letters of 22 March 2018.

(7)   

The new oral hearing took place on 23 April 2018, with the participation of four of the five Parties: Alfa, Feralpi, Ferriere Nord and Valsabbia.

(8)   

Partecipazioni Industriali did not participate in the new oral hearing (12). However, at its request, I allowed Partecipazioni Industriali to submit written observations in lieu of an oral defence within the same timeframe foreseen for the new oral hearing. Partecipazioni Industriali submitted these written observations on 24 April 2018. On 7 May 2018, Feralpi submitted a new written defence in addition to its participation in the new oral hearing.

(9)   

The competition authorities of the Member States were invited to the new oral hearing, and six of them were indeed represented at the new oral hearing (13).

(10)   

Some Parties have argued that the new oral hearing of 23 April 2018 could not remedy the problem of the absence of an oral hearing on the substance of the case in 2002 to which the competition authorities of the Member States had been invited, because the oral hearings in 2002 involved also the three other undertakings and the association of undertakings that were the other addressees of the statement of objections, the 2002 Decision and the 2009 Decision. I find this argument not convincing, as there is no right for an addressee of a statement of objections to an oral hearing in the presence of the other addressees of the statement of objections (14).

(11)   

Referring in their written and oral submissions to the Opinion of Advocate General Kokott in Solvay v Commission (15) and to the case-law of the European Court of Human Rights (16), all the Parties have criticized the excessive duration – around 18 years – of these proceedings and claimed that their fundamental right to have their case dealt with within a reasonable time – enshrined in Article 41(1) and the second paragraph of Article 47 of the Charter of Fundamental Rights – had been breached. According to the Parties, the Commission had no legitimacy to reopen the proceedings since their excessive length and the need to re-adopt twice the same decision was attributable exclusively to the Commission's own wrongdoing. If the Commission decided nonetheless to adopt a third prohibition decision, it should reduce substantially the fines in order to reflect the excessive length of the proceedings.

(12)   

The question of the respect of the Parties' fundamental right to have their case dealt with within a reasonable time, a right recognised in the case-law of the Court of Justice as a general principle of European Union law and enshrined in Article 41(1) and the second paragraph of Article 47 of the Charter of Fundamental Rights, indeed requires careful consideration in this case.

(13)   

Taking into account all stages of the administrative and judicial procedures, the absolute length of the proceedings in this case, which started with inspections conducted by the Commission between October and December 2000, is without any doubt particularly long. Indeed, more than 18 years have already passed. Given that in the judgments of 21 September 2017, the Court of Justice has not dealt with a number of grounds of appeal raised against the judgments of the General Court to the extent that the latter judgments confirmed the 2009 Decision, it is probable that at least some of the Parties will exercise their right to have a third Commission decision again reviewed by the General Court and the Court of Justice. Assuming that this third round of judicial review will put a definitive end to the administrative and judicial proceedings in this case, it is foreseeable that 22 or 23 years could easily have passed by then.

(14)   

The Court of Justice has held that the reasonableness of the duration of proceedings must be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the parties concerned, its complexity and the conduct of the parties and of the competent authorities, the list of relevant criteria not being exhaustive (17).

(15)   

It follows that the fact that the limitation period for the imposition of penalties as laid down in Article 25 of Regulation 1/2003 has not yet expired does not answer the question (18).

(16)   

The unreasonableness of the duration of the proceedings can result not only from the excessive duration of one or several individual stages of the proceedings but also from the overall length of the administrative and judicial proceedings taken together (19).

(17)   

It cannot be argued that the Commission should only assess the duration of its own proceedings. Article 41(1) and the second paragraph of Article 47 of the Charter of Fundamental Rights are but two expressions of the same fundamental right of the parties to have their case done with within a reasonable time (20). From the point of view of the undertakings concerned, all that matters is when their 'affair' is finally adjudicated upon by an impartial authority (21).

(18)   

The Commission cannot absolve itself from all responsibility for the overall duration of the proceedings, including the judicial stages, because the compatibility with fundamental rights of the system in which the Commission acts both as investigator and first-instance decision-maker in antitrust cases is dependent on the parties having the possibility to have the Commission's decisions reviewed by the EU Courts (22).

(19)   

There is undeniably a real risk in this case that the Court of Justice may consider that the overall duration of the proceedings in this case, including the two stages before the General Court following the 2002 Decision and the 2009 Decision, is unreasonably long. The question then arises what the appropriate remedy would be.

(20)   

According to the European Court of Human Rights, a failure to adjudicate within a reasonable time must, as a procedural irregularity constituting the breach of a fundamental right, give rise to an entitlement of the party concerned to an effective remedy granting him appropriate relief (23).

(21)   

The Court of Justice has often been confronted with the question what remedy the General Court or the Court of Justice itself should grant if the General Court or the Court of Justice finds that the administrative and/or judicial proceedings in an antitrust case have been unreasonable long.

(22)   

The Court of Justice has consistently held that the General Court or the Court of Justice can only annul a Commission decision finding an infringement of Articles 101 or 102 TFEU and imposing fines for such an infringement if it has been proven that the unreasonable duration of the administrative and/or judicial proceedings has adversely affected the ability of the undertakings concerned to defend themselves in the administrative and/or judicial proceedings (24).

