Judgments nº T-380/10 of The General Court, September 16, 2013

• Resolution Date: September 16, 2013
• Issuing Organization: The General Court
• Decision Number: T-380/10

(Competition – Agreements, decisions and concerted practices – Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria – Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement – Coordination of price increases and exchange of sensitive business information – Distortion of competition – Proof – Calculation of the fine – Cooperation during the administrative procedure – 2002 Leniency Notice – Immunity from fines – Reduction of the fine – Significant added value – 2006 Guidelines on the method of setting fines – Principle of non-retroactivity)

In Case T‑380/10,

Wabco Europe, established in Brussels (Belgium),

Wabco Austria GesmbH, established in Vienna (Austria),

Trane Inc., established in Piscataway, New Jersey (United States),

Ideal Standard Italia Srl, established in Milan (Italy),

Ideal Standard GmbH, established in Bonn (Germany),

represented by S. Völcker, F. Louis, A. Israel, N. Niejahr, lawyers, C. O’Daly, E. Batchelor, Solicitors, and F. Carlin, Barrister,

applicants,

v

European Commission, represented by F. Castillo de la Torre, F. Ronkes Agerbeek and G. Koleva, acting as Agents,

defendant,

APPLICATION for annulment of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39092 – Bathroom Fittings and Fixtures) in so far as it concerns the applicants, and for reduction of the fines imposed on them,

THE GENERAL COURT (Fourth Chamber),

composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and M. van der Woude, Judges,

Registrar: S. Spyropoulos, Administrator,

having regard to the written procedure and further to the hearing on 27 March 2012,

gives the following

Judgment

Background to the dispute

1 By Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39092 – Bathroom Fittings and Fixtures) (‘the contested decision’), the European Commission found there to be an infringement of Article 101(1) TFEU and Article 53 of the Agreement on the European Economic Area (EEA) in the bathroom fittings and fixtures sector. It found that 17 undertakings had participated, over various periods between 16 October 1992 and 9 November 2004, in that infringement, which took the form of anti-competitive agreements or concerted practices spanning Belgium, Germany, France, Italy, the Netherlands and Austria (recitals 2 and 3 to the contested decision and Article 1 thereof).

2 More specifically, the Commission stated in the contested decision that the infringement consisted in (i) the coordination, by those bathroom fittings and fixtures manufacturers, of annual price increases and other pricing elements within the framework of regular meetings of national industry associations; (ii) the setting or coordination of prices on the occasion of specific events such as increases in raw material costs, the introduction of the euro and the introduction of road tolls; and (iii) the disclosure and exchange of sensitive business information (recitals 152 to 163 to the contested decision). The Commission also found that price setting in the bathroom fittings and fixtures industry followed an annual cycle. In that context, the manufacturers set price lists which generally remained in force for a year and formed the basis for commercial relations with wholesalers (recitals 152 to 163 to the contested decision).

3 The products covered by the cartel are bathroom fittings and fixtures belonging to the following three product sub-groups: taps and fittings, shower enclosures and accessories, and ceramics (the ‘three product sub-groups’) (recitals 5 and 6 to the contested decision).

4 American Standard Inc., which became Trane Inc. in 2007, was an American group manufacturing and distributing ceramics and taps and fittings under the Ideal Standard brand. The group’s European activities in that sector were, from 29 October 2001, taken over by American Standard Europe BVBA, which, in 2007, became Wabco Europe. That group wholly owned the subsidiaries active in six Member States of the European Union, namely (i) Ideal Standard GmbH and Ideal-Standard Produktions-GmbH in Germany, (ii) Ideal Standard SAS in France, (iii) Ideal Standard Italia Srl in Italy, (iv) as of 2001, de Metaalwarenfabriek Venlo BV, which, in 2005, became Ideal Standard Nederland BV Europe, in the Netherlands, (v) Wabco Austria GesmbH, sold to Ideal Standard GmbH in 2007, in Austria and (vi) a subsidiary of the latter in Belgium (recitals 21 to 26 and 1043 to 1049 to the contested decision).

