Judgments nº T-480/15 of The General Court, First Chamber, May 16, 2017

• Resolution Date: May 16, 2017
• Issuing Organization: First Chamber
• Decision Number: T-480/15

(Competition - Agreements, decisions and concerted practices - Abuse of dominant position - Distribution of plant protection products market - Decision to reject a complaint - Alleged anticompetitive behaviour of producers and distributors - Concerted or coordinated action of lodging complaints, by producers and distributors, before administrative and criminal authorities - Reporting alleged infringements of the applicable rules by parallel importers - Administrative inspections subsequently carried out by the administrative authorities - Imposition of administrative and criminal penalties by national authorities on parallel importers - Assimilation of complaints by producers and distributors to vexatious actions or abuses of administrative procedures - Lack of European Union interest - Right to effective judicial protection)

In Case T-480/15,

Agria Polska sp. z o.o., established in Sosnowiec (Poland),

Agria Chemicals Poland sp. z o.o., established in Sosnowiec,

Star Agro Analyse und Handels GmbH, established in Allerheiligen bei Wildon (Austria),

Agria Beteiligungsgesellschaft mbH, established in Allerheiligen bei Wildon,

represented initially by S. Dudzik and J. Budzik, and subsequently by P. Graczyk and W. Rocławski, lawyers,

applicants,

v

European Commission, represented by J. Szczodrowski, A. Dawes and J. Norris-Usher, acting as Agents,

defendant,

APPLICATION based on Article 263 TFEU seeking annulment of Commission Decision C(2015) 4284 final of 19 June 2015 (Case AT.39864 - BASF (formerly AGRIA and Others v BASF and Others)), rejecting the applicants’ complaint concerning infringements of Article 101 and/or Article 102 TFEU allegedly committed, essentially, by 13 producers and distributors of plant protection products, with the assistance or through four professional organisations and a law firm,

THE GENERAL COURT (First Chamber),

composed of I. Pelikánová, President, P. Nihoul and J. Svenningsen (Rapporteur), Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written part of the procedure and further to the hearing on 28 February 2017,

gives the following

Judgment

Background to the dispute

1 The applicants, Agria Polska sp. z o.o., Agria Chemicals Poland sp. z o.o., Star Agro Analyse und Handels GmbH and Agria Beteiligungsgesellschaft mbH are, respectively, two Polish companies, a German company and an Austrian company, active in the sale of plant protection products carried out in the context of parallel imports of those products, making it possible, inter alia, to generate profits derived from differences in the rate of value added tax (VAT) applied to those products in the various Member States. Those operations consist essentially of the import into Poland of such products from Member States in which they have already been authorised, their storage in the applicants’ warehouses in Poland and their subsequent re-export to other Member States, including those in which those products had originally been authorised, in the present case, essentially, to Germany and in Austria.

Proceedings before the UOKiK

2 On 1 July 2010, Agria Polska brought before the Urząd Ochrony Konkurencji i Konsumentów (Office for the Protection of Competition and Consumers, Poland, ‘the UOKiK’), a complaint (‘the national complaint’) alleging infringement of the Ustawa o ochronie konkurencji i konsumentów (law on competition and consumer protection), of 16 February 2007 (Dz. U. No 50, position 331), by 13 undertakings, namely BASF SE, Bayer CropScience, RWA Raiffeisen Ware Austria AG (‘RWA’), Deutscher Raiffeisenverband, Sumi-Agro, Monsanto, Nufarm, Rokita Agro, DuPont, Arysta, Syngenta, Dow and Makhteshim Agan, producers or distributors of plant protection products, with the help or through four professional organisations, namely Industrieverband Agrar (‘IVA’), Fachverband der chemischen Industrie - Industriegruppe Pflanzenschutz (IGP), European Crop Protection Association and Polskie Stowarzyszenie Ochrony Roślin (PSOR), established in Germany, Belgium and Poland respectively, and a law firm.