(23)   

Abstract and imprecise claims by the undertakings concerned that their rights of the defence were breached are not sufficient. What must be proven is a concrete adverse effect on the undertaking's ability to defend itself, for instance in that the individuals within the undertaking that would be able to provide exculpatory explanations of the evidence in the Commission's file were no longer alive or available at the time the undertaking was granted belated access to the Commission's file, whereas those individuals would have been available if the access to the file had not been belated (25).

(24)   

In the absence of a proven concrete adverse effect on the undertaking's ability to defend itself, the Court of Justice has always held that the General Court or the Court of Justice could only grant financial compensation. Whereas older case-law considered that this compensation could be granted by the General Court or the Court of Justice in the form of a reduction of the fine applied by the Court in the exercise of its unlimited jurisdiction within the meaning of Article 261 TFEU, (26) the more recent case-law considers that the appropriate remedy is for the undertaking concerned to bring a separate action for damages under Article 268 TFEU in conjunction with the second paragraph of Article 340 TFEU (27).

(25)   

In the present case, I have not seen any proof of a concrete adverse effect of the unreasonable length of the proceedings on the Parties' ability to defend themselves. The first administrative stage of the proceedings, leading to the 2002 Decision, was relatively quick, and the Parties had full access to the file at that time. At the new oral hearing on 23 April 2018, and in the various written submissions made since the resumption of the proceedings following the letters of 15 December 2017, the Parties have not proven any concrete adverse effects on their ability to defend themselves. Rather to the contrary, the substantive arguments developed at the new oral hearing and in some of those written submissions confirm the Parties' ability to defend themselves.

(26)   

The Parties nevertheless argue that in this specific case, where there may be already today a breach of their fundamental right to have their case dealt with within a reasonable time, the Commission would be under an obligation to immediately abandon the proceedings, so as to avoid knowingly to prolong the already excessive duration of the proceedings and thus extending the breach of the Parties’ fundamental right.

(27)   

While I cannot follow the Parties’ arguments in this respect to their final conclusion, I do think that the Parties have a point in that the situation in which the Commission finds itself today in the present case is different from the situation to which the case-law referred to in paragraphs 21 to 24 above relates.

(28)   

The case-law referred to in paragraphs 21 to 24 above concerns the remedy the General Court or the Court of Justice should grant if the General Court or the Court of Justice finds that the administrative and/or judicial proceedings in an antitrust case have been unreasonably long, whereas the question the Commission is confronted with in the present case today is whether it should continue proceedings and adopt a new, third decision, which, with the ensuing judicial review, to which the Parties are fully entitled, would easily prolong the already very long proceedings by another four or five years (see paragraph 13 above).

(29)   

An essential difference is that the Commission is under no obligation to resume proceedings after an annulment on procedural grounds of an earlier decision finding an antitrust infringement and imposing fines, nor under any obligation to continue such resumed proceedings until the adoption of a new decision.

(30)   

Just as the Commission has a broad discretion whether or not to start investigating a possible infringement of the antitrust prohibitions, and whether or not to continue its investigations up to the adoption of a first decision finding an antitrust infringement and imposing fines (28), it similarly has a broad discretion whether or not to resume proceedings after an annulment on procedural grounds of that first decision, and whether or not to continue the resumed proceedings up to the adoption of a second decision. Likewise, if that second decision is again annulled on procedural grounds, the Commission has again a broad discretion whether or not to resume proceedings, and whether or not to continue the resumed proceedings up to the adoption of a third decision.

(31)   

I disagree however with the Parties' view that, in the present situation where there is a real risk that the Court of Justice may consider that the overall duration of the proceedings is already unreasonably long, the Commission would necessarily lose all discretion and would automatically be obliged to discontinue the proceedings. This view puts too one-sidedly all weight on the need to protect the Parties' rights under the Charter of Fundamental Rights to have their case dealt with within a reasonable time, while neglecting entirely the importance of the implementation of the EU competition rules, which is a fundamental aim of the Treaties (29).

(32)   

In my view the correct position is that, in a situation as the present one, the Commission is under an obligation, in the exercise of its discretion whether or not to resume proceedings and to continue such proceedings up to the adoption of a new decision finding an antitrust infringement and imposing fines, to consider and give due weight to the possible breach of the Parties' fundamental right to have their case dealt with within a reasonable time that has already occurred as well as to the further impact of its decision on the protection of the Parties' fundamental right.

(33)   

This means that, before adopting a new, third decision in this case, the Commission must examine, taking into account all the circumstances of the case, whether the contribution which the adoption of such a third decision makes to the attainment of the aim of the implementation of the EU competition rules would not be outweighed by the impact of this course of action on the protection of the Parties' rights under the Charter of Fundamental Rights.

