Opinion of Advocate General Hogan delivered on 8 October 2020.

• Jurisdiction: European Union
• Celex Number: 62019CC0440
• ECLI: ECLI:EU:C:2020:816
• Date: 08 October 2020
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

HOGAN

delivered on 8 October 2020(1)

Case C‑440/19 P

Pometon SpA

v

European Commission

(Appeal — Agreements, decisions and concerted practices — European steel abrasives market — Participation in bilateral and multilateral contacts with the aim of coordinating prices throughout the European Economic Area (EEA) — Chronologically staggered ‘hybrid’ procedure — Charter of Fundamental Rights of the European Union — Article 41 — Principle of impartiality of the Commission — Article 48 — Presumption of innocence — Obligation to state reasons — Single and continuous infringement — Equal treatment — Unlimited jurisdiction)

I. Introduction

1. By its appeal, Pometon SpA (‘Pometon’ or ‘the appellant’) seeks the setting aside of the judgment of the General Court of the European Union of 28 March 2019, Pometon v Commission (T‑433/16, EU:T:2019:201; ‘the judgment under appeal’). In that judgment, the General Court annulled Article 2 of Commission Decision C(2016) 3121 final of 25 May 2016 relating to a proceeding under Article 101 TFEU and Article 53 of the [Agreement on the European Economic Area (EEA)] (Case AT.39792 – Steel Abrasives) (‘the contested decision’) and fixed the fine imposed on Pometon in the sum of EUR 3 873 375. In the alternative, Pometon asks the Court for a reduction of the fine imposed.

2. Although I propose to concentrate my analysis in this Opinion on the first and fourth grounds of appeal (together with the two questions of law raised by the appellant in support of these grounds), my response to the first plea will also lead me to consider the second and third grounds of appeal in the context of the first. The latter concerns the scope of the Commission’s duty of impartiality in the specific context of a so-called ‘hybrid’ procedure. The fourth ground of appeal, for its part, concerns the application of the principle of equality in the calculation of the fine in the context of that kind of procedure.

3. A ‘hybrid procedure’ is a proceeding in which a settlement procedure under 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), as amended by Commission Regulation (EC) No 622/2008 of 30 June 2008 as regards the conduct of settlement procedures in cartel cases, (2) and a standard administrative procedure under 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] and [102 TFEU] (3) are conducted in parallel by the Commission. While this procedure has already given rise to Commission decisions whose legality has been contested before the General Court (as well as in appeals), (4) this is the first time that the Court will actually have to deal with some of the specific issues raised by this ‘hybrid procedure’.

II. Legal context

A. Regulation No 1/2003

4. Article 7(1) of Regulation No 1/2003 provides:

‘Where the Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article [101] or of Article [102 TFEU], it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end. For this purpose, it may impose on them any behavioural or structural remedies which are proportionate to the infringement committed and necessary to bring the infringement effectively to an end. …’

5. The wording of Article 23(2) and (3) of that regulation is as follows:

‘2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:

(a) they infringe Article [101] or [102 TFEU] …

…

For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.

…

3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

B. Regulation No 773/2004

6. Article 10a of Regulation No 773/2004, entitled ‘Settlement procedure in cartel cases’, provides:

‘1. After the initiation of proceedings pursuant to Article 11(6) of Regulation [No 1/2003], the Commission may set a time limit within which the parties may indicate in writing that they are prepared to engage in settlement discussions with a view to possibly introducing settlement submissions. The Commission shall not be obliged to take into account replies received after the expiry of that time limit.

…

2. Parties taking part in settlement discussions may be informed by the Commission of:

(a) the objections it envisages to raise against them;

(b) the evidence used to determine the envisaged objections;

(c) non-confidential versions of any specified accessible document listed in the case file at that point in time, in so far as a request by the party is justified for the purpose of enabling the party to ascertain its position regarding a time period or any other particular aspect of the cartel; and

(d) the range of potential fines.

…

Should settlement discussions progress, the Commission may set a time limit within which the parties may commit to follow the settlement procedure by introducing settlement submissions reflecting the results of the settlement discussions and acknowledging their participation in an infringement of Article 101 [TFEU] as well as their liability. …

…

3. When the statement of objections notified to the parties reflects the contents of their settlement submissions, the written reply to the statement of objections by the parties concerned shall, within a time limit set by the Commission, confirm that the statement of objections addressed to them reflects the contents of their settlement submissions. The Commission may then proceed to the adoption of a Decision pursuant to Article 7 and Article 23 of Regulation [No 1/2003] after consultation of the Advisory Committee on Restrictive Practices and Dominant Positions pursuant to Article 14 of Regulation [No 1/2003].

4. The Commission may decide at any time during the procedure to discontinue settlement discussions altogether in a specific case or with respect to one or more of the parties involved, if it considers that procedural efficiencies are not likely to be achieved.’

C. The settlements notice

7. The arrangements for implementing Regulation No 773/2004 were set out in the Commission Notice of 2 July 2008 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 (5) (‘the settlements notice’).

8. According to point 32 of the settlements notice, ‘should the Commission decide to reward a party for settlement in the framework of this Notice, it will reduce by 10% the amount of the fine to be imposed after the 10% cap has been applied having regard to the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 [(OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’)]. …’

D. The 2006 Guidelines

9. The 2006 Guidelines determine the methodology used by the Commission for setting the fine to be imposed on undertakings and associations of undertakings where, intentionally or negligently, they infringe the provisions of Articles 101 or 102 TFEU.

10. Point 37 of the 2006 Guidelines specifies that ‘although these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21’.

III. Background to the dispute and the contested decision

11. The background to the dispute and the essential elements of the contested decision were set out in paragraphs 1 to 21 of the judgment under appeal. They can be summarised as follows.

12. Pometon is an Italian company which specialised in metal treatment. It was active in the steel abrasive market until 16 May 2007, when it sold its steel abrasive business to one of its competitors, the French company Winoa SA. On that date, Pometon’s abovementioned activity was in fact transferred to Pometon Abrasives Srl, a company owned by the Winoa group.

13. Steel abrasives are loose steel particles, which are either in round (steel shot) or angular (steel grit) form. They are mainly used in the steel, automotive, metallurgical, petrochemical and stonecutting industries and they are produced from steel scrap residue.

A. The investigation procedure until the settlement decision

14. On 16 January 2013, the Commission initiated, in accordance with Article 2 of Regulation No 773/2004, the investigation proceeding pursuant to Article 11(6) of Regulation No 1/2003 against Pometon, United States group Ervin Industries Inc. (‘Ervin’), Winoa and the German companies MTS GmbH and Würth GmbH, with a view to engaging in settlement discussions with them.

15. The five parties had confirmed their willingness to engage in settlement discussions. From February 2013 to December 2013, settlement meetings took place between each party and the Commission. During those meetings, the Commission informed the parties of the objections it envisaged raising against them and disclosed the main pieces of evidence in the Commission file relied on to establish these potential objections. The Commission also provided the parties with an estimation of the range of fines likely to be imposed.

16. In January 2014, the companies concerned submitted their formal request to settle within the deadline, with the exception of Pometon, which decided to withdraw from the procedure. On 13 February 2014, the Commission sent a statement of objections to each of the other four parties to the alleged cartel and, on 2 April 2014, it adopted settlement decision C(2014) 2074 final against...