Guardian Industries Corp. and Guardian Europe Sàrl v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2014:272
• Court: Court of Justice (European Union)
• Date: 29 April 2014
• Docket Number: C-580/12
• Celex Number: 62012CC0580

OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 29 April 2014 ( 1 )

Case C‑580/12 P

Guardian Industries Corp.

Guardian Europe Sàrl

v

European Commission

‛Appeals — Agreements, decisions and concerted practices — Market for flat glass — Calculation of the fine — Inclusion of an undertaking’s internal sales — Reasonable time — Admissibility of documents produced out of time’

1. In this appeal, Guardian Industries Corp. and Guardian Europe Sàrl (jointly referred to as ‘Guardian’ or ‘the appellants’) seek to have set aside the judgment in Guardian Industries and Guardian Europe v Commission, ( 2 ) by which the General Court of the European Union dismissed their action for the annulment of the decision of the European Commission of 28 November 2007 imposing a fine on them of EUR 148 million for their involvement in a cartel on the market for flat glass during the period between April 2004 and February 2005. ( 3 )

2. In its calculation of that fine, which is at the heart of the central issue in this appeal, the Commission took no account of ‘captive sales’, that is to say sales made internally within vertically integrated undertakings. Guardian, which sold only to independent third parties, submits that, in accordance with the principle of non-discrimination, it should be allowed a reduction in its fine equal to the proportion of internal sales to the total size of the market. The other important question raised in this case concerns observance of the reasonable time requirement in proceedings before the General Court, in particular because no less than three years and five months elapsed between the conclusion of the written procedure and the decision to open the oral procedure, without any procedural step being taken and for no apparent reason.

I – The background to the dispute

3. The background to the dispute and to the contested decision is set out in the following terms in paragraphs 1 to 10 of the judgment under appeal: ‘1 The applicants, Guardian Industries Corp. and Guardian Europe Sàrl, are part of the Guardian Group, which is active in the production of flat glass and automotive glass. Guardian Industries is the ultimate parent company of the Guardian Group and indirectly owns 100% of the capital in Guardian Europe. 2 On 22 and 23 February and 15 March 2005, the Commission of the European Communities carried out unannounced inspections at the premises of, inter alia, Guardian Flachglas GmbH, Guardian Europe and Guardian Luxguard I SA. 3 On 2 March 2005, Asahi Glass Co. Ltd and all its subsidiaries, including Glaverbel SA/NV, which then became AGC Flat Glass Europe SA/NV (“Glaverbel”), submitted an application for immunity from fines or, in the alternative, a reduction of fines, pursuant to the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3). 4 On 3 January 2006, the Commission initiated proceedings pursuant to 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) and informed the parties to that effect on 6 March 2006. 5 On 10 February 2006, the Commission sent requests for information to a number of companies, including the applicants. Guardian Europe replied to that request on 10 March 2006. 6 On 9 March 2007, the Commission adopted a statement of objections, which was notified on 13 and 14 March 2007 to a number of companies, including the applicants. 7 On 28 November 2007, the Commission adopted [the contested decision] which was notified to the applicants on 3 December 2007. 8 The contested decision was also notified to Asahi Glass, Glaverbel, Pilkington Deutschland AG, Pilkington Group Ltd, Pilkington Holding GmbH (taken together, “Pilkington”), Compagnie de Saint-Gobain SA and Saint-Gobain Glass France SA (taken together, “Saint-Gobain”). 9 In the contested decision, the Commission stated that the companies to which that decision was addressed had participated in a single and continuous infringement of Article 81(1) EC, which covered the territory of the European Economic Area (EEA) and consisted in the fixing of price increases, minimum prices, target prices, price freezing and other commercial conditions in respect of sales to independent customers of four categories of flat glass products used in the building industry, namely float glass, low-e glass, laminated glass and unprocessed mirrors, as well as in the exchange of commercially sensitive information. 10 The applicants were found guilty of the infringement for the period from 20 April 2004 to 22 February 2005 and a fine of EUR 148 million was imposed on them jointly and severally.’

4. By application dated 12 February 2008, Guardian challenged the contested decision before the General Court.

II – The contested decision

5. In support of its head of claim seeking partial annulment of the contested decision, Guardian put forward a single plea in law, alleging errors of fact concerning the duration of its participation in the cartel and the geographic scope of the cartel. Its head of claim seeking a reduction in the amount of the fine was supported by three pleas in law. The first was that the necessary consequences should ensue from the claim for partial annulment. By the second, Guardian alleged infringement of the principle of non-discrimination and of the duty to state reasons. The third plea alleged an error of assessment as regards Guardian’s role in the cartel. The General Court dismissed the action in its entirety.

6. As a preliminary matter, the General Court gave the following ruling on the admissibility of a letter which the Commission had produced on 10 February 2012: ‘19 At the hearing, the applicants disputed the admissibility of the Commission’s letter of 10 February 2012 on the ground that it contained figures which had never previously been communicated to them. 20 The Commission takes the view that that letter, which constitutes a supplement to its reply of 23 January 2012 to the questions which the Court had put to it, is admissible. 21 It must be pointed out that that letter reached the Court outside of the period allowed to the Commission, but that it was, however, communicated to the applicants on 10 February 2012. That letter contains observations on a document submitted by the applicants on 8 February 2012 as well as a supplement to the Commission’s reply to a written question put by the Court and requiring a reply before the hearing relating to the method for calculating the amount of the fine proposed by the applicants if the captive sales were excluded. In that letter the Commission thus stated, first, that the figures in table 1 of the statement of objections did not relate only to internal sales, but also to sales of certain categories of glass which were not ultimately included in the contested decision and, secondly, stated the ratio between the total sales of the members of the cartel and their internal sales. 22 In view of the content of that letter and of the fact that it was sent to the applicants, which were therefore able to put forward their observations regarding it at the hearing, it must be held that the document in question is admissible and that the plea of inadmissibility raised by the applicants must be rejected.’

7. The head of claim seeking annulment of the contested decision was rejected for the reasons set out in paragraphs 28 to 93 of the judgment under appeal.

8. As regards the claim for a reduction in the amount of the fine, paragraphs 98 to 107 of the judgment under appeal are drafted as follows: ‘98 The applicants take the view that the Commission infringed, first, the principle of non-discrimination by excluding the value of captive sales, that is to say, sales internal to the groups, from the calculation of the fines of the three other members of the cartel and, secondly, its obligation to state the reasons for those calculations. 99 The applicants thus submit that, in the absence of reasoning regarding the calculation of the fines of the three other members of the cartel, and in view of the confidentiality of the data used, it is impossible for them to determine the respective nature and value of the captive sales excluded for each participant in the cartel. They submit that it is therefore for the Court to offset the exclusion of those sales by a reduction in the fine imposed on them that is proportionate to the total amount of the exclusions from the flat glass market. That course of action would, they submit, be compatible with 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 [2006] Guidelines ...”) inasmuch as it would make it possible to reflect correctly the undertaking’s relative importance in the relevant market and has already been adopted by the Court. 100 The applicants state that the Commission excluded one billion euros in captive sales from the total market size of EUR 2.7 billion. That figure, in their submission, is the result of the deduction of the total amount of flat glass sales used in the contested decision, namely EUR 1.7 billion (recital 41 of the contested decision), from the total amount used in the statement of objections, namely EUR 2.7 billion (recital 41 of the contested decision), and represents 37% of the total size of a market the value...