(34)   

If the outcome of the balancing exercise is that the contribution which the adoption of a new, third decision makes to the attainment of the aim of the implementation of the EU competition rules outweighs the impact of this course of action on the respect for the Parties' fundamental right under the Charter, the Commission can adopt such a third decision. To remedy the possible breach of the Parties' fundamental right, the Commission must then, in my view, grant the Parties a reduction in the amount of the fines. The size of the reduction must reflect the specificities of the case, including the fact that none of the excessive duration in this case is attributable to the conduct of the Parties (30).

(35)   

The draft decision fulfils in my view these requirements. Indeed, it concludes, taking into account all the specific circumstances of the case, that the adoption of a third decision imposing fines is on balance justified, while granting a 50 % reduction of the fine in recognition of the long duration of the proceedings. Even if the Court of Justice were to find that the duration of the proceedings in this case is unreasonably long, this reduction would appear to constitute an appropriate remedy (31).

(36)   

Compared with the 2009 Decision, in addition to the 50% reduction mentioned in paragraph 35 above, the draft decision takes into account the judgments of 9 December 2014 and thus reduces the basic amount of the fines for Partecipazioni Industriali and Ferriere Nord by 3% and 6% respectively (32). Moreover, in light of Partecipazioni Industriali’s financial situation, the draft decision also abstains from applying a deterrence multiplier to Partecipazioni Industriali and sets its fine at EUR 0 after application of the 10 % ceiling pursuant to Article 23(2) of Regulation 1/2003.

(37)   

Pursuant to Article 16 of Decision 2011/695/EU, I have examined whether the draft decision deals only with the objections in respect of which the Parties have been afforded the opportunity of making known their views, and I have come to a positive conclusion.

(38)   

Overall, I conclude that the effective exercise of the Parties' procedural rights has been respected in this case.

Brussels, 1 July 2019.

Wouter WILS


(1)  Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’).

(2)  Commission Decision C(2009)7492 final of 30 September 2009 relating to an infringement of Article 65 of the ECSC Treaty (COMP/37.956 - Reinforcing bars, re-adoption), as modified by Commission Decision C(2009) 9912 final of 8 December 2009 relating to a proceeding under Article 65 of the ECSC Treaty (Case COMP/37.956 — Reinforcing bars, re-adoption), summary publication (OJ C 98, 30.3.2011, p. 16), Final Report of the Hearing Officer of 22 September 2009 in Case COMP/37.956 — Reinforcing bars, re-adoption (OJ C 98, 30.3.2011, p. 14).

(3)  Commission Decision 2006/894/EC of 17 December 2002 relating to a proceeding under Article 65 of the ECSC Treaty against Alfa Acciai SpA, Feralpi Siderurgica SpA, Ferriere Nord SpA, IRO Industrie Riunite Odolesi SpA, Leali SpA, Acciaierie e Ferriere Leali Luigi SpA in liquidazione (in liquidation), Lucchini SpA, Siderpotenza SpA, Riva Acciaio SpA, Valsabbia Investimenti SpA, Ferriera Valsabbia SpA and the association of undertakings Federacciai (Federazione delle Imprese Siderurgiche Italiane) (Case C.37.956 — Reinforcing bars) (OJ L 353, 13.12.2006, p. 1), Final Report of the Hearing Officer of 9 December 2002 in case COMP/37.956 — Reinforcing bars (OJ C 303, 13.12.2006, p. 2).

(4)  Judgments in Feralpi Holding v Commission, C-85/15 P, EU:C:2017:709; Ferriera Valsabbia, Valsabbia Investimenti v Commission, C-86/15 P, and Alfa Acciai v Commission, C-87/15 P, EU:C:2017:717; Ferriere Nord v Commission, C-88/15 P, EU:C:2017:716; Riva Fire v Commission, C-89/15 P, EU:C:2017:713.

(5)  Judgments in SP, Leali, Acciaerie e Ferriere Leali Luigi, IRO, Lucchini, Ferriera Valsabbia, Valsabbia Investimenti and Alfa Acciai 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; Riva Acciaio v Commission, T-45/03, EU:T:2007:318; Feralpi Siderurgica v Commission, T-77/03, EU:T:2007:319; Ferriere Nord v Commission, T-94/03, EU:T:2007:320. The ECSC Treaty was signed in 1952 for a duration of 50 years and expired on 23 July 2002.

(6)  Namely (1) Alfa Acciai S.p.A; (2) Feralpi Holding S.p.A. (formerly Feralpi Siderurgica S.p.A.); (3) Ferriere Nord S.p.A.; (4) IRO Industrie Riunite Odolesi S.p.A.; (5) Leali S.p.A. and Acciaierie e Ferriere Leali Luigi S.p.A. in liquidazione; (6) Lucchini S.p.A. and S.P. S.p.A. in liquidazione (formerly Siderpotenza S.p.A.); (7) Riva Fire S.p.A. (formerly Riva Acciaio S.p.A.); and (8) Ferriera Valsabbia S.p.A. and Valsabbia Investimenti S.p.A.

