Ferriere Nord v Commission (Competition - Agreements, decisions and concerted practices Competition : Judgment) [2017] EUECJ C-88/15 (21 September 2017)

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(Appeal - Agreements, decisions and concerted practices - Italian producers of reinforcing bars - Fixing of prices and limiting and controlling output and sales - Infringement of Article 65 CS - Annulment of the initial decision by the General Court of the European Union - Decision re-adopted on the basis of Regulation (EC) No 1/2003 - Failure to issue a new statement of objections - Lack of a hearing following the annulment of the initial decision)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 February 2015,

Ferriere Nord SpA, established in Osoppo (Italy), represented by W. Viscardini and G. Donà, avvocati,

European Commission, represented by L. Malferrari and P. Rossi, acting as Agents, assisted by M. Moretto, avvocato, with an address for service in Luxembourg,

composed of E. Juhász, President of the Chamber, C. Vajda (Rapporteur) and C. Lycourgos, Judges,

having regard to the written procedure and further to the hearing on 20 October 2016,

after hearing the Opinion of the Advocate General at the sitting on 8 December 2016,

1 By its appeal, Ferriere Nord SpA asks the Court to set aside the judgment of the General Court of the European Union of 9 December 2014, Ferriere Nord v Commission (T-90/10, not published, EU:T:2014:1035, ‘the judgment under appeal’) by which the latter dismissed its action for annulment of Commission Decision C(2009) 7492 final of 30 September 2009 relating to a breach of Article 65 of the ECSC Treaty (COMP/37.956 - Reinforcing bars, re-adoption, ‘the decision of 30 September 2009’), as amended by Commission Decision C(2009) 9912 final of 8 December 2009 (‘the amending decision’) (the decision of 30 September 2009, as amended by the amending decision, ‘the decision at issue’).

2 The background to the dispute is set out in paragraphs 16 to 22 of the judgment under appeal:

‘16 From October to December 2000, the Commission carried out a number of verifications pursuant to Article 47 CS at the premises of certain Italian undertakings engaged in the manufacture of reinforcing bars and at the premises of an association of certain Italian steel undertakings [Federacciai]. It also sent them a request to supply information pursuant to Article 47 CS ...

17 On 26 March 2002, the Commission commenced the administrative procedure and adopted its objections under Article 36 CS (“the statement of objections”) ... [Ferriere Nord] submitted written comments on the statement of objections on 31 May 2002. A hearing took place on 13 June 2002 ...

18 On 12 August 2002, the Commission adopted additional objections (“the supplementary statement of objections”) addressed to the same addressees as the statement of objections. In the supplementary statement of objections, based on Article 19(1) of Council Regulation No 17 of 6 February 1962: first regulation implementing Articles [81 and 82 EC] (OJ, English Special Edition 1959-1962, p. 87), the Commission explained its position concerning the further proceedings following the expiry of the ECSC Treaty. [Ferriere Nord] submitted written comments on 20 September 2002 and a second hearing in the presence of representatives of the Member States took place on 30 September 2002 ...

19 At the end of the procedure, the Commission adopted Decision C(2002) 5087 final of 17 December 2002 relating to a proceeding under Article 65 CS (COMP/37.956 - Reinforcing bars) (“the 2002 decision”), by which it found that, contrary to Article 65(1) CS, the undertakings to which it was addressed had implemented a single, complex and continuous restrictive practice on the Italian market for concrete reinforcing bars and coils which had as object or effect the fixing of prices, with a view to which the restriction or control of production and/or sales was also concerted. In that decision the Commission imposed on [Ferriere Nord] a fine in the amount of EUR 3.57 million …

20 On 10 March 2003, [Ferriere Nord] brought an action before the General Court challenging the 2002 decision. By judgment of 25 October 2007, Ferriere Nord v Commission (T-94/03, not published, EU:T:2007:320), the General Court annulled the 2002 decision. The General Court held that, having regard, in particular, to the fact that the 2002 decision contained no reference to Article 3 or Article 15(2) of Regulation No 17, the decision was based on Article 65(4) and (5) CS alone ... Since those provisions had expired on 23 July 2002, the Commission could no longer derive competence from those provisions, which were no longer in force when it adopted the 2002 decision, in order to establish an infringement of Article 65(1) CS and to impose fines on the undertakings which had allegedly participated in the infringement ...

