Judgment of the General Court (Eighth Chamber)9 December 2014note(Competition — Agreements, decisions and concerted practices — Market for concrete reinforcing bars in bars or coils — Decision finding an infringement of Article 65 CS after the expiry of the ECSC Treaty on the basis of Regulation (EC) No 1/2003 — Fixing of prices and payment terms — Limiting or controlling output or sales — Infringement of essential procedural requirements — Legal basis — Misuse of powers and abuse of procedure — Fines — Ceiling laid down by Article 23(2) of Regulation No 1/2003 — Actions for annulment — Amending decision — Inadmissibility)In Cases T‑472/09 and T‑55/10,SP SpA, established in Brescia (Italy), represented by G. Belotti, lawyer,vEuropean Commission, represented, in Case T‑472/09, initially by R. Sauer, V. Di Bucci and B. Gencarelli, and subsequently by R. Sauer and R. Striani, acting as Agents, assisted by M. Moretto, lawyer, and, in Case T‑55/10, initially by R. Sauer and B. Gencarelli, and subsequently by R. Sauer and R. Striani, assisted by M. Moretto,THE GENERAL COURT (Eighth Chamber),composed of M.E. Martins Ribeiro (Rapporteur), acting as President, A. Popescu and G. Berardis, Judges,Registrar: T. Weiler, Administrator,having regard to the written procedure and further to the hearing on 29 January 2013,gives the following
Judgment
Legal framework
1.ECSC Treaty provisions
1Article 36 CS provided:‘Before imposing a pecuniary sanction or ordering a periodic penalty payment as provided for in this Treaty, the Commission must give the party concerned the opportunity to submit its comments.The Court shall have unlimited jurisdiction in appeals against pecuniary sanctions and periodic penalty payments imposed under this Treaty.In support of its appeal, a party may, under the same conditions as in the first paragraph of Article 33 of this Treaty, contest the legality of the decision or recommendation which that party is alleged not to have observed.’
2Article 47 CS read as follows:‘The Commission may obtain the information it requires to carry out its tasks. It may have any necessary checks made.The Commission must not disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components. Subject to this reservation, it shall publish such data as could be useful to Governments or to any other parties concerned.The Commission may impose fines or periodic penalty payments on undertakings which evade their obligations under decisions taken in pursuance of this Article or which knowingly furnish false information. The maximum amount of such fines shall be 1% of the annual turnover, and the maximum amount of such penalty payments shall be 5% of the average daily turnover for each day’s delay.Any breach of professional secrecy by the Commission which has caused damage to an undertaking may be the subject of an action for compensation before the Court, as provided in Article 40.’
3Article 65 CS provided:1.All agreements between undertakings, decisions by associations of undertakings and concerted practices tending directly or indirectly to prevent, restrict or distort normal competition within the common market shall be prohibited, and in particular those tending:(a) to fix or determine prices;(b) to restrict or control production, markets, technical development or investment;(c) to share markets, products, customers or sources of supply.…4. Any agreement or decision prohibited by paragraph 1 of this Article shall be automatically void and may not be relied upon before any court or tribunal in the Member States.The Commission shall have sole jurisdiction, subject to the right to bring actions before the Court, to rule whether any such agreement or decision is compatible with this Article.5. On any undertaking which has entered into an agreement which is automatically void, or has enforced or attempted to enforce, by arbitration, penalty, boycott or by any other means, an agreement or decision which is automatically void or an agreement for which authorisation has been refused or revoked, or has obtained an authorisation by means of information which it knew to be false or misleading, or has engaged in practices prohibited by paragraph 1 of this Article, the Commission may impose fines or periodic penalty payments not exceeding twice the turnover on the products which were the subject of the agreement, decision or practice prohibited by this Article; if, however, the purpose of the agreement, decision or practice is to restrict production, technical development or investment, this maximum may be raised to 10% of the annual turnover of the undertakings in question in the case of fines, and 20% of the daily turnover in the case of periodic penalty payments.’
4Pursuant to Article 97 CS, the ECSC Treaty expired on 23 July 2002.
2.Provisions of the EC Treaty
5Article 305(1) EC provided:‘The provisions of this Treaty shall not affect the provisions of the Treaty establishing the European Coal and Steel Community, in particular as regards the rights and obligations of Member States, the powers of the institutions of that Community and the rules laid down by that Treaty for the functioning of the common market in coal and steel.’
3.Regulation No 1/2003
6According to Article 4 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), ‘[f]or the purpose of applying Articles 81 [EC] and 82 [EC], the Commission shall have the powers provided for by this Regulation’.
7Article 7 of Regulation No 1/2003, headed ‘Finding and termination of infringement’, provides:‘Where the Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article 81 [EC] or of Article 82 [EC], it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end. … If the Commission has a legitimate interest in doing so, it may also find that an infringement has been committed in the past....’
8Article 23(2)(a) of Regulation No 1/2003 provides:‘The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:(a) they infringe Article 81 [EC] or Article 82 [EC]’.
4.Communication from the Commission concerning certain aspects of the treatment of competition cases resulting from the expiry of the ECSC Treaty
9On 18 June 2002, the Commission adopted the Communication concerning certain aspects of the treatment of competition cases resulting from the expiry of the ECSC Treaty (OJ 2002 C 152, p. 5) (‘the Communication of 18 June 2002’).
10Paragraph 2 of the Communication of 18 June 2002 states that its purposes are:‘…— … to summarise for economic operators and Member States, in so far as they are concerned by the ECSC Treaty and its related secondary legislation, the most important changes with regard to the applicable substantive and procedural law arising from the transition to the EC regime,— … to explain how the Commission intends to deal with specific issues raised by the transition from the ECSC regime to the EC regime in the areas of antitrust, merger control and State aid control.’
11Paragraph 31 of the Communication of 18 June 2002, which appears in the section addressing specific issues raised by the transition from the ECSC regime to the EC regime, provides as follows:‘If the Commission, when applying the Community competition rules to agreements, identifies an infringement in a field covered by the ECSC Treaty, the substantive law applicable will be, irrespective of when such application takes place, the law in force at the time when the facts constituting the infringement occurred. In any event, as regards procedure, the law applicable after the expiry of the ECSC Treaty will be the EC law.’
Subject-matter of the disputes
12The present cases concern, first, an application for a declaration of the non-existence of, or for the annulment of Commission Decision C(2009) 7492 final of 30 September 2009 relating to a proceeding under Article 65 CS (Case COMP/37.956 — Reinforcing bars, re-adoption) (‘the first decision’) and, in the alternative, for the annulment of Article 2 of that decision and, in the further alternative, for a reduction in the amount of the fine imposed on the applicant SP SpA (Case T‑472/09) and, secondly, an application for the annulment of Commission Decision C(2009) 9912 final of 8 December 2009 amending the first decision (‘the amending decision’) (Case T‑55/10).
13In the first decision, the Commission found that the following companies had infringed Article 65 CS:— Alfa Acciai SpA (‘Alfa’);— Feralpi Holding SpA (‘Feralpi’);— Ferriere Nord SpA:— IRO Industrie Riunite Odolesi SpA (‘IRO’);— Leali SpA and Acciaierie e Ferriere Leali Luigi SpA in liquidation (‘AFLL’) (together referred to as ‘Leali-AFLL’);— Lucchini SpA and the applicant (together referred to as ‘Lucchini-SP’);— Riva Fire SpA (‘Riva’);— Valsabbia Investimenti SpA and Ferriera Valsabbia SpA (together referred to as ‘Valsabbia’).
The applicant
14The applicant is a company in liquidation, recorded in the commercial register of Brescia (Italy) as non-operating. It is held as to 83.333% by legal and natural persons connected with the Lucchini family, the remaining 16.667% being held by Lucchini.
15Siderpotenza SpA (‘the first Siderpotenza’) was, between 1989 and 1991, an undertaking jointly controlled by Lucchini Siderurgica SpA and the former Acciaierie e Ferriere Leali Luigi. On 5 March 1991, the first Siderpotenza was taken over Lucchini Siderurgica. Lucchini Siderurgica was taken over by Lucchini on 10 October 1998, with effect from 1 December 1998.
16On 31 October 1997, Lucchini Siderurgica’s reinforcing bar business was transferred to Siderpotenza, a company established in July 1997 (‘the new Siderpotenza’). On 30 May 2002, the new Siderpotenza transferred all its reinforcing bar plant to Ferriere Nord.
17On 12 September 2002, the new Siderpotenza changed its company name to SP. SP was put into liquidation on 28 May 2009.
Background to the dispute
18From October to December 2000, the Commission carried out a number of checks pursuant to Article 47 CS at the premises of certain Italian undertakings engaged in the manufacture of reinforcing bars and at the premises of an association of certain Italian steel undertakings. It also requested them to supply information pursuant to Article 47 CS.
19On 26 March 2002, the Commission opened the administrative procedure and formulated objections under Article 36 CS (‘the statement of objections’). The applicant submitted written observations on the statement of objections. A hearing took place on 13 June 2002.
20On 12 August 2002, the Commission formulated additional objections (‘the supplementary statement of objections’) addressed to the same addressees as the statement of objections. In the supplementary statement of objections, based on Article 19(1) of Council Regulation No 17 [of 6 February 1962]: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), the Commission explained its position concerning the continuation of the proceedings following the expiry of the ECSC Treaty. The undertakings concerned were allowed a period of time in which to submit their observations and a second hearing, in the presence of representatives of the Member States, took place on 30 September 2002.
21At the end of the procedure, the Commission adopted Decision C(2002) 5087 final of 17 December 2002 relating to a proceeding under Article 65 CS (Case COMP/37.956 — Reinforcing bars) (‘the 2002 decision’), in which it found that, contrary to Article 65(1) CS, the addressees thereof had implemented a single, complex and continuous restrictive practice on the Italian market for concrete reinforcing bars in bars and coils having as its object or effect the fixing of prices, with a view to which the restriction or control of production and/or sales was also concerted. In that decision, the Commission imposed a fine of EUR 16.14 million jointly and severally on Lucchini and the applicant.
22On 30 January 2003, the applicant brought an action before the General Court challenging the 2002 decision. By judgment of 25 October 2007 in Joined Cases T-27/03, T-46/03, T-58/03, T-79/03, T-80/03, T-97/03 and T-98/03 SP and Others v Commission [2007] ECR II-4331, the General Court annulled the 2002 decision. The Court held that, having regard, in particular, to the fact that the 2002 decision contained no reference to Article 3 or Article 15(2) of Regulation No 17, the decision was based on Article 65(4) and (5) CS alone (SP and Others v Commission, paragraph 101). Since those provisions had expired on 23 July 2002, the Commission could no longer derive competence from those provisions, which were no longer in force when it adopted the 2002 decision, in order to establish an infringement of Article 65(1) CS and to impose fines on the undertakings which had allegedly participated in the infringement (SP and Others v Commission, paragraph 120).
23By letter of 30 June 2008, the Commission informed the applicant and the other undertakings concerned of its intention to re-adopt the decision, changing the legal basis from that which it had chosen for the 2002 decision. It also stated that, having regard to the limited scope of the judgment in SP and Others v Commission, cited in paragraph 22 above, the re-adopted decision would be based on the evidence presented in the statement of objections and the supplementary statement of objections. The undertakings concerned were allowed a period of time in which to submit their observations.
24By facsimile dated 11 September 2008, the Commission asked the applicant for information regarding the changes in the ownership structure that had occurred since August 2002 and worldwide turnover achieved in 2007 and sent the applicant a copy of the letter of 30 June 2008, mentioned above, which had been sent to an address that was no longer in use. The applicant responded to that request for information by letter of 17 September 2008.
The first decision
25On 30 September 2009, the Commission adopted the first decision, which was notified to the applicant by letter of 1 October 2009.
26In the first decision, the Commission stated that the restrictions on competition referred to in the decision arose out of an agreement between Italian producers of reinforcing bars and between those producers and their association, which had taken place between 1989 and 2000 and had had the object or effect of fixing or determining prices and restricting or controlling production or sales by means of the exchange of a large volume of information relating to the market for reinforcing bars in Italy.
27In so far as concerns, first of all, the legal assessment of the conduct in question in this case, the Commission emphasised, in recitals 353 to 369 of the first decision, that Regulation No 1/2003 was to be interpreted as empowering it to establish and sanction, after 23 July 2002, agreements in the sectors which fell within the scope of the ECSC Treaty ratione materiae and ratione temporis. In recital 370 of the first decision, it stated that the decision had been adopted in accordance with the procedural rules of the EC Treaty and Regulation No 1/2003. In recitals 371 to 376 of the first decision, the Commission also pointed out that the principles governing the temporal succession of rules could lead to the application of substantive provisions which are no longer in force at the time when an EU institution adopts a measure, subject to application of the principle of lex mitior, in accordance with which a person may not be punished for an act which does not constitute an offence under the law which came into force subsequently. It concluded that, in this case, the EC Treaty was not in fact more favourable than the ECSC Treaty and that, consequently, the principle of lex mitior could not be relied on in order to contest the application of the ECSC Treaty to the conduct in question in this case.
28Next, as regards the application of Article 65(1) CS, the Commission began by pointing out that the purpose of the cartel had been to fix prices on the basis of which the restriction or control of production or sales had also been agreed. According to the Commission, in so far as concerned price fixing, the cartel had essentially involved agreements or concerted practices relating to the base price from 15 April 1992 to 4 July 2000 (and, until 1995, payment terms) and agreements or concerted practices relating to ‘extras’ from 6 December 1989 to 1 June 2000.
29Secondly, in so far as concerns the effect of the restrictive practices in question on the market, the Commission stated that, since this was an agreement whose purpose was to prevent, limit or alter the normal play of competition, it was not necessary to establish that there had been any effects on the market. It nevertheless submitted that the cartel had had specific effects on the market. In particular, the Commission concluded that the cartel had influenced the sale price charged by reinforcing bar manufacturers in Italy, even if the measures taken within the cartel had not always immediately produced the effects hoped for by the participating undertakings. Moreover, according to the Commission, some aspects could have had delayed effects. Furthermore, the undertakings concerned represented approximately 21% of the Italian market for reinforcing bars in 1989, 60% in 1995 and approximately 83% in 2000, which suggested that the concerted price increases were having a growing effect on the market. Lastly, the Commission emphasised that the fact that the initiatives taken in the matter were, from 1989 onwards, communicated to all manufacturers of reinforcing bars increased the significance of those effects even in the initial years of the cartel.
30Thirdly, the Commission identified the addressees of the first decision. In so far as the applicant is concerned, the Commission stated, in recitals 538 to 544 of the first decision, that it had decided to impute liability for the infringement to Lucchini and the applicant, since they formed an undertaking to which not only their own actions could be imputed but also those of Lucchini Siderurgica and the first Siderpotenza.
31As regards its position that Lucchini and the applicant formed a single economic unit, the Commission relied on the fact that, throughout the period of the infringement, both Lucchini and the applicant were directly or indirectly controlled by the Lucchini family. Moreover, control over the applicant was exercised, in the actual management of its manufacturing and commercial policy in the reinforcing bar business, by Lucchini, as was shown, according to the Commission, by specific and circumstantiated documentary evidence as well as by corroborating elements relating to the organisational structure of Lucchini and the applicant, in particular, the fact that certain persons occupied positions in commercial management within those companies, sometimes simultaneously.
32As regards the imputation to Lucchini and the applicant of any anti-competitive conduct on the part of the first Siderpotenza and Lucchini Siderurgica (which no longer have any legal existence), first, the Commission pointed out that Lucchini Siderurgica had legally succeeded the first Siderpotenza following the merger by incorporation of 5 March 1991 and that, similarly, Lucchini had succeeded Lucchini Siderurgica following the merger by incorporation of 1 December 1998. Secondly, all the physical and human elements of the first Siderpotenza had subsequently been managed by Lucchini Siderurgica from the time of the incorporation of the first Siderpotenza into Lucchini Siderurgica, on 5 March 1991. Thirdly, the physical and human elements connected with the plant at Potenza (Italy) and organised by Lucchini Siderurgica had been transferred, within the group, to the applicant. Fourthly, Lucchini Siderurgica and then Lucchini had exercised decisive influence over the applicant’s activities until 1 June 2002, on which date the branch of the company manufacturing reinforcing bars had been transferred to Ferriere Nord.
33The Commission therefore concluded that (a) there was legal continuity between the first Siderpotenza and Lucchini Siderurgica, (b) there was economic continuity between those two companies and the new Siderpotenza (now the applicant) with regard to the plant at Potenza (Italy), (c) Lucchini Siderurgica and Lucchini were responsible for the activities of the new Siderpotenza as a result of the decisive influence which they had exercised, and (d) there was legal continuity between Lucchini Siderurgica and Lucchini. The Commission concluded from the foregoing that all those entities constituted a single undertaking which could be identified as the undertaking formed by Lucchini and the applicant.
34Fourthly, the Commission stated that Article 65(2) CS and Article 81(3) EC were not applicable to the case. It also emphasised that the rules on prescription laid down in Article 25(1) of Regulation No 1/2003 did not preclude it from adopting the first decision.
35Fifth, in so far as concerns the calculation of the fines imposed in this case, the Commission stated that, under Article 23(2) of Regulation No 1/2003, it could impose fines on undertakings which had infringed the competition rules. Since the upper limit on fines laid down in Article 23(2) of Regulation No 1/2003 differed from that in Article 65(5) CS, the Commission stated that it had applied the lower ceiling, in accordance with the lex mitior principle. It also stated that, as it had informed the undertakings concerned in its letter of 30 June 2008, it had decided to apply in this case the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3). It added that it would, however, take account of the fact that, when it adopted the 2002 decision, it had already decided on the amount of the fines which it meant to impose on the undertakings concerned.
36First, the Commission stated that an agreement aimed at price fixing, implemented in various ways including the restriction or control of production or sales, constituted a very serious infringement of EU competition law. It rejected the arguments put forward by the undertakings involved to the effect that the gravity of the infringement was attenuated by the fact that its actual effect on the market had been limited and by the economic context in which they had found themselves. According to the Commission, without prejudice to the very serious nature of the infringement, it had, in determining the basic amount of the fine, taken account of the specific characteristics of the case, which concerned a national market that, at the relevant time, was subject to the particular rules of the ECSC Treaty and of which the firms to which the first decision was addressed accounted for a limited share during the initial period of the infringement.
37Second, the Commission considered the specific weight of each undertaking and classified them according to their relative importance on the relevant market. Because the relative market shares of the addressees of the first decision in the last full year of the infringement (1999) were not, in the Commission’s view, representative of their effective presence on the relevant market during the period in question, the Commission identified three different groups of undertakings on the basis of their average market shares for the period 1990 to 1999, first Feralpi and Valsabbia, for which it set a starting amount of EUR 5 million, next, Lucchini-SP, Alfa, Riva and Leali-AFLL, for which it set a starting amount of EUR 3.5 million, and lastly IRO and Ferriere Nord, for which it set a starting amount of EUR 1.75 million.