(7)  Judgments in Leali and Acciaierie e Ferriere Leali Luigi v Commission, T-489/09, T-490/09 and T-56/10, EU:T:2014:1039; IRO v Commission, T-69/10, EU:T:2014:1030; Feralpi v Commission, T-70/10, EU:T:2014:1031; Riva Fire v Commission, T-83/10, EU:T:2014:1034; Alfa Acciai v Commission, T-85/10, EU:T:2014:1037; Ferriere Nord v Commission, T-90/10, EU:T:2014:1035; Lucchini v Commission, T-91/10, EU:T:2014:1033; Ferriera Valsabbia and Valsabbia Investimenti v Commission T-92/10, EU:T:2014:1032. The General Court granted a 3 % fine reduction to Riva Fire and a 6 % fine reduction to Ferriere Nord.

(8)  The three undertakings that did not appeal are IRO Industrie Riunite Odolesi S.p.A. (‘IRO’), Ferriere Leali Luigi S.p.A. (‘Leali’) and Lucchini S.p.A. – formerly Siderpotenza S.p.A. (‘Lucchini’). See also Judgment in Lucchini v Commission, T-185/18, EU:T:2019:298.

(9)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1) (‘Regulation 1/2003’); Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty, OJ L 123, 27.4.2004, p. 18 (‘Regulation 773/2004’).

(10)  Such participation was not provided for in the ECSC Treaty, under which the Commission had exclusive competence to apply the competition rules.

(11)  Judgment in Limburgse Vinyl Maatschappij and Others v Commission, C 238/99 P, C 244/99 P, C 245/99 P, C 247/99 P, C 250/99 P to C 252/99 P and C 254/99 P, EU:C:2002:582, paragraphs 70-76.

(12)  The Extraordinary Commissioners of Partecipazioni Industriali declined my invitation to attend the new oral hearing. In line with Articles 14(4) and (5) of Regulation 773/2004, Partecipazioni Industriali could not be represented at the oral hearing by its external lawyers only; see Judgment in Badische Anilin- & Soda-Fabrik v Commission, 49/69, EU:C:1972:71, paragraph 11.

(13)  Whereas the invitation of the competition authorities of the Member States constitutes an essential procedural requirement, there is no obligation for the competition authorities of the Member States to attend the oral hearing; see Judgment in Servier v Commission, T-691/14, EU:T:2018:922, paragraph 163.

(14)  Judgment in Cimenteries CBR and Others v Commission, T-25/95 etc., EU:T:2000:77, paragraph 697, and Opinion of Advocate General Darmon in Ahlström Osakeyhtiö and Others v Commission, C-89/85 etc., EU:C:1988:258, paragraph 155.

(15)  Opinion of Advocate General Kokott in Solvay v Commission, C-109/10 P, EU:C:2011:256.

(16)  Judgments of the European Court of Human Rights, Eckle v Germany, Application 8130/78, paragraph 76; Gorou v Greece, Application 12686/03, paragraph 46; Kakamoukas and Others v Greece, Application 38311/02, paragraph 32. Alfa and Valsabbia also referred to Neumeister v Austria, Application 1936/63 and Rouille v France, Application 50268/99.

(17)  See Opinion of Advocate General Kokott in Solvay v Commission, as note 15 above, paragraph 237, and the case-law referred to therein.

(18)  Opinion of Advocate General Kokott in Solvay v Commission, as note 15 above, paragraph 347.

(19)  Opinion of Advocate General Kokott in Solvay v Commission, as note 15 above, paragraphs 238 and 239.

(20)  Opinion of Advocate General Kokott in Solvay v Commission, as note 15 above, paragraph 240.

(21)  Opinion of Advocate General Kokott in Solvay v Commission, as note 15 above, paragraph 240.

(22)  See Judgment in Schindler v Commission, C-501/11 P, EU:C:2013:522, paragraph 34.

(23)  Kudla v Poland, Application 30210/96, paragraphs 150-156; see also Judgment in Groupe Gascogne v Commission, C-58/12 P, EU:C:2013:770, paragraph 72.

(24)  Judgment in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C-105/04 P, EU:C:2006:592, paragraphs 42 and 43, and Opinion of Advocate General Kokott in Solvay v Commission, as note 15 above, paragraphs 250 to 262.

(25)  Judgment in Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied, as note 24 above, paragraphs 56 and 49, and Opinion of Advocate General Kokott in Solvay v Commission, as note 15 above, paragraphs 312 to 320.

(26)  Judgment in Baustahlgewebe v Commission, C-185/95 P, EU:C:1998:608, paragraph 48.

(27)  Judgments in Der Grüne Punkt – Duales System Deutschland v Commission, C-385/07 P, paragraph 195; Groupe Gascogne v Commission, as note 23 above, paragraphs 81-83; Bolloré v Commission, C-414/12 P, EU:C:2014:301, paragraph 106; and CEPSA v Commission, C-608/13 P, EU:C:2016:414, paragraph 71.

(28)  The existence of this broad discretion is apparent from the wording of Articles 7 and 23(2) of Regulation 1/2003, which provide that the Commission ‘may’ adopt such decisions, from the case-law on the rights of complainants (see Judgment in Ufex and Others v Commission, C-119/97 P, EU:C:1999:116, paragraphs 86-92) as well as from the Masterfoods case-law (C-344/98, EU:C:2000:689).