21 By letter of 30 June 2008, the Commission informed [Ferriere Nord] and the other undertakings concerned of its intention to re-adopt the decision, changing the legal basis from that which it had chosen for the 2002 decision. It also stated that, having regard to the limited scope of the judgments annulling the 2002 decision, the re-adopted decision would be based on the evidence presented in the statement of objections and the supplementary statement of objections. The undertakings concerned were given a deadline to submit their observations and [Ferriere Nord] submitted its comments by fax on 1 August 2008 ...

22 By faxes of 24 July and 25 September 2008 and of 13 March, 30 June and 27 August 2009, the Commission requested information from [Ferriere Nord] concerning the undertaking’s ownership and asset situation. [Ferriere Nord] replied to those requests for information by letters dated 1 August and 1 October 2008 and 18 March, 1 July and 8 September 2009 respectively.’

3 In the decision of 30 September 2009, the Commission considered, inter alia, that 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) was to be interpreted as empowering it to establish and sanction, after 23 July 2002, cartels in the sectors which fell within the scope of the ECSC Treaty ratione materiae and ratione temporis. It stated that the decision had been adopted in conformity with the procedural rules of the EC Treaty as well as the aforementioned regulation, and that the material provisions that were no longer in force at the date of adoption of an act could be applied under the principles governing the temporal succession of rules, subject to application of the principle lex mitior.

4 Article 1 of the decision of 30 September 2009 states, inter alia, that Ferriere Nord had infringed Article 65(1) CS by taking part, from 1 April 1993 to 4 July 2000, in a continuous agreement and/or concerted practices in respect of concrete reinforcing bars and coils having as object and/or effect the fixing of prices and the restriction and/or control of production and sales in the common market. In Article 2 of that decision, the Commission imposed on Ferriere Nord a fine of EUR 3.57 million.

5 By letters sent between 20 and 23 November 2009, eight of the eleven companies to which the decision of 30 September 2009 was addressed, including Ferriere Nord, informed the Commission that the annex to that decision, as notified to its addressees, did not contain the tables illustrating the price variations.

6 On 8 December 2009, the Commission adopted the amending decision, which included in its annex the missing tables and corrected the numbered references to those tables in eight footnotes. The amending decision was notified to Ferriere Nord on 9 December 2009.

7 By application lodged at the General Court Registry on 19 February 2010, Ferriere Nord brought an action seeking, principally, the annulment of the decision at issue or, in the alternative, the partial annulment of that decision and a reduction of the fine.

8 In support of its action, Ferriere Nord raised ten pleas in law, alleging: first, lack of competence on the part of the Commission; second, failure to first send a new statement of objections; third, lack of a hearing with the Hearing Officer; fourth, that the final report was produced after the adoption of the decision at issue; fifth, adoption of a text without the annexes which are mentioned in it; sixth, errors of law in the assessment of the facts; seventh, the disproportionate nature of the fine in relation to the seriousness and duration of the cartel; eighth, an unlawful increase of the level of fine for repeated infringement; ninth, lack of acknowledgement of mitigating circumstances other than those provided for by the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4); and, tenth, misapplication of that notice.

9 By the judgment under appeal, the General Court reduced the fine imposed on Ferriere Nord to EUR 3 421 440 and dismissed the remainder of the action.

10 By application lodged at the General Court Registry on 20 December 2014, Ferriere Nord asked the General Court to correct paragraph 420 of the judgment under appeal, which the General Court refused to do, by Order of 13 March 2015, Ferriere Nord v Commission (T-90/10 REC, not published, EU:T:2015:173).

