Recylex SA and Others v European Commission (T-222/17)

Contents

Judgment of the General Court (Eighth Chamber)23 May 2019^note(Competition — Agreements, decisions and concerted practices — Market for lead-acid car battery recycling — Decision finding an infringement of Article 101 TFEU — Coordination of purchase prices — Fines — Point 26 of the 2006 Leniency Notice — Point 37 of the Guidelines on the method of setting fines — Unlimited jurisdiction)In Case T‑222/17,Recylex SA, established in Paris (France),Fonderie et Manufacture de Métaux SA, established in Brussels (Belgium),Harz-Metall GmbH, established in Goslar (Germany),represented by M. Wellinger, S. Reinart and K. Bongs, lawyers,vEuropean Commission, represented by I. Rogalski, J. Szczodrowski and F. van Schaik, acting as Agents,THE GENERAL COURT (Eighth Chamber),composed of A.M. Collins (Rapporteur), President, M. Kancheva and R. Barents, Judges,Registrar: N. Schall, Administrator,having regard to the written part of the procedure and further to the hearing on 15 November 2018,gives the following

JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are represented here.

Background to the dispute

1Recylex SA, Fonderie et Manufacture de Métaux SA and Harz-Metall GmbH (together ‘the applicants’ or ‘Recylex’), are companies established, respectively, in France, in Belgium and in Germany, which are active in the production of recycled lead and other products (polypropylene, zinc and special metals).

2By Decision C(2017) 900 final of 8 February 2017 relating to a proceeding under Article 101 TFEU (Case AT.40018 — Car battery recycling) (‘the contested decision’), the European Commission found an infringement of Article 101 TFEU in the sector of the purchase of scrap lead-acid car batteries used for the production of recycled lead. Four undertakings or groups of undertakings participated in this infringement, namely, first, Campine NV and Campine Recycling NV (together ‘Campine’); second, Eco-Bat Technologies Ltd, Berzelius Metall GmbH and Société de traitement chimique des métaux SAS (together ‘Eco-Bat’); third, Johnson Controls, Inc., Johnson Controls Tolling GmbH & Co. KG and Johnson Controls Recycling GmbH (together ‘JCI’); and, fourth, Recylex. The infringement was said to have taken place in the period from 23 September 2009 to 26 September 2012 (recitals 1 and 2 and Article 1(1) of the contested decision).

3According to the Commission, the infringement is a single and continuous infringement consisting of agreements or concerted practices covering the territories of Belgium, Germany, France and the Netherlands. It consisted in the four undertakings or groups of undertakings referred to in paragraph 2 above coordinating their pricing behaviour with regard to the purchase of scrap lead-acid car batteries used for the production of recycled lead (recitals 1 and 2 and Article 1(1) of the contested decision).

The administrative procedure which led to the contested decision

4The administrative procedure was initiated following an application for immunity, within the meaning of the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17, ‘the 2006 Leniency Notice’), lodged on 22 June 2012 by JCI. On 13 September 2012, the Commission granted JCI conditional immunity under point 18 of that notice (recital 29 of the contested decision).…

6On 27 September 2012 and 23 October 2012 respectively, Eco-Bat and Recylex applied under the 2006 Leniency Notice for immunity or, failing that, for a reduction of the amount of the fine. On 4 December 2012, Campine submitted an application for a reduction of the amount of the fine under the same notice (recital 31 of the contested decision).…

10By letter of 24 June 2015, the Commission informed Eco-Bat and Recylex of its provisional conclusion that the evidence which they had submitted to it represented significant added value within the meaning of points 24 and 25 of the 2006 Leniency Notice and, accordingly, of its intention to reduce the amount of the fine to be imposed on them. By letter of the same date, the Commission also informed Campine of its provisional conclusion that Campine did not meet the conditions for a reduction of the amount of the fine under the 2006 Leniency Notice (recital 33 of the contested decision).…

13On 8 February 2017, the Commission adopted the contested decision, in which, in particular, it alleged that Recylex had participated in the infringement referred to in paragraph 3 above from 23 September 2009 until 26 September 2012, and imposed on it, jointly and severally, a fine of EUR 26739000.