(29)  Opinion 2/13 (Accession of the EU to the ECHR) of the Court of Justice, EU:C:2014:2454, paragraph 172, and Opinion of Advocate General Kokott in Solvay v Commission, as note 15 above, paragraph 328.

(30)  For the reasons set out in paragraph 18 above, the fact that the Parties have exercised their right to have the 2002 Decision and the 2009 Decision reviewed by the EU Courts cannot be held against the Parties.

(31)  Compare with Opinion of Advocate General Kokott in Solvay v Commission, as note 15 above, paragraph 357.

(32)  See paragraph 3 and footnote 7 above.


21.9.2020   

EN

Official Journal of the European Union

C 312/13


SUMMARY OF COMMISSION DECISION

of 4 July 2019

relating to a proceeding under Article 65 of the ECSC Treaty

(Case AT.37956)

(notified under document C(2019) 4969)

(Only the Italian text is authentic)

(Text with EEA relevance)

(2020/C 312/07)

On 4 July 2019 the Commission adopted a Decision relating to a proceeding under Article 65 of the ECSC Treaty. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003 (1) , the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets.

1.   INTRODUCTION

(1)

The infringement in question concerns Article 65 of the Treaty establishing the European Coal and Steel Community (‘the ECSC Treaty’) in the reinforcing bar sector in Italy and has already been the subject of two previous Commission Decisions.

(2)

The first Decision (2), adopted on 17 December 2002, was annulled by the Court of First Instance of the European Communities by its judgments of 25 October 2007 (3) on the grounds of incorrect indication of the legal basis used. The second Decision, adopted on 30 September 2009 (4), supplemented with a corrigendum on 8 December 2009 (5), was first of all upheld by the General Court of the European Union in 2014 and then annulled by the Court of Justice by its judgments of 21 September 2017 (6) on the grounds of infringement of essential procedural requirements.

(3)

This Decision is addressed to five Italian undertakings comprising six companies: Alfa Acciai SpA (‘Alfa’), Feralpi Holding SpA (‘Feralpi’), Ferriere Nord SpA (‘Ferriere Nord’), Partecipazioni Industriali SpA in Amministrazione Straordinaria (‘Partecipazioni Industriali’ or ‘Riva’), Valsabbia Investimenti SpA and Ferriera Valsabbia SpA (‘Valsabbia’, to indicate one or both of the legal persons constituted under the name Valsabbia Investimenti SpA and under the name Ferriera Valsabbia SpA). The agreement in which they took part lasted from 6 December 1989 to 4 July 2000.

2.   CASE DESCRIPTION

2.1.   Procedure

(4)

On the basis of the information gathered during inspections carried out at the offices of reinforcing bar manufacturers and the answers to requests for information sent to those undertakings under Article 47 of the ECSC Treaty, on 26 March 2002 the Commission initiated proceedings under Article 65 of the ECSC Treaty and adopted a statement of objections, notified under Article 36 of the ECSC Treaty to the undertakings to which the Decision was addressed.

(5)

In the course of the investigation, Ferriere Nord contacted the Commission pursuant to the Commission Notice on the non-imposition or reduction of fines in cartel cases of 18 July 1996 (‘the Leniency Notice’) (7).

(6)

The addressees of the statement of objections submitted their written comments and asked to present them orally to the Hearing Officer at the hearing which took place on 13 June 2002.

(7)

On 13 August 2002 the Commission sent to the same addressees an additional statement of objections in which it explained what its position would be regarding continuation of the proceeding following the expiry of the ECSC Treaty. The Hearing Officer held a second hearing in the presence of representatives of the Member States on 30 September 2002, which concerned only the additional statement of objections.

(8)

The procedure culminated in the adoption of the Decision of 17 December 2002 against eight undertakings and an association of undertakings, subsequently annulled by the Court of First Instance on 25 October 2007 following the appeals lodged by the eight addressee undertakings. However, the Decision became final in respect of the association of undertakings, which had not lodged an appeal.

(9)

The annulment of the Decision of 17 December 2002 was based on the incorrect indication of the legal basis (Article 65(4) and (5) of the ECSC Treaty, which had expired when the Decision was adopted). Therefore the annulment did not invalidate the administrative procedure which preceded the adoption of the Decision. By letter of 30 June 2008 the Commission therefore informed the interested parties of its intention to re-adopt the annulled Decision with the legal basis corrected. All the parties submitted comments.

(10)

On 30 September 2009, the Commission adopted a second Decision in the present case. The Decision of 30 September 2009 was amended by the Decision of 8 December 2009, as a number of annexes had been erroneously omitted from the Decision of 30 September 2009.

(11)

All of the addressees of the Decision of 30 September 2009 lodged appeals against it with the General Court of the European Union, which dismissed those appeals in its 2014 judgments.

(12)

Between 20 and 24 February 2015 Alfa, Feralpi, Ferriere Nord, Riva and Valsabbia appealed to the Court of Justice against the respective 2014 judgments.

