Judgments nº T-452/05 of The General Court, April 28, 2010

• Resolution Date: April 28, 2010
• Issuing Organization: The General Court
• Decision Number: T-452/05

In Case T‑452/05,

Belgian Sewing Thread (BST) NV, established in Deerlijk (Belgium), represented by H. Gilliams and J. Bocken, avocats,

applicant,

v

European Commission, represented by A. Bouquet and K. Mojzesowicz, acting as Agents,

defendant,

APPLICATION for (i) partial annulment of Commission Decision C(2005) 3452 of 14 September 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.337 – PO/Thread), as amended by Commission Decision C(2005) 3765 of 13 October 2005 and, in the alternative, reduction of the fine imposed on the applicant by that decision and (ii) an order that the Commission pay compensation, on the basis of the non-contractual liability of the European Community, for the loss which the applicant has suffered,

THE GENERAL COURT (Fifth Chamber),

composed of M. Vilaras, President, M. Prek (Rapporteur) and V.M. Ciucǎ, Judges,

Registrar: J. Plingers, Administrator,

having regard to the written procedure and further to the hearing on 18 December 2008,

gives the following

Judgment

Background to the dispute

1. Subject-matter of the dispute

   1 By Decision C(2005) 3452 of 14 September 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.337 – PO/Thread) (‘the contested decision’), as amended by Commission Decision C(2005) 3765 of 13 October 2005 and a summary of which was published in the Official Journal of the European Union of 26 January 2008 (OJ 2008 C 21, p. 10), the Commission of the European Communities found that the applicant – Belgian Sewing Thread (BST) NV (‘BST’) – had participated in a set of agreements and concerted practices on the market in thread for industrial customers other than automotive customers in Benelux, and in Denmark, Finland, Norway and Sweden (collectively, ‘the Nordic countries’) during the period from June 1991 to September 2001.

   2 The Commission imposed a fine of EUR 0.979 million on BST for its participation in the cartel on the industrial thread market in Benelux and the Nordic countries.

2. Administrative procedure

   3 On 7 and 8 November 2001, the Commission carried out inspections pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87) at the premises of a number of sewing thread manufacturers. Those inspections were carried out as a result of information supplied in August 2000 by The English Needle & Tackle Company.

   4 On 26 November 2001, Coats Viyella plc (‘Coats’) filed an application for leniency under the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996, C 207, p. 4; ‘the Leniency Notice’), together with documents intended to show the existence of the following cartels: (i) a cartel on the market in thread for automotive customers in the European Economic Area (EEA); (ii) a cartel on the UK industrial thread market; and (iii) a cartel on the market for industrial thread, other than for automotive customers, in Benelux and the Nordic countries (‘the industrial thread cartel in Benelux and the Nordic countries).

   5 In March and August 2003, on the basis of the documents taken in the course of the inspections and those provided by Coats, the Commission sent the undertakings concerned requests for information pursuant to Article 11 of Regulation No 17.

   6 On 15 March 2004, the Commission issued a statement of objections which it sent to a number of undertakings on account of their participation in one or more of the cartels referred to in paragraph 4 above, including the cartel on the industrial thread market in Benelux and the Nordic countries. All the undertakings were given access to the Commission’s investigation file in the form of a copy on CD-Rom which was sent to them on 7 April 2004.

   7 All the undertakings to which the statement of objections was addressed submitted written observations.

   8 A hearing took place on 19 and 20 July 2004.

   9 On 24 September 2004, the parties were granted access to the non-confidential version of the responses to the statement of objections, as well as to the comments made by the parties at the hearing, and were given a deadline by which to submit further comments.

   10 On 14 September 2005, the Commission adopted the contested decision.

3. The contested decision

   Definition of the relevant market

   11 In the contested decision, the Commission draws a distinction between thread intended for the motor industry and thread intended for industries other than the motor industry. Also in the contested decision, the Commission stated that the product market in respect of which the infringement imputed to BST was examined is the industrial thread market.

   12 The geographic market concerned by the infringement imputed to BST is Benelux and the Nordic countries.

   Size and structure of the relevant market

   13 In the contested decision, the Commission stated that sales on the industrial thread market in Benelux and the Nordic countries were approximately EUR 50 million in 2000 and approximately EUR 40 million in 2004.