Law…

Fourth plea in law, alleging an error in the application of point 26 of the 2006 Leniency Notice as regards the cooperation of Eco-Bat

136By its fourth plea in law, Recylex maintains that Eco-Bat did not fulfil its duty of cooperation for the purposes of point 12(a) and (c) of the 2006 Leniency Notice, as point 24 of that notice requires. In its view, given that, in order to be able to claim a reduction of the fine, the cumulative conditions of point 12(a) to (c) of that notice must be met, Eco-Bat did not qualify for a reduction of the fine. It should therefore be concluded that, rather than being the second undertaking to provide evidence that represented significant added value, Recylex was the first undertaking to provide such evidence. Accordingly, the Commission erred in its application of the first paragraph of point 26 of the 2006 Leniency Notice by granting it a reduction of 20 to 30% instead of 30 to 50%.

137Recylex claims that Eco-Bat failed to fulfil its duty of cooperation in several respects. First, prior to Recylex’s leniency application, Eco-Bat provided incomplete and misleading information about the territories concerned by the infringement. Eco-Bat asserted that the infringement was limited to Germany, the Netherlands and, occasionally, Belgium. Eco-Bat also replied evasively to the Commission’s questions about the infringement in relation to France. Second, Eco-Bat did not disclose the full extent of the involvement of its representatives in the infringement, which shows that it did not carry out serious investigations in order to provide the Commission with a full description of its involvement. Third, Eco-Bat provided misleading information as to the role of one of its representatives. More generally, the responses given by Eco-Bat to the Commission’s requests for information did not demonstrate genuine cooperation.

138Consequently, in view of Eco-Bat’s disqualification, Recylex takes the view that it was entitled to the maximum reduction of 50% in the first indent of the first paragraph of point 26 of the 2006 Leniency Notice. As regards the significant added value of the evidence which it provided, Recylex relies, in essence, on the same arguments as those put forward in support of the first and second pleas in law.

139At the hearing, Recylex confirmed that it was not seeking, by this plea, to deprive Eco-Bat of the 50% reduction granted to it.

140The Commission states that it is common ground between the parties that, on 27 September 2012, Eco-Bat had been the first undertaking to provide evidence that had significant added value. On 23 October 2012, Recylex was the second undertaking to provide such evidence. In view of the chronological order in which evidence having significant added value was lodged, Recylex cannot, on any view, be described as the first undertaking to provide evidence of significant added value, even if Eco-Bat were ineligible for any reduction because of a breach of the duty of cooperation in accordance with the requirements of point 12 of the 2006 Leniency Notice. Consequently, the Commission contends, Recylex’s complaints concerning the breach by Eco-Bat of the duty of cooperation and its assertions regarding the significant added value of the evidence which it provided are irrelevant.

141The first question that arises is whether, where two undertakings have provided evidence of significant added value, the undertaking which provided that evidence second could take the place of the first undertaking, if it transpired that the latter’s cooperation did not meet the requirements of point 12 of the 2006 Leniency Notice.

142As a preliminary point, it must be noted that, by the adoption of the 2006 Leniency Notice, the Commission created legitimate expectations, as indeed the Commission recognised in point 38 of that notice. In view of the legitimate expectation which undertakings intending to cooperate with the Commission are entitled to derive from that notice, the Commission is therefore obliged to adhere to it (see judgment of 29 February 2016, Schenker v Commission, T‑265/12, EU:T:2016:111, paragraph 361 and the case-law cited).

143Next, it should be recalled that, since the leniency procedure is an exception to the rule that an undertaking must be punished for any infringement of the rules of competition law, the relevant rules must be interpreted strictly (see, to that effect and by analogy, judgment of 27 February 2014, LG Display and LG Display Taiwan v Commission, T‑128/11, EU:T:2014:88, paragraph 167).

144The first paragraph of point 26 of the 2006 Leniency Notice provides as follows:‘The Commission will determine in any final decision adopted at the end of the administrative procedure the level of reduction an undertaking will benefit from, relative to the fine which would otherwise be imposed. For the:– first undertaking to provide significant added value: a reduction of 30-50%,– second undertaking to provide significant added value: a reduction of 20-30%,– subsequent undertakings that provide significant added value: a reduction of up to 20%.’

