Case T‑433/16

Pometon SpA

v

European Commission

 Judgment of the General Court (Third Chamber, Extended Composition), 28 March 2019

(Competition — Agreements, decisions and concerted practices — European steel abrasives market — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Price coordination throughout the EEA — Chronologically staggered ‘hybrid’ procedure — Presumption of innocence — Principle of impartiality — Charter of Fundamental Rights — Evidence of the infringement — Single and continuous infringement — Restriction of competition by object — Duration of the infringement — Fine — Exceptional adaptation of the basic amount — Obligation to state reasons — Proportionality — Equal treatment — Unlimited jurisdiction)

1.      Competition — Administrative procedure — Principle of good administration — Requirement of impartiality — Scope — Respect for the presumption of innocence

(Art. 101(1) TFEU; Charter of the Fundamental Rights of the European Union, Arts 41 and 48)

(see paragraphs 54-56)

2.      Competition — Administrative procedure — Settlement procedure — Procedure not involving all the participants in a cartel — Withdrawal of an undertaking from the settlement procedure — Commission adopting two decisions with different addressees following two distinct procedures — Lawfulness — Conditions — Respect for the duty of impartiality and the presumption of innocence — Scope

(Art. 101 TFEU; Council Regulation No 773/2004, Art. 10a)

(see paragraphs 63-103)

3.      Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Reliance on a body of evidence — Degree of evidential value necessary as regards items of evidence viewed in isolation — Permissibility of an overall assessment of a body of evidence

(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 2)

(see paragraphs 107-113, 120, 160)

4.      Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anticompetitive agreement — Decision relying on documentary evidence — Evidential obligations of undertakings disputing the reality of the infringement

(Art. 101 TFEU)

(see paragraphs 114-117, 192-198)

5.      Competition — Administrative procedure — Commission decision finding an infringement — Use as evidence of statements of other undertakings which participated in the infringement — Lawfulness — Probative value of voluntary statements by the main participants in a cartel with a view to benefiting from the application of the leniency notice

(Art. 101 TFEU; Commission Notice 2006/C 298/17)

(see paragraphs 118, 119, 207-221)

6.      Competition — Fines — Amount — Determination — Adjustment of the basic amount — Mitigating circumstances — Conduct divergent from that agreed in the cartel implying the adoption of competitive conduct in the market

(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, point 29, third indent)

(see paragraphs 178-181)

7.      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 — Knowledge or foreseeability of the overall plan of the agreement, decision or concerted practice and of its key elements

(Art. 101(1) TFEU)

(see paragraphs 243-267)

8.      Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Distinction between infringements by object and infringements by effect — Infringement by object — Whether sufficiently damaging — Assessment

(Art. 101(1) TFEU)

(see paragraphs 273-286)

9.      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 — Single and continuous infringement — Lack of evidence relating to certain specific periods of the overall period considered — Period not long enough to constitute an interruption of the infringement

(Art. 101(1) TFEU)

(see paragraphs 294-313)

10.    Judicial proceedings — Time limit for producing evidence — Article 85(3) of the Rules of Procedure of the General Court — Submission of evidence before the oral part of the procedure is closed — Lawfulness — Conditions

(Rules of Procedure of the General Court, Art. 85(3))

(see paragraphs 326-328)

11.    Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope — Possibility of the Commission departing from the Guidelines for the calculation of fines — Obligation to state reasons all the stricter — Statement of reasons which does not make it possible to assess compliance with the principles of proportionality and equal treatment of the calculation method applied — Infringement

(Art. 296, second para. TFEU; Commission Notice 2006/C 210/02, point 37)

(see paragraphs 337-364)

12.    Competition — Fines — Amount — Judicial review — Unlimited jurisdiction of the EU judicature — Reduction of the amount of the fine

(Arts 101 and 261 TFEU; Council Regulation No 1/2003, Art. 31)

(see paragraphs 365-396)

Résumé

In the judgment in Pometon v Commission (T‑433/16), given on 28 March 2019, the Court, having partially annulled Decision C(2016) 3121 final of the European Commission relating to proceedings under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA), reviewed the amount of the fine imposed by that decision on the company, Pometon SpA, for participating in a cartel consisting of agreements or concerted practices with four other undertakings, essentially designed to coordinate the price of steel abrasives throughout the EEA. The contested decision had been adopted following a hybrid procedure staggered over time, in that the four other undertakings party to the cartel were covered by settlement decision C(2014) 2074 final, adopted on the basis of Articles 7 and 23 of Regulation No 1/2003l, (1) whereas Pometon had decided to withdraw from the settlement procedure.