- set aside the judgment under appeal in so far as it rejected Ferriere Nord’s principal claim submitted in the context of its action in Case T-90/10; and, consequently, annul the decision at issue;

- in the alternative, set aside the judgment under appeal in so far as it rejected Ferriere Nord’s alternative claim made in the context of its action in Case T-90/10 and, consequently, partially annul the decision at issue and order a greater reduction of the fine imposed on Ferriere Nord; and

13 The oral procedure was closed on 8 December 2016 following delivery of the Advocate General’s Opinion. By letter dated 27 January 2017, lodged at the Court Registry the same day, the Commission asked the Court to order the reopening of the oral part of the procedure and to include in the case file the facts presented in its request as well as the documents annexed to it.

14 In support of that request, the Commission stated, in essence, that the Court does not have sufficient information on the factual circumstances relating to the hearings of 13 June and 30 September 2002, on which the Advocate General based his Opinion, since those circumstances were not specifically debated between the parties.

15 Article 83 of the Rules of Procedure of the Court of Justice allows the Court to order the reopening of the oral part of the procedure at any time after hearing the Advocate General, in particular where the case is to be decided on the basis of an argument which has not been debated between the parties.

16 It should be noted, however, that the subject matter of the appeal is, in principle, defined in the grounds of appeal and the arguments raised by the parties. In the present case, the parties had the opportunity to sufficiently debate those grounds of appeal and arguments in their written pleadings and during the joint hearing of 20 October 2016 in cases C-85/15 P to C-89/15 P.

17 As a result, the Court, after hearing the Advocate General, considers that there is no need to order the reopening of the oral part of the procedure.

18 In support of its appeal, Ferriere Nord raises nine grounds of appeal, alleging; first, a manifest distortion of the facts and evidence, failure to find clear contradictions in the decision at issue as well as infringement of the rules on burden of proof; second, breach of Article 27 of Regulation No 1/2003 owing to a failure to communicate a new statement of objections, infringement of the principle of protection of legitimate expectations, distortion of the facts and evidence, infringement of the rights of defence, failure to state reasons as well as an infringement of the right to a hearing before the Hearing Officer; third, infringement of the Commission’s rules of procedure; fourth, regarding the duration of Ferriere Nord’s participation in the cartel and errors of law in the assessment of the facts, distortion of evidence, infringement of the general principles concerning the burden of proof and in dubio pro reo as well as a contradiction in the grounds; fifth, infringement of the principle of proportionality in determining the basic amount of the fine imposed on Ferriere Nord in view of the seriousness and duration of the infringement, infringement of the principle of equal treatment and a failure to state reasons; sixth, a manifest calculation error or manifest inaccuracy in the reduction of the fine applied to Ferriere Nord, misuse of powers of unlimited jurisdiction as well as a failure to state reasons; seventh, unlawful increase in the basic amount of the fine for repeated infringement due to infringement of the rights of the defence; eighth, unlawful increase in the basic amount of the fine for repeated infringement by reason of the time that had passed; and, ninth, unlawful increase in the basic amount of the fine for repeated infringement due to infringement of the principle of proportionality.

19 By its second ground of appeal, which must be considered first, Ferriere Nord claims that the General Court erred in law by reaching the conclusion that the Commission was not required to send to it a new statement of objections before adopting the decision at issue.

20 In the first place, Ferriere Nord calls on the Court to examine the validity of the statement, made in paragraph 121 of the judgment under appeal, that the principle tempus regit actum must be interpreted as meaning that a procedural measure must be adopted on the basis of a rule in force at the time of its adoption. According to Ferriere Nord, that interpretation is incorrect in so far as the statement of objections adopted on the basis of Article 36 CS cannot substantiate the decision at issue adopted on the basis of Regulation No 1/2003.

21 According to Ferriere Nord, the adoption of a new statement of objections was required following the judgment of 25 October 2007, Ferriere Nord v Commission (T-94/03, not published, EU:T:2007:320) and would have been a correct application of the judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P, EU:C:2002:582), in paragraph 73 of which the Court ruled that the annulment of an EU measure does not necessarily affect the preparatory acts, and the procedure for replacing such a measure may, in principle, be resumed at the very point at which the illegality occurred. By using the terms ‘not necessarily’ and ‘in principle’ the Court did not exclude the fact that, having regard to the particularities of the case, the procedure could resume from an earlier stage than the point at which the illegality giving rise to the annulment the measure occurred.