3 By letter of 10 August 2010, the President of the UOKiK informed Agria Polska that, in so far as the measure or practices referred to in the national complaint concerned 2005 and 2006, those practices could no longer be investigated by that office. Under Article 93 of the Law on the Protection of Competition and Consumers, a procedure concerning restrictive practices could no longer be commenced after a period of one year from the end of the year in which the infringement in question ended.

4 On 30 August 2010, Agria Polska reiterated before the UOKiK its request to open an investigation procedure concerning the alleged cartel between producers and distributors of plant protection products, arguing that the national complaint, introduced on 1 July 2001, also alleged an infringement by the latter of EU competition law rules.

5 By letter of 22 November 2010, the president of the UOKiK maintained its position, stating that the one-year limitation period provided for by Polish law was applicable even when the requested investigation concerned EU competition law provisions.

The Commission proceedings

6 On 30 November 2010, the applicants and Agro Nova Polska sp. z o.o. lodged, pursuant to Article 7 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), a complaint with the European Commission (‘the complaint’). That complaint concerned the same entities as those referred to in the national complaint made to the UOKiK. Agro Trade Handelsgesellschaft mbH and Cera Chem SARL, German and Luxembourgish companies respectively, joined the complaint, the Commission being informed thereof in the supplementary joint observations submitted by all those companies (hereinafter ‘the original complainant companies’) on 15 December 2010. Those companies submitted additional information to the Commission on 27 April 2011.

7 On 29 July 2011, the original complainant companies provided the Commission with a summary of the complaint.

8 It is apparent from the documents thus submitted by the original complainants that the complaint concerned, essentially, an infringement of Article 101 TFEU. That complaint also concerned an infringement of Article 102 TFEU by RWA.

9 In general, the original complainant companies argued that the entities referred to in the complaint had engaged in practices which infringed EU competition law. Such practices essentially took the form of an agreement and/or concerted practices between those entities and consisted of abusive complaints brought in a coordinated manner before the Austrian and Polish administrative and criminal authorities, calling into question the lawfulness of the commercial activities of the original complainant companies, with regard both to the requirements laid down in the regulations applicable to plant protection products and to the conditions for parallel trade in such products, including for tax purposes.

10 According to the original complainant companies, it was on the basis of false, truncated or even misleading statements, made by the entities referred to in the complaint in order to eliminate them from the market, that they were wrongly subject to numerous administrative, tax and criminal inspections by the Austrian and Polish administrative authorities, including on-the-spot inspections and seizures of plant protection products in their warehouses, and that criminal proceedings had been instituted against them, moreover at a strategic moment of the year for trade in plant protection products, which is seasonal, that is, during the first part of the year.

11 Those administrative and criminal proceedings, it is claimed, resulted in the imposition of heavy fines on the original complainant companies, which led to the bankruptcy of one of them, Agria Polska, as well as measures prohibiting the marketing of plant protection products at a key point in the year for trade in that type of product. That resulted, it is claimed, in a loss of market share for the original complainant companies that is significant and hard to reverse.

12 The original complainant companies, which were subject to administrative and criminal penalties, however, obtained in certain cases by means of actions brought before the competent national courts, the annulment of those penalties or substantial reductions in the amount of those penalties which, it is claimed, demonstrates the misleading and untruthful nature of the statements of the entities referred to in the complaint, which the original complainant companies refer to as ‘vexatious proceedings’ within the meaning of the case-law resulting from the judgment of 17 July 1998, ITT Promedia v Commission (T-111/96, EU:T:1998:183).

13 The original complainant companies also argued that those reporting measures of the entities referred to in the complaint were facilitated by the active involvement both of the German authorities, in particular a representative of the Embassy of the Federal Republic of Germany in the Republic of Poland, and of the Polish authorities. In that regard, those national authorities were, it is claimed, the subject of intense lobbying by producers and distributors of plant protection products.

14 On 27 March 2012, the Commission, with the agreement of the original complainant companies, transmitted a non-confidential and consolidated version of the complaint to the entities referred to in that complaint, which filed their observations during the months of April to June 2012.

15 In their respective observations, the entities referred to in the complaint contested the presentation of the facts contained therein and argued, in essence, that the various actions taken by some of them before national administrative authorities or the national courts were legitimate, in particular in respect of...