Contents
Judgment of the Court (Second Chamber)24 September 2020note(Appeal — Competition — Cartels — European market for submarine and underground power cables — Market allocation in connection with projects — Single and continuous infringement — Succession of legal entities — Attributability of unlawful conduct — Principle of equal treatment — Distortion of evidence — Regulation (EC) No 1/2003 — Article 20 — European Commission’s powers of inspection in cartel proceedings — Power to copy data without a prior examination and to examine the data subsequently at the Commission’s premises — Fines)In Case C‑601/18 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 September 2018,Prysmian SpA, established in Milan (Italy),Prysmian Cavi e Sistemi Srl, established in Milan,represented initially by C. Tesauro and L. Armati, avvocati, and subsequently by C. Firth and C. Griesenbach, Solicitors,the other parties to the proceedings being:European Commission, represented by F. Castilla Contreras, C. Sjödin, T. Vecchi and P. Rossi, acting as Agents,The Goldman Sachs Group Inc., established in New York (United States), represented by J. Koponen, advokat, and A. Mangiaracina, avvocatessa,Pirelli & C. SpA, established in Milan, represented by G. Rizza and M. Siragusa, avvocati,THE COURT (Second Chamber),composed of A. Arabadjiev, President of the Chamber, P.G. Xuereb (Rapporteur) and T. von Danwitz, Judges,Advocate General: J. Kokott,Registrar: M. Longar, Administrator,having regard to the written procedure and further to the hearing on 23 October 2019,having decided, after hearing the views of the Advocate General, to proceed to judgment without an Opinion,gives the following
Judgment
1By their appeal, Prysmian SpA and Prysmian Cavi e Sistemi Srl ask the Court to set aside the judgment of the General Court of the European Union of 12 July 2018, Prysmian and Prysmian Cavi e Sistemi v Commission (T‑475/14, EU:T:2018:448; ‘the judgment under appeal’), by which the General Court dismissed their action seeking, first, annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 – Power Cables) (‘the decision at issue’), in so far as it concerns them, and, second, a reduction of the amount of the fines imposed on them in the decision at issue.
Legal context
2Under the heading ‘The Commission’s powers of inspection’, Article 20 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) provides:1. In order to carry out the duties assigned to it by this Regulation, the Commission may conduct all necessary inspections of undertakings and associations of undertakings.2.The officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered:(a) to enter any premises, land and means of transport of undertakings and associations of undertakings;(b) to examine the books and other records related to the business, irrespective of the medium on which they are stored;(c) to take or obtain in any form copies of or extracts from such books or records;(d) to seal any business premises and books or records for the period and to the extent necessary for the inspection;(e) to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject-matter and purpose of the inspection and to record the answers.…4. Undertakings and associations of undertakings are required to submit to inspections ordered by decision of the Commission. The decision shall specify the subject matter and purpose of the inspection, appoint the date on which it is to begin and indicate the penalties provided for in Articles 23 and 24 and the right to have the decision reviewed by the Court of Justice. The Commission shall take such decisions after consulting the competition authority of the Member State in whose territory the inspection is to be conducted.…’
3Article 21 of that regulation, under the heading ‘Inspection of other premises’, states:1. If a reasonable suspicion exists that books or other records related to the business and to the subject-matter of the inspection, which may be relevant to prove a serious violation of Article [101] or Article [102 TFEU], are being kept in any other premises, land and means of transport, including the homes of directors, managers and other members of staff of the undertakings and associations of undertakings concerned, the Commission can by decision order an inspection to be conducted in such other premises, land and means of transport.…4. The officials and other accompanying persons authorised by the Commission to conduct an inspection ordered in accordance with paragraph 1 of this Article shall have the powers set out in Article 20(2)(a), (b) and (c). …’
4Under Article 23(2) and (3) of the regulation:2.The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:(a) they infringe Article [101] or Article [102 TFEU] ……3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
Background to the dispute and the decision at issue
5The background to the dispute, which is set out in paragraphs 1 to 20, 39 to 44 and 131 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.
6The appellants, Prysmian SpA and Prysmian Cavi e Sistemi Srl (‘PrysmianCS’), are two Italian companies which together form the Prysmian Group. PrysmianCS, which is wholly owned by Prysmian SpA, is one of the leading companies worldwide in the submarine and underground power cable sector.
7Between 18 February 1999 and 28 July 2005, Pirelli & C. SpA (‘Pirelli’), formerly Pirelli SpA, an Italian company, was the parent company of Pirelli Cavi e Sistemi SpA (‘PirelliCS’), then of Pirelli Cavi e Sistemi Energia SpA (‘PirelliCSE’), which operated in the submarine and underground power cable sector. On 28 July 2005, Pirelli sold PirelliCSE to a subsidiary of The Goldman Sachs Group Inc. (‘Goldman Sachs’), a US company. Following that sale, PirelliCSE became Prysmian Cavi e Sistemi Energia Srl (‘PrysmianCSE’), then PrysmianCS.
8By letter of 17 October 2008, ABB AB, a company established in Sweden, provided the European Commission, in connection with 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), with a number of statements and documents concerning restrictive commercial practices in that sector.
9The Commission subsequently carried out an investigation.
10On Wednesday 28 January 2009, the Commission inspectors (‘the inspectors’), accompanied by a representative of the Italian competition authority, visited the appellants’ premises in Milan (Italy) in order to carry out an inspection pursuant to Article 20(4) of Regulation No 1/2003 (‘the inspection in question’), on the basis of a decision of 9 January 2009 ordering Prysmian and all undertakings directly or indirectly controlled by it to submit to such an inspection (‘the inspection decision’). The second paragraph of Article 1 of that decision states that ‘the inspection [in question] can take place at any premises of the undertaking or of the undertakings under its control, and in particular at the offices located at Viale Scarca 222, 20126 Milan, Italy’. Having notified the appellants of that decision and provided them with an explanatory note on the inspections, the inspectors examined the computers of five employees in the presence of the appellants’ representatives and lawyers.
11On the second day of the inspection in question, namely on 29 January 2009, the inspectors informed the appellants that the inspection would take longer than the three days initially envisaged. The appellants stated that they were prepared either to allow access to their premises during the weekend, or for seals to be affixed to those premises so that the inspection in question could resume the following week. However, on the third day of the inspection, namely on 30 January 2009, the inspectors decided to take a copy-image of the hard drives of the computers of three of the five employees who were initially the subject of the investigation (‘the computers in question’) in order to examine the information contained on those hard drives at the Commission’s offices in Brussels (Belgium).
12The appellants observed that the method of review suggested by the inspectors was illegal. Having been informed by the inspectors that any objection to the suggested review procedure would be regarded as ‘non-cooperation’, the appellants submitted to that procedure whilst reserving the right to challenge its legality.
13The inspectors then made copy-images of the hard drives of the computers in question. The copy-images of the hard drives of two computers were saved on a data-recording device. The copy-image of the hard drive of the third computer was saved on a computer of the Commission. That computer and the data-recording device in question were placed in sealed envelopes which the inspectors took back to Brussels.
14On 26 February 2009, the sealed envelopes referred to in the previous paragraph were opened in the presence of the appellants’ lawyers in the Commission’s offices. The inspectors examined the copy-images contained in those envelopes and printed out the documents that they considered to be relevant for the purposes of the investigation. A second paper copy of those documents and a list of them were given to the appellants’ lawyers. That process continued on 27 February 2009 and was completed on 2 March 2009. The office in which it took place was sealed at the end of each working day, in the presence of the appellants’ lawyers, and opened again the following day, also in their presence. At the end of that process, the Commission wiped the copy-images that it had made of the hard drives in the presence of the appellants’ representatives.
15By application lodged at the Registry of the General Court on 7 April 2009 and registered as Case T‑140/09, the appellants brought an action seeking, inter alia, the annulment of the inspection decision and a declaration that the Commission’s decision to make copy-images of the hard drives of the computers in question for the purpose of examining them subsequently at its offices in Brussels was unlawful.
16By judgment of 14 November 2012, Prysmian and Prysmian Cavi e Sistemi Energia v Commission (T‑140/09, not published, EU:T:2012:597), the General Court annulled in part the inspection decision, in so far as it concerned power cables other than high voltage underwater and underground power cables and the material associated with those other cables, and dismissed the action as to the remainder.
17In that context, the Commission found, in Article 1 of the decision at issue, that the appellants and 24 other undertakings, including Nexans France SAS and Silec Cable SAS, two French companies, had participated in a cartel (‘the cartel’), constituting a single and continuous infringement of Article 101 TFEU and of Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3; ‘the EEA Agreement’) in the sector for (extra) high voltage underground and/or submarine power cables (‘the infringement at issue’).