22 In the second place, Ferriere Nord alleges distortion of the facts and evidence as well as infringement of the principle of legitimate expectations in so far as several details set out in the letters sent to it by the Commission gave rise to a legitimate expectation that a new statement of objections would be adopted.

23 In the third place, Ferriere Nord claims that, contrary to the General Court’s finding in the judgment under appeal, the adoption of a new statement of objections was necessary to the extent that it was not identical to the statement of objections. In this respect it refers, in particular, to the difference between the respective information on the Italian market and the common market in the provisions of the 2002 decision and the decision at issue.

24 In addition, Ferriere Nord claims infringement of Article 27 of Regulation No 1/2003 and Articles 11 and 12 of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 and 102 TFEU] (OJ 2004 L 123, p. 18), in so far as the General Court held, in paragraph 148 of the judgment under appeal, that in the absence of new objections the Commission was not obligated to organise a new hearing before the Hearing Officer.

25 The Commission submits that the arguments put forward by Ferriere Nord in the first place are inadmissible on the ground that they do not challenge the judgment under appeal in clear terms but merely ask the Court for clarifications on whether a decision adopted under Regulation No 1/2003 may be based on a statement of objections adopted on the basis of the ECSC Treaty.

26 As regards substance, the Commission contends that the General Court did not incorrectly apply the principle tempus regit actum too strictly in paragraphs 118 to 122 of the judgment under appeal, in response to the argument concerning the need for the legal basis of the preparatory act to correspond to that of the final act, but drew the correct conclusion from it - namely that since the defect vitiating the 2002 decision occurred on the date of its adoption, the annulment of that decision did not affect the validity of the preparatory measures, such that the Commission was not required to send Ferriere Nord a new statement of objections.

27 According to the Commission, the arguments submitted by Ferriere Nord in the second place are equally inadmissible. First, infringement of legitimate expectations represents a new ground of appeal. Second, while formally invoking distortion, Ferriere Nord is, in reality, seeking a new assessment of the facts.

28 The Commission maintains, in any case, that it is clear from the details referred to by Ferriere Nord in the letters from the Commission, when read in context, that they could not have created a legitimate expectation regarding the sending of a new statement of objections, as the General Court noted in paragraphs 127 and 128 of the judgment under appeal. Therefore, without distorting the facts, the General Court correctly held in paragraph 126 of the judgment under appeal that Ferriere Nord could not rely on such a legitimate expectation.

29 Regarding the admissibility of the arguments raised in the third place, the Commission asserts that Ferriere Nord mentions certain paragraphs in the judgment under appeal without putting forward specific arguments to substantiate the alleged error in not sanctioning the failure to send a new statement of objections.

30 As regards substance, the Commission refers to paragraphs 143 and 144 of the judgment under appeal, in which the General Court pointed to the lack of a basis for the argument that a new statement of objections was necessary in order to establish whether the cartel was likely to affect trade between the Member States, that question having been raised in the supplementary statement of objections. In addition, Ferriere Nord makes the erroneous assumption that the decision at issue penalised a different infringement to that found in the 2002 decision. In fact, it is apparent from the content of the decision at issue that the infringement found consisted in a cartel covering the whole of the Italian market, that is to say a substantial part of the common market and, accordingly, a cartel prohibited by Article 65(1) CS.

31 The Commission contends that the argument concerning the lack of a new hearing before the Hearing Officer is formulated in too broad and imprecise a manner to be admissible. As regards substance, the Commission submits that Ferriere Nord does not contest the General Court’s conclusion that such a hearing would only have been necessary if a new statement of objections had been notified. However, the General Court ruled out the need for a new statement of objections.

32 Regarding the arguments raised by Ferriere Nord in the first place, the Commission’s plea of inadmissibility must be rejected. It is clear from the appeal that Ferriere Nord is not merely asking the Court for clarifications on the question posed, but is seeking to demonstrate that the General Court erred in law, in particular in paragraph 121 of the judgment under appeal, by holding that it was not necessary to issue a new statement of objections before the adoption of the decision at issue. Similarly, contrary to the Commission’s assertion, Ferriere Nord’s argument regarding the lack of a hearing before the Hearing Officer is sufficiently precise to be admissible, since the appeal refers to both the provisions of EU law that in its opinion the General Court infringed in that regard and the paragraph of the judgment under appeal in which it considers that infringement to have been committed.