(13)

On 21 September 2017 the Court of Justice annulled the decision of 30 September 2009, as amended by the Decision of 8 December 2009, in so far as it concerned the undertakings to which the present Decision is addressed, and also annulled the judgments of the General Court of 2014 on the appeals brought by the undertakings to which the present Decision is addressed.

(14)

The Court of Justice found that there had been a breach of procedure because the first hearing, concerning the substance of the case, held on 13 June 2002 when the ECSC Treaty was in force, had taken place without the attendance of the representatives of the Member States’ competition authorities, whereas the second hearing of 30 September 2002, to which the representatives of the Member States had been invited in accordance with the provisions of the EC Treaty which had since become applicable, had primarily concerned the legal consequences of the expiry of the ECSC Treaty and not the substance of the case.

(15)

The Court therefore concluded that the hearing of 13 June 2002 had not fully complied with the procedural requirements concerning the adoption of a decision on the basis of Article 7(1) and Article 23(2) of Regulation (EC) No 1/2003 and Article 14(3) of Regulation (EC) No 773/2004.

(16)

Since the grounds for annulment of the Decision of 30 September 2009 related exclusively to a procedural error concerning the holding of the oral hearing, and did not concern any of the administrative and procedural acts preparatory to it, in accordance with settled case-law (8) the Commission decided to resume the procedure at the exact point at which the procedural error had occurred, giving the parties the opportunity to present their views on the whole matter in the course of a hearing to be held under Article 14(3) of Regulation (EC) No 773/2004.

(17)

On 15 December 2017, the Commission therefore sent a letter to the addressees of the present Decision informing them of its intention to resume the procedure and inviting them to express their interest in attending an oral hearing in the presence of the representatives of the Member States. The letter offered the parties the opportunity to submit any written comments on the content of the letter.

(18)

All the parties submitted written comments. All the parties, except Partecipazioni Industriali, also asked to be heard orally at a hearing. That hearing took place on 23 April 2018. Partecipazioni Industriali sent a written submission on 24 April 2018.

(19)

On 4 December 2018 Alfa, Feralpi, Ferrere Nord and Valsabbia sent a letter to the Commission proposing two possible alternatives to the adoption by the Commission of a decision imposing fines. The Commission replied to that letter on 12 December 2018.

2.2.   Individual involvement in the conduct

(20)

The addressees of this Decision took part in a single, complex and continuous infringement of Article 65(1) of the ECSC Treaty which had as its object or effect the fixing of prices and which provided the basis for agreements limiting or controlling output or sales on the Italian market for concrete reinforcing bar in bars or coils.

(21)

More specifically, from at least the end of 1989 the undertakings to which the present Decision is addressed fixed the prices for ‘size extras’ for reinforcing bar in Italy. From April 1992 these undertakings extended their decisions and behaviour to fixing the base price for reinforcing bar in Italy. From that date until September 1995 the agreement extended to the fixing of payment terms.

(22)

From 1995 the parties to the agreement started colluding on reducing or controlling output or sales in order to reduce the quantities of reinforcing bar on the market. Some of them set up a more detailed and systematic system of multilateral mutual control of quantities produced and sold by each undertaking.

(23)

The Commission does not have sufficient evidence to show that the competition rules were infringed in the period after 4 July 2000. It should be pointed out that not all the firms necessarily took part in all the behaviour described here and that some of them took part in it for a shorter time.

2.3.   Resumption of proceedings against the addressee undertakings

(24)

In the present case, the Commission’s discretion to adopt a decision must be exercised by weighing up the public interest in obtaining effective enforcement of the competition rules against the interest of the addressees in obtaining the fullest possible remedy for the alleged infringement of their fundamental rights owing to the lengthy duration of the proceedings.

(25)

The outcome of the Commission weighing up the respective interests shows that, in the present case, the adoption of a decision imposing fines will avoid impunity of the parties by ensuring a deterrent effect and consistent and effective application of the competition rules. At the same time, the specific circumstances of this case were taken into consideration by the Commission for the purposes of setting the fines applicable to the addressees of the Decision. The addressees will therefore be able to benefit from an appropriate reduction of the fines otherwise applicable, in order to mitigate the potential consequences of procedural errors committed by the Commission.

2.4.   Addressees

(26)

Alfa Acciai SpA is an undertaking to which can be attributed not only the behaviour of Alfa Acciai SpA but also the behaviour of Alfa Acciai srl, Acciaierie Megara SpA (from 1996) and Acciaierie di Sicilia SpA. Alfa was involved in the agreement from 6 December 1989 to 4 July 2000. From 13 June 1995 to 12 February 1996, on the other hand, Alfa was not involved in the part of the agreement relating to the limitation or control of output or sales.

(27)

Feralpi Holding SpA is the legal successor to Feralpi Siderurgica SpA, and is an undertaking to which can be attributed not only the behaviour of Feralpi Siderurgica SpA itself but also the behaviour of Feralpi Siderurgica srl and the former Feralpi Siderurgica SpA. Feralpi was involved in the agreement from 6 December 1989 until 27 June 2000.