With regard to the complaint raised by Pometon that the Commission had already prejudged its guilt by making several references to its conduct in the settlement decision, the Court first of all observed that the administrative procedure relating to restrictive practices before the Commission is governed by Article 41 of the Charter of Fundamental Rights of the European Union and that the principle of the presumption of innocence laid down in Article 48(1) of the Charter of Fundamental Rights also applies mutatis mutandis to the administrative procedures relating to compliance with EU competition rules, given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties. Next, the Court stated that compliance with the duty of impartiality enshrined in Article 41 of the Charter of Fundamental Rights requires the Commission, in a procedure that has acquired a hybrid nature, to draw up and state the reasons for the settlement decision exercising all necessary drafting precautions to ensure that that decision, while not addressed to the undertaking which withdrew from the settlement procedure, does not undermine the body of procedural safeguards which it must enjoy in the subsequent adversarial procedure. Therefore, referring to the interpretation criteria developed by the European Court of Human Rights in its judgment of 27 February 2014, Karaman v. Germany, the Court examined, first, whether in the settlement decision the drafting precautions accompanying the reference to some of the Pometon’s conduct made it possible to avoid any suspicion that the Commission deliberately prejudged the guilt and liability of that undertaking and, secondly, whether the references to that conduct were necessary to establish the liability of the addressees of the settlement decision. In doing so, the Court found that the disputed references to Pometon’s conduct cannot be regarded as evidence of either a lack of impartiality on the part of the Commission towards Pometon or a lack of respect for the presumption of innocence in the contested decision.

After outlining the rules on the burden of proving an infringement of Article 101(1) TFEU and the taking of such evidence, the Court then confirmed that the Commission had proved, to the requisite legal standard, both Pometon’s participation in a single and continuous infringement of Article 101(1) TFEU, comprising the different limbs of the cartel at issue, and its duration. All of the evidence examined by the Commission demonstrated that Pometon was fully aware not only of the essential characteristics of the cartel, which it did not dispute was a single and continuous infringement, but also of its geographic scope, and that it therefore intended to participate in that infringement. In the absence of any evidence that Pometon distanced itself from the cartel, the Commission had, in addition, proven to the requisite legal standard that that undertaking had not interrupted its participation in the single and continuous infringement at issue, even though it had no direct evidence of collusive contacts for a period of around 16 months.

Finally, the Court examined the application for annulment of the contested decision or for a variation of the fine of EUR 6 197 000 imposed on Pometon. In that regard, Pometon claims that the adaptation of the basic amount of the fine which the Commission had determined under point 37 of the Guidelines on the method of setting fines, (2) was not sufficiently reasoned and that that adaptation did not comply with the principles of proportionality and equal treatment.

With regard to the annulment application, the Court found that the reasons for the contested decision did not provide sufficiently precise information on the calculation method used and the assessment criteria taken into account in order to differentiate, on the basis of each undertaking’s liability, the reduction of the basic amount granted to Pometon from the reductions applied to the other parties to the cartel which agreed to settle. The Commission essentially referred, in general terms, to the existence of differences between the individual participation of Pometon and that of the other participants in the cartel, as well as the need to set the fine at a level that is proportionate to the infringement committed by that undertaking and which also achieves a sufficiently deterrent effect. Therefore, the Court found that the contested decision was vitiated by an infringement of the obligation to state reasons as regards the exceptional reduction granted to Pometon under point 37 of the Guidelines and annulled Article 2 of that decision, which set the amount of the fine imposed on Pometon.

As regards the application for a variation of the amount of the fine, the Court stated that, following the explanations provided by the Commission in its pleadings, it was able to determine the calculation method and the criteria applied by the Commission, both in the contested decision and in the settlement decision, and therefore to assess, in the exercise of its unlimited jurisdiction, whether they were appropriate. In addition, it recalled that the EU Courts may vary the contested decision, even without annulling it, so as to cancel, reduce or increase the fine imposed, the exercise of that jurisdiction entailing the definitive transfer to the EU judicature of the power to impose penalties. It therefore fell to the Court to determine the appropriate amount of the fine, since the Court’s discretion is limited only by the criteria relating to the seriousness and duration of the infringement, set out in Article 23(3) of Regulation No 1/2003, and the ceiling of 10% of the total turnover of the undertaking concerned in the preceding business year, subject to compliance with the principles of proportionality, the individualisation of penalties and equal treatment, and its duty to state reasons.

With regard to the criterion relating to the duration of Pometon’s participation in the single and continuous infringement at issue, the Court, first of all, found that that condition had already been duly taken into account when the Commission set the basic amount of the fine, which was not challenged by Pometon. Next, concerning the application of the legal criterion of the seriousness of the infringement, the Court observed that it had to determine an adaptation of the basic amount of the fine, which was proportionate in the light of the criteria it considered relevant, to the seriousness of the infringement committed by Pometon and which also had a sufficiently deterrent effect. In that regard, the Court considered it appropriate to take into consideration, in the exercise of its unlimited jurisdiction, first, the individual liability of Pometon for participating in the cartel at issue, next, the capacity of that undertaking to undermine competition in the steel abrasives market by its unlawful conduct, and finally, its size, by comparing, for each of those different factors, the individual liability and situation of Pometon with the individual liability and situation of the other parties to the cartel. In the circumstances of the case, those factors led the Court to grant Pometon an exceptional reduction of 75% of the basic amount of the fine adjusted on account of mitigating circumstances as determined in the contested decision, and thus to set the amount of the fine imposed on Pometon at EUR 3 873 375.

1      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).

2      Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006, C 210, p. 2).