33 As regards the substance of Ferriere Nord’s arguments concerning the failure to both issue a new statement of objections and hold a hearing before the Hearing Officer, it must be noted that, in the context of the procedure leading to the adoption of the 2002 decision, the Commission did, on 26 March 2002, send the statement of objections to the undertakings concerned, including Ferriere Nord, in accordance with Article 36 CS. The oral hearing relating to that statement of objections took place on 13 June 2002. After expiry of the ECSC Treaty, on 12 August 2002 the Commission sent the undertakings the supplementary statement of objections based on Article 19(1) of Regulation No 17, in which it explained its position regarding the change in the legal framework and invited them to make known their own points of view on the supplementary statement of objections. An oral hearing took place on 30 September 2002 in the presence of representatives of the Member States.

34 Following the annulment of the 2002 decision, the Commission, by letter dated 30 June 2008, informed Ferriere Nord and the other undertakings concerned of its intention to re-adopt that decision on the legal basis of Regulation No 1/2003, in accordance with the procedural rules laid down in that regulation.

35 Having regard to the course of that procedure, it is necessary to consider whether, as Ferriere Nord claims, and contrary to the General Court’s conclusion in paragraphs 144 and 148 of the judgment under appeal, the Commission was obligated to adopt a new statement of objections as well as to organise a new hearing, following the annulment of the 2002 decision.

36 It is established case-law that procedural rules are generally held to apply from the date on which they enter into force (judgments of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, C-201/09 P and C-216/09 P, EU:C:2011:190, paragraph 75 and the case-law cited; of 29 March 2011, ThyssenKrupp Nirosta v Commission, C-352/09 P, EU:C:2011:191, paragraph 88; and of 11 December 2012, Commission v Spain, C-610/10, EU:C:2012:781, paragraph 45), even in a procedure that was initiated before that date, but is still pending after that date (see, to that effect, judgment of 11 December 2012, Commission v Spain, C-610/10, EU:C:2012:781, paragraph 47).

37 In this case, as the decision at issue was adopted on the basis of Article 7(1) and Article 23(2) of Regulation No 1/2003, the procedure leading to that decision had to be conducted in accordance with that regulation and Regulation No 773/2004, the legal basis of which is Regulation No 1/2003 (see, to that effect, judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission, C-352/09 P, EU:C:2011:191, paragraph 90), despite the fact that the procedure had been initiated before Regulation No 1/2003 came into force.

38 It follows from this that the General Court made an error of law, in paragraph 121 of the judgment under appeal, in so far as it interpreted the principles governing the temporal application of the law - under which procedural rules are generally held to apply to all ongoing situations from the date on which they enter into force - as meaning that, with regard to the decision at issue adopted on the basis of Regulation No 1/2003, the preparatory acts had to be adopted on the basis of the procedural rules in force at the time of their adoption, namely Article 36(1) CS in the case of the statement of objections and Article 19(1) of Regulation No 17 in the case of the supplementary statement of objections.

39 It is, nevertheless, necessary to examine whether the preparatory acts taken by the Commission for the purpose of adopting the 2002 decision can be considered equivalent to those provided for by Regulations No 1/2003 and No 773/2004. If that should be the case, the Commission cannot be criticised for not having repeated those actions before adopting the decision at issue.

40 Regarding the issuing of a statement of objections, Article 10(1) and (2) of Regulation No 773/2004, read in the light of Article 27(1) of Regulation No 1/2003, which it implements, provides that before adopting a decision under, inter alia, Article 7 of the latter regulation, the Commission is to notify a statement of objections to the parties concerned, giving them the opportunity to make their views on it known within a period determined by the Commission.