145Point 24 of the 2006 Leniency Notice provides that, in order to qualify for a reduction, an undertaking must meet the cumulative conditions set out in point 12(a) to (c) of that notice. Point 12 sets out the requirements in relation to the duty of cooperation. It provides, in essence, that the undertaking must, first, cooperate genuinely, fully, on a continuous basis and expeditiously throughout the administrative procedure, which requires the undertaking to provide accurate, not misleading, and complete information. Second, it must end its involvement in the alleged cartel and, third, it must not have destroyed, falsified or concealed evidence of the alleged cartel. In the present case, the applicants do not dispute that Eco-Bat met the second condition.

146The last paragraph of point 30 of the 2006 Leniency Notice provides that, if the Commission finds that the undertaking does not meet the conditions set out in point 12, the undertaking will not benefit from any favourable treatment under that notice. Accordingly, as is, moreover, undisputed, the requirement of cooperation, within the meaning of point 12 of that notice, is of fundamental importance in determining whether an undertaking is entitled to full or partial immunity, or to any reduction of the amount of the fine. If it did not fulfil its duty to cooperate, it cannot benefit from leniency.

147It must be noted, however, that it is not apparent from the 2006 Leniency Notice that any failure to fulfil the duty to cooperate will affect the order in which leniency applications are deemed to have arrived.

148It must also be stated that, according to settled case-law, it is apparent from the very logic of the 2002 Leniency Notice, as well as from that of the 2006 Leniency Notice, that the effect sought is to create a climate of uncertainty within cartels by encouraging those participating in them to denounce the cartels to the Commission. That uncertainty results precisely from the fact that the cartel participants know that only one of them can benefit from immunity from fines by denouncing the other participants in the infringement, thereby exposing them to the risk that they face being fined. In the context of that system, and according to the same logic, the undertakings that are quickest to provide their cooperation are supposed to benefit from greater reductions of the fines that would otherwise be imposed on them than those granted to the undertakings that are less quick to cooperate (see judgments of 16 September 2013, Wabco Europe and Others v Commission, T‑380/10, EU:T:2013:449, paragraph 147 and the case-law cited, and of 16 September 2013, Repsol Lubricantes y Especialidades and Others v Commission, T‑496/07, not published, EU:T:2013:464, paragraph 334 and the case-law cited).

149The chronological order and the speed of the cooperation provided by the members of the cartel therefore constitute fundamental elements of the system put in place by the 2006 Leniency Notice (judgment of 5 October 2011, Transcatab v Commission, T‑39/06, EU:T:2011:562, paragraph 380; see also judgment of 16 September 2013, Wabco Europe and Others v Commission, T‑380/10, EU:T:2013:449, paragraph 148 and the case-law cited).

150It follows that neither the wording of the 2006 Leniency Notice nor its logic supports an interpretation whereby, where two undertakings have provided evidence that represents significant added value, the undertaking which provided that evidence second is to take the place of the first undertaking if it transpires that the latter’s cooperation did not meet the requirements of point 12 of the 2006 Leniency Notice.

151The opposite conclusion could lead to a hypothetical situation in which two undertakings benefited from the reductions referred to in each of the indents of the first paragraph of point 26 of the 2006 Leniency Notice. That would be likely to weaken the incentive, for each undertaking involved in an anticompetitive cartel, to cooperate with the Commission as expeditiously as possible without, however, increasing the incentive to cooperate with it fully, because the incentive to cooperate genuinely is already fully protected by the threat of the Commission’s application of points 24 and 30 of the 2006 Leniency Notice.

152Last, it should also be noted that Recylex did not put forward either in its pleadings or in its reply to the question put in the context of the measures of organisation of procedure provided for in Article 89 of the Rules of Procedure any relevant arguments that might cast doubt on that conclusion.

153Consequently, it must be held that the Commission did not err in declining to grant Recylex a reduction of 30 to 50% pursuant to the first indent of the first paragraph of point 26 of the 2006 Leniency Notice. Even if Eco-Bat had failed to fulfil its duty to cooperate fully with the Commission, the fact remains that Recylex was the second undertaking to provide evidence that had significant added value.

154It follows that the remaining arguments are ineffective and that the fourth plea in law must be rejected as unfounded.…

Operative part

On those grounds,THE GENERAL COURT (Eighth Chamber)hereby:

1.Dismisses the action;

2.Orders Recylex SA, Fonderie et Manufacture de Métaux SA and Harz-Metall GmbH to pay the costs.

Delivered in open court in Luxembourg on 23 May 2019.