(28)

Partecipazioni Industriali SpA in Amministrazione Straordinaria is the new name of Riva Fire SpA, and is an undertaking to which can be attributed not only the behaviour of the former Riva Acciaio SpA but also the behaviour of Fire Finanziaria SpA, Riva Prodotti Siderurgici SpA, Acciaierie e Ferriere di Galtarossa SpA and Acciaierie del Tanaro SpA. Partecipazioni Industriali was involved in the agreement from 6 December 1989 until 27 June 2000. From 27 November 1997 to 30 November 1998 the undertaking did, however, suspend its involvement in the part of the agreement relating to the limitation or control of output or sales.

(29)

Valsabbia Investimenti SpA and Ferriera Valsabbia SpA are an undertaking to which can be attributed not only the behaviour of Valsabbia Investimenti SpA and Ferriera Valsabbia SpA but also the behaviour of the former Ferriera Valsabbia SpA and the even earlier Ferriera Valsabbia SpA. In fact, Valsabbia Investimenti SpA and Ferriera Valsabbia SpA are simply the two companies that resulted from the split (on 1 March 2000) of the former Ferriera Valsabbia SpA. The undertaking was involved in the agreement from 6 December 1989 to 27 June 2000.

(30)

Ferriere Nord SpA is the same undertaking and the same legal person, with the same business name, active in the reinforcing bar sector since April 1992, which engaged in the behaviour which this Decision holds to be the infringement of Community competition law to which the Commission has objected. Ferriere Nord was involved in the agreement from 1 April 1993 to 4 July 2000. However, from 13 June 1995 to 27 September 1998 Ferriere Nord was not a party to the part of the agreement relating to the limitation or control of output or sales.

2.5.   Fines

(31)

The amount of the fines has been set according to the 1998 Guidelines on Fines.

2.5.1.    Basic amount

(32)

The infringement consists in a single, complex and continuous restrictive practice which, having as its object the fixing of prices and the limiting or controlling of production or sales, constitutes a very serious infringement of Article 65(1) of the ECSC Treaty. The cartel covered the whole of Italy. The Commission considers therefore that the addressees committed a very serious infringement. The fact that the restrictive practice was confined solely to the Italian market does not mean that the gravity of the infringement can be regarded as serious rather than very serious, since account must be taken of the volume of Italian production at the time of the infringement.

(33)

However, without prejudice to the very serious nature of the infringement, the Commission has, in determining the basic amount of the fine, taken account of the specific characteristics of the case, involving a national market that was subject at the time to the rules of the ECSC Treaty and on which the firms in question accounted for a limited share of the relevant market during the first period of the infringement.

2.5.1.1.   Differentiated treatment

(34)

Within the category of very serious infringements, the scale of fines applicable makes it possible to treat firms differently in order to take account of the effective economic capacity of the offenders to impair competition significantly, as well as to set the fine at a level that ensures sufficient deterrence.

(35)

The Commission considers that the market shares acquired by the addressees of this Decision in the last full calendar year of the infringement (1999) are not representative of their actual presence on the relevant market in the reference period. Between 1990 and 1999 the market shares of the firms virtually tripled. Therefore, on the basis of the average market shares in the period 1990-1999, three groups of undertakings can be identified in descending order of presence on the market.

(36)

In the annulled decisions of 17 December 2002 and 30 September 2009, the Commission took the view that for Riva the basic amount of the fine calculated in relation to the relative size of the relevant market should be increased in order to take account of its size and global resources. The turnover in ECSC products achieved by Riva was very much higher than that of the other undertakings involved. Therefore, in order to ensure a level of sufficient deterrence, the Commission took the view that the basic amount of the fine for Riva should be increased by 375 %.

(37)

The current market situation of Riva is, however, very different. Over the last few years this company has had very different (overall) results, with a turnover of zero in both 2017 and 2018. Partecipazioni Industriali has stated that its turnover in ECSC products since 2013 has been negligible. In 2012 Riva was split and the part relating to long products was assigned to the group headed by Riva Forni Elettrici SpA, which in turn sold it in 2015. Riva was admitted to the extraordinary administration procedure and in effect its only current activity is liquidation of the remaining assets. For these reasons, the Commission no longer considers it appropriate to increase the basic amount of the fine and therefore no increase of the basic amount will be applied to any of the addressees of this Decision.

2.5.1.2.   Duration

(38)

The infringement lasted for more than ten years and six months as regards all the undertakings, with the exception of Ferriere Nord, where the infringement lasted for more than seven years. The basic amount of the fine is thus increased by 105 % for all the firms, with the exception of Ferriere Nord, where it is increased by 70 %.

2.5.2.    Aggravating circumstances

(39)

In the present case the Commission has identified only one aggravating circumstance, i.e. the fact that Ferriere Nord has already been the subject of a Commission Decision of 2 August 1989 concerning its involvement in an agreement to fix prices and limit sales in the welded steel mesh sector (9).

(40)

The Commission therefore considers it necessary to impose an increase of 50 % of the basic amount in respect of Ferriere Nord.