41 As the General Court stated, in essence, in paragraphs 123 and 124 of the judgment under appeal, in this case the Commission had already sent the undertakings concerned the statement of objections and the supplementary statement of objections and, in relation to those statements, the decision at issue did not take new facts into account against Ferriere Nord or materially alter the evidence for the alleged offences. Moreover, as the Advocate General observed in point 53 of his Opinion, there is no major difference, in respect of content, between a statement of objections adopted under the ECSC rules and one adopted in accordance with Regulations No 17 and 1/2003. It was, therefore, not necessary to send a new statement of objections.

42 In this connection, the General Court was entitled to refer to paragraph 73 of the judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P, EU:C:2002:582), in which it is noted that the annulment of an EU measure does not necessarily affect the preparatory acts, and the procedure for replacing such a measure may, in principle, be resumed at the very point at which the illegality occurred.

43 As the General Court noted in paragraph 119 of the judgment under appeal, the 2002 decision was annulled on the ground that the Commission did not have power to adopt it on the basis of the ECSC Treaty, which was no longer in force at the date of adoption of the decision, such that it was on that exact date that the illegality occurred. As a result, that annulment did not affect the statement of objections nor the supplementary statement of objections.

44 As a result, the General Court did not make an error of law in concluding, in paragraph 122 of the judgment under appeal, that the Commission was not obligated to adopt a new statement of objections.

45 However, as the Advocate General noted in point 55 of his Opinion, according to Article 12 of Regulation No 773/2004, the Commission must give the parties to whom it addressed a statement of objections the opportunity to develop their arguments at an oral hearing, if they so request in their written observations. Therefore, given that, as is clear from paragraph 43 of the present judgment, the statement of objections and the supplementary statement of objections were not affected by the annulment of the 2002 decision, it is necessary to assess whether the Commission gave the parties the opportunity to develop their arguments at an oral hearing conducted in accordance with the procedural requirements of Regulations No 1/2003 and 773/2004, as it was required to do.

46 In this respect, it is important to note that, under the procedural rules established by Regulation No 1/2003, as made explicit in Regulation No 773/2004, it is laid down in Article 14(3) of that regulation that the competition authorities of the Member States are to be invited to participate in the oral hearing which, upon the request of the addressees of the statement of objections, is to follow the issuing of that statement.

47 In respect of the oral hearings that took place during 2002, the representatives of the Member States did not participate in that of 13 June 2002, since such participation was not provided for in the ECSC Treaty, which was in force at the time. It is common ground that that hearing concerned the substance of the case, namely the conduct in respect of which the Commission accused the addressees of the statement of objections. This is apparent, in particular, from paragraphs 379 to 382 of the decision at issue and is confirmed in paragraph 148 of the judgments of 9 December 2014, Alfa Acciai v Commission (T-85/10, not published, EU:T:2014:1037), and of 9 December 2014, Ferriera Valsabbia and Valsabbia Investimenti v Commission (T-92/10, not published, EU:T:2014:1032).

48 However, the hearing of 30 September 2002 - to which the representatives of the Member States were invited in accordance with the rules of the EC Treaty, which by that point were applicable, in particular in accordance with Article 11(2) of Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles [81 EC] and [82 EC] (OJ 1998 L 354, p. 18) - concerned the subject matter of the supplementary statement of objections, namely the legal consequences of the expiry of the ECSC Treaty for the continuation of the proceedings. This is clear, first, from that statement, which expressly invited its addressees to make their point of view on those supplementary objections known. Second, the Commission stated, in paragraph 382 of the decision at issue, that it did not consider it necessary to repeat the oral hearing of 13 June 2002, in application of the provisions of Regulations No 17 and 1/2003, since that hearing, in which the Member State representatives did not participate, had been conducted in conformity with the rules of the ECSC Treaty, which was applicable at the time. Furthermore, at the joint hearing in Cases C-85/15 P to C-89/15 P, the Commission confirmed, in its reply to a question from the Court, that the supplementary statement of objections re-examined neither the facts nor the evidence forming the subject matter of the proceedings.

49 It follows from this that, in the present case, the representatives of the Member States did not participate in a hearing concerning the substance of the case, but participated only in the one concerning the legal consequences resulting from the expiry of the ECSC Treaty.