18In the decision at issue, the Commission found that the cartel consisted of two main configurations, which formed a composite whole, namely:– a configuration which included the European undertakings, generally referred to as ‘R members’, the Japanese undertakings, referred to as ‘A members’, and the South Korean undertakings, referred to as ‘K members’, and which made it possible to achieve the objective of allocating territories and customers among the European, Japanese and South Korean producers (‘the A/R configuration’). That allocation followed an agreement relating to the ‘home territory’, under which the Japanese and South Korean producers would refrain from competing for projects in the European producers’ ‘home territory’ and the European producers would undertake to stay out of the Japanese and South Korean markets. In addition, projects were allocated in the ‘export territories’, namely the rest of the world with the notable exception of the United States;– a configuration that involved the allocation of territories and customers by the European producers for projects to be carried out within the European ‘home’ territory or allocated to the European producers (‘the European configuration’).
19According to the decision at issue, PrysmianCS participated in the cartel from 18 February 1999 to 28 January 2009. Pirelli was found liable, in essence, on the basis of the exercise of decisive influence as a parent company over the conduct of PirelliCSE until 28 July 2005. Prysmian was held liable for the infringement in question as the parent company of PrysmianCS for the period from 29 July 2005 to 28 January 2009. In addition, the Commission found Goldman Sachs liable for the infringement in question during that same period in the light of its relationship with Prysmian and, indirectly, PrysmianCSE.
20For the purposes of calculating the amounts of the fines, the Commission applied Article 23(2)(a) of Regulation No 1/2003 and the methodology set out in the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).
21In the first place, as regards the basic amount of those fines, the Commission determined the value of sales to be taken into account. It then set the proportion of the value of sales which would reflect the gravity of the infringement in question. In that regard, the Commission found that that infringement, by its very nature, was among the most harmful restrictions of competition, which justified a ‘gravity percentage’ of 15%. The Commission also increased that percentage by 2% for all addressees of the decision at issue on account of their combined market share and the almost worldwide geographic reach of the cartel, which included, in particular, all of the European Economic Area (EEA).
22The Commission found, moreover, that the conduct of the European undertakings had been more detrimental to competition than that of the other undertakings, inasmuch as, in addition to their participation in the A/R configuration, the European undertakings had shared power cable projects among themselves in the context of the European configuration. For that reason, the Commission set the proportion of the value of sales to reflect the gravity of the infringement at 19% for the European undertakings and at 17% for the other undertakings. The basic amount thus calculated came, in relation to PrysmianCS, to EUR 104613000.
23In the second place, as regards adjustments to the basic amounts of the fines, the Commission found there to be no aggravating circumstances or extenuating circumstances as regards the appellants.
24Under Article 2(f) and (g) of the decision at issue, the Commission imposed, first, a fine of EUR 67310000 on PrysmianCS, jointly and severally with Pirelli, in respect of the period from 18 February 1999 to 28 July 2005 and, second, a fine of EUR 37303000 on PrysmianCS, jointly and severally with Prysmian and Goldman Sachs, in respect of the period from 29 July 2005 to 28 January 2009.
The procedure before the General Court and the judgment under appeal
25By application lodged at the Registry of the General Court on 17 June 2014, the appellants brought an action for annulment of the decision at issue in so far as it concerned them and a reduction of the amount of the fines imposed on them.
26By two orders of 25 June 2015, the General Court granted Pirelli and Goldman Sachs leave to intervene in that case, the first in support of the form of order sought by the Commission and the second in support of the form of order sought by the appellants.
27In support of their claim for annulment of the decision at issue, the appellants put forward nine pleas before the General Court, including, inter alia, the first, alleging that the inspection in question was unlawful, the fourth, alleging that liability was wrongly attributed to PrysmianCS for the period prior to 27 November 2001, the sixth, alleging insufficient evidence of an infringement of Article 101 TFEU, the seventh, alleging incorrect determination of the duration of the infringement at issue, and the eighth, alleging, in its second limb, infringement of the principle of equal treatment in respect of the calculation of the fines imposed. In support of their claim for a reduction in the amount of the fines which had been imposed on them and in addition to relying on the Commission’s errors referred to in the application for annulment of the decision at issue, the appellants pleaded the excessive duration of the administrative procedure.
28In the judgment under appeal, the General Court dismissed the action in its entirety.
29As regards the appellants’ first plea, the General Court considered, first, that, contrary to the appellants’ submissions, it was not apparent from Article 20(2)(b) and (c) of Regulation No 1/2003 that the Commission’s power to take or obtain copies of or extracts from the books and records related to the business of an undertaking under inspection was limited to the books and records related to the business that it had already examined. Such an interpretation could moreover undermine the effectiveness of Article 20(2)(b) of that regulation, in so far as, in certain circumstances, examination of the books and records related to the business of the undertaking under investigation may necessitate the copying of such books or business records beforehand, or be simplified, as in the present case, by that copying. The General Court stated that, given that the making of the copy-images of the hard drives of the computers in question was part of the computer investigation software process used by the Commission in order to be able to conduct a search using keywords of the data contained on those computers, the purpose of which was to search for information relevant to the investigation, the making of those copies fell within the scope of the powers provided for in Article 20(2)(b) and (c) of Regulation No 1/2003.
30Second, the General Court held that, contrary to the appellants’ claims, the inspectors had not placed directly in the investigation file the documents contained in the copy-images of the hard drives of the computers in question without having checked beforehand whether they were relevant to the subject matter of the inspection.
31Third, the General Court held that Article 20(2)(b) of Regulation No 1/2003 does not provide that the examination of the books and records related to the business of undertakings under inspection must be carried out exclusively at their premises if, as in the present case, that inspection could not be completed within the timeframe initially envisaged. That provision merely requires the Commission to offer, when examining documents at its own premises, the same guarantees to undertakings under inspection as those required of the Commission when conducting an on-the-spot examination, as occurred in the present case.
32Fourth, nor did the Commission infringe the scope of the inspection decision, since that decision did not rule out the possibility of the Commission continuing the inspection at its premises in Brussels, nor had the appellants claimed that the duration of the inspection in question had been unreasonable.
33As regards the appellants’ fourth plea in law, the General Court held that the Commission had been right to find that the liability arising from the unlawful conduct of PirelliCS until 27 November 2001 had been transferred to PirelliCSE in accordance with the principle of economic continuity and that that liability therefore lay with PrysmianCS. As regards the appellants’ argument based on a breach of the principle of equal treatment, the General Court held that that principle must be reconciled with the principle of legality pursuant to which no one may rely, to his or her own benefit, on an unlawful act committed in favour of another. According to the General Court, it followed that, even on the assumption that the Commission had committed an unlawful act by not holding Nexans France and Silec Cable liable under the principle of economic continuity, any such illegality, which was not brought before it in the context of the appellants’ action, could not in any event lead it to a finding of discrimination nor, as a result, an illegality in relation to the appellants.
34As regards the sixth plea raised by the appellants, the General Court held that they had not proved that the Commission had not validly shown the existence of an infringement of Article 101 TFEU.
35As regards the appellants’ seventh plea, the General Court held that the Commission had not erred in finding that the infringement at issue began at a meeting held on 18 February 1999.
36As regards the second limb of the appellants’ eighth plea, the General Court held that the appellants’ claim that the Japanese undertakings’ participation in the infringement in question was similar to that of the European undertakings in the European configuration of the cartel, even if it were to be established, was incapable of calling into question the Commission’s finding that the sharing of projects within the EEA constituted an additional factor which warranted punishment by an increase in the gravity percentage. Furthermore, the appellants’ argument that the Commission had erred in its assessment in that regard was irrelevant as regards the existence of a breach of the principle of equal treatment with regard to the appellants. Although such an argument, assuming it to be well founded, would be capable of justifying an increase in the fine imposed on the Japanese undertakings, the principle of equal treatment cannot provide the basis for any entitlement to the non-discriminatory application of unlawful treatment.
37Lastly, the General Court dismissed the appellants’ claim that the fines imposed on them should be reduced.
Forms of order sought by the parties before the Court
38The appellants claim that the Court should:– set aside the judgment under appeal;– grant the forms of order sought at first instance;– order the Commission to bear the costs.
39The Commission contends that the Court should:– dismiss the appeal; and– order the appellants to pay the costs of the proceedings.