2.5.3.    Mitigating circumstances

(41)

The fact that Riva and Ferriere Nord did not, for a certain period, participate directly in one of the four forms of the agreement (limiting or controlling output and/or sales) should be taken into account as a separate mitigating circumstance. The Commission notes that Riva did not participate in this part of the agreement for about a year, while Ferriere Nord did not participate for about three years (10).

(42)

The Commission therefore considers it necessary to reduce the basic amount of the fine by 3 % for Riva and 6 % for Ferriere Nord.

2.5.4.    Further reduction of the fine to take account of the length of the administrative procedure

(43)

The Commission considers that the procedural errors it made in the context of the transition between the ECSC Treaty and the EC Treaty and the delay that may have been caused by those errors may justify appropriate compensation for the addressees of this Decision.

(44)

In the light of the Commission’s discretion with regard to the fixing of fines, the addressees of this Decision may therefore be granted a reduction of the fines which should be proportionate so as not to penalise the addressees for procedural errors they did not themselves commit but, at the same time, not of such a scale as to undermine the principle that cartels are very serious infringements of competition law.

(45)

In order to take due account of those factors, the Commission concludes that a reduction of the fines of 50 % as an extraordinary attenuating circumstance may be granted in order to mitigate the negative consequences for the addressees of this Decision arising from the lengthy duration of the proceedings. This reduction is therefore to be granted to all the addressees of this Decision.

2.5.5.    Application of maximum fines under Article 23(2) of Regulation (EC) No 1/2003

(46)

Partecipazioni Industriali, as the legal successor to Riva, was admitted to the extraordinary administration procedure on 5 December 2016. As of that date, therefore, the company ceased to operate as a going concern and no longer had the legal obligation to draw up an annual accounts (which will be drawn up only after the insolvency procedure has been completed, for the period corresponding to the total duration of that procedure). Its last published turnover was EUR 594 000 for 2015.

(47)

In such a situation, the Commission considers that, in order to comply with the commitment made in the additional statement of objections of 12 August 2002 to set the ceiling for fines, including for Partecipazioni Industriali, as the legal successor to Riva, at 10 % of the turnover in ECSC products in the territory of the Union in the last full year preceding the date of adoption of the final Decision (2017), and given that, in 2017, the turnover in ECSC products achieved by Partecipazioni Industriali, as the legal successor to Riva, i.e. its output value was zero, the fine applicable to that undertaking for its participation in the infringement penalised by this Decision cannot exceed that ceiling and must therefore be zero.

(48)

The Commission considers that such amount of the fine applicable to Partecipazioni Industriali is justified in any event by the need to ensure that the amount of the fine is not excessive in relation to the financial capacity of the undertaking involved at the time the Decision is adopted.

2.5.6.    Application of the 1996 leniency notice

(49)

The Commission acknowledges that Ferriere Nord provided it with useful information that allowed it to gain a better understanding of the details of the restrictive practice. It considers that this satisfies the first paragraph of point D of the Notice, which states that a reduction in the amount of a fine is possible if, before a statement of objections is sent, an enterprise provides the Commission with information, documents or other evidence which materially contribute to establishing the existence of the infringement. The Commission considers that granting Ferriere Nord a reduction of 20 % in the amount of the fine is therefore justified.

3.   FINES IMPOSED BY THE DECISION

Alfa Acciai SpA

EUR 3 587 million

Feralpi Holding SpA (formerly Feralpi Siderurgica SpA)

EUR 5 125 million

Ferriere Nord SpA

EUR 2 237 million

Partecipazioni Industriali SpA in Amministrazione Straordinaria (formerly Riva Acciaio SpA)

EUR 0

Valsabbia Investimenti SpA and Ferriera Valsabbia SpA, jointly and severally liable:

EUR 5 125 million


(1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

(2)  Decision C(2002)5087 (OJ L 353, 13.12.2006, p. 1).

(3)  See judgments of the Court of First Instance of 25 October 2007, SP and others v Commission, T-27/03, ECLI:EU:T:2007:317; Riva Acciaio v Commission, T-45/03, ECLI:EU:T:2007:318; Feralpi Siderurgica v Commission, T-77/03, ECLI:EU:T:2007:319 and Ferriere Nord v Commission, T-94/03, ECLI:EU:T:2007:320.

(4)  Decision C(2009)7492 final.

(5)  Decision C(2009)9912 final.

(6)  See judgments of the Court of 21 September 2017, Feralpi v Commission, C-85/15 P, ECLI:EU:C:2017:709; Ferriera Valsabbia, Valsabbia Investimenti and Alfa Acciai v Commission, C-86/15P, ECLI:EU:C:2017:717; Ferriere Nord v Commission, C-88/15P, ECLI:EU:C:2017:716 and Riva Fire v Commission, C-89/15P, ECLI:EU:C:2017:713.

(7)  OJ C 207, 18.7.1996, p. 4.

(8)  Judgment of the Court of Justice of 15 October 2002, Limburgse Vinyl Maatschappij and others v Commission, paragraph 73.

(9)  OJ L 260, 6.9.1989, p. 1.

(10)  Respectively from 27 November 1997 to 30 November 1998 and from 13 June 1995 to 27 September 1998.


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