38In order to give the fine a sufficient deterrent effect, the Commission increased the starting amount of Lucchini-SP’s fine by 200% and that of Riva by 375%.
39Third, the Commission concluded that the cartel had lasted from 6 December 1989 to 4 July 2000. In so far as concerned the applicant’s involvement in the infringement, the Commission stated that it had been a party to the agreement from 6 December 1989 to 27 June 2000. It nevertheless pointed out that, from 9 June 1998 to 30 November 1998, Lucchini-SP had not participated in the part of the agreement relating to the restriction or control of production or sales.
40The infringement having lasted for more than 10 years and 6 months in the case of all the undertakings except Ferriere Nord, the starting amounts of the fines were increased by 105% for all the undertakings except Ferriere Nord, for which the starting amount of the fine was increased by 70%. The basic amounts of the fines were accordingly set as follows:— Feralpi: EUR 10.25 million;— Valsabbia: EUR 10.25 million;— Lucchini-SP: EUR 14.35 million;— Alfa: EUR 7.175 million;— Riva: EUR 26.9 million;— Leali-AFLL: EUR 7.175 million;— IRO: EUR 3.58 million;— Ferriere Nord: EUR 2.97 million.
41Fourth, as regards aggravating circumstances, the Commission pointed out that Ferriere Nord had already been the addressee of a Commission decision, adopted on 2 August 1989, concerning its participation in a price-fixing and sales-restricting agreement in the welded steel mesh industry, and increased the basic amount of its fine by 50%. The Commission found there to be no mitigating circumstances.
42Fifth, in so far as concerns the calculation of the upper limit of the fines in accordance with Article 23(2) of Regulation No 1/2003, the Commission stated that the amounts of the fines imposed on the undertakings concerned did not exceed the ceiling of 10% of turnover in the products falling within the scope of the ECSC Treaty within the European Union in 2007. As regards the applicant more specifically, the Commission emphasised that the fact that it was currently inactive did not preclude it from imposing a fine on it since it was jointly and severally liable with Lucchini, with which it formed a single undertaking.
43Sixth, as regards application of the Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the 1996 Leniency Notice’), the Commission stated that Ferriere Nord had provided it with useful information which had allowed it to gain a better understanding of the functioning of the cartel before the statement of objections was sent, and accordingly granted it a reduction of 20% of the amount of its fine. The Commission considered that the other undertakings concerned had not satisfied the criteria laid down in the notice.
44The operative part of the first decision reads as follows:
‘Article 1The following undertakings have infringed Article 65(1) [CS] by taking part, in the periods in question, in a continuing agreement and/or concerted practices in respect of concrete reinforcing bar in bars and coils having as its object and/or effect the fixing of prices and the restriction and/or control of production and sales in the common market:— [Leali-AFLL] from 6 December 1989 to 27 June 2000;— [Alfa] from 6 December 1989 to 4 July 2000;— [Ferriera Valsabbia and Valsabbia Investimenti] from 6 December 1989 to 27 June 2000;— [Feralpi] from 6 December 1989 to 27 June 2000;— [IRO] from 6 December 1989 to 27 June 2000;— [Lucchini-SP] from 6 December 1989 to 27 June 2000;— [Riva] from 6 December 1989 to 27 June 2000;— [Ferriere Nord] from 1 April 1993 to 4 July 2000.Article 2The following fines are imposed in respect of the infringements referred to in Article 1:— [Alfa]: EUR 7.175 million;— [Feralpi]: EUR 10.25 million;— [Ferriere Nord]: EUR 3.57 million;— [IRO]: EUR 3.58 million;— [Leali and AFLL], jointly and severally: EUR 6.093 million;— [Leali]: EUR 1.082 million;— [Lucchini and SP], jointly and severally: EUR 14.35 million;— [Riva]: EUR 26.9 million;— [Valsabbia Investimenti and Ferriera Valsabbia], jointly and severally: EUR 10.25 million.…’
Developments after the notification of the first decision
45By letters sent between 20 and 23 November 2009, 8 of the 11 companies to which the first decision was addressed, namely Riva, Feralpi, Ferriere Nord, Lucchini, Alfa, Ferriera Valsabbia, Valsabbia Investimenti and IRO, informed the Commission that the annex to the first decision, as notified to its addressees, did not contain the tables illustrating the price variations.
46On 24 November 2009, the Commission informed all the addressees of the first decision that it would make sure that a decision containing the said tables was notified to them. It also stated that the period of time allowed for paying the fine and possibly instituting legal proceedings would begin to run from the date of notification of the ‘full decision’.
The amending decision
47On 8 December 2009, the Commission adopted the amending decision, which included in its annex the missing tables and corrected the numbered references to those tables in eight footnotes. The amending decision was notified to the applicant on 9 December 2009.
48The operative part of the amending decision contained amendments to footnotes 102, 127, 198, 264, 312, 362, 405 and 448 to the first decision. The tables set out in the annex to the amending decision were added as annexes to the first decision.
Procedure and forms of order sought by the parties
49By application lodged at the Registry of the General Court on 30 November 2009, the applicant brought the action in Case T‑472/09.
50In Case T‑472/09, the applicant claims that the Court should:— as a preliminary point, declare non-existent and/or null and void or, in any event, annul the first decision on the ground of its unlawfulness and formal deficiency, inasmuch as it is incomplete;— on the substance, declare non-existent or null and void or, in any event, annul the first decision in so far as concerns the fine on the grounds of unlawfulness, lack of competence, and misuse of powers;— in the alternative, on the substance, annul the first decision on the grounds of a lack of reasoning and distortion of the facts, error of law, the unfounded and unproven nature of the objections, and infringement of the principle of the impartiality of administrative action and of the rights of the defence;— in the further alternative, on the substance, reduce the fine imposed on it, first, by cancelling the increase of 200% for deterrence and the increase of 105% for duration and, secondly, by reducing, in due proportion, the basic amount on the grounds of a time-bar, the limited gravity of the infringement, the marginal nature of its participation in the cartel and the objections expressly not raised against it;— by way of measures of organisation of procedure and measures of inquiry, order the Commission, pursuant to Articles 64 and 65 of the Rules of Procedure of the General Court, to produce the documents relating to the cooperation provided by Ferriere Nord and concerning the applicant, and to hear the legal representative of that company on the facts set out in paragraph 176 of the application;— order the Commission to pay all the costs.
51The Commission contends, in Case T‑472/09, that the Court should:— dismiss the action in its entirety;— order the applicant to pay the costs.
52By letter of 8 January 2010, the Commission requested the Court to adopt a measure of organisation of the procedure inviting the applicant to consider updating and amending its claim in light of the amending decision, which had been notified to the applicant after the action had been brought in Case T‑472/09. The applicant opposed that request. The General Court did not grant the Commission’s request.
53By application lodged at the Registry of the General Court on 10 February 2010, the applicant brought the action in Case T‑55/10.
54In Case T‑55/10, the applicant claims that the Court should:— on the substance, annul the amending decision, first, on the ground of the lack of a proper legal basis, secondly, because the Commission has no power to rectify an earlier decision the text and content of which is incomplete, that is to say, where the decision is seriously and manifestly flawed, and, thirdly, on the ground of infringement of the principle of sound administration;— in the event that the Commission disputes the summary of the facts in paragraph 1 of the application, require the Commission to produce the minutes of the meetings of 30 September and 8 December 2009, together with the annexes thereto;— order the Commission to pay all the costs.
55The Commission contends, in Case T‑55/10, that the Tribunal should:— dismiss the action in its entirety;— order the applicant to pay the costs.
56On hearing the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure in these cases and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, requested the applicant in Case T‑472/09 to lodge a document. The applicant complied within the prescribed period.
57By order of 14 December 2012, after receiving the observations of the parties, the President of the Eighth Chamber decided to join cases T‑472/09 and T‑55/10 for the purposes of the hearing, pursuant to Article 50 of the Rules of Procedure.
58The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 29 January 2013.
Law
59The parties having indicated at the hearing that they had no objection to the joinder of the present cases for the purposes of the judgment, the Court has decided to join these cases for the purposes of the judgment, in accordance with Article 50 of the Rules of Procedure.
1.Case T‑472/09
60As a preliminary point, it should be observed that the action in Case T‑472/09 comprises three heads of claim, that is to say, an application for a declaration that the first decision is non-existent or for the annulment of the first decision, in the alternative, an application for the annulment of the first decision in so far as concerns the fine imposed on the applicant and, in the further alternative, an application for a reduction in the amount of the fine imposed on the applicant.
61In support of its action in Case T‑472/09 the applicant puts forward 10 pleas in law. The first alleges infringement of essential procedural requirements. The second alleges a lack of competence on the Commission’s part and an error of law concerning the legal basis taken with regard to the infringement and the fine. The third alleges an inadequate statement of reasons and infringement of Article 23(2) of Regulation No 1/2003 and breach of the principle of equal treatment. The fourth alleges misuse of powers and abuse of procedure. The fifth alleges infringement of Article 65 CS, an inadequate statement of reasons and distortion of the facts. The sixth alleges breach of the principle of sound administration and an inadequate statement of reasons. The seventh plea alleges an error in the legal characterisation of the facts. The eighth alleges infringement of the applicant’s rights of defence. The ninth alleges errors of law and misuse of powers in the application of the increases to the fine and breach of the principle of proportionality. Lastly, the 10th plea alleges that the limitation period in respect of the infringement has expired.
62At the hearing, in response to a request from the Court to submit observations on the exact scope of its arguments, the applicant clarified that the third and ninth pleas in its application were put forward solely in support of the claims put forward in the alternative, by which it seeks the annulment of the first decision in so far as concerns the fine and, in the further alternative, by which it seeks a reduction in the amount of the fine.
The claim for a declaration that the first decision is non-existent or for the annulment of the first decision
The first plea in law, alleging infringement of essential procedural requirements
63By its first plea, the applicant alleges several infringements of essential procedural requirements concerning the incomplete nature of the first decision resulting from the absence of the tables which ought to have been set out in the annex to that decision.
64At the outset, the Commission argues, in its defence, that the applicant failed to set out in its application any arguments in support of its claim for a declaration that the first decision is non-existent. In its rejoinder, it adds that the ‘plea’ concerning the non-existence of the first decision, raised in the reply, was not put forward in the application and must be declared inadmissible in accordance with Article 48(2) of the Rules of Procedure.
65It must be observed that, under Article 44(1) of the Rules of Procedure of the General Court, the application initiating proceedings must contain a summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must accordingly specify the nature of the grounds on which the action is based, which means that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. Similar requirements are called for where a submission is made in support of a plea in law (Case T-352/94 Mo och Domsjö v Commission [1998] ECR II-1989, paragraph 333). Moreover, the General Court is obliged to reject as inadmissible a head of claim in an application brought before it if the essential matters of law and of fact on which the head of claim is based are not indicated coherently and intelligibly in the application itself (Case C-214/05 P Rossi v OHIM [2006] ECR I-7057, paragraph 37, and Case C-485/08 P Gualtieri v Commission [2010] ECR I-3009, paragraph 104).
66Furthermore, under the combined provisions of Article 44(1)(c) and Article 48(2) of the Rules of Procedure, the application initiating proceedings must state the subject-matter of the proceedings and contain a summary of the pleas in law relied on, and no new plea in law may be introduced in the course of the proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. Nevertheless, a plea which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the originating application, and which is closely connected therewith, will be declared admissible (see Joined Cases T-109/05 and T-444/05 NLG v Commission [2011] ECR II-2479, paragraph 149 and the case-law cited).
67It must be observed that, in the claims which it sets out in its application the applicant asks the Court to declare the first decision non-existent and, in any event, to annul that decision on the ground of its unlawfulness and formal deficiency, inasmuch as it is incomplete (see paragraph 50 above). However, in the body of that pleading the applicant has not expressly raised any pleas in support of its claim for a declaration as to the non-existence of the first decision.
68In paragraphs 15 to 18 of its application, the applicant states, in the context of a plea entitled ‘Incomplete nature of the [first decision]. Breach of essential procedural requirements’, that the first decision is missing its annexes, although they are referred to by the Commission in various recitals of the decision in order to support the objections formulated in the decision. It also states, first of all, that the first decision does not enable it to understand the precise terms of the objections in respect of which it has been fined and provides insufficient support for the Commission’s accusations. Next, it asserts that it may reasonably be supposed that the College of Commissioners was asked to adopt a decision on the basis of an incomplete draft. Lastly, it submits that those violations, ‘of unprecedented seriousness and outweighing any other legal considerations’, justify the annulment of the first decision on the ground of breach of essential procedural requirements. In its reply, it emphasises the ‘merits [of its] pleas ... concerning the non-existence or, in the alternative, the unlawfulness of the [first decision]’.
69At the hearing, the applicant stated, in substance, that, since the first decision had been notified to it without its annexes, it had been unaware, when bringing its action in Case T‑472/09, of the fact that the Commission had actually adopted a decision without annexes and that it realised that only when the amending decision was notified.
70Without it being necessary to rule on the admissibility of the argument alleging the non-existence of the first decision, it must be held that that argument is unfounded.
71In addition to the argument referred to in paragraph 67 above, the applicant maintains that the Commission cannot attempt to remedy the deficiencies of the first decision by referring, on the one hand, to the amending decision and, on the other, to the statement of objections, which had been sent to it eight years earlier, since the lawfulness of a decision cannot be assessed by reference to another measure, whether it be a prior or a subsequent measure.
72In so far as concerns the applicant’s claim that the Court should declare the first decision non-existent, it must be recalled that, according to the case-law of the Court of Justice, acts of the institutions of the European Union are in principle presumed to be lawful and accordingly produce legal effects, even if they are tainted by irregularities, until such time as they are annulled or withdrawn (Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555, paragraph 48; Case C-227/92 P Hoechst v Commission [1999] ECR I-4443, paragraph 69; and Case C-475/01 Commission v Greece [2004] ECR I-8923, paragraph 18).
73However, by way of exception to that principle, acts tainted by an irregularity whose gravity is so obvious that it cannot be tolerated by the legal order of the European Union must be treated as having no legal effect, even provisional, that is to say, they must be regarded as legally non-existent. The purpose of this exception is to maintain a balance between two fundamental, but sometimes conflicting requirements with which a legal order must comply, namely, stability of legal relations and respect for legality (Commission v BASF and Others, cited in paragraph 72 above, paragraph 49, and Hoechst v Commission, cited in paragraph 72 above, paragraph 70).
74The gravity of the consequences attaching to a finding that an act of an EU institution is non-existent means that, for reasons of legal certainty, such a finding is to be reserved for quite extreme situations (Commission v BASF and Others, cited in paragraph 72 above, paragraph 50, and Hoechst v Commission, cited in paragraph 72 above, paragraph 76).
75It must immediately be observed in this case that the irregularities to which the applicant refers do not appear to be of such obvious gravity that the first decision must be regarded as legally non-existent.
76First of all, the applicant asserts that the first decision does not enable it to understand the precise terms of the objections in respect of which it has been fined and provides insufficient support for the Commission’s accusations. It expressly refers in this connection to recitals 496, 515 and 516 of and footnote 102 to the first decision.
77When questioned on this point at the hearing, the applicant made it clear that, by this complaint, it sought only to take issue with the Commission’s observance of the duty to state reasons.
78It must be recalled that, according to settled case-law, the statement of reasons must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent European Union Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 15 CS must be assessed with regard not only to its wording but also to its context and all the legal rules governing the matter in question (see, to that effect, Case T-57/91 NALOO v Commission [1996] ECR II-1019, paragraph 298, and Joined Cases T-45/98 and T-47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II-3757, paragraph 129; see also, by analogy, Case C-367/95 P Commission v Sytraval and Brink’s France [1996] ECR I-1719, paragraph 63, and Case C-280/08 P Deutsche Telekom v Commission [2010] ECR I-9555, paragraph 131 and the case-law cited).
79Moreover, in the context of individual decisions, it is settled case-law that the purpose of the obligation to state reasons for an individual decision is both to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision may be vitiated by a defect which may permit its legality to be contested (see Case C-521/09 P Elf Aquitaine v Commission [2011] ECR I-8947, paragraph 148 and the case-law cited).
80The statement of reasons must, therefore, in principle be notified to the person concerned at the same time as the decision adversely affecting him (Elf Aquitaine v Commission, cited in paragraph 79 above, paragraph 149).
81It must be acknowledged that the first decision did not include its annexes, which contained various tables to which reference was made in recitals 451 (table 13), 513 (tables 1 and 3), 515 (tables 1 to 3), 516 (tables 9, 11 to 14 and 16) and 518 (tables 11, 12 and 14) of the first decision as well as in footnotes 102 (tables 15 to 17), 127 (tables 18 to 21), 198 (tables 22 and 23), 264 (tables 24 and 25), 312 (table 26), 362 (table 27), 405 (table 28), 448 (tables 29 and 30) and 563 (all the tables annexed to the decision) to the first decision. The Commission states in this connection that the tables had been created in order to provide a fast, easy reference to the price variations mentioned in the first decision and that they merely reproduced in schematic form the information and data presented in the case file.
82It is therefore necessary to verify whether, irrespective of the absence of the tables mentioned in paragraph 81 above, the relevant recitals of the first decision, in which the tables were referred to as support, disclosed in a clear and unequivocal fashion the reasoning followed by the Commission and enabled the applicant to ascertain the reasons for the measure.
83It must be observed at the outset that, as the Commission points out, all of the missing tables had been annexed to the statement of objections and the applicant was aware of their content, having annexed the tables to its own application and having referred to them in paragraphs 83, 98, 100, 101 and 125 of its application.
84It must also be emphasised that, in the amending decision, the Commission did not change all the references to the missing tables given in the first decision, only the references given in footnotes 102, 127, 198, 264, 312, 362, 405 and 448 to the first decision.
85First, as regards tables 15 to 17 (mentioned in footnote 102 to the first decision), it must be observed that, according to that footnote, these contain ‘data on the changes in the size extras occurring in the reinforcing bar industry in Italy from December 1989 to June 2000’. The Commission mentioned these tables in support of the first sentence of recital 126 of the first decision, which reads as follows:‘During the first meeting of which the Commission is aware (that of 6 December 1989 at [Associazione Industriale Bresciana]), those taking part unanimously decided to increase the size extras for reinforcing bar for both bars and coils intended for the Italian market (+ ITL 10/kg for extras from 14 to 30 mm, + ITL 15/kg for those from 8 to 12 mm, + ITL 20/kg for those from 6 mm; all increased by ITL 5/kg for material in coils) with effect from 11 December 1989.’
