Saint-Gobain Glass France SA and Others v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:T:2014:160
• Court: General Court (European Union)
• Docket Number: T‑56/09,T‑73/09
• Date: 27 March 2014
• Procedure Type: Recurso contra una sanción - fundado
• Celex Number: 62009TJ0056

JUDGMENT OF THE GENERAL COURT (Second Chamber)

27 March 2014 ( *1 )

‛Competition — Agreements, decisions and concerted practices — European market for carglass — Decision finding an infringement of Article 81 EC — Market-sharing agreements and exchanges of commercially sensitive information — Regulation (EC) No 1/2003 — Plea of illegality — Fines — Retroactive application of the 2006 Guidelines on the method of setting fines — Value of sales — Repeated infringement — Additional amount — Imputability of the unlawful conduct — Upper limit of the fine — Consolidated group turnover’

In Cases T‑56/09 and T‑73/09,

Saint-Gobain Glass France SA, established in Courbevoie (France),

Saint-Gobain Sekurit Deutschland GmbH & Co. KG, established in Aix-la-Chapelle (Germany),

Saint-Gobain Sekurit France SAS, established in Thourotte (France),

represented initially by B. van de Walle de Ghelcke, B. Meyring, E. Venot and M. Guillaumond, and subsequently by B. van de Walle de Ghelcke, B. Meyring and E. Venot, lawyers,

applicants in Case T‑56/09,

Compagnie de Saint-Gobain SA, established in Courbevoie, represented by P. Hubert and E. Durand, lawyers,

applicant in Case T‑73/09,

v

European Commission, represented initially by A. Bouquet, F. Castillo de la Torre, M. Kellerbauer and N. von Lingen, and subsequently by A. Bouquet, F. Castillo de la Torre, M. Kellerbauer and F. Ronkes Agerbeek, acting as Agents,

defendant,

supported by

Council of the European Union, represented by E. Karlsson and F. Florindo Gijón, acting as Agents,

intervener in Case T‑56/09,

APPLICATIONS for annulment of Commission Decision C(2008) 6815 final of 12 November 2008 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (COMP/39.125 — Carglass), as amended by Commission Decision C(2009) 863 final of 11 February 2009 and also by Commission Decision C(2013) 1118 final of 28 February 2013, in so far as it concerns the applicants, and also, in the alternative, an application for annulment of Article 2 of that decision in that it imposes a fine on the applicants or, further in the alternative, applications for reduction of that fine,

THE GENERAL COURT (Second Chamber),

composed of N.J. Forwood (Rapporteur), President, F. Dehousse and J. Schwarcz, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 11 December 2012,

gives the following

Judgment

Background to the dispute

1 The present actions were brought in order to secure the annulment of Commission Decision C(2008) 6815 final of 12 November 2008 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (COMP/39.125 — Carglass) (‘the contested decision’), a summary of which was published in the Official Journal of the European Union (OJ 2003 C 173, p. 13). In the contested decision, the Commission of the European Communities, in particular, found that a number of undertakings, including the applicants, had infringed those provisions by participating, for various periods between March 1998 and March 2003, in a set of anti-competitive agreements and concerted practices in the carglass sector of the EEA (Article 1 of the contested decision).

2 Saint-Gobain Glass France SA, Saint-Gobain Sekurit Deutschland GmbH & Co. KG and Saint-Gobain Sekurit France SAS (together ‘Saint-Gobain’), the applicants in Case T‑56/09, are companies active in the manufacture, processing and distribution of materials, including carglass. They are wholly-owned subsidiaries of Compagnie de Saint-Gobain SA, the applicant in Case T‑73/09. Pilkington Group Ltd consists, inter alia, of Pilkington Automotive Ltd, Pilkington Automotive Deutschland GmbH, Pilkington Holding GmbH and Pilkington Italia SpA (together ‘Pilkington’). Pilkington, which has also brought an action for annulment of the contested decision (Case T‑72/09), is one of largest manufacturers of glass and glazing products in the world, in particular in the automobile sector. Soliver NV, which has brought an action for annulment of the contested decision (Case T‑68/09), is a smaller glass manufacturer, active in, among other areas, the carglass sector.