40Pirelli claims that the Court should:– dismiss the appellants’ second ground of appeal;– uphold the judgment under appeal in so far as it dismisses the fourth plea in law put forward, at first instance, by the appellants; and– order the appellants to pay the costs incurred by the intervener.
The appeal
41In support of their appeal, the appellants rely on five grounds of appeal. The first ground of appeal alleges infringement of Article 20(2) of Regulation No 1/2003. The second ground of appeal alleges breaches of the principles of personal liability, legal certainty and equal treatment as well as of the General Court’s obligation to state reasons. The third ground of appeal alleges that the General Court manifestly erred in characterising the infringement at issue as a single and continuous infringement. The fourth ground of appeal alleges that the General Court erred in law in its assessment of the delimitation of the duration of the infringement. The fifth ground of appeal alleges breach of the principle of equal treatment governing the calculation of the gravity percentage.
The first ground of appeal
Arguments of the parties
42By their first ground of appeal, which relates to paragraphs 50 to 53, 58, 60 and 62 to 68 of the judgment under appeal, the appellants claim that the judgment under appeal is vitiated by errors of law relating to the interpretation of Article 20(2)(b) and (c) of Regulation No 1/2003 in so far as the General Court confirmed that the Commission was entitled, first, to make copy-images of the hard drives of the computers in question without first examining the nature of the documents which were contained on those hard drives, including their relevance to the inspection at issue, and, second, to continue that inspection at its premises in Brussels.
43As regards the making of copy-images of hard drives, the appellants claim that it is clear from the wording of Article 20(2)(c) of Regulation No 1/2003 that, when it enters the premises of an undertaking, the Commission must first check the records related to the business in order to assess their relevance for the investigation and it is only after carrying out such a check that it may make copies of ‘such books or records’, that is to say, the records which it has examined.
44In addition, they maintain that Regulation No 1/2003 states that the Commission may examine and copy only books and records related to the business. Although managers’ computers may be considered ‘related to the business’, that is not necessarily the case of all files, data, and applications contained on those computers. Therefore, by making a copy-image of the hard drives of the computers in question, the Commission inevitably also copied personal files and data and therefore committed a blatant infringement of Article 20(2)(b) and (c) of Regulation No 1/2003.
45They claim that the explanatory note on inspections, referred to in paragraph 10 above, does not constitute a sufficient legal basis to justify such a practice. In accordance with the principle of legality, any procedure involving the copying of data should be governed by an act of the EU legislature or, at the very least, adopted by the Commission under powers expressly delegated by that legislature.
46According to the appellants, the same is true in relation to the place where the Commission is authorised to conduct its review. The territorial scope of the Commission’s power to conduct investigations pursuant to Article 20 of Regulation No 1/2003 is clearly limited to the premises of the undertakings concerned, as is apparent from the wording of Article 20(1) of that regulation. In addition, it is apparent from Article 21 of that regulation that it is only by way of exception that the Commission may exercise its powers of inspection at other premises, where an act of EU law expressly authorises it to do so. In the present case, Article 20(1) of that regulation and of the inspection decision, which replicates the contents of the former, therefore prevented the Commission from continuing the inspection in question at its premises in Brussels. Consequently, the General Court’s interpretation of Article 20 of Regulation No 1/2003 runs counter to the scope of that regulation and to the principles of legality and legal certainty.
47The appellants claim that the fact that the examination of the documents at the Commission’s premises in Brussels took place under the same guarantees as those required of the Commission when conducting an on-the-spot examination does not call into question the existence of an infringement of Regulation No 1/2003 committed by the Commission by reason of having continued the inspection at issue at its premises in Brussels.
48The Commission contends that the first ground of appeal is inadmissible in so far as it is merely a repetition of arguments already put forward in the proceedings at first instance and seeks to persuade the Court of Justice to re-examine the appellants’ submissions to the General Court. In the alternative, the Commission submits that that ground of appeal is ineffective, or at the very least unfounded, because it is based on an incomplete reading of the judgment under appeal, which takes no account of the General Court’s main findings in paragraphs 50 and 56 of that judgment.
Findings of the Court
49As regards the admissibility of the first ground of appeal, it must be stated that, by that ground of appeal, the appellants are challenging the General Court’s interpretation of Article 20(2)(b) and (c) of Regulation No 1/2003. It is clear from the case-law of the Court of Justice that, provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be argued again in the course of an appeal. If an appellant could not thus base his or her appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraph 15 and the case-law cited). It follows that the first ground of appeal is admissible.
50As regards the substance of the case, it must be stated at the outset that it is true that the appellants are not challenging the General Court’s findings in paragraphs 50 and 56 of the judgment under appeal. Those findings are that, on the one hand, the making of a copy-image of the hard drives of the computers in question as part of the Commission’s use of computer investigation software constituted, in essence, an intermediate step intended to enable the inspectors to search for documents relevant to the inspection in question. On the other hand, it is apparent from those findings that, in the present case, the Commission had not placed the documents contained in those copy-images directly in the investigation file without having checked beforehand whether they were relevant to the subject matter of that inspection. However, contrary to the Commission’s submissions, the fact that the appellants have not challenged those findings of the General Court does not mean that the first ground of appeal is ineffective as regards the appellants’ arguments concerning the reasoning in the judgment under appeal that the Commission was entitled to make copy-images of the hard drives of the computers in question. Those findings are indeed not sufficient in themselves to prove that the Commission had the power to make such copies.
51It is therefore necessary to examine whether the General Court erred in law when it held that Article 20(2)(b) or (c) of Regulation No 1/2003 empowers the Commission to make such copy-images and to continue its inspection at its premises in Brussels.
52In the first place, as regards the preparation of the copy-images of the hard drives of the computers in question, it must be stated that it is apparent both from the wording of Article 20(2)(c) of Regulation No 1/2003 and from its context that, by permitting the Commission, by means of that provision, to ‘take or obtain’ in any form copies of or extracts from the books and other records related to the business as mentioned in Article 20(2)(b) of that regulation, the EU legislature referred to the evidence which the Commission is entitled to obtain, in order to place it in the file and, where appropriate, to use it in proceedings initiated to impose penalties in respect of infringements of EU competition law. Such evidence must therefore consist of documents covered by the subject matter of the inspection, which presupposes that the Commission has determined beforehand that that is the case (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 58).
53It follows that the General Court could not rely on Article 20(2)(c) of Regulation No 1/2003 in order to hold that the Commission was entitled to make copy-images of the hard drives of the computers in question.
54However, a legal basis for making such copies is provided by Article 20(2)(b) of Regulation No 1/2003, to which the General Court also refers, and which, in relation to the undertaking or association of undertakings concerned by the inspection, permits the Commission to examine the books and other records related to the business, irrespective of the medium on which they are stored (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 60).
55It must be stated, first, that by limiting itself to permitting the Commission to carry out such an examination, without giving more details of the power thus conferred on the Commission, the EU legislature granted that institution a certain discretion regarding its specific examination procedures.
56The Commission may therefore, depending on the circumstances, decide to examine data contained on the digital data carrier of the undertaking under inspection not by reference to the original, but by reference to a copy of those data. Indeed, the Commission subjects the same data to examination, both where the original data are examined and where the copy of such data is examined.
57Thus, the Commission’s right to make a copy-image of a computer hard drive, as an intermediate step in the examination of the data contained and on that medium, does not constitute an additional power granted to the Commission, but, as the General Court correctly stated in paragraph 53 of the judgment under appeal, falls within the power of examination which Article 20(2)(b) of Regulation No 1/2003 makes available to that institution.
58Second, while it is true that it is settled case-law that the Commission’s powers of investigation concerning competition law are strictly circumscribed (see, to that effect, judgment of 18 June 2015, Deutsche Bahn and Others v Commission, C‑583/13 P, EU:C:2015:404, paragraph 31 and the case-law cited), nonetheless that does not mean that the provisions conferring the powers of investigation on that institution must be interpreted narrowly, even though, from that point of view, it must be ensured that those powers do not infringe the rights of the undertakings concerned. Those rights are safeguarded where, as in the present case, the Commission copies the data, admittedly without a prior examination, but then assesses whether the data are relevant to the subject matter of the inspection in strict compliance with the rights of defence of the undertaking concerned, before those documents found to be relevant are placed in the file and the remainder of the copied data is deleted.
59Consequently, the Commission’s right to make such copies affects neither the procedural safeguards laid down by Regulation No 1/2003 nor the other rights of the undertaking under inspection, provided that the Commission, after completing its examination, places on the file only documents which are relevant to the subject matter of the inspection. As the General Court observed in paragraph 56 of the judgment under appeal, that was so in the present case.