86It must be observed that the Commission expressly stated in that recital the increases in the size extras for reinforcing bar that had been decided on by those attending the meeting of 6 December 1989, along with the date on which those increases were to take effect. Moreover, in so far as concerns subsequent increases, which, according to footnote 102 to the first decision, were also set out in these tables (inasmuch as the tables cover the period 1989 to 2000), it should be pointed out they are not dealt with in section 4.1 of the first decision (in which recital 126 falls), which addresses the conduct of the firms between 1989 and 1992. In any event, these increases are also mentioned in recitals 126 to 128 and 133 (for the years 1989-1992), 93 and 94 (for the years 1993-1994), 149 to 151, 162 and 163 (for 1995), 184 and 185 (for 1996), 199, 200 and 213 (for 1997), 269 (for 1999) and 296 to 304 (for 2000) as well as in recitals 439 and 515 of the first decision.
87Second, in so far as concerns tables 18 to 21, mentioned in footnote 127 to the first decision, it must be observed that, according to that footnote, these contain ‘data relating to the basic list prices or prices communicated to agents relating to the period end 1989/end 1992 ... in the Commission’s possession’. The Commission mentioned these tables in support of recital 131 of the first decision, which reads as follows:‘As far as the base prices for reinforcing bar during the period of the aforesaid agreement are concerned, IRO and (the former) Ferriera Valsabbia applied a price of ITL 210/kg with effect from 16 April 1992 and a price of ITL 225/kg from 1/6 May 1992. IRO, (the former) Ferriera Valsabbia, Acciaieria di Darfo and Acciaierie e Ferriere Leali Luigi applied the price of ITL 235/kg from 1/8 June 1992.’
88It must, therefore, be observed that, referring also to the five pages in the administrative file which it mentions in footnote 126 to the first decision, the Commission expressly stated in recital 131 the base prices which had been set by the undertakings mentioned therein, along with the dates on which those prices took effect. It should also be pointed out that, in recital 419 of the first decision, the Commission stated that the first activity relating to the fixing of the base price had taken place by 16 April 1992 at the latest. Any data set out in tables 18 to 21 of the first decision, relating, according to footnote 127 to the decision, to the base price for the period ‘end 1989’ to 16 April 1992 is therefore irrelevant to the proper understanding of the points made by the Commission in recital 131 of the first decision.
89Third, as regards tables 22 and 23, referred to in footnote 198 to the first decision, it must be observed that, according to that footnote, these contain ‘data relating to the base prices in the price list or communicated to agents relating to 1993 and 1994 ... in the Commission’s possession’. The Commission mentioned these tables in support of recital 145 of the first decision, which reads as follows:‘As specified in the fax from Federacciai on 25 November 1994, a further meeting was held in Brescia on 1 December 1994 where the decisions specified in another fax from Federacciai were taken, received by the companies on 5 December 1994. These decisions related to:— the prices for reinforcing bar (ITL 320/kg base ex Brescia, with immediate effect);— payments (from 1 January 1995 the maximum period would be 60/90 days from the end of the month, from 1 March 1995 the period would be reduced to 60 days) and discounts;— output (with an obligation for each company to notify Federacciai of the tonnes of reinforcing bar produced in September, October and November 1994 and by 7 December 1994).Alfa Acciai Srl adopted the new base price on 7 December 1994. On 21 December 1994 it was also adopted by Acciaieria di Darfo SpA, and Alfa Acciai Srl confirmed the same price. The base price from [Lucchini-SP] for January 1995 was also ITL 320/kg.’
90It must be emphasised in this connection that the Commission mentioned the tables referred to in footnote 198 to the first decision in support of its assertion that ‘Alfa Acciai Srl [had] adopted the new base price on 7 December 1994’, ‘[o]n 21 December 1994 it [had] also [been] adopted by Acciaieria di Darfo SpA, and Alfa Acciai Srl [had] confirmed the same price’. That ‘new base price’ and that ‘same price’ were the price of ITL 320/kg mentioned in the first indent of recital 145. Any data set out in tables 22 and 23 of the first decision, relating to the base price for the period 1993 to 7 December 1994 is therefore irrelevant to the proper understanding of the points made by the Commission in recital 145 of the first decision.
91Fourth, in so far as concerns tables 24 and 25, mentioned in footnote 264 to the first decision, it must be observed that, according to that footnote, these contain ‘data relating to the list base prices or prices communicated to agents (and, in the case of Lucchini Siderurgica SpA, those relating to the monthly situation) for 1995 in the possession of the Commission’. The Commission mentioned these tables in support of recital 174 of the first decision, which reads as follows:‘Subsequently, in a document from early October 1995, in the possession of Federacciai (handwritten by the secretary of the acting Director-General) it is stated that:— customers were arguing over payments (hence the need for a communication confirming firmness over payments),— since the previous week the price of reinforcing bar had come down by a further ITL 5/10/kg, lying between ITL 260/270/kg in the Brescia area with quotations below ITL 250/kg outside that area,— the rather confused market situation made it difficult to give an accurate indication of price, and— companies would have to be asked for data for orders in week 39 (from 25 to 29 September 1995) and week 40 (from 2 to 6 October 1995).’
92It must, therefore, be observed that, in recital 174 of the first decision, the Commission merely gave an account of the content of a document handwritten by the secretary of the acting Director-General in October 1995. In that context, the Commission referred to tables 24 and 25 in support of the statement made in the handwritten document that ‘the rather confused market situation made it difficult to give an accurate indication of price’. Tables 24 and 25 therefore appear to be irrelevant to the proper understanding of the points made by the Commission in recital 174 of the first decision.
93Fifth, in so far as concerns table 26, mentioned in footnote 312 to the first decision, it must be observed that, according to that footnote, it contains ‘data relating to the list base prices or those communicated to agents (and in the case of Lucchini Siderurgica SpA, also those relating to its monthly statement) for 1996 ... in the Commission’s possession’. The Commission mentioned this table in support of its assertion in recital 200 of the first decision that ‘[d]uring the period from 22 October 1996 to 17 July 1997 there [had been] at least twelve meetings of the companies’ commercial managers ... held [inter alia] on ... Tuesday 22 October 1996 at which the price of ITL 230/kg ex Brescia [had been] reconfirmed for the month of November 1996 and the quotation of ITL 210/kg [had been] maintained solely for deliveries in October’.
94It must, therefore, be held that, notwithstanding the absence of table 26 from the first decision, the Commission expressly mentioned, in recital 200 of the decision, the base prices for the period in question and the date on which they took effect.
95Sixth, in so far as concerns table 27, mentioned in footnote 362 to the first decision, according to that footnote, it contains ‘data relating to the list base prices or prices communicated to agents (and, in the case of Lucchini Siderurgica SpA, those relating to the monthly situation too) for 1997 ... in the Commission’s possession’. The Commission mentioned this table in support of recital 216 of the first decision, which reads as follows:‘However, [Lucchini-SP ...], Acciaieria di Darfo SpA, Alfa Acciai Srl, Feralpi Siderurgica Srl, IRO, Riva Prodotti Siderurgici SpA and (the former) Ferriera Valsabbia SpA are the seven companies which received a communication (dated 24 November 1997) from Pierluigi Leali relating to the “PRICE/DELIVERY AGREEMENT” ... “The price of ITL 270/kg was only requested, without any result” — the communication continued — “by a couple of manufacturers while in reality, as stated several times in the course of that meeting of commercial managers, the quotation had settled to ITL 260/kg and occasionally less. We find with some satisfaction, however, that the fall has stopped as a result of the quota allocation of deliveries which all are respecting and which, as agreed, will be checked by external inspectors appointed for that purpose”. “At the end of this month” — the communication continued — “which is dragging on through inertia, it will be essential to act immediately to buttress the minimum quotation of ITL 260/kg (which would certainly not have affected the few purchases during the period). With the planning of deliveries in December agreed (- 20% over the quota for November) we are certainly in a position to maintain the price level agreed; it is however essential” — Pierluigi Leali concluded — “that no one accepts any exceptions to the minimum price decided (ITL 260/kg).”’
96It is therefore clear from the wording of that recital that the Commission was merely setting out the wording of the communication of 24 November 1997 mentioned in the recital. Table 27 therefore appears to be irrelevant to the proper understanding of the points made by the Commission in recital 216 of the first decision.
97Seventh, as regards table 28, mentioned in footnote 405 to the first decision, it must be observed that, according to that footnote, it contains ‘data relating to the list base prices or prices communicated to agents (and for Lucchini/Siderpotenza also those relating to the monthly situation) for 1998 ... in the Commission’s possession’. The Commission mentioned this table in support of recital 241 of the first decision, which reads as follows:‘On 11 September 1998 Pierluigi Leali sent a communication ... in which, referring to the express intent to maintain the minimum quotation at “ITL 170 ex base” (at a meeting held on 9 September 1998), there had been “anomalous activities, i.e. quotations on average ITL 5/kg less than the level established which had become even greater in some areas of the south”. “For our part” — Pierluigi Leali wrote — “the minimum agreed level will be maintained with a consequent reduction in the flow of orders.” “We hope” — the communication ended — “that at the meeting between commercial managers on Tuesday 15th of this month we will achieve a substantial holding of prices, which will have an effect on a possible recovery of the quotation.”’
98It is therefore clear from the wording of that recital that the Commission was merely setting out the content of the communication of 11 September 1998 mentioned in the recital. Table 28 therefore appears to be irrelevant to the proper understanding of the points made by the Commission in recital 241 of the first decision.
99Eighth, as regards tables 29 and 30, mentioned in footnote 448 to the first decision, it must be observed that, according to that footnote, they contain ‘data relating to list base prices or prices communicated to agents (and in the case of Lucchini/Siderpotenza those relating to the monthly situation too) for 1999 and 2000 in the possession of the Commission’. The Commission mentioned those tables in support of recital 276 of the first decision, which reads as follows:‘Further information on the market situation for reinforcing bar in Italy during this period is included in a document drawn up by Leali on 10 November 1999 and in particular in the section entitled “Benefits and limitations of the commercial agreement in 1999” which states “The basic agreement reached between national manufacturers has made it possible to reverse the situation of price weakness which was a feature of the two previous years 1997 and 1998 and to recover a gross margin of over ITL 50/kg in the course of 1999. During 1998 the average gross margin (selling price — cost of raw materials) was ITL 70/kg, and for a good five months it fell below that threshold.” “The agreement reached has made it possible to stabilise selling prices in the course of the year, and manufacturers have been able to benefit from the situation as regards the costs of raw material, increasing gross margin by a further ITL 50/kg, raising it to a net ITL 122/kg.”’
100It is therefore clear from the wording of recital 276 of the first decision that the Commission was merely setting out the content of the communication of 10 November 1999 mentioned in the recital. The absence of tables 29 and 30 is therefore irrelevant to the proper understanding of the points made by the Commission in recital 276 of the first decision.
101Ninth, table 13, mentioned in recital 451 of the first decision, is referred to in support of the assertions that, ‘[a]s far as 1997 is concerned, it [was to] be noted that the first half of this year [had been] marked by a constant increase in the base price fixed through the anti-competitive agreement: ITL 190/kg fixed at the meeting on 30 January, ITL 210/kg fixed at the meeting on 14 February, ITL 250/kg fixed at the meeting on 10 July (paragraph (200))’ and that, ‘[d]uring the same period, the average market base price [had] also increased constantly from ITL 170/kg in January to ITL 240/kg in July (Table 13 of the annexes); in September of that year the average market base price increased again, reaching ITL 290/kg (Table 13 of the annexes)’. It must therefore be observed that the Commission expressly set out, in that recital, the increases in the base prices for the year 1997 and that the table is not therefore indispensable to a proper understanding of the Commission’s reasoning.
102Tenth, it must be pointed out that, in recital 496 of the first decision (footnote 563 to the first decision), the Commission referred generally to ‘the tables annexed to this decision’ in support of its assertion that ‘[t]he information in [its] possession ... [showed] that all the companies involved in this proceeding [had] published price lists during the period in question’. Nevertheless, it must be emphasised that recital 496 of the first decision also refers to recitals 419 to 433 thereof, which ‘list all the occasions where there is evidence that the base price was discussed by the companies (and the trade association)’. The Commission stated, in this connection, that ‘[s]ome of these occasions [had] been mentioned in connection with the question of common intent (see paragraphs 473-475), that ‘[o]n the other occasions between 1993 and 2000, what took place [had] to be described as consultation’ and that ‘[t]he aim of this consultation was to influence the behaviour of the manufacturers on the market and make manifest the behaviour each of them proposed adopting on the market, basically in connection with fixing the base price’. It is therefore apparent that the series of tables annexed to the first decision was therefore not indispensible to the proper understanding of the objections put forward by the Commission.
103Eleventh, in so far as concerns the references to tables 1 to 3, 9, 11 to 14 and 16 made in recitals 513, 515, 516 and 518 of the first decision, it must be emphasised that those recitals appear within the section of the first decision concerned with the effects on the market of the restrictive practices, and that it is clear from the content of those recitals that the tables to which they refer either restate the figures mentioned in the recitals or are not indispensible to a proper understanding of the Commission’s reasoning with regard to the effects of the cartel.
104Having regard to the foregoing considerations, it cannot be held that the failure to annex the tables referred to in paragraph 81 above to the first decision prevented the applicant from understanding the objections set out in the first decision.
105Secondly, the applicant maintains that, given the absence of the aforementioned tables, it may be supposed that the College of Commissioners was asked to adopt a decision without full knowledge of the facts on which the measure was based and that, consequently, the first decision should be annulled.
106It must be held that the failure to annex the tables mentioned in paragraph 81 above to the first decision may entail the unlawfulness of the decision only if their absence made it impossible for the College of Commissioners to sanction the conduct referred to in Article 1 of the decision in full knowledge of the facts, that is to say, without being misled in a material respect by inaccuracies or omissions (see, to that effect and by analogy, Case T-69/89 RTE v Commission [1991] ECR II-485, paragraphs 23 to 25, Case T-290/94 Kaysersberg v Commission [1997] ECR II-2137, paragraph 88, Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95 Cimenteries CBR and Others v Commission [2000] ECR II-491, paragraph 742, and the judgment of 17 February 2011 in Case T‑122/09 Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council, not published in the ECR, paragraphs 104 and 105).
107Irrespective of the absence of the aforementioned tables, the facts on which the first decision was based are therefore set out to the requisite legal standard in the text of the decision itself (see paragraphs 76 to 104 above). Consequently, it cannot be claimed that, when it adopted the first decision, the College of Commissioners did not have full knowledge of the facts on which the measure was based. The omission was, therefore, incapable of vitiating the procedure by which the first decision was adopted and thus calling into question the decision’s legality.
108The first plea in law must therefore be rejected.
The second and fourth pleas in law, alleging a lack of competence on the Commission’s part and an error of law concerning the legal basis taken with regard to the infringement and the fine, misuse of powers and abuse of procedure
109It is appropriate to examine together the second and fourth pleas for the annulment of the decision, which allege a lack of competence on the Commission’s part and an error of law concerning the legal basis taken with regard to the infringement and the fine, misuse of powers and abuse of procedure, since, in substance, they both raise the issue of the Commission’s competence to adopt the first decision.
110In the context of its second plea, the applicant argues that the first decision should be annulled since, in that decision, the Commission imposed a fine without any legal basis, which is contrary to the principle that offences and punishments are to be strictly defined by law (nullum crimen, nulla poena sine lege) and inconsistent with the institutional framework on which the Treaties are based and in accordance with which the autonomous powers of the Commission are strictly circumscribed by the competences conferred upon it. The ECSC Treaty expired on 23 July 2002 and the Commission therefore no longer had competence either to impose fines under Article 65 CS or indeed to find infringements of that provision, since it was no longer in force.
111First of all, the applicant submits that, in accordance with the principle of the lawfulness of penalties, a person cannot be punished for an action which, when judgment is given, is no longer unlawful. That principle means that there can be no punishment unless the action in question was unlawful not only when it was committed but also when it was formally punished. The Commission was therefore not entitled to penalise the applicant on the basis of Article 65 CS.
112Next, in accordance with the principle of the lawfulness of penalties and the principle of conferred powers enshrined in the first paragraph of Article 5 EC, the Commission cannot, the applicant submits, found the imposition of a fine on the ‘mismatched’ application of Article 23 of Regulation No 1/2003 and Article 65 CS, there being no reference to that latter provision in the regulation.
113Lastly, the lawfulness of EU acts must be assessed in the light of international law and, in particular, Article 70 of the Vienna Convention on the Law of Treaties of 23 May 1969, under which a convention between States that has expired can no longer serve as the basis for obligations on the part of those who were parties to or subject to it or establish jurisdiction for its bodies. Accordingly, the Commission would have been entitled to apply Article 65 CS retroactively only if there had been a transitional provision relating to the ECSC Treaty provisions on competition, which there was not. Contrary to the Commission’s submission, the EC Treaty and the ECSC Treaty constitute separate legal orders.
114Moreover, the Commission cannot rely on the ‘general legal principle of the hierarchy that places the lex generalis over the lex specialis’ or on the Communication of 18 June 2002.
115In the context of its fourth plea, the applicant maintains that the procedure which led to the adoption of the first decision was conducted on the basis of Regulation No 17, then Regulation No 1/2003. However, those regulations provide no framework for the continuation under a procedure based on the EC Treaty of a procedure initiated under the ECSC Treaty, nor do they allow for the adoption of a decision concerning infringements of the ECSC Treaty, since they do not cover such infringements. In the absence of any legal rule to that effect, the continuation of the procedure and the use, in the context of a procedure under the EC Treaty, of documents obtained pursuant to the provisions of the ECSC Treaty constitute a misuse of powers and an abuse of procedure.
–The choice of the legal basis for the first decision
116It should be pointed out that the Community Treaties established a new legal order for the benefit of which the States have limited their sovereign rights in ever wider fields and the subjects of which comprise not only Member States but also their nationals (see, to that effect, Case 26/62 Van Gend & Loos [1963] ECR 1, Case 6/64 Costa [1964] ECR 585, at 593, Opinion 1/91 [1991] ECR I-6079, paragraph 21, SP and Others v Commission, cited in paragraph 22 above, paragraph 70, and Case T-24/07 ThyssenKrupp Stainless v Commission [2009] ECR II-2309, paragraph 63).
117Within that legal order, the institutions have conferred powers only. For that reason, Community measures refer in their preamble to the legal basis which enables the institution concerned to act in the field in question. The choice of the appropriate legal basis has constitutional significance (see SP and Others v Commission, cited in paragraph 22 above, paragraph 71, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 64 and the case-law cited).
118In the present case, it must be observed that the preamble to the first decision contains references to provisions of the ECSC Treaty, namely Articles 36 CS, 47 CS and 65 CS, but also to the EC Treaty, to Regulation No 17, in particular Article 11 thereof, to Articles 7(1), 18 and 23(2) of Regulation No 1/2003 and to Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles [81 EC] and [82 EC] (OJ 1998 L 354, p. 18).