   14 The Commission also stated that, at the end of the 1990s, the main suppliers of industrial thread in Benelux and the Nordic countries included BST, Gütermann AG (‘Gütermann’), Zwicky & Co. AG (‘Zwicky’), Amann und Söhne GmbH & Co. KG (‘Amann’), Barbour Threads Ltd (‘Barbour’) before it was taken over by Coats, and Coats.

   Description of the unlawful conduct

   15 The Commission stated in the contested decision that the infringement imputed to BST in relation to the industrial thread market in Benelux and the Nordic countries had been committed during the period from 1990 to 2001.

   16 According to the Commission, the undertakings concerned met at least once a year and the meetings were split into two sessions, one for the Benelux market and the other for the market in the Nordic countries, the main objective of the meetings being the maintenance of high prices on each of those two markets.

   17 The participants exchanged price lists and information on rebates, on the implementation of increases in list prices, on reductions in rebates and on increases in the special prices charged to certain customers. Agreements were also made concerning future price lists, maximum rates of rebate, reductions in rebates and increases in the special prices charged to certain customers, as well as agreements to avoid undercutting, to the advantage of the incumbent supplier, and to arrange customer allocation (contested decision, recitals 99 to 125).

   Enacting terms of the contested decision

   18 By Article 1(1) of the contested decision, the Commission found that eight undertakings, including BST, had infringed Article 81 EC and Article 53(1) of the EEA Agreement by participating in a set of agreements and concerted practices on the industrial thread market in Benelux and the Nordic countries for the period – in the case of BST – from June 1991 to September 2001.

   19 Under the first paragraph of Article 2 of the contested decision, the following fines were imposed in respect of the industrial thread cartel in Benelux and the Nordic countries, on the following undertakings, among others:

   – Coats: EUR 15.05 million;

   – Amann: EUR 13.09 million;

   – BST: EUR 0.979 million;

   – Gütermann: EUR 4.021 million;

   – Zwicky: EUR 0.174 million.

   20 By Article 3 of the contested decision, the Commission ordered the undertakings covered by that decision to bring to an end immediately, if they had not already done so, the infringements which had been found to exist. It also ordered them to refrain from repeating any act or conduct referred to in Article 1 of the contested decision and from adopting any act or conduct having equivalent object or effect.

4. Procedure and forms of order sought

   21 By application lodged at the Registry of the General Court on 27 December 2005, BST brought the present action.

   22 Following a change in the composition of the Chambers of the General Court, the Judge-Rapporteur was attached to the Fifth Chamber, to which the present case was accordingly allocated.

   23 BST claims that the General Court should:

   – annul Article 1 of the contested decision in so far as it concerns BST;

   – annul Article 2 of the contested decision in so far as the Commission thereby imposes on BST a fine of EUR 0.979 million or, in the alternative, substantially reduce that fine;

   – order the Commission to pay compensation for the loss suffered, to the extent indicated the application;

   – appoint an expert to establish that part of the loss which is not yet quantifiable;

   – order the Commission to pay the costs.

   24 The Commission contends that the General Court should:

   – dismiss the action for annulment;

   – dismiss the claim for damages as unfounded;

   – order BST to pay the costs.

   Law

   25 The present action is composed of (i) an application for partial annulment of the contested decision or, in the alternative, for a reduction of the fine imposed and (ii) a claim for damages.

5. The application for annulment of Article 1 of the contested decision in so far as it concerns BST

1. Preliminary observations

   26 It should first be stated that, in the context of the first plea put forward in support of its application for annulment of Article 1 of the contested decision, BST claims that the facts constituting the infringement, which it does not deny having committed, cannot be assimilated to the ‘very serious’ infringement which it is found to have committed by Article 1 of the contested decision. BST argues that the infringement which it admits to having committed must be distinguished from the infringements committed by the other undertakings. Thus, it is arguing in substance that the infringement which it committed forms no part of the single and continuous infringement on the market for industrial thread in Benelux and the Nordic countries referred to in Article 1 of the contested decision. Consequently, it must be...