60Third, as is apparent from the General Court’s findings of fact in paragraph 49 of the judgment under appeal, the Commission uses computer investigation software which requires a preliminary stage, known as ‘indexation’, which generally takes a considerable amount of time. The same is true of the next step of that data processing process, in which the Commission examines that data, as the facts of the present case demonstrate. It is therefore in the interest not only of the Commission but also of the undertaking concerned that that institution relies, in conducting its examination, on a copy of those data, thereby enabling that undertaking to continue to use the original data and the media on which they are located as soon as that copy has been made and to reduce the interference in that undertaking’s operations caused by the Commission’s inspection.
61In those circumstances, the appellants’ arguments relating to the preparation of copy-images of the hard drives of the computers in question, as based on the wording of Article 20(2)(c) of Regulation No 1/2003 and on the general scheme of Article 20(2) of that regulation, must be rejected.
62In the second place, as regards the Commission’s decision to continue the examination of the copy-images of the hard drives of the computers in question at its premises in Brussels, it must be noted that it is indeed apparent from both the wording and the scheme of Article 20 of Regulation No 1/2003 that an inspection must begin and, in principle, continue, as stated in Article 20(1) of that regulation, in the premises ‘of undertakings and associations of undertakings’, and that is why, first, Article 20(2)(a) of that regulation authorises the Commission to ‘enter any premises, land and means of transport’ of those undertakings and associations of undertakings, and, second, Article 20(3) of that regulation requires the Commission, in good time before the inspection, to give notice to the competition authority of the Member State ‘in whose territory the inspection is to be conducted’. That is also the reason why, in the present case, the inspection decision required Prysmian to submit to an inspection ‘in all [its] premises’ and those of its subsidiaries.
63However, as the General Court correctly pointed out in paragraph 58 of the judgment under appeal, Article 20(2)(b) of Regulation No 1/2003 does not provide, contrary to the appellants’ claim, that the examination of the books and records related to the business of undertakings under inspection must be carried out exclusively at their premises, in all circumstances (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 78).
64The same is true for the inspection decision, which did no more than provide that the inspection in question could take place in all of the appellants’ premises.
65Continuing such an inspection at the Commission’s premises does not in itself, compared with conducting the inspection at the premises of the undertakings themselves, constitute a further infringement of their rights which would require that such a power for the Commission be expressly laid down and could not be inferred implicitly from the powers conferred on that institution by Article 20(1) and (2) of Regulation No 1/2003. The fact that, in certain cases, the possibility of continuing the inspection at the Commission’s premises is not indispensable to enable the Commission to conduct that inspection does not mean that such a possibility is precluded in all circumstances (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 80).
66Indeed, there are legitimate reasons, which may lead the Commission to decide, also in the interest of the undertakings concerned, to continue, at its premises in Brussels, the inspection of the data which it has collected from the undertaking concerned. In that regard, it must be recalled, as is stated in paragraph 60 of the present judgment, that the time required for processing electronic data may prove to be considerable. To require the Commission to process such data exclusively at the premises of the undertaking under inspection, in the case of particularly large volumes of data, could have the effect of significantly extending the duration of the inspectors’ presence at that undertaking’s premises, which would be liable to hamper the effectiveness of the inspection and to increase needlessly the interference in that undertaking’s operations on account of the inspection (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 81).
67In addition, it must be recalled that, as is apparent from paragraph 60 of the judgment under appeal, the appellants do not criticise the Commission, when it examined the copy-images of the hard drives of the computers in question at its premises in Brussels, for having acted differently from how it would have acted had that examination taken place at the appellants’ premises. Indeed, the appellants do not dispute that the Commission’s examination at its premises in Brussels was carried out in strict compliance with their rights of defence, since the Commission ensured, throughout the period of the inspection in question, that the data concerned were protected and since it placed in the file only those documents which it had previously satisfied itself were relevant for the purposes of that inspection.
68The interpretation of Article 20(2)(b) of Regulation No 1/2003 whereby the Commission may, where appropriate, continue at its premises in Brussels the examination which it legitimately commenced on the premises of the undertaking or association of undertakings under inspection, is not called into question by the appellants’ argument that it is only by way of exception that Article 21 of that regulation empowers the Commission to exercise its powers of inspection ‘in any other premises’. Indeed, Article 21 of that regulation relates to a completely different situation from that concerned by Article 20 of the regulation, namely the possibility for the Commission to conduct inspections at premises other than the business premises of the undertaking concerned, such as the homes or means of transport of its members of staff, where there is a reasonable suspicion that books or other business records relating to the subject matter of the inspection are kept there which may be relevant to prove a serious infringement of Article 101 or 102 TFEU (see, to that effect, judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 85).
69Nor is the interpretation of Article 20(2)(b) of Regulation No 1/2003 referred to in the previous paragraph called into question by the appellants’ argument that such an interpretation would empower the Commission to conduct remote inspections or to order the companies concerned to transmit to the Commission copies of entire hard drives, provided that it guarantees appropriate safeguards. The possibility of the Commission continuing, at its premises in Brussels, the examination which it commenced at the premises of the undertaking which is the subject of the inspection has no bearing on the question whether that institution is entitled, on the basis of Article 20(2)(b) and (c) of Regulation No 1/2003, to avail itself of the investigative measures suggested by the appellants. It must be stated in that regard that the fact that the Commission continues an inspection at its own premises means that what is involved is the continuation of one and the same inspection, commenced at the premises of such an undertaking, and not a new examination, relating to a third party (see, to that effect, judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 84).
70It must, however, be pointed out that the Commission can make use of the possibility, on the basis of Article 20(2)(b) of Regulation No 1/2003, of continuing, at its premises in Brussels, its examination of the books and other business records of the undertaking under inspection, only where it can legitimately take the view that it is justified in doing so in the interests of the effectiveness of the inspection or to avoid excessive interference in the operations of the undertaking concerned (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 87).
71In the present case, as is apparent from the presentation of the findings of fact made by the General Court, which is set out in essence in paragraphs 10 to 14 of the present judgment, the Commission’s inspectors spent a total of three days at the appellants’ premises, from 28 to 30 January 2009. They made copy-images of the hard drives of the computers in question and saved them on a data-recording device and on a Commission computer. That device and that computer were placed in sealed envelopes and taken back to the Commission’s offices in Brussels. Subsequently, the examination of the data taken back to Brussels, in the presence of the appellants’ representatives, lasted three working days, from 26 February to 2 March 2009, which implies that, at the point when the Commission decided to continue the inspection in question at its premises in Brussels, a particularly large volume of digital data remained to be examined.
72In those circumstances, it must be held that the Commission did not act unlawfully in deciding to continue the inspection in question at its premises in Brussels. Indeed, having regard to the elements of fact found by the General Court, the Commission could legitimately take the view that it was justified in continuing that inspection at its premises in Brussels, thereby avoiding extending the duration of the inspectors’ presence at the premises of appellants, in the interests of the effectiveness of the inspection and to avoid excessive interference in the operations of those undertakings (see, by analogy, judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 89).
73Finally, as already stated in paragraph 65 of the present judgment, the possibility for the Commission to continue its examination of the books and other records related to the business of an undertaking on the basis of Article 20(2)(b) of Regulation No 1/2003 at its premises in Brussels is subject to the condition that such continuation does not give rise to any infringement of the rights of the defence and does not constitute an additional encroachment on the rights of the undertakings concerned which goes further than that inherent in an inspection at their premises. Such an encroachment would have to be identified if the continuation of that examination at the Commission’s premises in Brussels gave rise to additional costs for the undertaking under inspection solely as a result of that continuation. It follows that, where that continuation is capable of giving rise to such additional costs, the Commission may undertake that continuation only where it agrees to reimburse those if a duly reasoned request to that effect is presented by the undertaking concerned (judgment of 16 July 2020, Nexans France and Nexans v Commission, C‑606/18 P, EU:C:2020:571, paragraph 90).
74Having regard to the foregoing, the first ground of appeal must be rejected as unfounded.
The second ground of appeal
75By their second ground of appeal, which relates to paragraphs 130 to 140 and 144 to 148 of the judgment under appeal and is comprised of three limbs, the appellants claim that the General Court erred in law by upholding the decision at issue which found PrysmianCS liable for the infringement at issue for the entire duration of that infringement, that is, from 18 February 1999 to 27 January 2009, despite the fact that the company was not founded until 27 November 2001.
The first limb
–Arguments of the parties
76By the first limb of the second ground of appeal, the appellants claim that the General Court infringed the principles of individual liability and legal certainty.