119It is also important to point out that, in the statement of reasons for the first decision, the Commission indicated, in recital 1, that ‘[t]he ... decision [established] an infringement of Article 65(1) [CS] and [was] adopted on the basis of Article 7(1) of Regulation No 1/2003’. In recital 3 of the first decision, the Commission added that ‘[b]y the ... decision [it imposed] fines on the undertakings to which it [was] addressed pursuant to Article 23(2) of Regulation No 1/2003’.
120In recital 350 of the first decision, the Commission accordingly stated that it considered that ‘Article 7(1) and 23(2) of Regulation No 1/2003 [represented] the appropriate legal bases which [empowered] it to adopt [the] decision’ and that, ‘[o]n the basis of Article 7(1), [it had established] an infringement of Article 65(1) [CS] and [required] the addressees of the ... decision to put an end to it, and on the basis of Article 23(2) it [had imposed] fines upon them’ (see also recital 361 of the first decision).
121That being so, it must be held that the legal basis of the first decision, by which the Commission found that there had been an infringement of Article 65(1) CS and imposed a fine on the applicant, is to be found in Article 7(1) of Regulation No 1/2003 as regards the finding of the infringement, and in Article 23(2) of Regulation No 1/2003 as regards the imposition of the fine.
–The Commission’s power to find and penalise, on the basis of Regulation No 1/2003, an infringement of Article 65(1) CS after the expiry of the ECSC Treaty
122First of all, it must be recalled that the provision which forms the legal basis of an act and empowers the Union institution to adopt the act in question must be in force at the time when the act is adopted (Case C-269/97 Commission v Council [2000] ECR I-2257, paragraph 45, Joined Cases C-201/09 P and C-216/09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others [2011] ECR I-2239, paragraph 75, Case C-352/09 P ThyssenKrupp Nirosta v Commission [2011] ECR I-2359, paragraph 88, SP and Others v Commission, cited in paragraph 22 above, paragraph 118, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 74). That is indisputably the case in so far as concerns Article 7(1) and Article 23(2) of Regulation No 1/2003, which form the legal basis of the first decision.
123Secondly, it is important to emphasise that, contrary to the applicant’s assertion, the Community Treaties established a single legal order in which, as is reflected in Article 305(1) EC, the ECSC Treaty constituted a specific regime derogating from the rules of general application established by the EC Treaty (see Case T-405/06 ArcelorMittal Luxembourg and Others v Commission [2009] ECR II-771, paragraph 57, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 75 and the case-law cited).
124Contrary to the applicant’s assertions, by virtue of Article 305(1) EC, the ECSC Treaty thus constituted a lex specialis derogating from the lex generalis of the EC Treaty (Case 239/84 Gerlach [1985] ECR 3507, paragraphs 9 to 11, Opinion 1/94 [1994] ECR I-5267, paragraphs 25 to 27, SP and Others v Commission, cited in paragraph 22 above, paragraph 111, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 76, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 70 and 73).
125It follows that the rules of the ECSC Treaty and all the provisions adopted in implementation of that treaty remained in force as regards the functioning of the common market, notwithstanding the supervening EC Treaty (Gerlach, cited in paragraph 124 above, paragraph 9, Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I-7869, paragraph 100, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 77, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 70 and 73).
126Nevertheless, in so far as matters were not the subject of provisions in the ECSC Treaty or of rules adopted under it, the EC Treaty and the provisions adopted for its implementation could, even before the expiry of the ECSC Treaty, apply to products covered by the ECSC Treaty (Case 328/85 Deutsche Babcock [1987] ECR 5119, paragraph 10, Falck and Acciaierie di Bolzano v Commission, cited in paragraph 125 above, paragraph 100, judgment of 25 October 2007 in Case T‑94/03 Ferriere Nord v Commission, not published in the ECR, paragraph 83, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 78, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 70 and 73).
127Pursuant to Article 97 thereof, the ECSC Treaty expired on 23 July 2002. Consequently, on 24 July 2002, the scope of the general scheme resulting from the EC Treaty was extended to the sectors which were initially governed by the ECSC Treaty (ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 58, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 79, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraphs 59 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 70 and 73).
128Although the change from the legal framework of the ECSC Treaty to that of the EC Treaty has led, since 24 July 2002, to a change of legal bases, procedures and applicable substantive rules, that change is part of the unity and continuity of the Community legal order and its objectives (Case T-25/04 González y Díez v Commission [2007] ECR II-3121, paragraph 55, ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 59, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 80, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraphs 60 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 71 and 73).
129In this connection, it must be observed that the introduction and maintenance of a system of free competition, within which the normal conditions of competition are safeguarded and which is at the origin of the rules on State aid and cartels between undertakings, is one of the essential objectives of both the EC Treaty and the ECSC Treaty (ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 60, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 81 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraphs 60 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 71 and 73).
130In that context, although the rules of the ECSC and the EC Treaties governing the sphere of collusive conduct between undertakings diverge to a certain extent, it must be emphasised that the concepts of agreements and concerted practices within the meaning of Article 65(1) CS correspond to those on collusive conduct and concerted practices within the meaning of Article 81 EC and that both provisions have been interpreted in the same way by the EU judicature. Thus, the pursuit of the objective of undistorted competition in the sectors which initially fell within the common market in coal and steel is not suspended by the fact that the ECSC Treaty has expired, since that objective is also pursued in the context of the EC Treaty, by the same institution, namely the Commission, the administrative authority responsible for implementing and developing competition policy in the general interest of the European Community (ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 61, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 82 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraphs 60 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 71 and 73).
131The continuity of the Community legal order and the objectives which govern its functioning thus require that, in so far as it succeeds the European Coal and Steel Community and in its own procedural framework, the European Community ensures, in respect of situations which came into being under the ECSC Treaty, compliance with the rights and obligations which applied eo tempore to both Member States and individuals under the ECSC Treaty and the rules adopted for its application. That requirement applies all the more in so far as the distortion of competition resulting from non-compliance with the rules on agreements and collusive conduct between undertakings is liable to extend its effects to a time after the expiry of the ECSC Treaty when the EC Treaty applies (see ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 63, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 83 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraphs 62 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 72 and 73).
132The Court of Justice has also pointed out that the succession of the ECSC, EC and FEU Treaties ensures, in order to guarantee free competition, that any conduct corresponding to the factual elements set out in Article 65(1) CS, whether taking place before or after 23 July 2002, could be and still can be penalised by the Commission (ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 65 to 67 and 77, and ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraphs 55 to 57 and 65).
133Moreover, it follows from the case-law that, in accordance with a principle common to the legal systems of the Member States whose origins may be traced back to Roman law, when legislation is amended, unless the legislature expresses a contrary intention, the continuity of the legal system must be ensured, and that that principle applies to amendments to the primary law of the European Union (Case 23/68 Klomp [1969] ECR 43, paragraph 13, and ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraph 63).
134There is no indication that the EU legislature wished it to be possible for concerted practices prohibited under the ECSC Treaty entirely to escape the application of penalties after that treaty expired (ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraph 64).
135First, the Court of Justice has pointed out that the Council and the representatives of the governments of the Member States had indicated that they were ready to adopt all necessary measures to cope with the consequences of the expiry of that treaty. Secondly, it has emphasised that the Commission had stated that it had to put forward proposals for transitional provisions only if such a step was thought to be necessary, and that, having regard to the general principles of law applicable, it had considered that there was no such necessity in the field of the law on cartels (ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 75).
136Consequently, the appellant cannot derive any valid argument from the lack of transitional provisions in this field (see, to that effect, ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 76).
137That being so, it would be contrary to the objectives and the coherence of the Treaties and irreconcilable with the continuity of the legal order of the European Union if the Commission were not to have jurisdiction to ensure the uniform application of the rules deriving from the ECSC Treaty which continue to produce effects even after the expiry of that treaty (see, to that effect, Case C-119/05 Lucchini [2007] ECR I-6199, paragraph 41).
138It follows from the foregoing that, contrary to the applicant’s contention, Regulation No 1/2003 and, more particularly, Article 7(1) and Article 23(2) thereof, must be interpreted as enabling the Commission to find and penalise, after 23 July 2002, cartels in the sectors falling within the scope of the ECSC Treaty ratione materiae and ratione temporis, even though those provisions of Regulation No 1/2003 do not expressly refer to Article 65 CS (see ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 64, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 84 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraph 74, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 72, 73 and 84).
139It must, therefore, be held in this connection that the applicant’s argument that the Communication of 18 June 2002 was not capable of forming a legal basis for the Commission’s application of Article 65 CS is of no relevance, since the Commission’s competence in this case is not based on that communication, but on the provisions of Regulation No 1/2003 referred to above (see, to that effect, ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 71). Moreover, the arguments by which the applicant seeks to establish that the ‘automatic, informal continuation ... of [an ECSC] procedure as an EC procedure’ constitutes a misuse of powers and an abuse of procedure must accordingly be rejected also.
140In addition, the application, within the EU legal order, of rules of the EC Treaty in a field which was originally governed by the ECSC Treaty must take effect in conformity with the principles governing the temporal application of the law. In this connection, it is settled case-law that, while procedural rules are generally held to apply to all disputes pending at the time when such rules enter into force, that is not the case with substantive rules. The latter must, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, be interpreted as applying to situations existing before their entry into force only in so far as it is clear from their wording, objectives or general scheme that such an effect must be given to them (Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others [1981] ECR 2735, paragraph 9, Case 21/81 Bout [1982] ECR 381, paragraph 13, Case T-42/96 Eyckeler & Malt v Commission [1998] ECR II-401, paragraph 55, ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 65, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 85, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 79).
141From that point of view, as regards the question of the substantive provisions applicable to a legal situation which was definitively established before the expiry of the ECSC Treaty, the continuity of the EU legal order and the requirements relating to the principles of legal certainty and the protection of legitimate expectations require the application of substantive provisions drawn from the ECSC Treaty to the facts which fall within their scope of application ratione materiae and ratione temporis. The possibility that, by reason of the expiry of the ECSC Treaty, the regulatory framework in question is no longer in force at the time when the assessment of the factual situation is carried out does not alter that situation since the assessment concerns a legal situation which was definitively established at a time when substantive provisions adopted under the ECSC Treaty were applicable (ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 66, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 86, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 79; see also, to that effect, Ferriere Nord v Commission, cited in paragraph 126 above, paragraph 96).
142In the present case, as regards the substantive rules, it must be observed that the first decision concerns a legal situation which had definitively come into being before the ECSC Treaty expired on 23 July 2002, the infringement spanning the period from 6 December 1989 to 4 July 2000 (see paragraph 39 above). In the absence of any retroactive effect of the substantive competition law applicable since 24 July 2002, it must be held that Article 65(1) CS is the substantive rule applicable and actually applied by the Commission in the first decision, bearing in mind that it follows precisely from the lex generalis nature of the EC Treaty by comparison with the ECSC Treaty, enshrined in Article 305 EC, that the specific regime resulting from the ECSC Treaty and from the rules enacted for its implementation is, in accordance with the principle lex specialis derogat legi generali, alone applicable to situations which came into being prior to 24 July 2002 (see, to that effect, ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 68, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 89, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraph 77, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 79).
143The applicant cannot, therefore, maintain that, in accordance with the principle that offences and punishments are to be strictly defined by law, there can be no punishment unless the action in question was unlawful not only when it was committed but also when it was formally punished. Nor can it claim that the Commission could have penalised the undertakings in question under Article 81 EC after demonstrating that the conditions for applying that provision were satisfied in fact and law.
144Moreover, the Court has pointed out that the principle that offences and punishments are to be strictly defined by law, as enshrined in particular in Article 49(1) of the Charter of Fundamental Rights of the European Union, requires that EU rules define offences and penalties clearly (see ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 80 and the case-law cited).
145In so far as the Treaties defined clearly, before the material time, the infringements and the nature and extent of the penalties which could be imposed in respect of them, the above principles do not aim to guarantee to undertakings that subsequent amendments to the legal bases and procedural rules will enable them to escape all penalties relating to their past infringements (ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraph 70, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 83).
146It must be observed that a diligent undertaking in the applicant’s position could not at any time have been unaware of the consequences of its conduct or count on the fact that the change from the legal framework of the ECSC Treaty to that of the EC Treaty would have the consequence of allowing it to escape all penalties for infringements of Article 65 CS committed in the past (ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraph 73, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 86).
147Moreover, the first decision was adopted on the basis of Article 7(1) and Article 23(2) of Regulation No 1/2003, following a procedure carried out in accordance with Regulation No 17 and Regulation No 1/2003. The provisions concerning the legal basis and the procedure followed up to the adoption of the first decision fall within the scope of procedural rules for the purposes of the case-law referred to in paragraph 140 above. Since the first decision was adopted after the expiry of the ECSC Treaty, the Commission was right to apply the rules contained in Regulation No 1/2003 (see ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 67, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 87 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraphs 74 and 77, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 90; see also, to that effect, Ferriere Nord v Commission, cited in paragraph 126 above, paragraph 96).
148The second and fourth pleas must therefore be rejected.
The fifth plea, alleging infringement of Article 65 CS, an inadequate statement of reasons and distortion of the facts
149The applicant claims that the first decision is vitiated by an infringement of Article 65 CS, an inadequate statement of reasons and distortion of the facts.
150First of all, the applicant argues that, despite the similarities between Article 65 CS and Article 81 EC, those provisions are not interchangeable. Whereas, under Article 81 EC, an anti-competitive agreement may be the subject of legal proceedings if there is so much as an attempt to conclude an agreement, an agreement that is not reflected in the market, even as a mere tendency, does not appear to fall within the scope of Article 65 CS. However, in the first decision, the Commission failed to adduce evidence of any objective effects on the market for reinforcing bars.
151That argument must be rejected. Indeed, it is clear from the case-law that Article 65(1) CS prohibits agreements which ‘tend’ to prevent, restrict or distort normal competition. It follows that that provision prohibits agreements the purpose of which is to restrict competition but the anti-competitive effects of which have not been established. Since the Commission found, in recital 399 of the first decision, that the agreement had been designed to fix prices on the basis of which the restriction or control of production and/or sales was also agreed, it was not obliged to demonstrate that there had been an adverse effect on competition in order to establish an infringement of Article 65(1) CS (Case C-198/99 P Ensidesa v Commission [2003] ECR I-11111, paragraphs 59 and 60, and Case T-141/94 Thyssen Stahl v Commission [1999] ECR II-347, paragraph 277) (see also recital 463 of the first decision). In any event, contrary to the applicant’s claim, the Commission did examine, in the interests of completeness, the effects of the agreement and concluded, on the basis of the facts and matters set out in recitals 513 to 524 of the first decision, that the agreement had had actual effects. In order to dispute that conclusion, in Case T‑472/09, the applicant merely argues, in the context of the present plea, that purchasers of reinforcing bars, in particular the national association of iron millers (‘Ansfer’), never learned of, or suspected the cartel. The fact that purchasers of reinforcing bars were unaware of the cartel cannot, however, prove that the agreement had no effects on the market, as the applicant alleges.
152Secondly, the applicant maintains that, in the first decision, the Commission failed to address the distinction between an agreement and a concerted practice. That distinction is crucial, inasmuch as, while it may be unnecessary to consider the actual effects of a given anti-competitive agreement, that is not so in the case of a concerted practice, which presupposes that the collusion translates into actual market conduct attributable to the undertakings supposedly belonging to the cartel.
153Next, the alleged agreements to which the first decision refers can in no case be regarded as agreements reflecting a genuine, common intention on the part of the cartel participants, including the applicant, to conduct themselves in a specific fashion dictated by the agreement itself. There is nothing in the Commission’s file to establish the existence of an agreement between the parties, signed or otherwise, of such a kind as to implicate the applicant, even indirectly.
154Lastly, as regards concerted practices, in order for there to be an infringement, an objective element is necessary, that is to say, concerted conduct on the common market on the part of the undertakings participating in the cartel. It is important to distinguish between the two constituent elements of a concerted practice, namely the conduct, behaviour or practice on the market, and the prior collusion. There will be an infringement only if the restrictive effects of the agreement manifestly alter competition, failing which there will be nothing more than an attempt to engage in a concerted practice, which, as such, is covered by neither Article 81 EC nor Article 65 CS.
155In the first decision, the Commission took no interest in the actual conduct of the undertakings on the market, as if it had been dealing with a formal agreement, rather than alleged, informal collusion. However, in the present case, there was neither a written agreement nor any indirect evidence of the cartel’s existence.
156First of all, as regards, the applicant’s argument that the Commission failed to address the ‘vitally important’ distinction between an agreement and a concerted practice, it must be observed that the Commission stated in the first decision that the cartel essentially involved agreements or concerted practices relating to the base price from 15 April 1992 to 4 July 2000 (and, until 1995, relating to payment terms) and agreements or concerted practices relating to the ‘extras’ from 6 December 1989 to 1 June 2000.
157In recitals 403 and 405 of the first decision, it explained the concepts of an agreement and a concerted practice, within the meaning of Article 65(1) CS and, in recital 407, clarified the fact that it was not necessary, especially in the case of a long and complex infringement, for it to characterise the behaviour as belonging exclusively to one or other form of unlawful conduct. Drawing on the case-law, the Commission concluded, in recitals 409 and 410 of the first decision, that an agreement might, therefore, at the same time constitute an agreement and a number of concerted practices and that Article 65 CS did not establish any particular category for a complex infringement such as the one in question.
158The Commission also expressly referred to the possibility for activities having the same anti-competitive purpose, each of which, taken in isolation, falls within the notion of an ‘agreement’, ‘concerted practice’ or ‘decision by an association of undertakings’, to be considered to constitute a single infringement.
159In any event, as is clear from the case-law, while the concepts of an agreement and of a concerted practice have partially different constituent elements, they are not mutually incompatible. The Commission was under no obligation to categorise either as an agreement or as a concerted practice each form of conduct found, but was entitled to characterise some of those forms of conduct as principally ‘agreements’ and others as ‘concerted practices’ (see, to that effect, Case C‑49/92 P Commission v Anic Partecipazioni [1999] I‑4125, paragraph 132).
160It follows from the foregoing considerations that, in so far as concerns the distinction between the concepts of an agreement and a concerted practice, the first decision is supported by a statement of reasons of the requisite legal standard.
161Secondly, the applicant maintains that there is nothing in the Commission’s file to establish the existence of an agreement, signed or otherwise, of such a kind as to implicate it, even indirectly. As regards concerted practices, again, the Commission took no interest in the actual conduct of the undertakings on the market.
162It must be recalled that an agreement within the meaning of Article 65(1) CS arises from an expression, by the participating undertakings, of their common intention to conduct themselves on the market in a specific way (see, with regard to Article 81(1) EC, Commission v Anic Partecipazioni, cited in paragraph 159 above, paragraph 130, and, with regard to Article 65 CS, Thyssen Stahl v Commission, cited in paragraph 151 above, paragraph 262) (see also recital 403 of the first decision).