5 Wabco Europe, Wabco Austria, Trane, Ideal Standard Italia and Ideal Standard will hereinafter be referred to collectively as ‘the applicants’.

6 On 15 July 2004, Masco Corp. and its subsidiaries, including Hansgrohe AG, which manufactures taps and fittings, and Hüppe GmbH, which manufactures shower enclosures, informed the Commission of the existence of a cartel in the bathroom fittings and fixtures sector and submitted an application for immunity from fines, or, in the alternative, for a reduction of fines, under the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’). On 2 March 2005, the Commission granted Masco conditional immunity from fines pursuant to points 8(a) and 15 of the 2002 Leniency Notice (recitals 126 to 128 to the contested decision).

7 On 9 and 10 November 2004, the Commission, pursuant to Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1), conducted unannounced inspections on the premises of various companies and national industry associations operating in the bathroom fittings and fixtures sector (recital 129 to the contested decision).

8 On 15 and 19 November 2004 respectively, Grohe Beteiligungs GmbH and its subsidiaries (‘Grohe’) and the applicants each applied for immunity from fines under the 2002 Leniency Notice or, in the alternative, for a reduction in fines (recitals 131 and 132 to the contested decision).

9 Between 15 November 2005 and 16 May 2006, the Commission, pursuant to Article 18 of Regulation No 1/2003, sent requests for information to various companies and associations operating in the bathroom fittings and fixtures sector, including the applicants (recital 133 to the contested decision).

10 On 17 and 19 January 2006 respectively, Roca SARL and Hansa Metallwerke AG and its subsidiaries each applied for immunity from fines under the 2002 Leniency Notice or, in the alternative, for a reduction in fines. On 20 January 2006, Aloys Dornbracht GmbH & Co KG Armaturenfabrik (‘Dornbracht’) also applied for immunity from fines or, in the alternative, for a reduction in fines.

11 On 26 March 2007, the Commission adopted a statement of objections, which was notified to the applicants (recital 139 to the contested decision).

12 A hearing took place from 12 to 14 November 2007, in which the applicants participated (recital 143 to the contested decision).

13 On 9 July 2009, the Commission sent certain companies, including the applicants, a letter of facts, drawing their attention to certain evidence on which the Commission was minded to rely when adopting a final decision (recitals 147 and 148 to the contested decision).

14 Between 19 June 2009 and 8 March 2010, the Commission, pursuant to Article 18 of Regulation No 1/2003, sent further requests for information to several companies, including the applicants (recitals 149 to 151 to the contested decision).

15 On 23 June 2010, the Commission adopted the contested decision.

16 In the contested decision, in the first place, the Commission found that the practices described in paragraph 2 above formed part of an overall plan to restrict competition between the addressees of that decision and had the characteristics of a single and continuous infringement, which covered the three product sub-groups referred to in paragraph 3 above and extended to Belgium, Germany, France, Italy, the Netherlands and Austria (recitals 778 and 793 to the contested decision) (‘the infringement found’). In that regard, it highlighted, in particular, the fact that those practices had followed a recurring pattern which was consistent in each of the six Member States covered by the Commission’s investigation (recitals 778 and 793 to the contested decision). The Commission also pointed to the existence of national industry associations concerning all three product sub-groups, which it termed ‘umbrella associations’, national industry associations with members active in at least two of those three product sub-groups, which it termed ‘cross‑product associations’, as well as product-specific associations with members active in only one product sub-group (recitals 796 and 798 to the contested decision). Lastly, it found that a central group of undertakings participated in the cartel in various Member States and in cross-product associations and umbrella associations (recitals 796 and 797 to the contested decision).

17 With regard to the applicants in particular, the Commission found that they had participated in infringements relating to ceramics and taps and fittings during various periods, from 15 March 1993 to 9 November 2004, in Belgium, Germany, France, Italy and Austria. However, the Commission stated that they could not be held liable for an infringement in the Netherlands, since the infringement had come to an end there in 1999 before their acquisition, in 2001, of the subsidiary which took part in it. The Commission concluded that the applicants had participated in the single infringement since they could reasonably have foreseen that anti-competitive activities had taken place before 2001 (recitals 853 to 856 to the contested decision).

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