77The appellants claim that it is apparent from the Court’s case-law that it is, in principle, for the natural or legal person managing the undertaking at the time of the infringement of EU competition law to answer for that infringement, even if at the time the infringement decision was adopted the operation of that undertaking had been placed under the responsibility of another natural or legal person. According to the appellants, derogations from this general rule are possible only under exceptional circumstances to serve the effectiveness and deterrent effect of EU competition rules. In those cases, liability may be attributed to another natural or legal person in accordance with the principle of economic continuity. It also follows from the Court’s case-law, according to the appellants, that these circumstances are present when the natural or legal person that committed the infringement has ceased to exist, either economically or in law, and when a structural link exists between the original operator and the new operator, which, consequently, carries out the same commercial instructions.
78In the present case, the General Court should therefore, first of all, have identified, from the perspective of the relevant national company law, the initial operator of PrysmianCS, namely Pirelli, as having taken over PirelliCS. However, the General Court failed to carry out such an examination and applied the principle of economic continuity as a mere alternative to the principle of the individual liability of legal entities, as is shown by the fact that it rejected, as being irrelevant, the possibility that the Commission had erred in law in regarding PirelliCSE as the legal successor of PirelliCS. According to the appellants, that is a manifest error of law, which, contrary to the principle of legal certainty, leads to the result of granting the Commission absolute discretion as to which legal entity can be fined in the context of an intra-group transfer of assets.
79The Commission contends that the second ground of appeal is inadmissible in so far as the appellants merely reiterate before the Court of Justice arguments which they had already raised before the General Court. According to the Commission, the appellants are asking the Court of Justice to re-examine evidence which the General Court has already examined.
80In the alternative, it contends that the second ground of appeal is unfounded.
81Pirelli submits that the principle of economic continuity applies not only where the original operator which committed the infringement has ceased to exist, but also where that operator no longer pursues an economic activity in the relevant market. In the present case, following a demerger in 2001, PirelliCS became a shell company and PirelliCSE became its sole economic and legal successor. According to Pirelli, that analysis is in no way altered by the fact that the original parent company, Pirelli, still existed at the time the decision at issue was adopted. Pirelli adds that, in any event, it did not escape liability for the infringement at issue but was found jointly and severally liable for it with PrysmianCS in respect of the period from 18 February 1999 to 28 July 2005.
82According to Pirelli, the first limb of the second ground of appeal is therefore ineffective and, in any event, unfounded.
–Findings of the Court
83In accordance with the Court of Justice’s case-law set out in paragraph 49 above, given that the first limb of the second ground of appeal challenges a point of law considered by the General Court, the second ground of appeal, in this limb, must, contrary to what the Commission contends, be regarded as admissible, since such a point of law may be argued again in the course of an appeal.
84However, the arguments put forward by the appellants in support of the first limb of their second ground of appeal are based on a misinterpretation of the Court’s case-law in that field.
85It is true that the Court has stated, as to the circumstances in which an entity that has not committed an infringement of EU competition law may nonetheless be penalised for that infringement, that this situation arises if the entity that has committed the infringement has ceased to exist, either in law or economically, since a penalty imposed on an undertaking which is no longer economically active is likely to have no deterrent effect. If, however, the entity which committed the infringement continues both to exist in law and to carry on economic activities, the Commission is in principle required to impose the fine in question on that entity (see, to that effect, judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraphs 144 and 145).
86However, it also follows from the Court’s case-law that, when an entity that has committed an infringement of EU competition law is subject to a legal or organisational change, this change does not necessarily create a new entity free of liability for the unlawful conduct attributable to its predecessor in law provided that, at the least, from an economic point of view, the two entities are identical. If undertakings could escape penalties by simply changing their identity through restructurings, sales or other legal or organisational changes, the objective of suppressing conduct that infringes EU competition law and preventing its reoccurrence by means of deterrent penalties would be jeopardised (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 40 and the case-law cited).
87The Court has thus held that where two entities constitute one economic entity, the fact that the entity that committed the infringement still exists does not per se preclude imposing a penalty on the entity to which its economic activities were transferred, in particular, where those entities have been under the control of the same person and have, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 41 and the case-law cited).
88It is on the basis of that case-law and on those facts, the findings of the latter falling within the unfettered prerogative of that court, that the General Court upheld the view, in paragraphs 130 to 133 of the judgment under appeal, that PirelliCSE should be regarded as the economic successor of PirelliCS as of 27 November 2001 and that the Commission was entitled to find, in accordance with the principle of economic continuity, that liability for PirelliCS’s participation in the infringement at issue had been transferred to PirelliCSE.
89The appellants do not dispute that the conditions referred to in paragraph 87 above were satisfied in the present case.
90Accordingly, the General Court did not err in finding that the Commission was entitled to regard PirelliCSE as the economic successor of PirelliCS.
91In addition, the General Court was fully entitled to find, in paragraph 140 of the judgment under appeal, that, even if the Commission had erred in considering PirelliCSE to be PirelliCS’s legal successor, that finding would be irrelevant for the purposes of attributing liability to PirelliCSE for direct participation in the infringement at issue before 27 November 2001, since, in any event, the Commission was entitled to find that PirelliCSE was PirelliCS’s economic successor.
92Furthermore, as regards the appellants’ argument concerning the effectiveness and the deterrent effect of EU competition rules, it should be noted that, in the decision at issue, the Commission also held Pirelli liable for the infringement at issue, in its capacity as the parent company of PirelliCS and PirelliCSE, for the period from 18 February 1999 to 28 July 2005.
93In the light of the above, the first limb of the second ground of appeal must be dismissed as unfounded.
The second limb
–Arguments of the parties
94By the second limb of the second ground of appeal, the appellants claim that the General Court erred in law in its application of the principle of equal treatment to the present case. The appellants submit that Nexans France and Silec Cable were in comparable situations to that of PrysmianCS: they were created (i) following internal restructurings, (ii) to take over a previously operating business that included the employees and assets found to be involved in collusive conduct relating to the cartel and (iii) with a view to their sale to third parties. However, the principle of economic continuity was applied only in respect of PrysmianCS.
95The appellants maintain that it is clear from the case-law of the Court that, where the Commission adopts, in respect of a cartel, one specific method for determining whether the parent companies concerned are liable for the infringements committed by their subsidiaries, it must – unless there are special circumstances – use the same methodological criteria for all those parent companies. According to the appellants, this case-law is also applicable when the Commission decides to hold one of the addressees of the decision liable on the basis of the economic continuity principle without subjecting other addressees of that decision to the same treatment. The appellants argue that although the Commission enjoys a certain degree of discretion as to whether to apply that principle in attributing liability to parent companies, it is not, however, required to do so.
96However, where the Commission decides to apply that principle, the appellants claim that it is required to apply it to other undertakings that participated in the cartel which were in comparable situations. In the present case, the General Court therefore erred in holding that the Commission’s decision not to apply the principle of economic continuity to addressees of the decision at issue other than PrysmianCS was not unlawful.
97Therefore, the General Court’s reference, in paragraphs 145 and 146 of the judgment under appeal, to the Court of Justice’s case-law that the principle of equal treatment must be reconciled with the principle of legality and thus that a person may not rely, in support of his or her claim, on an unlawful act committed in favour of a third party is irrelevant.
98The Commission contends that the second ground of appeal is inadmissible for the reasons already set out in paragraph 79 of this judgment and, in the alternative, unfounded.
99Pirelli submits that the second limb of the second ground of appeal is unfounded.
–Findings of the Court
100In accordance with the Court of Justice’s case-law set out in paragraph 49 above, since the second limb of the second ground of appeal refers to a point of law considered by the General Court, the second ground of appeal, in this limb, must, contrary to what the Commission contends, be regarded as admissible, since such a point of law may be argued again in the course of an appeal.
101It must be recalled that the principle of equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. According to settled case-law of the Court, that principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 51).
102In the present case, the appellants claim that the General Court infringed that principle by upholding the Commission’s decision to find PrysmianCS liable for the infringement at issue in respect of the period prior to that company’s formation, relying on the principle of economic continuity, whereas the Commission did not apply that principle to Nexans France and Silec Cable, despite the fact that, according to the appellants, both of those undertakings were in situations comparable to that of PrysmianCS.
103In support of this limb, the appellants put forward, in essence, two arguments.
104First, the appellants rely on the Court’s case-law arising, inter alia, from the judgment of 18 July 2013, Dow Chemical and Others v Commission (C‑499/11 P, EU:C:2013:482), where it held, in paragraph 50 of that judgment, that where the Commission adopts, in respect of a cartel, one specific method for determining whether the parent companies concerned are liable for the infringements engaged in by their subsidiaries, it must – unless there are special circumstances – use the same criteria for all those parent companies.