163Moreover, as the Commission made clear in recitals 491 and 492 of the first decision, the concept of a concerted practice, within the meaning of that provision, refers to a form of coordination between undertakings which, without being taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between themselves for the risks of competition (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 26, Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraph 63, Commission v Anic Partecipazioni, cited in paragraph 159 above, paragraph 115, Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraph 158, and Thyssen Stahl v Commission, cited in paragraph 151 above, paragraph 266).
164The Court of Justice has further explained that the criteria of coordination and cooperation must be understood in the light of the concept, inherent in the provisions of the Treaty relating to competition, according to which each economic operator must determine independently the policy which it intends to adopt on the common market (Suiker Unie and Others v Commission, cited in paragraph 163 above, paragraph 173, Ahlström Osakeyhtiö and Others v Commission, cited in paragraph 163 above, paragraph 63, Commission v Anic Partecipazioni, cited in paragraph 159 above, paragraph 116, and Case C-199/99 P Corus UK v Commission [2003] ECR I-11177, paragraph 106).
165According to that case-law, although that requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contact between such operators, the object or effect of which is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market, where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market (Suiker Unie and Others v Commission, cited in paragraph 163 above, paragraph 174, Commission v Anic Partecipazioni, cited in paragraph 159 above, paragraph 117, Hüls v Commission, cited in paragraph 163 above, paragraph 160, and Corus UK v Commission, cited in paragraph 164 above, paragraph 107).
166Moreover, subject to proof to the contrary, which it is for the operators concerned to adduce, it must be presumed that undertakings taking part in concerted action and remaining active on the market take account of information exchanged with their competitors when determining their conduct on that market, particularly where the undertakings concert together on a regular basis over a long period (Commission v Anic Partecipazioni, cited in paragraph 159 above, paragraph 121; see also, to that effect, Hüls v Commission, cited in paragraph 163 above, paragraph 162).
167Furthermore, it must be borne in mind that a comparison between the definition of an agreement and that of a concerted practice reveals that, from a subjective point of view, they are intended to catch forms of collusion which have the same nature and are distinguishable one from the other only by their intensity and the forms in which they manifest themselves (Commission v Anic Partecipazioni, cited in paragraph 159 above, paragraph 131).
168In the present case, in so far as agreements are concerned, the applicant cannot maintain that there is nothing in the Commission’s file to establish the existence of any sort of agreement between the parties of such a kind as to implicate it, even indirectly.
169As the Commission rightly points out, in recital 473 of the first decision, which sets out a list of meetings at which agreements between the participants resulted in the drafting of documents, and which refers to the relevant recitals of the first decision, it pointed to the existence of agreements, of which there is documentary evidence, expressed by the participants at 27 meetings held between 6 December 1989 and 4 July 2000. The applicant, however, fails to put forward in support of its plea any evidence to rebut the evidence relied on by the Commission in those recitals (see, in particular, recitals 126, 142, 146, 147, 154, 158, 160, 165, 168, 183, 200, 212 to 214, 216 to 287, 290 to 293, 295, 296, 299, 300 and 305 of the first decision).
170The same applies to the meetings mentioned in recital 474 of the first decision, which must have given rise to an agreement inasmuch as Federacciai had stated that a certain price had ‘emerged’ (see, in particular, recitals 137, 141, 201, 210 and 282 of the first decision) as well as to the cases where a price was ‘indicated’ (see, in particular, 138, 200, 210 and 289 of the first decision).
171Moreover, in recital 475 of the first decision, the Commission mentioned nine agreements of which it had outlines or drafts and factual evidence that they had entered into force or were adhered to after they had been discussed.
172By way of example, as is apparent from the file, the applicant’s involvement in such agreements is evidenced, first of all, by the draft agreement of April/May 1992, which primarily concerned the fixing of minimum sale prices, that agreement specifically mentioning Lucchini, a firm which, according to the first decision, forms a single undertaking with the applicant. As the Commission correctly stated in recital 130 of the first decision, the fact that eight undertakings not included in the agreement intended to comply, with effect from 1 June 1992 ‘in the spirit and under the conditions of the current agreement’ shows that the draft agreement actually entered into force (see also recital 314 of the first decision).
173Next, regarding the agreement of 27-30 September 1996 concerning the sharing out of the Italian market for reinforcing bars in the months of October, November and December 1996 (and possibly in the months of January, February and March 1997), the applicant’s involvement is evidenced by the draft agreement itself, which specifically mentions Lucchini, along with the date and time of its joining in the agreement. As is stated recital 196, confirmation of the fact that the undertakings in question were actually parties to the agreement is provided by the existence of two tables in the possession of the former Acciaierie e Ferriere Leali Luigi concerning the undertakings, which contain data relating to the market shares of each of them in October and November 1996 (the same as those established in the agreement), the order portfolio and stocks at the end of September and at the end of October 1996 and the orders received during each week of October and November 1996 by each of the companies. In recital 560 of the first decision, the Commission also stated that further confirmation of Lucchini-SP’s involvement in the cartel in 1996 lay in the fact that it was one of the undertakings which Leali had thanked for its ‘cooperation and manifest willingness to maintain an orderly market situation in the course of 1996’ when convening the meeting of 7 January 1997 (see also recital 202 of the first decision).
174Lastly, in so far as concerns the agreement of September-November 1998, concerning compliance with sale quotas on the Italian market, the applicant’s involvement is evidenced by several documents, including the draft agreement itself, which specifically mentions Siderpotenza and Lucchini. The fact that the agreement was implemented is clear, first of all, from a facsimile sent on 12 November 1998 by Valsabbia to Leali, in which Valsabbia asked to be allotted a greater market share than that stated in the agreement, secondly, from the tables found at the premises of Ferriere Nord relating to the forecasts for February 1999 and trends over the last four months of 1998 and from the tables found at the premises of Leali, which set out for each undertaking the percentage of the delivery quotas allocated, along with the ‘recoveries’, reflecting the compensation system envisaged in the agreement (see also recital 251 of the first agreement) and, thirdly, from the facsimiles of 22 February and 15 June 1999 (see also recital 248 of the first decision).
175Similarly, the applicant cannot maintain that none of the forms of conduct in which it participated can be characterised as a concerted practice.
176As regards, first of all, the increases in size extras, it is clear from recital 493 of the first decision that the information in the Commission’s possession shows that, during the period in question, size extras were increased at least 19 times and that, for 9 of those instances, there is direct evidence of the agreements or concerted practices relating to those increases (see recital 439 of the first decision). According to recital 439, a concerted practice of fixing the size extras for reinforcing bars was also observed in the case of the 10 remaining increases, inasmuch as there was a common conviction that if one manufacturer increased size extras all the others would automatically follow suit (see recitals 440 and 489 of the first decision).
177Next, in so far as base prices are concerned, it is apparent from recitals 494 and 495 of the first decision that the undertakings published price lists during the period in question. The Commission also pointed out, in recital 496 of the first decision, that recitals 419 to 433 listed all the occasions in respect of which there was evidence that the base price was discussed by the undertakings (see also paragraph 102 above). It also stated that, on the other occasions between 1993 and 2000, what had taken place had to be described as consultation, the aim of which had been to influence the behaviour of the manufacturers on the market and to make manifest the behaviour each of them actually proposed to adopt in connection with fixing the base price.
178As for the remainder, regarding the applicant’s argument that the concept of a ‘concerted practice’, within the meaning of Article 65(1) CS presupposes that the undertakings have engaged in the practices which were the subject of their concertation and that the effects of the concerted practices manifestly alter a concerted practice existed, it is not necessary for the concertation to have had an effect, in the sense understood by the applicant, on the conduct of competitors on the market. It suffices to find that each undertaking was bound to take into account, directly or indirectly, the information obtained during its contacts with its competitors. It is not necessary for the Commission to demonstrate that the exchanges of information in question led to a specific result or were put into effect on the market in question (Thyssen Stahl v Commission, cited in paragraph 151 above, paragraphs 269 to 271).
179It follows that the Commission was entitled to conclude that the undertakings in question substituted practical cooperation between themselves for the risks of normal competition under the Treaty and to characterise those practices as ‘concerted practices’.
180Thirdly, the applicant asserts that the fact that the price lists were different for all the competing undertakings (as is apparent from the tables annexed to the 2002 decision) and that the invoices which it produced show that different prices were charged on the same days for the same quantities of reinforcing bars for different customers and on different conditions shows that there was no cartel.
181However, having regard to the case-law referred to in paragraph 166 above, that argument cannot succeed. Indeed, the invoices which the applicant has produced do not constitute proof of the fact that it did not take into account the information exchanged with the other economic operators. As the Commission pointed out in recital 494 of the first decision, samples cannot be used to check whether the average price applied corresponded to or diverged from the list price, since it is impossible to determine, for example, which invoices were for normal customers and which were for preferred customers. Whilst it may be true that, in the documented transactions, there was a price difference, that in no way proves that the prices charged in all transactions in the days or period following the increases were actually different from those in the price lists. Moreover, as was emphasised in paragraph 151 above, agreements and concerted practices are prohibited by Article 81 EC and Article 65 CS regardless of their effect, when they have an anti-competitive object (see, to that effect, Commission v Anic Partecipazioni, cited in paragraph 159 above, paragraphs 122 and 123).
182In the light of all of the foregoing considerations, the fifth plea must be rejected.
The sixth plea, alleging breach of the principle of sound administration and an inadequate statement of reasons
183The applicant maintains that the Commission breached the principle of sound administration and acted with partiality. It complains that the Commission failed to take into account certain circumstances which proved to be essential in determining whether the objections formulated against the undertakings which participated in the cartel were well founded. It also argues that the statement of reasons in the first decision is inadequate.
184It should be noted, as a preliminary point, that recital 37 in the preamble to Regulation No 1/2003 states that the regulation ‘respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union’ and that it ‘should be interpreted and applied with respect to those rights and principles’.
185Article 41 of the Charter of Fundamental Rights, entitled ‘Right to good administration’, states, in paragraph 1, that ‘[e]very person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union’.
186According to the settled case-law of the European Union judicature relating to the principle of good administration, where the institutions of the European Union have a power of appraisal, respect for the rights guaranteed by the legal order of the European Union in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (Case C-269/90 Technische Universität München [1991] ECR I-5469, paragraph 14, Case T-44/90 La Cinq v Commission [1992] ECR II-1, paragraph 86, Case T-141/08 E.ON Energie v Commission [2010] ECR II-5761, paragraph 65, and Joined Cases T‑458/09 and T‑171/10 Slovak Telekom v Commission [2012] ECR, paragraph 68).
187Moreover, as the Commission rightly observed in recital 468 of the first decision, the evidence must be assessed in its entirety, taking into account all relevant circumstances (see Thyssen Stahl v Commission, cited in paragraph 151 above, paragraphs 175 and the case-law cited).
188First of all, the applicant maintains that the Commission failed to take into account three objective and proven circumstances which proved to be essential in determining whether the objections formulated against the undertakings which participated in the cartel were well founded. That shows that the Commission conducted its investigation in a biased manner. First, Ansfer, which represents some 65% of reinforcing bar purchasers in Italy, had never been informed by pre-milling firms of any anti-competitive conduct. Next, the applicant voluntarily produced a number of sales invoices so as to enable the Commission to verify the absence of price similarity among the various manufacturers, along with invoices from energy providers in order to dispute the objection relating to concerted halts in production at various times coinciding with the holiday period in August and with Christmas. Lastly, the Commission failed to take account of a study by the firm Laboratorio di economia, antitrust, regolamentazione, entitled ‘The reinforcing bar industry in Italy from 1989 to 2000’ and commissioned by Alfa, Feralpi, IRO, SP and Valsabbia (‘the Lear study’), which demonstrates that the alleged cartel had no effects on the market. The Commission failed to take this evidence into account in the first decision and gave no explanation for not doing so, which shows that it conducted its investigation in a biased manner. In accordance with the principle of sound administration, the Commission was also under a duty to ask the other undertakings that had participated in the alleged cartel for their invoices relating to sales of the same quantities in the same periods.
189First of all, contrary to the applicant’s submission, the Commission took due account of Ansfer’s position in recitals 55, 63 to 66 and 524 of the first decision. It also emphasised, in recital 524 of the first decision, that Ansfer’s statements could not overcome incontrovertible factual data consisting in documentary evidence of the infringement.
190Secondly, the Commission took into account, in recitals 481 to 487 and 494 to 496 of the first decision, the sales invoices which the applicant produced in order to show that prices had not been aligned with the agreed prices, as well as the invoices from energy providers, which allegedly countered the objection relating to halts in production during various periods.
191As regards the agreements at issue, in recital 481 of the first decision the Commission recalled the case-law of the General Court according to which the fact that an undertaking does not abide by the outcome of meetings which have a manifestly anti-competitive purpose is not such as to relieve it of full responsibility for its participation in the cartel, if it has not publicly distanced itself from what was agreed in the meetings. The Commission added that it was irrelevant that it might not have shown that all the companies involved had implemented the agreement, or that all of them had implemented it in the same way. In recital 486 of the first decision, the Commission also emphasised that, in the case of an agreement, the question of parties not doing what was agreed, or not doing it at the time agreed, and thus deviating from the expressed common intention to adopt certain conduct on the market was irrelevant, although it might possibly be examined when assessing whether there had been a concerted practice. Moreover, in recital 487 of the first decision the Commission stated that the fact that all manufacturers halted production during holiday periods and that this was a customary practice, or that the payment terms were those normally stipulated, would be relevant only if there had been no prior consultation.
192In so far as concerns the concerted practices referred to in the first decision, the Commission observed, in recitals 494 to 496 thereof, in connection with base prices, that case-law required that certain conduct had actually taken place. The publication of price lists was regarded as a form of conduct within the meaning of that case-law. It added that the aim of the consultation was to influence the conduct of manufacturers on the market and to make clear what conduct each of them proposed to adopt on the market in connection with fixing the base price. The difference between list prices and the prices actually charged on the market, to which the cartel members had referred, did not appear decisive, since the sample invoices relating to the periods in which the increases had been agreed, provided by the cartel members, had not made it possible to verify whether the average price applied corresponded to or diverged from the list price. Furthermore, even where average prices had been supplied, it could not be ruled out that any divergences were due to the situation in the market or to a desire to turn the restrictive practice to individual advantage.
193As was pointed out in paragraph 166 above, it was for the operators concerned to rebut the presumption that the undertakings taking part in the concerted action and remaining active on the market took account of the information exchanged with their competitors when determining their conduct on that market. It follows that the applicant cannot claim that, in accordance with the principle of sound administration, the Commission was under a duty to ask the other undertakings that had participated in the alleged cartel for their invoices relating to sales of the same quantities in the same periods.
194Thirdly, the Commission took due account of the Lear study in recitals 42, 50 to 56, 62, 513, 521 and 585 of the first decision. As regards, in particular, the conclusions of the Lear study regarding the effects of the cartel, the Commission stated, in recital 513 of the first decision that, ‘taking into account the medium prices for extras in the period December 1989-January 1990 and May 2000-June 2000’, it had been ‘able to [estimate] an increase of the prices of extras of about 40% in real terms’. According to the Commission, ‘[t]his [meant] that even taking into account the important reductions of the basic price in real terms, the data [did] not support the thesis of the Lear study of a reduction of the total price of 32% in real terms’ and that, ‘[m]oreover, the Lear study [was] based on assumptions needed to reconstruct part of the data concerning the first period which were not available’. Furthermore, in recital 521 of the first decision, the Commission recalled the case-law of the General Court according to which an economic analysis cannot override the inescapable reality of documentary evidence (Cimenteries CBR and Others v Commission, cited in paragraph 106 above, paragraph 1088).
195In light of the considerations expounded in paragraphs 189 to 194 above, the applicant cannot validly claim that the Commission failed to take the evidence mentioned in paragraph 188 above into account and gave no explanation for not doing so.
196Secondly, the applicant argues that even the evidence set out in the 2002 decision and its annexes relating to price lists, which was missing from the first decision, was not correctly evaluated by the Commission. Reinforcing bars are a raw material (a commodity) and the only scope for competition is on price. The prices announced by the various manufacturers, in addition to almost always being referred to as ‘target’ prices, often varied by ITL 10 to 15 per kilogramme, or even ITL 10 to 20 per kilogramme, which is a significant difference. The fact that manufacturers of reinforcing bars in Italy published different price lists ought to have been clear evidence for the Commission that, even if there had been a cartel, each undertaking distanced itself from it substantially. The applicant cites in this connection, by way of example, the fact that the cartel was not implemented in so far as concerns the base prices for 7 February 1994, 30 August 1994 and 21 February 1995.
197That argument must, however, be rejected, since it is clear from the case-law of the General Court referred to in recital 481 of the first decision (see paragraph 191 above) that the fact that an undertaking does not abide by the outcome of meetings which have a manifestly anti-competitive purpose is not such as to relieve it of full responsibility for its participation in the cartel, if it has not publicly distanced itself from what was agreed in the meetings. Even supposing that the applicant’s conduct on the market and that of the other manufacturers which announced differing target prices was not in conformity with the conduct agreed, that in no way affects their liability (see, to that effect, Case T-334/94 Sarrió v Commission [1998] ECR II-1439, paragraph 118, confirmed on appeal in Case C-291/98 P Sarrió v Commission [2000] ECR I-9991, paragraphs 43 and 49), since they might simply have sought to use the cartel to their own advantage (see, to that effect, the judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraph 74 and the case-law cited).
198Thirdly, the applicant claims that a large number of the recitals of the first decision that address the facts contain subjective assessments that cannot be presented as providing a factual basis for the assessment of the case.
199First, in recital 130 of the first decision, the Commission stated that ‘[t]here [was] no doubt that the agreement described in paragraph 129 above [had] actually entered into force’. According to the Commission, ‘eight undertakings not included in the agreement [had] intended to comply, with effect from 1 June 1992 “in the spirit and under the conditions of the current agreement”’. That, according to the applicant, is an assessment on the Commission’s part and not a fact
200It must be emphasised that, in recital 129 of the first decision, the Commission refers to an agreement of April/May 1992 the object of which was to fix the minimum sale prices for reinforcing bars. That agreement is evidenced by a document which the Commission found at the premises of Federacciai. In recital 130 of the first decision, the Commission concluded that, since eight undertakings had intended to comply with effect from 1 June 1992, the agreement was therefore ‘certainly in force on 31 May 1992 (the date immediately preceding that on which the additional eight firms already mentioned [had] intended to comply with it)’. That is a factual deduction based on the documents in the file and it cannot be regarded as a subjective assessment on the Commission’s part. It must also be pointed out that the legal assessment of the agreement in question is not set out under the heading ‘Facts’ but under the heading ‘Legal assessment’, and in particular in recitals 419, 478 and 479 of the first decision.
