Judgments nº T-95/15 of The General Court, December 13, 2016

• Resolution Date: December 13, 2016
• Issuing Organization: The General Court
• Decision Number: T-95/15

(Competition - Agreements, decisions and concerted practices - European stock/catalogue and special printed envelopes market - Decision establishing an infringement of Article 101 TFEU - Coordination of sales prices and allocation of customers - Settlement procedure - Fines - Basic amount - Exceptional adjustment - Maximum of 10% of total turnover - Article 23(2) of Regulation (EC) No 1/2003 - Obligation to state reasons - Equal treatment)

In Case T-95/15,

Printeos, SA, established in Alcalá de Henares (Spain),

Tompla Sobre Exprés, SL, established in Alcalá de Henares,

Tompla Scandinavia AB, established in Stockholm (Sweden),

Tompla France SARL, established in Fleury-Mérogis (France),

Tompla Druckerzeugnisse Vertriebs GmbH, established in Leonberg (Germany),

represented by H. Brokelmann and P. Martínez-Lage Sobredo, lawyers,

applicants,

v

European Commission, represented by F. Castilla Contreras, F. Jimeno Fernández and C. Urraca Caviedes, acting as Agents,

defendant,

APPLICATION based on Article 263 TFEU seeking annulment in part of Commission Decision C(2014) 9295 final of 10 December 2014 relating to a proceeding under Article [101 TFEU] and Article 53 of the EEA Agreement (AT.39780 - Envelopes) or, in the alternative, a reduction of the fine imposed on the applicants,

THE GENERAL COURT (Fourth Chamber, Extended Composition),

composed of M. Prek, President, I. Labucka, J. Schwarcz, V. Tomljenović and V. Kreuschitz (Rapporteur), Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 4 July 2016,

gives the following

Judgment

Facts of the case

1 By Decision C(2014) 9295 final of 10 December 2014 relating to a proceeding under Article [101 TFEU] and Article 53 of the EEA Agreement (AT.39780 - Envelopes) (‘the contested decision’), the European Commission found, inter alia, that the applicants, Printeos SA, Tompla Sobre Exprés SL, Tompla Scandinavia AB, Tompla France SARL and Tompla Druckerzeugnisse Vertriebs GmbH, had infringed Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) by participating, from 8 October 2003 to 22 April 2008, in an agreement concluded and implemented on the European stock/catalogue and special printed envelopes market covering, inter alia, Denmark, Germany, France, Sweden, the United Kingdom and Norway. The purpose of the agreement was to coordinate sale prices, allocate customers and exchange sensitive commercial information. In addition to the applicants, the Bong group (‘Bong’), the GPV France SAS and Heritage Envelopes Ltd group (‘GPV’), the Holdham SA group (‘Hamelin’) and the Mayer-Kuvert group (‘Mayer-Kuvert’), to which the contested decision was similarly addressed, also participated in the cartel.

2 The contested decision was adopted in the context of a settlement procedure within the meaning of Article 10a 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) and the Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ 2008 C 167, p. 1) (‘the Settlement Notice’).

3 Having regard to the infringement established (Article 1(5) of the contested decision), the Commission imposed on the applicants, jointly and severally, a fine of EUR 4 729 000 (Article 2(1)(e) of the contested decision).

4 The administrative procedure leading to the adoption of the contested decision was instigated by the Commission of its own initiative, on the basis of information and documents provided by an informant. On 14 September 2010, the Commission carried out inspections 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 and 102 TFEU] (OJ 2003 L 1, p. 1) at the premises of the applicants and other companies involved in the cartel in Denmark, Spain, France and Sweden. On 1 October 2010 and 31 January 2011, further inspections took place in Germany (recital 16 of the contested decision).

5 On 22 October 2010, the applicants submitted to the Commission an application for leniency under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17) (the ‘Leniency Notice’) (recital 17 of the contested decision) and a similar application to the Comisión Nacional de la Competencia, subsequently renamed the Comisión Nacional de los Mercados y la Competencia (National Competition Authority, Spain) (‘the CNC’).