105As regards that argument, it should be noted that the facts of the case which gave rise to that judgment concerned a situation in which it was clear from the decision of the Commission that the Commission had chosen, as regards the attribution of liability to a parent company for an infringement committed by a subsidiary of the parent company, one specific method for the determination of the liability of the parent companies at issue which it was therefore required to apply to all the undertakings involved in that infringement (see, to that effect, judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraphs 50, 53 and 59). Even assuming that that case-law could be applied to the attribution of liability for an infringement on the basis of the principle of economic continuity, it must be held that the appellants have failed to show that the Commission chose to apply a method for the application of that principle which departs from the general rules. It is therefore not apparent from the decision at issue that one specific method should have been followed for all the undertakings involved in the infringement at issue.
106It follows that the appellants cannot validly rely on the case-law referred to in paragraph 104 of the present judgment to establish that the principle of equal treatment was infringed in the present case.
107Second, the appellants claim that, since the Commission chose to rely on the principle of economic continuity in order to find PrysmianCS liable for the period prior to its formation, it should have applied the same method to Nexans France and Silec Cable. Thus, the appellants do in fact claim, as Pirelli correctly submits, that the decision at issue is vitiated by an illegality in so far as those two companies are concerned.
108However, as the General Court was correct to state in paragraph 146 of the judgment under appeal, it is clear from the Court of Justice’s case-law that compliance with the principle of equal treatment must be reconciled with the principle of legality, according to which a person may not rely, to his or her benefit, on an unlawful act committed in favour of a third party (judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 58 and the case-law cited).
109The appellants cannot therefore rely on any illegality committed by the Commission in respect of Nexans France and Silec Cable for the purposes of challenging the judgment under appeal on this point.
110In the light of the foregoing considerations, the second limb of the second ground of appeal must be dismissed as unfounded.
The third limb
–Arguments of the parties
111By the third limb of the second ground of appeal, the appellants claim that the General Court infringed its obligation to state reasons under Article 296 TFEU by failing to rule on their complaint alleging the exceptional nature of the principle of economic continuity and by basing its rejection of the first and second limbs of the fourth plea, put forward at first instance by the appellants, on the basis of contradictory grounds.
112The Commission contends that the second ground of appeal is inadmissible for the reasons already set out in paragraph 79 of this judgment and, in the alternative, unfounded. It maintains that the third limb is, moreover, ineffective because it does not provide an independent basis for setting aside the judgment under appeal.
–Findings of the Court
113Since this plea, in this limb, is based on a failure to state reasons in the judgment under appeal, and thus on a breach of an obligation incumbent on the EU courts, this limb must, contrary to the Commission’s contention, be regarded as admissible.
114As regards its substance, it should be noted, first, that the General Court, having demonstrated that the approach followed by the Commission in the decision at issue with regard to the application of the principle of economic continuity was consistent with the case-law of the Court of Justice, was not required to respond specifically to the appellants’ argument based on the allegedly exceptional nature of such an application. Second, the appellants have not specified how the General Court’s reasoning in that regard was intrinsically contradictory or illogical.
115In the light of the foregoing, the third limb of the second ground of appeal and, consequently, the second ground of appeal in its entirety must be dismissed as unfounded.
The third ground of appeal
Arguments of the parties
116By their third ground of appeal, which concerns paragraphs 169 to 186 of the judgment under appeal, the appellants claim that the General Court manifestly erred in law in classifying the infringement at issue as a single and continuous infringement. In the appellants’ submission, the General Court confirmed that the Commission had produced sufficient precise evidence to demonstrate the existence of the three constituent elements of the cartel, without, however, ruling on the main argument advanced by them at first instance that the Commission had not established that the present case concerned a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement.
117The appellants claim that, according to the case-law of the Court, three conditions must be satisfied in order to establish participation in a single and continuous infringement, namely the existence of an overall plan pursuing a common anti-competitive objective, an undertaking’s contribution to that plan and awareness of the offending conduct of other participants. According to the appellants, the General Court erred in upholding the decision at issue without ascertaining whether the presence of a ‘home territory’ agreement, even if demonstrated, was sufficient to establish a link between the evidence gathered in relation to very different instances and arrangements, to prove to the requisite legal standard a single and continuous infringement. In that regard, the list of evidence, summarised in paragraphs 172 and 173 of the judgment under appeal, does not prove the existence of a link between the two cartel configurations and the alleged ‘home territory’ agreement.
118The appellants claim that the General Court distorted, in particular, the evidence relating to the ‘home territory’ agreement and their argument that that concept was ineffective and meaningless, due to the lack of interest on the part of the Asian and European producers in entering the others producers’ respective markets.
119In paragraph 180 of the judgment under appeal, the General Court found that an agreement which is designed to protect European producers in their part of the European Union from actual or potential competition from other foreign producers is capable of restricting competition, unless insurmountable barriers to entry to the European market exist which rule out any potential competition from those foreign producers. In the appellants’ view, by those considerations, the General Court did not address the argument raised by them in their application at first instance that the Commission had extended the scope of the export cooperation to the entire territory of the European Union by means of a ‘home territory’ agreement, despite the fact that the application of such an agreement had never been the object of discussion at the A/R cartel configuration meetings, in particular because it was not strategically worthwhile for the Asian producers to participate in calls for tenders regarding projects to be carried out in the European Union.
120Contrary to what the General Court stated in paragraph 183 of the judgment under appeal, the appellants maintain that they did not claim that the participation of Japanese and South Korean producers in the EEA was ‘technically impossible’ but that, in general, there was no economic rationale to justify such significant investment. The General Court therefore distorted the explanations provided by the appellants in that regard.
121The Commission contends that the third ground of appeal is inadmissible. It maintains that, by the present ground of appeal, the appellants repeat arguments already put forward in the proceedings at first instance and seek to persuade the Court to re-examine those arguments. In addition, the appellants have failed to comply with the obligation imposed on them by Article 169(2) of the Rules of Procedure of the Court of Justice, since they have failed to identify specific passages of the judgment under appeal which demonstrate to the requisite legal standard that the General Court distorted the evidence.
122In the alternative, the Commission submits that this ground of appeal is unfounded, since the General Court did not merely reaffirm the Commission’s classification of the infringement at issue, but examined the extensive evidence in the file and in particular the exchanges on the allocation of European projects demonstrating that they were part of a single and continuous infringement covering both cartel configurations.
Findings of the Court
123As regards the admissibility of the third ground of appeal, it must be stated, first, that, contrary to the Commission’s contention, the specific passages of the judgment under appeal to which the appellants’ third ground of appeal relates are sufficiently clear from the appeal.
124Second, it should be noted that, in support of this ground of appeal, the appellants have put forward two separate lines of argument. By their first line of argument, the appellants claim that the General Court failed to rule on whether the Commission had established that the infringement at issue amounted to a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement. According to the second line of argument, they allege that the General Court distorted the evidence relating to the ‘home territory’ agreement.
125Whereas, in accordance with the Court of Justice’s case-law set out in paragraph 49 above, the first of those lines of argument concerns a point of law examined by the General Court, which may be discussed again in the context of an appeal, the second does not.
126In that regard, it must be borne in mind that, in accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 40 and the case-law cited).
127It is true that the appellants criticise the General Court for distorting the evidence relating to the ‘home territory’ agreement. However, it should be noted that the appellants have not identified the evidence which was distorted in that regard nor, a fortiori, established that the General Court can be accused of having distorted that evidence. As regards the only specific piece of evidence mentioned in that connection, the appellants merely maintain that it confirms their position.
128It follows that the appellants’ argument concerning the assessment of the evidence in respect of the ‘home territory’ agreement must be regarded as inadmissible.
129As regards the argument alleging misrepresentation of one of their arguments in paragraph 183 of the judgment under appeal, that argument is based on an incomplete reading of the judgment. In that paragraph of the judgment under appeal, the General Court held that, contrary to what had been claimed by the appellants, the participation of the Asian producers in EEA projects ‘was neither technically impossible nor economically unviable’. Even if the General Court had erred in finding that the appellants relied on it being technically impossible for the Asian producers to enter that market, the fact remains that that court also referred to the appellants’ argument that the absence of those EEA producers was due to economic considerations. In those circumstances, the appellants have not established that the General Court’s alleged error is capable of calling into question the conclusion which that court reached.