201Secondly, according to the applicant, the Commission regarded it as proven fact that, between April and July 1992, certain undertakings intended to adhere to the agreement on prices and supplement it with halts in production, on the basis of just one document that it found, which mentioned no undertaking in particular. The source of that document is unknown and if it was a draft prepared in view of the drafting of another document it was neither signed nor initialled. However, the Court must observe that the document to which the Commission refers in recital 132 of the first decision, which was found at the premises of Federacciai, mentions, in addition to 19 undertakings concerned, certain dates which show that it was adopted between 13 April 1992 and July 1992, along with halts in production of three months in July and August and one week each month from September 1992 to February 1993. Having regard to the context described in recitals 124 to 134 of the first decision, the applicant’s argument that the draft was neither signed nor initialled is irrelevant. Indeed, since the prohibition on participating in anti-competitive practices and agreements and the penalties which offenders may incur are well known, it is normal for the associated documentation to be reduced to a minimum (see, to that effect, Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraph 55).
202The applicant’s arguments cannot, therefore, be upheld.
203Fourthly, in its reply, the applicant emphasised that the Commission had given no consideration to the fact that, over the 10 years of existence of the supposed cartel, the number of participating undertakings had reduced by four fifths, with the closure and decommissioning of numerous sites, and that, in real terms, the price of reinforcing bars had fallen by 30% over that same period.
204Since the complaint mentioned in paragraph 203 above was raised only in the reply and does not expand on a plea or complaint put forward in the application, it must, in accordance with the case-law mentioned in paragraph 66 above, be declared inadmissible.
205In any event, it must be held that, contrary to the applicant’s submission, the Commission did take into account, in recitals 551, 552 and 585 of the first decision, the reduction in the number of undertakings active on the market and, in recital 513 of the first decision, refuted the argument concerning the alleged fall in real prices. The applicant’s argument cannot therefore succeed.
206It follows that the sixth plea must be rejected.
The seventh plea, alleging an error in the legal characterisation of the facts, the unfounded nature of the objections formulated against the applicant, and distortion of the facts
207By the first limb of this plea, concerning the mistaken characterisation of the facts, the applicant points out that, in recital 442 of the first decision, the Commission described the infringement as a single, complex and continuous infringement. As regards the continuous nature of the infringement, the applicant maintains that the meetings between manufacturers, to the extent that they took place, did not give rise to any actual effects on the market. If anything was continuous it was not the cartel, but the sterile attempt to achieve harmonisation in the market. Moreover, the Commission’s findings relating to the duration of the cartel are groundless in so far as the applicant is concerned. Even supposing that there had been a cartel relating to extras that spanned more than 10 years, a cartel relating to base prices that spanned 8 years and a cartel restricting production that spanned 5 years, they were of such an ad-hoc nature and so short-lived that further meetings between manufacturers were constantly needed. In any event, the increase of 105% applied to the fine on account of duration, corresponding to a cartel of 10½ years’ duration, should apply to the basic amount of the fine in respect of the part of the cartel relating to extras alone, and not in respect of the other two parts of the cartel.
208It must be observed, first of all, that the applicant’s argument that the meetings between manufacturers did not give rise to any actual effects on the market is incapable of calling into question the continuous nature of the infringement.
209If, by this argument, the applicant alleges that it did not implement the conduct agreed upon at meetings between manufacturers, it must be rejected for the reasons set out in paragraph 197 above.
210Moreover, as was pointed out in paragraph 151 above, it is clear from the case-law that Article 65(1) CS prohibits agreements which ‘tend’ to prevent, restrict or distort normal competition. It follows that that provision prohibits agreements the purpose of which is to restrict competition but the anti-competitive effects of which have not been established. The Commission was therefore not obliged to demonstrate that there had been an adverse effect on competition in order to establish an infringement of Article 65(1) CS (Ensidesa v Commission, cited in paragraph 151 above, paragraphs 59 and 60, and Thyssen Stahl v Commission cited in paragraph 151 above, paragraph 277).
211Furthermore, as the Commission rightly emphasised in recitals 414 and 415 of the first decision, an infringement of Article 81 EC (and, by analogy, 65 CS) may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute in themselves and individually an infringement of that provision (see, by analogy, Commission v Anic Partecipazioni, cited in paragraph 159 above, paragraph 81).
212In the present case, it is clear from the first decision that the activities relating to the fixing of the base price and payment terms constituted instances of the practical implementation of the same intention to fix an agreed minimum price, in that each of those activities (with the exception of the initial agreement of April 1992) was applied in ways which were more or less similar over time and by means of which the minimum agreed price was fixed. As regards the size extras, according to recital 442 of the first decision, the continuous nature of the infringement is evident from the nature of the purpose of the unlawful activities which were repeated over time and which consisted in the fixing of uniform prices for the size extras, which confirms the fact that all the activities constituted the implementation of the same intention.
213The applicant restricts itself, in this connection, to asserting that the concertation was ad hoc and so short-lived that further meetings between manufacturers were constantly needed. That argument cannot succeed. As the Commission emphasised in recital 510 of the first decision, in so far as concerns base prices, size extras, payment terms and the control or restriction of production and/or sales, the same conduct was adopted for many years. There is also evidence of meetings to check on concerted action, which shows that the situation in the market was under constant surveillance and that new initiatives were therefore adopted when the undertakings involved considered it necessary. It cannot, therefore, be said that the activities at issue were short-lived.
214Lastly, by means of its objection to the increase in the fine for duration, the applicant disputes the Commission’s finding as to the single nature of the infringement, without, however, formulating the slightest argument to refute the Commission’s conclusion that the part of the cartel relating to the fixing of base prices, the part of the cartel relating to extras and the part of the cartel relating to the restriction or control of production and sales constitute an infringement having one and the same aim: to increase the price of reinforcing bars on the Italian market. Its complaint must, therefore, be rejected.
215By the second limb of the seventh plea, the applicant disputes the validity of the objections formulated against it and alleges distortion of the facts.
–Fixing the base price ex Brescia
216In so far as concerns fixing the base price, the applicant argues that its participation in a cartel to fix ‘a base price ex Brescia’ would have served no purpose, since it manufactured solely at its site in Potenza, some 1000 km from Brescia. The sale price ex Brescia therefore had no significance for the applicant, and could not have constituted a reference.
217Similarly, it is, according to the applicant, difficult to identify any convergence of the applicant’s base prices for reinforcing bars and those of the other manufacturers, since they operated in different regions. Moreover, the Commission confirmed in recital 587 of the first decision that sales relating to southern Italy were referred to in the decisions at meetings only very rarely. That feature ought to have led the Commission to treat the applicant differently and to have taken greater account of its actual role in the alleged events. In this regard, the Commission had been entirely unable to establish in any way that the undertakings had implemented a number of agreements or that it had participated in them.
218First of all, the Court must reject the applicant’s argument that its participation in a cartel to fix a ‘base price ex Brescia’ would have served no purpose. It must be observed that the base price is a reference price that does not necessarily entail the systematic addition of transport costs between Brescia and the destination. Admittedly, in recital 129 of the first decision, which discusses the agreement of April/May 1992, the Commission cited, as the terms of sale, ‘base ex Brescia: transport costs from Brescia charged to the customer in the case of sales using vehicles provided by the manufacturer’. However, that reference to a base price ex Brescia may be explained by the fact that the majority of the undertakings participating in the agreements had their registered office in that city. Moreover, the applicant does not dispute the fact that, in all the communications concerning the base price which it addressed to all the Italian manufacturers of reinforcing bars, including the applicant, Federacciai referred to the base price ex Brescia. The applicant cannot, therefore, maintain that the fixing of a base price ex Brescia was of no use to it or that, since the base price was the price ‘ex Brescia’, it was difficult to identify any convergence of the base prices for reinforcing bars among manufacturers operating in very different regions. Furthermore, the applicant cannot rely on recital 587 of the first decision, in which the Commission stated that ‘sales relating to southern Italy were referred to in the decisions at meetings only very rarely’, in support of its claim that the Commission should have treated it differently, since that was not the Commission’s finding, but an argument put forward by some of the undertakings that participated in the cartel.
219Secondly, the Court must reject the applicant’s argument that the Commission failed to establish that the undertakings in question implemented the alleged agreements of 7 February, 30 August, 13 September and 25 November 1994, of 13 June, 4 July and 29 August 1995, of 23 February, 2 April, 25 July and 22 October 1996, of 30 January, 14 February and 10 July 1997, and of 18 February and 9 June 1998.
220As was pointed out in paragraph 151 above, Article 65(1) CS prohibits agreements which ‘tend’ to prevent, restrict or distort normal competition. It follows that that provision prohibits agreements the purpose of which is to restrict competition. Consequently, in the case of agreements reached at meetings of competing undertakings, that provision is infringed where those meetings have such an object and are thus intended to organise artificially the operation of the market. In such a case, the liability of a particular undertaking in the infringement is properly established where it participated in those meetings with knowledge of their object, even if it did not proceed to implement any of the measures agreed at those meetings. The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty (see, by analogy, Joined Cases 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 Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraphs 508 to 510, and Joined Cases C-189/02 P, C-202/02 P, C-205/02 P, C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 145). The fact that agreements having an anti-competitive object, such as those referred to in paragraph 219, may not have been implemented is therefore irrelevant.
221For the same reasons, the Court must reject the applicant’s argument that it did not implement the agreements of April/May 1992, 1 April 1993, 13 February 1996 and 16 October and 17 November 1997 and that its dissociation from those agreements was evident.
222In any event, as the Commission points out in its pleadings, without being contradicted on the point by the applicant, in so far as concerns the part of the cartel relating to the fixing of the base price, it obtained documentary evidence that proved the participation of the undertakings in question at the meetings of 13 February 1996, 16 October 1997, 9 June 1998, 11 and 25 January, 1 and 9 February, 10 March, 8, 16 and 23 May and 27 June 2000. It also established that Lucchini-SP had attended at least eight of those meetings in 1996, 1997, 1998 and 2000.
223In accordance with settled case-law, to prove to the requisite standard that an undertaking has participated in a cartel, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded, without manifestly opposing them. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (Commission v Anic Partecipazioni, cited in paragraph 159 above, paragraph 96, Aalborg Portland and Others v Commission, cited in paragraph 201 above, paragraph 81, and Case C-510/06 P Archer Daniels Midland v Commission [2009] ECR I-1843, paragraph 119). The applicant has not offered any credible evidence to that effect.
224In so far as concerns the other meetings organised by Federacciai and relating to prices and payment terms, in respect of which the available evidence did not enable the participants to be clearly identified, all Italian manufacturers of reinforcing bars were invited to those meetings and received records of the meetings from Federacciai informing them of their outcome.
225The Commission has also emphasised, without being contradicted on the point by the applicant, that those meetings were linked, inasmuch as, on several occasions, meetings took place at which the impact of previous agreements was assessed on the basis of ongoing monitoring of the market or at which measures were adopted to adapt what had already been agreed.
226Moreover, as the Commission rightly stated in recital 469 of the first decision, the mere fact of being physically absent from a given meeting does not necessarily mean that the absentee did not abide by the outcome of the meeting. On one occasion Lucchini-SP did not attend a meeting because of the ‘manifest inability or lack of willingness [on the part of] some manufacturers to maintain the prices which emerged in the course of the latest meetings’ (see recitals 208, 215 and 560 of the first decision, concerning the meeting of 17 November 1997). The applicant cannot therefore claim that its dissociation from the cartel was evident.
227It must also be pointed out that, as the Commission emphasised in recitals 419 to 433 and 560 to 562 of the first decision, without being specifically contradicted on the point by the applicant, it is clear from the administrative file that Lucchini-SP adhered to the April/May 1992 agreement and to the part of the cartel relating to the fixing of the base price until June 2000. Indeed, on 25 January 1993, Federacciai sent all Italian manufacturers of reinforcing bars a communication relating to a meeting held that day and fixing the base price at ITL 280/kg, which the applicant then adopted. In 1994, Lucchini adopted the base price fixed at the meeting of 1 December 1994. It then continued to receive communications from Federacciai and Leali relating to the fixing of the base price in 1995, in 1996, in 1997 and in 1998. As regards 1999, Lucchini-SP’s adherence to this part of the cartel is clear from internal company reports of February, March, April and May 1999. Lastly, in so far as concerns 2000, as was pointed out in paragraph 222 above, Lucchini-SP attended meetings on 1 February, 10 March, 16 and 23 May and 27 June.
228Thirdly, as regards the applicant’s argument that the systematic application by the undertakings concerned of different prices refutes the argument that the concertation between them was put into effect, it is sufficient to refer to the considerations set out in paragraph 197 above.
–The fixing of size extras
229As regards the fixing of size extras, first of all, the applicant maintains that the Commission’s fixing of minimum values for size extras and the publication of guideline and recommended prices, equally valid for reinforcing bars, was instrumental in restricting or inhibiting the independence of the undertakings when fixing their sale prices. Size extras, like other add-ons, are substantially identical throughout the EU, so as to facilitate negotiations between manufacturers and purchasers. On 10 December 2001, the applicant had sent the Commission a letter on this subject — which the Commission never answered — asking whether possible alignment on its part with the prices notified by a competitor, in implicit performance of Article 60 CS, would constitute an agreement prohibited by Article 65(1) CS. Lastly, the applicant adds that the fact that extras are normally aligned is ‘an inescapable, entrenched and ubiquitous reality of the market’.
230First of all, the Court would recall that, according to the case-law, the purpose of the compulsory publication of prices under Article 60(2) CS is, as far as possible to prevent prohibited practices, to enable purchasers to learn exactly what prices will be charged and check for themselves whether any discrimination has taken place and, lastly, to enable undertakings to have an accurate knowledge of their competitors’ prices so as to enable them to align their own prices (Thyssen Stahl v Commission, cited in paragraph 151 above, paragraph 308 and the case-law cited).
231It is also settled case-law that the price lists must be fixed by each undertaking independently, without any agreement, even a tacit agreement, between them. In particular, the fact that the provisions of Article 60 CS tend to restrict competition does not prevent the application of the prohibition of agreements under Article 65(1) CS. Moreover, Article 60 CS does not provide for any contact between undertakings, prior to publication of the price lists, for the purpose of exchanging information on their future prices. In so far as such contacts prevent those price lists from being fixed independently, they are liable to distort normal competition within the meaning of Article 65(1) CS (see Thyssen Stahl v Commission, cited in paragraph 151 above, paragraphs 312 and 313 and the case-law cited).
232Having regard to that case-law, the Commission was entitled to conclude, in recital 442 of the first decision that when, within the context of regular consultation, competing companies initiate a continuing activity which tends to eliminate relative uncertainty, in particular regarding the size extras that they will apply in the market, through either agreements or concerted practices, that activity constitutes an agreement prohibited by Article 65 CS. Such an activity was identified by the Commission, in particular, in recitals 438 to 441 of the first decision.
233The applicant cannot maintain in this connection that this uniformity is a result of the specific nature of the market and manufacturing inasmuch as, first of all, competition in the market resides in the differences in base prices charged by the various undertakings, secondly, smaller undertakings systematically adjust to the extras independently fixed by the larger and more representative steel undertakings and, thirdly, all operators agree on the need for uniform extras in order to facilitate negotiations between manufacturers and purchasers, which focus exclusively on the base price of a given product, which gives an instant picture of the relative advantages offered by the various manufacturers.
234It must in fact be emphasised that alignment with increases in the levels of size extras was the result of a common agreement, sometimes explicit, sometimes implicit, to eliminate competition, and that, between 6 December 1989 and 2000, at least 19 increases in size extras were decided upon and implemented. Therefore, the applicant’s argument that prices were intelligently aligned in response to initiatives taken by a large manufacturer cannot be accepted, since the Commission has adduced evidence of collusion regarding the increases in size extras and evidence that there was a common conviction that extras should always remain uniform among manufacturers. Moreover, as the Commission rightly pointed out in recital 440 of the first decision, if the alignment of size extras had been the result of normal market behaviour, it would be difficult to understand why the parties had felt the need to meet regularly in order to agree on those increases.
235Neither can the applicant claim that the Commission failed to reply to its letter of 10 December 2001, in which it asked whether possible alignment on its part with the prices notified by a competitor would constitute an agreement prohibited by Article 65 CS. Leaving aside the fact that that complaint is irrelevant, it must be observed that, as the Commission states, it answered that point in paragraph 280 in fine of the statement of objections sent to the applicant on 27 March 2002.
236Secondly, the applicant maintains that it was not one of the undertakings which applied parallel values for the size extras in pursuance of a prior agreement. There is, it alleges, no proof or specific evidence that Federacciai brought together all manufacturers of reinforcing bars other than often informal communications. Moreover, as is evidenced by the invoices which it produced, the applicant systematically fixed its prices independently, which shows that it clearly dissociated itself from the guidelines given.
237That argument must, however, be rejected, since, as the Commission rightly points out, it noted, in recitals 438 to 444 of the first decision, that the applicant had actively participated in the agreements and concerted practices the purpose of which was to fix the level of size extras.
238In this connection, it is clear from the file, inter alia, that Lucchini-SP (a) received the communication from Federacciai dated 6 December 1989 and altered its price list accordingly, (b) received the communication from Federacciai dated 25 January 1993 and altered its corresponding prices accordingly, (c) received the communication from Federacciai dated 7 February 1994 and adopted the increases in question on the agreed date, and (d) received the communications from Federacciai dated 30 August and 13 September 1994 and 22 February 1995. Moreover, between January and July 1997, the applicant continued to receive communications from Federacciai and, notably, took the imitative so that all manufacturers would adopt the increases in prices. It also participated in meetings relating to the level of size extras.
239The Commission also noted Lucchini-SP’s involvement in the concerted practices relating to the level of size extras of 1990 and 1991, of 1992, of July 1995, of February and October 1996 and of June and July 1999.
–Conditions of sale and payment terms
240The applicant recalls that, in recital 435 et seq. of the first decision, the Commission concluded that the undertakings concerned had concluded an agreement on conditions and payment terms, at least between 16 April 1992 and 30 September 1995. However, SP never reached any such agreement with the other manufacturers and, on this point, its policy remained entirely independent, as is clear from the invoices which it produced. Moreover, the indicated payments terms (60 to 90 days) are common in sale transactions between professionals in the steel sector.
241It must be observed that it is apparent from the first decision that the cartel also related to payment terms, at least until 30 September 1995. In reaching that conclusion, the Commission pointed out that the general rule of 90-day payment terms, with a number of limited and regulated exceptions, was fixed in the agreement of April 1992 relating to the fixing of minimum base prices. Further decisions relating to payment terms were adopted in 1993, in 1994 and in 1995.
242The applicant cannot maintain that it never agreed on the fixing of payment terms with the other manufacturers and that its policy on this point was entirely independent.