6 On 15 March 2011, the CNC instigated a procedure to investigate whether, among others, Tompla Sobre Exprés, including its Spanish subsidiaries, had infringed Article 101 TFEU and the analogous Spanish competition rules, but only in so far as concerned the Spanish paper envelope market (Case S/0316/10, Sobres de papel (paper envelopes)). That procedure concluded with the adoption by the CNC on 25 March 2013 of a decision imposing on those companies a total fine of EUR 10 141 530, on account of their participation on the Spanish market, between 1977 and 2010, in agreements to fix prices, to allocate tenders in procedures launched by the Spanish authorities in connection with the supply of pre-printed envelopes for elections and referendums at European, national and regional level, to allocate the supply of pre-printed envelopes for commercial use for major customers, to fix the price of plain envelopes and to limit technology.

7 As all the parties concerned expressed their willingness to take part in settlement discussions, on 10 December 2013 the Commission opened the procedure provided for in Article 10a of Regulation No 773/2004, under which it held bilateral meetings with each of the parties (recitals 19 and 20 of the contested decision).

8 At a meeting held on 21 January 2014, the Commission presented to the applicants an overview of the cartel, including its analysis of the evidence in its possession.

9 On 24 February 2014, the applicants submitted an informal ‘non paper’ document in which they asked the Commission to take into account, for the purposes of determining the fine, (i) the fine imposed by the CNC, on the ground that that fine was equivalent in itself to 10% of their total turnover in 2012, (ii) the fact that they formed a ‘mono-product’ group (that is, a group involved in the production of a single product) and (iii) paragraph 37 of 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) (‘the Guidelines’), which allows the Commission, in the light of the particularities of the case in question, to depart from the general methodology for setting the amount of fines or from the limits specified in paragraph 21 of the Guidelines.

10 Instead of a second meeting, with the applicants’ agreement, by email of 17 June 2014, the Commission presented an overview of the essential criteria to be taken into consideration in determining the amount of the fine to be imposed, such as the value of the applicants’ sales in 2007, namely EUR 143 316 000, their turnover in 2013, namely EUR [confidential], (1) the duration of their participation in the infringement, etc. The applicants replied by email of 18 June 2014, confirming the value of sales and turnover used by the Commission and stating that they did not have any substantive comments on the case overview.

11 At a meeting on 24 October 2014, the Commission informed the applicants of the methods and parameters for calculating the amount of the fine, namely: (i) the proportion (15%) of the sales value (EUR 143 316 000 in 2007) used to determine the basic amount of the fine; (ii) the duration of the applicants’ involvement in the infringement (four years and six months); (iii) the additional amount of the 15%; (iv) the lack of any mitigating or aggravating circumstances; (v) the fact that a multiplication factor was not to be applied; (vi) the maximum authorised fine of EUR [confidential] (10% of the applicants’ total turnover in 2013); (vii) a reduction of the amount of the fine by way of exception pursuant to paragraph 37 of the Guidelines, in view of the particular circumstances of the case, including the fact that the basic amount of the fine of all the parties participating in the cartel was above the 10% ceiling laid down in Article 23(2) of Regulation No 1/2003; (viii) an additional reduction on account of the ‘mono-product’ nature of the applicants’ group; (ix) the fact that it was not possible to grant a reduction to reflect the existence of the fine imposed by the CNC, as the cartel investigated by the CNC was separate from that investigated by the Commission and had to be sanctioned independently and in accordance with the applicable rules, which are different from those applied by the Commission; (x) an envisaged reduction of 50% in line with paragraphs 24 and 25 of the Leniency Notice; (xi) an envisaged reduction of 10% in line with paragraph 32 of the Settlement Notice; and, finally, (xii) the potential range of the fine, from EUR 4 610 000 to EUR 4 848 000, and the fact that the applicants would be required to accept the maximum amount in their settlement submissions.

12 On 7 November 2014, the applicants submitted their settlement submissions, accepting the value of sales and turnover used by the Commission and the maximum amount of the fine.

13 The Commission adopted its statement of objections on 18 November 2014.

14 On 20 November 2014, the applicants confirmed, in accordance with paragraph 26 of the Settlement Notice, that the statement of objections corresponded to the contents of their settlement submissions and that they remained committed to following the settlement procedure.

15 As regards the calculation of the fines...