Judgments nº T-457/05 of The General Court, April 28, 2010
| Resolution Date | April 28, 2010 |
| Issuing Organization | The General Court |
| Decision Number | T-457/05 |
In Joined Cases T‑456/05 and T‑457/05,
Gütermann AG, established in Gutach-Breisgau (Germany), represented by J. Burrichter, B. Kasten and S. Orlikowski-Wolf, lawyers,
applicant in Case T‑456/05,
Zwicky & Co. AG, established in Wallisellen (Switzerland), represented by J. Burrichter, B. Kasten and S. Orlikowski-Wolf, lawyers,
applicant in Case T-457/05,
v
European Commission, represented initially by F. Castillo de la Torre, M. Schneider and K. Mojzesowicz, and subsequently by F. Castillo de la Torre and K. Mojzesowicz, acting as Agents,
defendant,
APPLICATION for 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, for reduction of the fine imposed on the applicants by that decision,
THE GENERAL COURT (Fifth Chamber),
composed of M. Vilaras, President, M. Prek (Rapporteur) and V.M. Ciucǎ, Judges,
Registrar: T. Weiler, Administrator,
having regard to the written procedure and further to the hearing on 17 December 2008,
gives the following
Judgment
Background to the dispute
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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 applicants – Gütermann AG (‘Gütermann’) and Zwicky & Co. AG (‘Zwicky’) – had participated in a set of agreements and concerted practices on the market in thread for industrial customers in Benelux and the Nordic countries during the period from January 1990 to September 2001, in the case of Gütermann, and during the period from January 1990 to November 2000, in the case of Zwicky.
2 The Commission imposed a fine of EUR 4.021 million on Gütermann and a fine of EUR 0.174 million on Zwicky for their participation in the industrial thread cartel in Benelux and the Nordic countries.
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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 Co. Ltd.
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 market in thread for industrial customers in the United Kingdom; and (iii) a cartel on the market in thread for industrial customers in Benelux, as well as in Denmark, Finland, Norway and Sweden (collectively, ‘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 regarding 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 market in thread for industrial customers in Benelux and the Nordic countries.
7 All the undertakings to which the statement of objections was addressed submitted written observations. Gütermann replied in its own name and in the name of Zwicky.
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.
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The contested decision
Definition of the relevant markets
Product market
11 In the contested decision, the Commission states that the thread sector can be divided into two categories: (i) the thread used in industry to sew or embroider various kinds of apparel or other items such as leather goods, textile coatings for motor vehicles and mattresses and (ii) domestic thread used by individuals for sewing or mending and for leisure activities.
12 The industrial thread business can be divided into three categories according to the use to which the thread is put: (i) sewing thread for the clothing industry, which is used for various types of garment; (ii) embroidery thread, which is used in computerised, industrial embroidery machines to embellish clothing, sports shoes and household textiles; and (iii) special thread, which is used in various sectors such as footwear, leather goods and the motor industry.
13 According to the Commission, industrial thread may be regarded, from the point of view of supply, as a single product market since there is no strict correspondence between the end-use and the type of fibre and/or the structure of the thread.
14 Nevertheless, the Commission draws a distinction in the contested decision between thread intended for the motor industry and thread intended for industries other than the motor industry. It considers that, although the production process for the two types of thread are similar or easily interchangeable, the demand in the motor industry comes from large customers which impose higher specification standards for certain products which they use – such as the thread used for seat belts – and which require product uniformity in the various countries in which they have need of those products for their industry.
15 In the present cases, the product market by reference to which the infringement complained of was investigated is the market for industrial thread other than for the motor industry (‘industrial thread’).
Geographic markets
16 In the contested decision, the Commission notes that, according to the information provided by the parties, the relevant geographic market for industrial thread is regional. It adds that, according to the case, the region can cover a number of EEA countries, such as Benelux or the Nordic countries, or a single country, such as the United Kingdom.
17 In the present case, the geographic market relevant to the alleged infringement on the part of the applicants is Benelux and the Nordic countries.
Size and structure of the relevant markets
18 It can be seen from the contested decision that the turnover of industrial thread in Benelux and the Nordic countries was approximately EUR 50 million in 2000 and approximately EUR 40 million in 2004.
19 It also emerges from the contested decision that, at the end of the 1990s, the main suppliers of industrial thread in Benelux and the Nordic countries included Gütermann, Zwicky, Amann und Söhne GmbH & Co. KG (‘Amann’), Barbour Threads Ltd, before it was acquired by Coats, Belgian Sewing Thread NV (‘BST’) and Coats.
Description of the unlawful conduct
20 The Commission states in the contested decision that the events relating to the cartel on the market for industrial thread in Benelux and the Nordic countries took place between 1990 and 2001.
21 According to the Commission, the undertakings concerned met at least once a year and those meetings were split into two sessions, one dealing with the Benelux market and the other dealing with the market in the Nordic countries. The primary objective of the meetings was the maintenance of high prices on both markets.
22 The participants exchanged price lists, as well as information on rebates, the application of increases in list prices, reductions in rebates and increases in the special prices applied to certain customers. They also concluded agreements on future price lists, maximum rebates, reductions in rebates and increases in the special prices applied to certain customers, as well as agreements to avoid undercutting, to the advantage of the incumbent supplier and with a view to arranging customer allocation (contested decision, recitals 99 to 125).
Enacting terms of the contested decision
23 By Article 1(1) of the contested decision, the Commission found that eight undertakings, including Gütermann and Zwicky, had infringed Article 81 EC and Article 53 of the EEA Agreement by participating in agreements and concerted practices affecting the markets of thread for industrial customers in Benelux and the Nordic countries, during the period between January 1990 and September 2001 in the case of Gütermann and during the period between January 1990 and November 2000 in the case of Zwicky.
24 Under the first paragraph of Article 2 of the contested decision, the following fines were imposed in respect of the cartel on the market for industrial thread 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.
25 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...
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