243First, as the Commission rightly points out, it is clear from the file that Lucchini-SP adhered to the agreement of April 1992, which established, inter alia, the rule of payment no later than 90 days from the end of the month.
244Secondly, even supposing that the applicant did not attend the meeting of 25 January 1993, it must be emphasised that Federacciai informed all the manufacturers of reinforcing bars that, at that meeting, payment at 60 days from the end of the month had been instituted with effect from 26 January 1993.
245Thirdly, at a meeting held on 1 December 1994 further to a facsimile from Federacciai dated 25 November 1994, decisions were taken relating, inter alia, to payment terms and discounts. It is also clear from the file that the content of those decisions was communicated to Lucchini-SP.
246Fourthly, by facsimile dated 21 July 1995, Federacciai sent the manufacturers of reinforcing bars a form to be signed containing an undertaking to apply, in the case of deliveries from 1 September 1995 onwards, maximum payment terms of 60/90 days from the date of dispatch for all customers and payments dates on 10, 20 and 30/31 of each month, depending on the actual date of dispatch. The form was preceded by a communication from the acting Director-General of Federacciai, with a view to confirming the intention to reimpose payment periods and the times of payments. On 27 July 1995, Lucchini-SP expressly confirmed that it would apply the new payment terms.
247Fifth, on 31 July 1995, Federacciai drafted a communication for the attention of the manufacturers of reinforcing bars in which it stated that the conditions were right for strictly applying the payment terms of ‘60/90 days from the end of the month’. At a meeting held on 29 August 1995, the application of payment terms of ‘60/90 days’ to orders from 1 September 1995 onwards was unanimously confirmed.
248Having regard to that body of evidence, the applicant cannot claim that it determined its commercial policy relating to conditions of sale and payment terms independently, or that the indicated payment terms (of 60/90 days) are common in sale transactions between professionals in the steel sector.
249The applicant’s complaint must therefore be rejected.
–The limitation or control of production and sales
250The applicant claims that the Commission has produced no evidence of its participation in the part of the cartel relating to halts in production. On the contrary, purchase invoices were sent to the Commission showing normal consumption of methane at the applicant’s production sites. It is also well known that the vast majority of small, medium-sized and large industries close completely for four weeks of August. In this connection, the information communicated to Federacciai, but not to competing manufacturers of reinforcing bars, was merely the result of the usual transmission of data to that association for statistical purposes.
251The applicant’s arguments cannot be accepted.
252As the Commission pointed out in recital 458 of the first decision, the part of the cartel relating to the restriction or control of output or sales lasted at least from 13 June 1995 to 23 May 2000.
253As regards the applicant’s participation in this part of the cartel, it must first be emphasised that it is clear from the file that it attended the meeting on 13 June 1995 at which the participants unanimously decided on a halt in production for a period of four weeks before the end of August 1995. The applicant’s adherence to that decision is apparent from a facsimile which Lucchini Siderurgica sent to Federacciai on 26 June 1995, in which it responded to a facsimile of 21 June 1995 from the acting Director-General of Federacciai to Leali, the content of which Leali conveyed to the manufacturers of reinforcing bars on 22 June 1995.
254Secondly, in its monthly report for January 1996 (‘Area 80 Informa — Report mensile — Mese: Gennaio 1996’), Lucchini mentioned the fact that ‘[t]he decision of manufacturers to close plant for two weeks in the course of the month of February should result in a lowering of stock levels in manufacturers’ stores and at the same time a slight increase in selling price’. Moreover, Lucchini-SP was present at the meeting of 13 February 1996 at which a programme of rolling mill shutdowns was established, and its agreement to that programme is evidenced by a communication from the Managing Director of the former Acciaierie e Ferriere Leali Luigi dated 20 February 1996.
255Thirdly, the Commission pointed out, in recitals 205, 206 and 451 of the first decision, without being contradicted on the point by the applicant, that, in so far as concerns 1997, implementation of the part of the cartel relating to the control or restriction of production or sales was designed to maintain and consolidate the higher price achieved through the cartel and took the form, at that stage of its application, of an agreement between eight undertakings, including Lucchini, either to export the excess quantity produced over their quota for delivery or to shut down production for one week between 1 September and 30 November. Moreover, Lucchini stated in an internal document of October 1997 that ‘[t]he exports made by some manufacturers (Feralpi, IRO, Valsabbia, Riva), together with the production shutdowns which will be carried out in the course of the month of November by other producers (Leali, Lucchini, Alfa Acciai, Darfo), [would] stabilise the market for the coming month and at least stave off a probable fall in prices’ (see also recital 207 of the first decision).
256Fourthly, according to another internal Lucchini document of April 1998, ‘[t]he agreement between manufacturers [was expected to] make it possible to recover approximately ITL 15-20 in the price in the course of the month of May’. According to that same document, ‘[d]emand [was] not particularly firm and [this] attempt [was to] be supported by a reduction in output by all manufacturers’. Moreover, it is clear from recital 454 of the first decision that the agreement of September-November 1998, to which Lucchini-SP was a party, also provided for the control or restriction of output destined for the Italian market.
257Fifth, as regards 1999, the limitation or control of production or sales is apparent, inter alia, from communications from Alfa, Valsabbia, Ferriere Nord and Lucchini-SP concerning a decision to suspend the manufacturing of reinforcing bars throughout the third week of November or ‘from 22/11 to 26/11 and from 1/12 to 3/12’.
258Sixth, the Commission found that the restriction or control of output had continued to be part of the purpose of the agreement in 2000, as was clear, inter alia, from a meeting of 23 May 2000 between Lucchini-SP, Alfa, Valsabbia and Feralpi, which had addressed the question of ‘who was in front and who was behind in their quotas, a symptom of who had put up and who had kept to the price’.
259Having regard to the foregoing considerations, the applicant cannot argue that the consumption of methane at its production sites was normal, or that the communication to Federacciai of information relating to shutdowns had been purely for statistical purposes. As the Commission also emphasised in recital 445 of the first decision, in connection with the meeting of 13 June 1995, Federacciai had stressed that, in order to sustain the higher base price agreed at that meeting, it was important ‘to maintain a united front over the four-week summer shutdown’. Moreover, the facsimile which, following up Federacciai’s facsimile of 21 June 1995, Leali sent on 22 June 1995 to all the manufacturers of reinforcing bars expressly mentioned the ‘need to group shutdowns ... to bring production and supply back into balance in July and August’.
260In light of all the foregoing considerations, the applicant’s complaint cannot succeed.
–The draft agreement of 27 September 1996, the meetings of 16 October and 17 November 1997 and the agreement of April/May 1992
261The applicant maintains that it was not a party to the draft agreement of 27 September 1996 and that it does not know how Leali could have learned of its output figures since it never communicated them to Leali. It also alleges that it had no knowledge of the agreement that was concluded at the meeting of 16 October 1997 and that it provided information on its own deliveries and output to Federacciai alone. It also did not attend the meeting on 17 November 1997 and did not halt production in November 1997. The applicant also does not know what competing companies had information relating to its sales, exports and ouput. Lastly, the applicant alleges that it did not conclude the agreement of April/May 1992 and does not recall having seen it before.
262First of all, as was pointed out in paragraph 173 above, it is clear from the text of the agreement of September 1996 found at the premises of Leali that Lucchini signalled its agreement by facsimile of 30 September. Its agreement is also evidenced by two tables, also found at the premises of Leali, setting out, for each of the undertakings concerned, including Lucchini-SP, data relating to their market shares in October and November 1996 (the same as those established in the agreement), the order portfolio, stocks and orders received. The applicant cannot, therefore, claim that it was not a party to the draft agreement of September 1996.
263Secondly, it is clear from the file that Lucchini Siderurgica attended the meeting of 16 October 1997 at which it was agreed that the undertakings would apply self-limitation to deliveries for the month of November 1997. On the same day, Leali received, by facsimile, the individual data relating to production, deliveries in Italy and exports for each of the companies for each month (from January to September) in 1996 and 1997. The applicant’s argument that it had no knowledge of the agreement concluded at the meeting of 16 October 1997 cannot, therefore, be accepted.
264Thirdly, as regards the meeting of 17 November 1997, it must be observed that Lucchini-SP had announced that its representative was unable to attend. It must also be emphasised in this connection that, by facsimile sent to Leali on 7 November 1997, Lucchini-SP had made known its intention not to attend the next meeting of commercial managers because of the ‘manifest inability or lack of willingness [on the part of] some manufacturers to maintain the prices which emerged in the course of the latest meetings’. The Commission was therefore entitled to conclude, in recital 560 of the first decision, that Lucchini-SP’s absence from the meeting of commercial managers in mid-November was not to be interpreted as indicating its dissociation from the agreement relating to the fixing of the base price, since it was instead a form of protest intended to make the agreement more effective in producing effects on prices. It must also be noted that the applicant was a recipient of Leali’s communication of 24 November 1997 informing the undertakings concerned of the agreements concluded at the meeting of 17 November 1997.
265Fourthly, the applicant’s arguments regarding the agreement of April/May 1992 must be rejected for the reasons set out in paragraphs 171 and 243 above.
266It follows that the applicant’s complaints regarding the draft agreement of 2 September 1996, the meetings of 16 October 1996 and 17 November 1997 and the agreement of April/May 1992 must be rejected.
–The applicant’s allegation that it did not take part in the studies carried out by the consulting firm K
267The applicant asserts that, contrary to the Commission’s submission, it did not take part in the studies carried out by the consulting firm K, which the Commission has in any case acknowledged. The Commission cannot claim that, in 1998, although not participating in the monitoring operations conducted by the consulting firm K, it was aware of those operations and conducted itself as if it belonged to the group of companies directly taking part in the monitoring system. Moreover, contrary to the Commission’s suggestion in recital 257 of the first decision, the applicant never took account of the agreement relating to the ‘Darfo quota’, and the documents cited by the Commission in this connection are inconclusive.
268First of all, while the Commission has acknowledged that the applicant did not directly take part in the studies carried out by the consulting firm K in 1998, it has been established that it did take a direct part in them in 1997. Indeed, it is apparent from the file that, on 10 December 1997, the consulting firm K issued an invoice for a payment on account in respect of a study carried out in December 1997 and that the balance of the invoice was divided between seven undertakings, including Lucchini-SP.
269The Commission has also established, on the basis of a document whose probative value the applicant does not dispute, that even though the applicant did not participate directly in the studies carried out by the consulting firm K in 1998, it was aware of them and, until early June 1998 at least, conducted itself ‘as if it belonged to the group of companies directly taking part in the system of monitoring carried out by [the consulting firm K]’ and was therefore a party to the aims of the part of the cartel relating to the limitation or control of output or sales, to which the studies carried out by K related. The applicant cannot dispute that interpretation by arguing that it aligned itself independently with a new market situation. As the Court recalled in paragraph 166 above, subject to proof to the contrary, which it is for the operators concerned to adduce, it must be presumed that undertakings taking part in concerted action and remaining active on the market take account of information exchanged with their competitors when determining their conduct on that market, particularly where the undertakings concert together on a regular basis over a long period (Commission v Anic Partecipazioni, cited in paragraph 159 above, paragraph 121).
270Secondly, as regards the applicant’s assertion that it never took account of the ‘Darfo quota’, it must be recalled that, as is clear from recital 256 of the first decision, Acciaieria di Darfo sent the Italian Minister for Industry a request for the award of grants for the destruction of its own reinforcing bar manufacturing plants. According to that recital, the former Acciaierie e Ferriere Leali Luigi, (the former) Ferriera Valsabbia, IRO, Alfa and Feralpi agreed with Acciaieria di Darfo that, in exchange for its commitment to end its own steelmaking activities, they would pay it compensation in respect of each kilogramme of reinforcing bar sold and delivered by each of them in Italy between 1 January 1999 and 31 January 2001.
271It must be observed in this connection that Lucchini-SP’s observance of the ‘Darfo quota’ is demonstrated by a manuscript note from the Chairman of Ferriere Nord, which stated ‘Riva, Lucchini and myself, as well as the others, have undertaken to observe the agreement’.
272The applicant’s complaints cannot therefore be upheld.
273It follows that the seventh plea must be rejected in its entirety.
The eighth plea, alleging infringement of the applicant’s rights of defence
–The first limb of the eighth plea, concerning the fact that no new objections were communicated
274The applicant states that the first decision was not preceded by any communication of additional objections following the annulment of the 2002 decision, merely by a simple letter dated 30 June 2008. Consequently, the first decision is unlawful in that it was adopted upon the conclusion of a procedure wherein the undertakings implicated were not allowed the appropriate and full exercise of their rights of defence.
275It must be recalled that, according to settled case-law, in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of EU law which must be complied with even if the proceedings in question are administrative proceedings. In that regard, the statement of objections constitutes the procedural safeguard applying the fundamental principle of EU law which requires observance of the rights of the defence in all proceedings. That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (see, to that effect, Joined Cases C-322/07 P, C-327/07 P and C-338/07 P Papierfabrik August Koehler and Others v Commission [2009] ECR I-7191, paragraphs 34 to 36 and the case-law cited, and Case C-534/07 P Prym and Prym Consumer v Commission [2009] ECR I-7415, paragraphs 26 to 28).
276Respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that the undertaking has committed an infringement (see Aalborg Portland and Others v Commission, cited in paragraph 201 above, paragraph 66 and the case-law cited).
277It must also be recalled that, according to settled case-law, the annulment of an EU measure does not necessarily affect the preparatory acts, since the procedure for replacing such a measure may, in principle, be resumed at the very point at which the illegality occurred (Case C-415/96 Spain v Commission [1998] ECR I-6993, paragraphs 31 and 32, Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 220 above, paragraph 73, and Case T-66/01 Imperial Chemical Industries v Commission [2010] ECR II-2631, paragraph 125).
278Moreover, according to the case-law, where, following the annulment of a decision in a competition matter, the Commission chooses to rectify the illegality or illegalities found and to adopt a new, identical decision which is not vitiated by those illegalities, that decision relates to the same objections as those in respect of which the undertakings have already submitted observations (Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 220 above, paragraph 98).
279In the present case, it must be observed that, when the 2002 decision was annulled, the preparatory acts completed by the Commission made it possible to analyse exhaustively the conduct of the undertakings in question in the light of Article 65(1) CS. Moreover, the applicant does not argue, in the context of the present plea, that the content of the Commission’s objections in the first decision was any different from that in the statement of objections or the supplementary statement of objections.
280As was pointed out in paragraph 22 above, the 2002 decision was annulled because Article 65(4) and (5) CS had expired on 23 July 2002 and the Commission could no longer derive competence from those provisions, which were no longer in force when it adopted the decision finding an infringement of Article 65(1) CS and imposing fines on the undertakings which had allegedly participated in the infringement. Therefore, execution of the judgment in SP and Others v Commission, cited in paragraph 22 above, required the Commission to take up the procedure at the exact point at which the unlawfulness intervened, that is, on the adoption of the 2002 decision. The Commission was therefore not obliged to address a new statement of objections to the applicant.
281The first part of the eighth plea must therefore be rejected.
–The second limb of the eighth plea, alleging a failure to communicate documents relating to the cooperation provided by Ferriere Nord
282In the second limb of the present plea, the applicant argues that its rights of defence were infringed by the fact that it was not allowed access to the documents submitted to the Commission by Ferriere Nord in the context of its cooperation under the 1996 Leniency Notice.
283According to recital 636 of the first decision, ‘Ferriere Nord provided the Commission with useful information which allowed it to gain a better understanding of the functioning of the agreement’. In recital 637 of the first decision, the Commission added that ‘Ferriere Nord [had been] the only undertaking which provided [it] with information enabling it to gain a better understanding of the agreement’. In footnote 685 to the first decision, the Commission stated that ‘Ferriere Nord [had] provided explanations in respect of the documents discovered at its offices’ and that, unprompted, it had sent it the table referred to in recital 251 of the first decision, completed with the names of the undertakings encrypted in the document in the Commission’s possession. According to the Commission, Ferriere Nord’s contribution had made it possible for it to establish a link with the ‘working hypothesis’ document referred to in recital 247 of the first decision, confirming that the code or letter key were the same. It also emphasised that the partial acceptance of the requests of the two companies which had asked for an increase in their quotas under the agreement at the end of 1998 had helped to show that the working hypothesis did not just remain as such but that the agreement of September-November 1998 had been implemented.
284The applicant points out that Ferriere Nord cooperated with the Commission by submitting statements on 14 February and 13 July 2001 and a corrigendum on 30 July 2001, which enabled the Commission better to understand the functioning of the cartel. Ferriere Nord consequently benefited from a reduction of 20% of its fine. However, prior to the statement of objections, the Commission did not inform the undertakings involved in the cartel that it regarded Ferriere Nord’s cooperation as helpful in gaining a better understanding the functioning of the cartel (paragraph 152 of the statement of objections) and did not make the abovementioned statements available to the undertakings involved before it adopted the first decision, thus infringing their rights of defence. The applicant argues that, since Ferriere Nord appears only to admit the facts in respect of the period after 1997, the question arises of how the Commission could maintain objections relating to the period prior to 1997 in the absence of any decisive cooperation enabling it to understand the functioning of the cartel. Ferriere Nord was able to mention an agreement between manufacturers on minimum prices and output reductions that also implicated the applicant which was not included in the first decision (recital 98 in fine of the 2002 decision). The applicant therefore requests the Court, in accordance with Articles 64 and 65 of the Rules of Procedure, to order the Commission to produce the abovementioned statements and to hear Ferriere Nord’s legal representative on the question of whether or not the applicant was one of the undertakings that had agreed on minimum prices and output reductions.
285It must be borne in mind that it is the statement of objections, on the one hand, and access to the file, on the other, that allow the undertakings under investigation to acquaint themselves with the evidence which the Commission has at its disposal and to render the rights of the defence fully effective (Limburgse Vinyl Maatschappij and Others v Commission, cited in paragraph 220 above, paragraphs 315 and 316, Aalborg Portland and Others v Commission, cited in paragraph 201 above, paragraphs 66 and 67, and Case C-328/05 P SGL Carbon v Commission [2007] ECR I-3921, paragraph 55).
286The right of access to the file, which is a corollary of the principle of respect for the rights of the defence, means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file that might be relevant for its defence. Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved (Aalborg Portland and Others v Commission, cited in paragraph 201 above, paragraph 68).
287The failure to communicate an incriminating document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, secondly, that the objection could be proved only by reference to that document. If there were other documentary evidence of which the parties to the cartel were aware during the administrative procedure that specifically supported the Commission’s findings, the fact that an incriminating document not communicated to the person concerned was inadmissible as evidence would not affect the validity of the objections upheld in the first decision. It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to it and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence (Aalborg Portland and Others v Commission, cited in paragraph 201 above, paragraphs 71 to 73).