3 Asahi Glass Co. Ltd (‘Asahi’) is a manufacturer of glass, chemical products and electronic components, established in Japan. Asahi holds all the shares in the Belgian glass manufacturer Glaverbel SA/NV, which itself holds 100% of AGC Automotive France (‘AGC’). Before 1 January 2004 AGC was known as Splintex Europe SA (‘Splintex’). Asahi, which is one of the addressees of the contested decision, has not brought an action against that decision.

4 The investigation which led to the adoption of the contested decision was initiated after the Commission received letters from a German lawyer, acting on behalf of an unidentified client, containing information relating to agreements and concerted practices between various undertakings active in the production and distribution of carglass.

5 In February and March 2005 the Commission carried out inspections at various premises of the applicants and also of Pilkington, Soliver and AGC. The Commission seized several documents and files in the course of those inspections.

6 Following those inspections, Asahi and Glaverbel and their relevant subsidiaries (together ‘the leniency applicant’) submitted an application for immunity from or a reduction of the amount of the fine, pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’). The application for conditional immunity from a fine was rejected by the Commission on 19 July 2006, although the Commission informed the leniency applicant that, pursuant to point 26 of the 2002 Leniency Notice, it intended to apply to it a reduction of 30 to 50% of the fine which would normally have been imposed on it.

7 Between 26 January 2006 and 2 February 2007 the Commission sent various requests for information to the applicants and also to Pilkington, Soliver, Asahi, Glaverbel and AGC, pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1). The undertakings concerned replied to those various requests.

8 In addition, the Commission sent requests for information, on the same basis, to a number of car manufacturers, to an Italian coach manufacturer and also to two glass industry trade associations, which also replied to those requests.

9 On 18 April 2007 the Commission adopted a statement of objections relating to a single and continuous infringement consisting in agreements or concerted practices between carglass manufacturers with a view to the allocation of contracts for the supplies to car manufacturers. That statement of objections was served on the applicants and also on Pilkington, Soliver, Asahi, Glaverbel and AGC. Each of the undertakings to which that statement of objections was addressed was invited by the Commission to submit comments in that respect. A hearing, in which the addressees of the statement of objections took part, was held at the Commission’s premises on 24 September 2007.

Contested decision

10 The Commission adopted the contested decision on 12 November 2008. It found, in particular, that Saint-Gobain and Compagnie de Saint-Gobain had participated in the agreements and concerted practices referred to at paragraph 1 above from 10 March 1998 to 11 March 2003 (Article 1(b) of the contested decision) and initially imposed on them, ‘jointly and severally’, a fine of EUR 896 million (Article 2(b) of the contested decision).

11 The leniency applicant, which was found to have participated in the infringement from 18 May 1998 to 11 March 2003, was ordered to pay a fine of EUR 113.5 million (Article 1(a) and Article 2(a) of the contested decision).

12 As regards, Pilkington, the Commission decided that that undertaking had participated in the agreements and concerted practices from 10 March 1998 to 3 September 2002 (Article 1(c) of the contested decision). It initially imposed on that undertaking a fine of EUR 370 million (Article 2(c) of the contested decision).

13 As regards, last, Soliver, the Commission considered that it had participated in the infringement from 19 November 2001 to 11 March 2003 (Article 1(d) of the contested decision). The Commission imposed a fine of EUR 4 396 000 on that undertaking (Article 2(d) of the contested decision).

14 In the contested decision, the Commission proceeds on the basis that the characteristics of the carglass market, namely, in particular, significant technical requirements and a high degree of innovation, favour large integrated suppliers with a global reach. AGC, Pilkington and Saint-Gobain are among the main carglass manufacturers in the world and, at the time of adoption of the contested decision, covered around 76% of world demand for glass for the original equipment market (carglass fitted in the factory while the vehicle is being assembled). The Commission also found a significant volume of trade in carglass between Member States and the EFTA Member States forming part of the EEA. Furthermore, car manufacturers negotiate contracts for the purchase of carglass at EEA level.

15 It follows from the contested decision that the carglass suppliers investigated by the Commission maintained their respective market shares during the infringement period, not only per ‘vehicle account’, that is to say, on the basis of the amount of glass per vehicle model, but also globally, all...