130In substance, it must be borne in mind that, according to the Court’s case-law, for the purpose of demonstrating that an undertaking has participated in a single infringement of EU competition law, it must be shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see, to that effect, judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 172 and the case-law cited).
131In response to a question put by the Court at the hearing, requesting the appellants to specify where in their application at first instance they claimed that the Commission had not demonstrated that the infringement at issue satisfied the conditions which are necessary, according to the case-law cited in the previous paragraph, in order to classify it as a single and continuous infringement, they pointed to point 110 of that application. However, that point makes no reference either to the conditions referred to above or to that case-law. It follows that the appellants did not raise with sufficient clarity before the General Court the argument that the Commission had not established that the infringement at issue satisfied all the conditions necessary to classify it as a single and continuous infringement.
132Moreover, it should be noted that, in the context of the sixth plea in law raised at first instance, the appellants claimed that the Commission had not demonstrated, to the requisite legal standard, the existence of the ‘home territory’ agreement which, according to the Commission, was the key element of the cartel and that, consequently, the Commission had not established that the appellants had taken part in a single and continuous infringement of Article 101 TFEU covering the entire territory of the EEA.
133However, in paragraph 174 of the judgment under appeal, the General Court held, on the basis of the findings of fact set out in paragraphs 170 to 173 of that judgment, that the Commission had proved, to the requisite legal standard, the existence of that agreement. It should be recalled in that regard that, in so far as the appellants’ line of argument seeks to call that assessment into question, it must be rejected as inadmissible, as is apparent from the Court of Justice’s case-law referred to in paragraph 126 above.
134It follows that the third ground of appeal must be dismissed as being in part inadmissible and in part unfounded.
The fourth ground of appeal
135By their fourth ground of appeal, which relates to paragraphs 199 to 217 of the judgment under appeal and comprises four limbs, the appellants submit that the General Court’s finding that the Commission had not erred in finding that the starting point of the infringement at issue corresponded to a meeting which took place on 18 February 1999 is vitiated by errors of law.
The first limb
–Arguments of the parties
136By the first limb of this ground of appeal, the appellants complain that the General Court ruled ultra petita and infringed their rights of defence by basing its finding on reasoning relating to the Super Tension Cables Export Agreement (‘the STEA’), which concerned underground power cables, the Sub-marine Cable Export Association (‘the SMEA’) and the alleged unwritten understanding, allegedly accompanying those conventions, whereby the European, Japanese and South Korean producers undertook not to compete with each other in their respective ‘home territories’ (‘the unwritten understanding’).
137The appellants claim that the action brought before the General Court by them concerned only the alleged infringement of EU competition law taking place between 1999 and 2009, which was found in the decision at issue. By characterising the STEA, the SMEA and the unwritten understanding, which came to an end in 1997, as anticompetitive agreements, the General Court therefore ruled on questions which did not form part of the subject matter of the dispute, as framed by the application at first instance. Furthermore, the appellants argue that neither the STEA, nor the SMEA, nor the unwritten understanding were at any time considered to be contrary to Article 101 TFEU in the context of the administrative procedure which led to the decision at issue. The appellants claim that they therefore never had the opportunity to challenge formally any such finding of illegality relating to them. A fortiori, the appellants could not exercise their rights of defence in that regard during the proceedings before the General Court.
138The Commission contends that the fourth ground of appeal is inadmissible since, by this ground of appeal, the appellants reiterate arguments that were already discussed during the proceedings at first instance and seek to have them re-examined by the Court.
139In the alternative, they maintain that the ground of appeal is ineffective, since it is based on an alleged misinterpretation of the STEA and the SMEA, even though they were mentioned in the decision at issue only to describe the context in which the cartel began. According to the Commission, it follows that, even if the fourth ground of appeal were to be upheld, that would not be a sufficient reason to find that the General Court had erred in law by upholding the starting date of the infringement at issue used by the Commission. The Commission adds that this ground of appeal is, in any event, unfounded.
–Findings of the Court
140By the first limb of the fourth ground of appeal, the appellants complain that the General Court ruled ultra petita and infringed their rights of defence. Contrary to the Commission’s submission, this limb therefore concerns a point of law concerning the General Court’s findings, which may be challenged on appeal, and must therefore be regarded as admissible.
141As regards the substance, it should be noted, in the first place, that it is apparent from the judgment under appeal that it was in the context of the examination of whether the Commission was entitled to fix the start of the infringement in question at 18 February 1999 that the General Court took into account, in paragraph 201 of the judgment under appeal, the findings made by the Commission in recital 64 of the decision at issue concerning the STEA, the SMEA and the unwritten understanding, and stated, in paragraph 202 of the judgment under appeal, that the cartel reproduced the prior arrangements described by the Commission. It was in the context of the same examination that the General Court added, in paragraph 203 of the judgment under appeal, that the Commission had provided evidence, which the appellants did not validly dispute by means of specific evidence, from which it was apparent, first, that the power cable producers which concluded those agreements were aware of their unlawful nature and, second, that they had envisaged a reorganisation of those agreements in the future.
142However, at the end of that examination, the General Court did not at all rule ultra petita. The decision which the General Court adopted at this point, namely to dismiss the appellants’ challenge to fixing the starting date of the infringement in question at 18 February 1999, was consistent with the request submitted to it for that purpose by the Commission.
143In the second place, it must be held that the General Court also did not infringe the appellants’ rights of defence in that regard. First, as the Commission has rightly pointed out, the matters set out in recital 64 of the decision at issue were already to be found in the statement of objections which the appellants had the opportunity to challenge in the course of the administrative procedure before the Commission. Second, it is apparent from recital 506 of the decision at issue, to which the General Court referred in paragraph 199 of the judgment under appeal, that, in order to evaluate the evidence relating to the meeting of 18 February 1999, the Commission had taken into account the conduct of the parties concerned before that date which, according to the Commission, showed that the undertakings in question planned to re-introduce the previous arrangements. However, that remark could only be understood as a reference to the arrangements described in recital 64 of the decision at issue. In those circumstances, the appellants should have expected that the General Court would also take that context into account.
144In the light of the foregoing, the first limb of the fourth ground of appeal must be dismissed as unfounded.
The second and third limbs
–Arguments of the parties
145By the second limb of the fourth ground of appeal, the appellants claim that the General Court distorted the evidence before it and applied an incorrect legal standard in its examination, and as a result mischaracterised the STEA, the SMEA and the unwritten understanding as anticompetitive and affecting trade between Member States. The appellants submit that the General Court wrongly relied in that regard on the findings in recital 64 of the decision at issue without ascertaining whether those findings were supported by evidence. Moreover, it is manifestly incorrect in their view to state that the appellants had never contradicted or disputed the findings made by the Commission in recital 64 of the decision at issue.
146By the third limb of the fourth ground of appeal, the appellants submit that the incorrect classification of the STEA, the SMEA and the unwritten understanding as ‘anticompetitive agreements’, referred to in the second limb of that ground of appeal, fundamentally skewed the General Court’s analysis of the context in which the infringement at issue had begun and irremediably infected the General Court’s confirmation of the Commission’s finding, in the decision at issue, that the alleged cartel had begun on 18 February 1999.
147In fact, given that most of the evidence on which the Commission based that conclusion, and to which the General Court had regard in paragraphs 200 to 206 of the judgment under appeal, related to the arrangements relating to the ‘export territories’, that evidence should not have been taken into account in order to establish the starting date of an infringement involving a ‘home territory’ agreement with effects in the EEA.
148Furthermore, the appellants argue that this misunderstanding of the factual background led the General Court to a biased review of the notes of the meeting of 18 February 1999, that is to say, the first document containing minimum and questionable references to the ‘home territory’ rule. According to the appellants, those notes clearly suggest that the participants at that meeting did not reach an agreement on the main features of the future arrangements.
149The appellants maintain that it is clear from paragraph 210 of the judgment under appeal that the General Court interpreted those notes as merely confirmatory of previous discussions. In their view, that paragraph of the judgment under appeal thus contains two misrepresentations. First, there is a complete lack of any evidence as to the alleged agreement on the ‘home territory’ being connected with the STEA and SMEA. Second, the discussion reproduced in paragraph 204 of the judgment under appeal, which, according to the General Court, confirmed the existence of such an agreement, actually concerned the allocation of projects in the ‘export territories’.
150Moreover, the appellants argue that the General Court made a fundamental methodological mistake in ruling out, in paragraph 213 of the judgment under appeal, the need to evaluate individually the discussions that took place at meetings after 18 February 1999, contrary to the General Court’s statement in the same paragraph of the judgment under appeal.