50 Yet, according to the case-law noted in paragraphs 36 and 37 of the present judgment, when a decision is adopted on the basis of Regulation No 1/2003, the procedure resulting in that decision must conform to the procedural rules laid down by that regulation, even if the procedure began before that regulation came into force.

51 It follows that, before adopting the decision at issue, the Commission was required, in application of Articles 12 and 14 of Regulation No 773/2004, to give the parties the opportunity to develop their arguments during a hearing to which the competition authorities of the Member States were invited. Therefore, it cannot be held that the hearing of 13 June 2002, concerning the substance of the case, fulfilled the procedural requirements in relation to the adoption of a decision on the basis of Regulation No 1/2003.

52 As a result, the General Court made an error in law in holding, in paragraph 148 of the judgment under appeal, that the Commission was not obligated to organise a new hearing with the Hearing Officer before adopting the decision at issue, since the undertakings concerned had already had the opportunity to be heard orally at the hearings of 13 June and 30 September 2002.

53 As the Advocate General pointed out in points 56 and 57 of his Opinion, having regard to the importance, in the context of a procedure provided for by Regulations No 1/2003 and 773/2004, of holding an oral hearing to which the competition authorities of the Member States are invited, in accordance with Article 14(3) of the latter regulation, failure to hold such a hearing constitutes infringement of an essential procedural requirement.

54 In so far as the right to such a hearing, provided for by Regulation No 773/2004, was not respected, it is not necessary for the undertaking, the rights of which have been infringed in this way, to demonstrate that such infringement might have influenced the course of the proceedings and the content of the decision at issue to its detriment.

55 Accordingly, the procedure is necessarily vitiated, regardless of any possible detrimental consequences for Ferriere Nord that could result from that infringement (see, to that effect, judgments of 6 November 2012, Commission v Éditions Odile Jacob, C-553/10 P and C-554/10 P, EU:C:2012:682, paragraphs 46 to 52, and of 9 June 2016, CEPSA v Commission, C-608/13 P, EU:C:2016:414, paragraph 36).

56 It follows from the above that the second ground of appeal put forward by Ferriere Nord must be upheld and, accordingly, the judgment under appeal must be set aside, without the Court needing to examine the other arguments put forward by the latter in the context of this ground of appeal, if they are admissible, nor the other grounds of appeal.

57 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court of Justice is to quash the decision of the General Court. It may then itself give final judgment in the matter, where the state of the proceedings so permits.

58 In the present case, the Court has the necessary information to give final judgment on the action for annulment of the decision at issue brought by Ferriere Nord before the General Court.

59 In this respect, it is sufficient to note that, for the reasons set out in paragraphs 33 to 55 of the present judgment, the decision at issue must be annulled to the extent that it concerns Ferriere Nord, for infringement of essential procedural requirements.

60 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.

61 Article 138(1) of those rules, which is applicable to appeal proceedings by virtue of Article 184(1) of the same rules, provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Ferriere Nord has been successful on appeal, and the action before the General Court was upheld, the Commission must be ordered to bear its own costs and to pay those incurred by Ferriere Nord both at first instance and on appeal, in accordance with the form of order sought by Ferriere Nord.

1. Sets aside the judgment of the General Court of the European Union of 9 December 2014, Ferriere Nord v Commission (T-90/10, not published, EU:T:2014:1035);

2. Annuls Commission Decision C(2009) 7492 final of 30 September 2009 relating to a proceeding under Article 65 CS (Case COMP/37.956 - Reinforcing bars, re-adoption), as amended by Commission Decision C(2009) 9912 final of 8 December 2009, in so far as it concerns Ferriere Nord SpA;

3. Orders the European Commission to bear its own costs and to pay those incurred by Ferriere Nord SpA both at first instance and in the present appeal.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Ferriere Nord v Commission (Competition - Agreements, decisions and concerted practices Competition : Judgment) [2017] EUECJ C-88/15 (21 September 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/C8815.html Cite as: [2017] EUECJ C-88/15, EU:C:2017:716, ECLI:EU:C:2017:716

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