288On the other hand, where an exculpatory document has not been communicated, the undertaking concerned need only establish that its non-disclosure might have influenced, to its disadvantage, the course of the procedure and the content of the Commission’s decision. It is sufficient for the undertaking to show that it could have used the exculpatory documents in its defence, in the sense that, had it been able to rely on them during the administrative procedure, it would have been able to put forward evidence which was not consistent with the inferences made by the Commission at that stage and could therefore have influenced, in some way or other, the assessments made by the Commission in a possible decision, at least as regards the gravity and duration of the conduct of which it was accused and, accordingly, the level of the fine (Aalborg Portland and Others v Commission, cited in paragraph 201 above, paragraphs 74 and 75).
289It must be emphasised as a preliminary point that, in paragraph 52 of the statement of objections, the Commission clearly identified the statements submitted to it by Ferriere Nord and the corresponding page numbers in its file.
290First of all, the Court must reject the applicant’s argument that the Commission failed to inform the undertakings implicated in the cartel, prior to the statement of objections, that it regarded Ferriere Nord’s cooperation as useful. Indeed, it is clear from paragraph 2 of Section E of the 1996 Leniency Notice that it is only when it adopts a decision that the Commission assesses such usefulness.
291Secondly, the applicant cannot maintain that the Commission infringed its rights of defence by not making the statements referred to in paragraph 284 above accessible. Indeed, the applicant’s argument that the Commission ought not to have maintained objections relating to the period prior to 1997 in the absence of any decisive cooperation enabling it to understand the functioning of the cartel cannot be upheld since, as was pointed out in paragraph 283 above, Ferriere Nord’s contribution merely enabled the Commission to establish a link with the ‘working hypothesis’ document referred to in recital 247 of the first decision, relating to the agreement of September-November 1998. It is also clear from the body of evidence referred to, in particular, in recitals 419 to 459 of the first decision, that the Commission did not rely solely on Ferriere Nord’s leniency application in order to establish the existence of the infringement during the period prior to 1997.
292In any event, it must be emphasised that, by its statement of 14 February 2001, Ferriere Nord communicated to the Commission information and documents relating to the verification report of October 2000, along with a copy of a table seised during the investigation, duly completed with the names of the companies concerned, which were encrypted in the document in the Commission’s possession. That document is in the Commission’s file and was accessible.
293Moreover, as regards the statement of 13 July 2001, it must be observed that that was a confidential document in which Ferriere Nord formally requested that the 1996 Leniency Notice be applied. The applicant knew of the existence of that statement (and of the corrigendum of 30 July 2001), inasmuch as it is mentioned in paragraph 52 of the statement of objections and the content of the statement and of the corrigendum of 30 July 2001 was briefly described in a document included in the file which was accessible.
294When questioned on this point at the hearing, the applicant also confirmed to the Court that, during the administrative procedure, it had not requested access to the documents submitted to the Commission by Ferriere Nord in the context of its cooperation under the 1996 Leniency Notice, which were in the investigation file, and that it had not objected to the Commission’s confidential treatment of the statement of 13 July 2001 and the related corrigendum. Its complaint cannot, therefore, be upheld.
295Having regard to the foregoing, it is not necessary to order the production of the abovementioned statements or the examination of Ferriere Nord’s legal representative, pursuant to Articles 64 and 65 of the Rules of Procedure, as requested by the applicant (see, to that effect, Case C-260/05 P Sniace v Commission [2007] ECR I-10005, paragraphs 77 to 79 and the case-law cited).
296Thirdly, the applicant’s allegation, made by reference to its first plea, that the absence of the tables which ought to have been annexed to the first decision constitutes a further infringement of its rights of defence must be dismissed on the basis of the case-law mentioned in paragraph 65 above.
297In light of all the foregoing considerations, the second limb of the eighth plea and thus the eighth plea in its entirety must be rejected. Consequently, the Court must reject in its entirety the claim for a declaration that the first decision is non-existent or for the annulment of the first decision.
The claim for the annulment of the first decision in so far as concerns the fine
298The applicant argues that Article 23(2) of Regulation No 1/2003 does not permit the fining of undertakings which have no turnover, which is the applicant’s case since it has been put into liquidation and had no turnover and carried on no activity in the year preceding the adoption of the first decision. It is also ‘astonishing’ that an increase should have been applied to an undertaking that is in liquidation and inactive in order to ensure a sufficient deterrent effect. The Commission failed to give any reasons for its failure to comply with the obligation laid down in Article 23(2) inasmuch as, in recital 632 of the first decision, it referred to the overall turnover of the companies making up the single undertaking in order to circumvent, by the artifice of joint and several liability, the prohibition laid down in Article 23(2) of Regulation No 1/2003. Even if the applicant was connected with the Lucchini group in the past, that has not been the case since 2005, since the Lucchini group now forms part of the Severstal group. Moreover, there are precedents where, on grounds of expediency, the Commission has decided not to fine undertakings in liquidation.
299First of all, the Court must examine, in the light of the settled case-law recalled in paragraph 78 above, the applicant’s complaint of breach of the duty to state reasons.
300In recital 632 of the first decision, the Commission stated that, ‘[a]s regards S.P. SpA in liquidation and Acciaierie e Ferriere Leali Luigi SpA in liquidation in particular, the fact that the former [was at that time] inactive and the latter [was] in liquidation [did] not prevent [it] from imposing fines on them as these companies [were jointly] and severally responsible with Lucchini SpA and Leali SpA respectively’. The Commission noted in this connection that ‘as these companies [formed] part of a single undertaking, according to settled case-law, it [was] the overall turnover of the companies making up this single undertaking that [was] to be used for the purpose of complying with the ceiling imposed by Article 23(2) of Regulation No 1/2003’.
301The Commission also explained, in recitals 538 to 544 of the first decision, the reasons for which, during the period of the infringement, the applicant formed part of the same undertaking as Lucchini. It relied, first of all, on the fact that, throughout the period of the infringement, both the share capital of Lucchini and that of the new Siderpotenza (now SP) were controlled by the Lucchini family, secondly, on the simultaneous occupation by a number of persons of key positions within Lucchini, the first Siderpotenza and the new Siderpotenza, thirdly, on the existence in 1998 of a business management agreement between Lucchini and the new Siderpotenza and, fourthly, on several internal documents of those companies dating back to the period of the infringement.
302As regards the changes in the shareholdings in Lucchini after the end of the infringement period, the Commission stated, first of all, in recital 95 of the first decision, that, ‘[s]ince 20 April 2005, Lucchini SpA [had] been controlled by the Severstal Group’ and that, ‘[o]n 23 May 2007, the Severstal Group’s shareholding [had been] 79.82%, and the family’s shareholding [had been] 20.18%’. Next, it stated, in footnote 586, under recital 540 of the decision, that ‘[t]he fact that in April 2005 the majority holding in Lucchini SpA passed to the Severstal group ... [did] not alter [the] conclusion [that Lucchini SpA and SP constituted a single undertaking] as Lucchini SpA still [existed] as a legal person at the time of adoption of the present Decision’. Lastly, in recital 631 of the first decision, concerning the upper limit for fines laid down in Article 23(2) of Regulation No 1/2003, the Commission stated that the amount fixed at that stage of the calculation, EUR 14.35 million, did not exceed the ceiling of 10% of turnover achieved by the undertaking in question from ECSC products in the territory of the EU in 2007 (the Commission having used the figures for 2007 since, at the time when it adopted the first decision, certain undertakings had been unable to provide it with figures for 2008).
303In light of the foregoing, in so far as concerns the application of the ceiling referred to in Article 23(2) of Regulation No 1/2003 and the use in this connection of the overall turnover of the single undertaking comprised of the applicant and Lucchini in order to calculate the maximum amount of the fine, the first decision is supported by a statement of reasons of the requisite legal standard.
304Secondly, the applicant argues that it is no longer part of the Lucchini group, which now forms part of the Severstal group and that, where the requisite conditions are fulfilled, the option of assigning joint and several liability is available only if the undertakings still belong to the same group when the fine is imposed. The applicant states that Lucchini holds only a minority, rather than a controlling share in its company capital and that Lucchini has formed part of the Severstal group since April 2005. The applicant states in this connection that, ‘since 2005, the two undertakings have been separate and have not belonged to the same group’. In support of this plea, the applicant refers to the joint press release from the Lucchini and Severstal groups of 20 April 2005, which announced Severstal’s acquisition, approved by Commission decision of 12 April 2005, of 62% of Lucchini’s capital. According to the press release, the Lucchini family still held on that date 29% of Lucchini’s capital, with the remaining 9% being held by other shareholders. The press release stated that Giuseppe Lucchini had been appointed Chairman of Lucchini’s Board of Directors.
305It must be concluded that, by this complaint concerning the maximum amount of the fine under Article 23(2) of Regulation No 1/2003, the applicant seeks solely to call into question the Commission’s finding that, up to the time when the first decision was adopted, it continued to belong to the same economic unit as Lucchini.
306It should be recalled that, in accordance with Article 23(2) of Regulation No 1/2003, ‘[f]or each undertaking ... participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year’.
307Thus, the ceiling aims, inter alia, to protect undertakings against excessive fines which could destroy them commercially. It follows that the ceiling refers not to the period of the infringements penalised, which may precede the date of the fine by several years, but to a period closer to that date (see, to that effect, Tokai Carbon and Others v Commission, cited in paragraph 197 above, paragraph 389).
308It follows that the objective sought by the introduction of the 10% ceiling can be realised only if that ceiling is applied initially to each separate addressee of the decision imposing the fine. It is only if it subsequently transpires that several addressees constitute the ‘undertaking’ that is the economic entity responsible for the infringement penalised, again at the date when the decision is adopted, that the ceiling may be calculated on the basis of the overall turnover of that undertaking, that is to say of all its constituent parts taken together. By contrast, if that economic unit has subsequently broken up, each addressee of the decision is entitled to have the ceiling in question applied individually to it (Tokai Carbon and Others v Commission, cited in paragraph 197 above, paragraph 390; see also, to that effect, the judgment of 16 November 2011 in Case T‑72/06 Groupe Gascogne v Commission, not published in the ECR, paragraph 115).
309It is therefore necessary to ascertain whether, as the applicant argues, the economic unit identified by the Commission in recitals 538 to 544 of the first decision had broken up by the time the first decision was adopted.
310It must first of all be pointed out in this connection that, in the first decision, the Commission noted, on the basis of the replies to the requests for information which it had sent to the applicant and to Lucchini on 24 July 2008, first, that the applicant was owned as to 83.33% by natural or legal persons connected with the Lucchini family, while the remaining 16.667% belonged to Lucchini and, secondly, that, by 23 May 2007, the Lucchini family held only 20.18% of the shares in Lucchini while the remaining 79.82% had been acquired by the Severstal group, which had taken control of the company.
311It follows that, when the first decision was adopted, the existence of an economic unit could not be inferred from the respective shareholdings of Lucchini and of the members of the Lucchini family. Although the Lucchini family still owned, at the time of adoption of the first decision, a controlling shareholding in the capital of the applicant, it no longer had a controlling shareholding in the capital of Lucchini, control over which had been acquired by Severstal after the end of the infringement period but before the adoption of the first decision.
312In this connection, the Court must reject the Commission’s argument that it was the applicant that, by letter of 17 December 2008 in reply to the request for information referred to in paragraph 310 above, informed it that there had been no significant change in its ownership, implying that SP continued to be directly or indirectly owned by the Lucchini family. That argument is in fact irrelevant since, as the applicant emphasised at the hearing, the change was not in its ownership structure but in that of Lucchini.
313Secondly, the existence of an economic unit at the time of adoption of the first decision equally could not be inferred from the fact that certain persons occupied positions in both Lucchini and SP, as mentioned in recital 538 of the first decision, since that occurred only during the period between 30 November 1998 and the end of 2002.
314At the hearing, referring to the press release of 20 April 2005 produced by the applicant, the Commission stated that, notwithstanding the minority shareholding of 20.18% which the members of the Lucchini family held in Lucchini, they nevertheless continued to play a very significant role in the company’s management bodies, so much so that it could conclude that the Lucchini family had continued to exert decisive influence over Lucchini, even after 2005 and up to the date of adoption of the first decision. It pointed out in this connection that, in 2005, the Lucchini family had appointed three members of Lucchini’s Board of Directors and that Giuseppe Lucchini was a shareholder in SP and had been appointed Chairman of Lucchini’s Board of Directors following Severstal’s acquisition of the company in 2005.
315That argument cannot succeed.
316First of all, the Commission bases its assertions solely on the press release of 20 April 2005 concerning Severstal’s acquisition in 2005 of 62% of the capital of Lucchini, which stated that the Lucchini family still held at that time 29% of the capital in that company. However, it is clear from recital 95 of the first decision that, by the time the decision was adopted, the members of the Lucchini family held only 20.18% of the share capital of Lucchini. In this connection, the Commission put forward no evidence to support the conclusion that, despite their diminished share in the capital of Lucchini, the members of the Lucchini family continued to be represented by the same number of directors.
317Next, even supposing that the members of the Lucchini family had continued, after the reduction in their shareholding in Lucchini, to be represented by the same number of directors on Lucchini’s Board of Directors, the Commission fails to explain the reasons for which the mere fact that the Lucchini family was represented on the board by four members (the Chairman and three board directors) out of a total of nine means that the family continued to exercise decisive influence over the company at the time when the first decision was adopted.
318Lastly, as regards the Commission’s observations, similarly drawn from the 20 April 2005 press release, that the Vice-Chairman of Severstal had stated that ‘the decisions taken in the shareholders’ meeting will launch a lasting, strategic partnership between the Severstal group, the Lucchini family and all stakeholders in the Italian company’, it must be held that that statement is not sufficient to establish that, when the first decision was adopted, the Lucchini family exerted decisive influence over Lucchini.
319Thirdly, the Commission could no longer rely, when it adopted the first decision, on the existence of a business management agreement between Lucchini and the applicant, since the Commission itself stated at the hearing that the applicant had stopped manufacturing reinforcing bars in 2002 and had sold its plant at Potenza to Ferriere Nord, with the result that it had no longer been necessary for the business management agreement to continue.
320Fourthly, in so far as concerns the other internal documents mentioned in recital 538 of the first decision, it must be held that they are contemporaneous with the infringement and do not enable the existence of an economic unit comprising Lucchini and the applicant at the time of the first decision’s adoption to be established.
321Fifth, the Commission asserted at the hearing that the applicant’s registered office was also Lucchini’s administrative headquarters. A circumstance such as that, taken in isolation, is nevertheless equally incapable of establishing the existence of an economic unit comprising Lucchini and the applicant at the time when the first decision was adopted.
322It follows from the foregoing considerations that, despite the information in its possession and referred to in the first decision concerning the significant changes in Lucchini’s ownership structure, the Commission failed to establish, in recitals 538 to 543 of the decision, that an economic unit comprising Lucchini and the applicant still existed at the time when the first decision was adopted.
323The first decision must therefore be annulled since it failed to apply to the applicant individually the upper limit for the fine laid down in Article 23(2) of Regulation No 1/2003.
324In this connection, since it is apparent from the file that, in 2007, the applicant had no turnover, no fine should have been imposed on it.
325In light of all the foregoing considerations, the present plea must be upheld and Article 2 of the first decision must be annulled in so far as the Commission therein imposed a fine on the applicant and held it jointly and severally liable for a fine of EUR 14.35 also imposed on Lucchini.
326Consequently, it is not necessary for the Court to consider the other complaints put forward in the context of the present plea or to examine the 9th and 10th pleas in law (see Case T‑370/09 2012 GDF Suez v Commission [2012] ECR, paragraph 72 and the case-law cited).
2.Case T‑55/10
327The action in Case T‑55/10 concerns an application for the annulment of the amending decision.
328In support of its action in Case T‑55/10, the applicant puts forward in its pleadings three pleas in law. By the first, it alleges that the ex post rectification of an act vitiated by serious flaws is unlawful. By the second it alleges infringement of the principle of sound administration. Lastly, by its third plea, the applicant alleges that the amending decision lacked a proper legal basis.
329At the hearing, the applicant withdrew the first plea in its action in Case T‑55/10.
330It is necessary, as a preliminary step, to rule on the admissibility of the action in Case T‑55/10.
331In accordance with settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in the annulment of the contested measure. Such an interest exists only if the annulment of the measure is of itself capable of having legal consequences (Case 53/85 Akzo Chemie and AKZO Chemie UK v Commission [1986] ECR 1965, paragraph 21; see also Joined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others v Commission [1995] ECR II-2305, paragraphs 59 and 60 and the case-law cited, and Case T-188/99 Euroalliages v Commission [2001] ECR II-1757, paragraph 26) or, in accordance with a different form of words, the action must be liable, if successful, to procure an advantage for the party who has brought it (Case C-174/99 P Parliament v Richard [2000] ECR I-6189, paragraph 33, Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677, paragraph 21, and Case T-310/00 MCI v Commission [2004] ECR II-3253, paragraph 44).
332In the present case, it must be observed that, by the amending decision, the Commission added to the first decision several tables that were missing from the annex to that decision and corrected the numbered references to those tables in a number of footnotes to the first decision.
333However, as was explained in paragraphs 47 and 48 above and as is apparent from the Court’s examination of the first plea in Case T‑472/09 (see paragraphs 63 to 108 above), the amending decision does no more than add to the first decision a number of tables that were missing from the annex to that decision and correct the numbered references to those tables in various footnotes to the first decision. The changes thus made to the statement of reasons for the first decision did not alter the substance of what was decided in the operative part of that decision. It follows that the applicant can derive no advantage from the simple annulment of the amending decision. Moreover, if the applicant is seeking, by means of its action in Case T‑55/10, a decision of the Court that will in fact affect the first decision, it must be held that such a request is essentially indissociable from those put forward in the action in Case T‑472/09.
334Consequently, the action in Case T‑55/10 is inadmissible and must therefore be dismissed in its entirety.
Costs
335Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the General Court may order that the costs be shared or that each party bear its own costs.
336Since the action in Case T‑472/09 has been only partly successful, the Court considers it fair, having regard to the circumstances of the case, to order the applicant to bear half of its own costs. The Commission shall bear its own costs and pay half of the applicant’s costs.
Operative part
On those grounds,THE GENERAL COURT (Eighth Chamber)hereby:
1.Joins Cases T‑472/09 and T‑55/10 for the purposes of the judgment;
2.In Case T‑472/09 SP v Commission:— annuls Article 2 of Commission Decision C(2009) 7492 final of 30 September 2009 relating to a proceeding under Article 65 CS (Case COMP/37.956 — Reinforcing bars, re-adoption) in so far as it jointly and severally imposes a fine of EUR 14.35 million on SP SpA;— dismisses the remainder of the action;— orders SP to bear half its own costs;— orders the Commission to bear its own costs and to pay half of SP’s costs.
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