151In addition, the appellants claim that the General Court distorted their arguments by considering, in paragraph 213 of the judgment under appeal, that, contrary to what they claimed, the probative value of the notes of the meeting of 18 February 1999 was not weakened by the fact that they had been interpreted several years later ‘by their author on the basis of “distant recollections”’. The appellants allege that, in reality, they claimed that those notes had not been explained to the Commission by their author, but by other employees of the undertaking in question, without the assistance of that author.
152According to the appellants, the General Court therefore systematically distorted the evidence before it, indiscriminately referring to unrelated facts and events that had had no demonstrated effects on trade between Member States.
–Findings of the Court
153By these two limbs of the fourth ground of appeal, which it is appropriate to examine together, the appellants criticise the General Court’s assessment of the evidence relied on by the Commission in support of its finding that the meeting which took place on 18 February 1999 marked the beginning of the infringement at issue.
154It should be noted in that regard that the General Court assessed that evidence in paragraphs 199 to 214 of the judgment under appeal. In that regard, first of all, the General Court addressed, in paragraphs 199 to 206 of that judgment, the context of the meeting of 18 February 1999. Then the General Court examined, in paragraphs 207 to 214, the evidence relating more specifically to that meeting.
155In that regard, it must be borne in mind that, as is clear from paragraph 126 above, the General Court’s appraisal of the evidence does not, save where it has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal.
156Although the appellants claim that the General Court systematically distorted the evidence in that regard, they refer, as regards the findings of the General Court in paragraphs 207 to 214 of the judgment under appeal, to only one of those paragraphs, namely paragraph 210 of that judgment, where the General Court held that the notes of the meeting of 18 February 1999 ‘confirm’ that, at the time when those notes were taken, the undertakings present at that meeting agreed on the very principle of sharing the markets in question.
157The appellants maintain, first, that the wording of that paragraph shows that the General Court interpreted the notes of the meeting of 18 February 1999 as a mere confirmation of previous discussions. However, in addition to the fact that that argument finds no support in the grounds set out in paragraph 210 of the judgment under appeal, it is not, in any event, capable of demonstrating that the General Court distorted the evidence.
158As regards, second, the appellants’ argument that those notes clearly suggest that the undertakings which participated in the meeting of 18 February 1999 had not agreed on the main characteristics of the future agreements, it is sufficient to point out that the General Court took the view, while acknowledging, in paragraph 208 of the judgment under appeal, that certain aspects discussed at that meeting had not resulted in an agreement, that it was apparent from the notes of that meeting that the undertakings which participated in it had agreed on the very principle of sharing the relevant markets. Since the appellants have not called that assessment into question, that argument is therefore ineffective.
159As regards paragraph 213 of the judgment under appeal, even assuming that the notes of the meeting of 18 February 1999 were not explained to the Commission ‘by their author’, that circumstance does not, in any event, serve as a basis for the conclusion reached by the General Court in that regard, so that such an argument, even if it were well founded, would have to be declared ineffective.
160Lastly, as regards the methodological mistake allegedly made by the General Court, namely the fact that it did not take into account the discussions that took place at meetings subsequent to 18 February 1999, contrary to what the General Court itself stated in paragraph 213 of the judgment under appeal, it is sufficient to note that, in the same paragraph, the General Court stated that, in order to reach the conclusion that the infringement at issue had begun on the date of the meeting of 18 February 1999, the Commission had also taken into account the conduct of the undertakings concerned after that meeting.
161Given that the grounds set out in paragraphs 207 to 214 of the judgment under appeal constitute, in themselves, a valid and sufficient basis for the General Court’s decision that the Commission was entitled to consider that the infringement at issue had begun on the date of the meeting of 18 February 1999, any errors made by the General Court in its assessment of the context of the cartel, in paragraphs 199 to 206 of the judgment under appeal, even if they were well founded, cannot call that decision into question, so that the arguments raised in that regard must be rejected as ineffective.
162In the light of the foregoing, the second and third limbs of the fourth ground of appeal must be rejected as partly inadmissible and partly unfounded.
The fourth limb
–Arguments of the parties
163By the fourth limb of the fourth ground of appeal, the appellants submit, in essence, that the errors referred to in the other limbs of this ground of appeal, and in particular the General Court’s reference to facts and evidence irrelevant to its decision to fix the start date of the infringement at issue at the meeting of 18 February 1999, amount to incoherent reasoning in breach of the General Court’s obligation to state the reasons for its decision under Article 296 TFEU.
–Findings of the Court
164As regards this limb of the fourth ground of appeal, it is sufficient to note that the appellants have in no way specified the alleged incoherencies to which they refer in that context, with the result that this limb of the ground of appeal must be declared inadmissible. In any event, the General Court stated the reasons for its decision to the requisite legal standard.
165It follows from the foregoing considerations that the fourth ground of appeal must be dismissed as in part inadmissible and in part unfounded.
The fifth ground of appeal
Arguments of the parties
166By their fifth ground of appeal, which concerns paragraphs 251 to 254 of the judgment under appeal, the appellants complain that the General Court breached the principle of equal treatment in determining the territorial scope of the gravity percentage.
167The appellants allege that they claimed before the General Court that the Asian producers were as much involved in the European cartel configuration as were the European producers. They submit that the General Court’s response, in paragraphs 251 and 253 of the judgment under appeal, that even if the appellants’ claim were proved it was incapable of calling into question the Commission’s finding that the allocation of projects within the EEA constituted an additional factor which warranted punishment by an additional percentage to reflect the gravity of the infringement and that the European cartel configuration had increased the harm to competition caused in the EEA by the A/R configuration is clearly contradictory.
168In addition, the appellants argue that, as the Commission acknowledged in the decision at issue, the A/R configuration was subordinate to the overall scheme of the cartel and adherence to the agreement on the ‘home territory’ was tantamount to the Asian producers abstaining from placing a bid for European projects. Therefore, even if the Asian producers had not been actively involved in the EEA project allocation, they contributed to that allocation to a degree comparable to that of the European producers.
169The appellants claim that, in those circumstances, it was both illogical and discriminatory to apply an additional gravity percentage of 2% to the appellants and the other European producers because of their alleged exclusive participation in the European configuration. In their view, the validity of that argument is confirmed by the judgment of 6 July 2017, Toshiba v Commission (C‑180/16 P, EU:C:2017:520), concerning a cartel which had a structure very similar to the structure at issue in the present case.
170The Commission contends that the fifth ground of appeal is inadmissible on the ground that it seeks a fresh assessment of the evidence adduced before the General Court. In the alternative, this ground of appeal should be dismissed as unfounded.
Findings of the Court
171Since the fifth ground of appeal concerns a question of law, it must be regarded as admissible.
172As regards substance, it should be noted that, in that regard, the appellants confine themselves to criticising the General Court’s reasoning in paragraphs 251 to 253 of the judgment under appeal. However, in paragraphs 256 and 257 of the judgment under appeal, the General Court stated, in essence, that, even if the Commission had erred as regards the participation of the Asian producers in the European cartel configuration, such an error would justify the application of a higher gravity percentage to the Asian producers, but would not found an entitlement to ‘the non-discriminatory application of unlawful treatment’.
173That conclusion is not vitiated by any error of law. In fact, it follows from the Court’s case-law referred to in paragraph 108 above that observance of the principle of equal treatment must be reconciled with observance of the principle of legality according to which no person may rely, in support of his or her claim, on unlawful acts committed in favour of another.
174It follows that the fifth ground of appeal must be dismissed as unfounded.
175Consequently, since none of the grounds relied on by the appellants in support of their appeal can be upheld, the appeal must be dismissed in its entirety.
Costs
176Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
177Since Prysmian and PrysmianCS have been unsuccessful and the Commission has applied for costs, they must be ordered to pay the Commission’s costs in addition to bearing their own.
178Under Article 184(4) of the Rules of Procedure, where the appeal has not been brought by an intervener at first instance, he or she may not be ordered to pay costs in the appeal proceedings unless he or she participated in the written or oral part of the proceedings before the Court. Where an intervener at first instance takes part in the proceedings, the Court may decide that he or she shall bear his or her own costs.
179Since Pirelli participated in the proceedings before the Court, it must be held, in the circumstances of the present case, that it must bear its own costs.
Operative part
On those grounds, the Court (Second Chamber) hereby:
1.Dismisses the appeal;
2.Declares that Prysmian SpA and Prysmian Cavi e Sistemi Srl shall bear their own costs and orders them to pay those incurred by the European Commission;
3.Orders Pirelli & C. SpA to bear its own costs.
Delivered in open court in Luxembourg on 24 September 2020.
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