Scania AB and Others v European Commission.
Jurisdiction | European Union |
Celex Number | 62017TJ0799 |
ECLI | ECLI:EU:T:2022:48 |
Date | 02 February 2022 |
Docket Number | T-799/17 |
Court | General Court (European Union) |
JUDGMENT OF THE GENERAL COURT (Tenth Chamber, Extended Composition)
2 February 2022 (*)
(Competition – Agreements, decisions and concerted practices – Truck manufacturers market – Decision finding an infringement of Article 101 TFEU and of Article 53 of the EEA Agreement – Agreements and concerted practices in relation to the prices of trucks, the timing for the introduction of emission technologies and the passing on to customers of the costs relating to those technologies – ‘Hybrid’ procedure staggered over time – Presumption of innocence – Principle of impartiality – Charter of Fundamental Rights – Single and continuous infringement – Restriction of competition by object – Geographic scope of the infringement – Fine – Proportionality – Equal treatment – Unlimited jurisdiction)
In Case T‑799/17,
Scania AB, established in Södertälje (Sweden),
Scania CV AB, established in Södertälje,
Scania Deutschland GmbH, established in Koblenz (Germany),
represented by D. Arts, F. Miotto, C. Pommiès, K. Schillemans, C. Langenius, L. Ulrichs, P. Hammarskiöld, S. Falkner and N. De Backer, lawyers,
applicants,
v
European Commission, represented by M. Farley and L. Wildpanner, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU seeking annulment of Commission Decision C(2017) 6467 final of 27 September 2017, relating to proceedings under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) (Case AT.39824 – Trucks) or, in the alternative, a reduction of the fines imposed on the applicants in that decision,
THE GENERAL COURT (Tenth Chamber, Extended Composition),
composed of S. Papasavvas, President, A. Kornezov, E. Buttigieg (Rapporteur), K. Kowalik-Bańczyk and G. Hesse, Judges,
Registrar: B. Lefebvre, Administrator,
having regard to the written part of the procedure and further to the hearing on 18 June 2020,
gives the following
Judgment
I. Background to the dispute
1 The applicants, Scania AB, Scania CV AB and Scania Deutschland GmbH (‘Scania DE’), are three legal entities of the undertaking Scania (‘Scania’). Scania operates in the production and sales of heavy trucks (above 16 tonnes) which are used for long-haulage transport, distribution, construction haulage and specialised purposes.
2 By Decision C(2017) 6467 final of 27 September 2017 relating to a proceeding under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area (EEA) (Case AT.39824 – Trucks) (‘the contested decision’), the European Commission found that the applicants had infringed Article 101 TFEU and Article 53 of the EEA Agreement by participating, from 17 January 1997 until 18 January 2011, together with legal entities of the undertakings [confidential], (1) [confidential], [confidential], [confidential] and [confidential], in collusive arrangements on prices and gross price increases for medium and heavy trucks in the EEA, and on the timing and the passing on of costs for the introduction of emission technologies for medium and heavy trucks required by Euro 3 to 6 standards (Article 1 of the contested decision). The Commission imposed a fine of EUR 880 523 000 jointly and severally on Scania AB and Scania CV AB, for which Scania DE is held jointly and severally liable for the amount of EUR 440 003 282 (Article 2 of the contested decision).
A. Administrative procedure which led to the contested decision
3 On 20 September 2010, [confidential] applied for immunity from fines in accordance with paragraph 14 of the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the Leniency Notice’). On 17 December 2010, the Commission granted conditional immunity from fines to [confidential].
4 Between 18 and 21 January 2011, the Commission carried out inspections at the premises of, inter alia, the applicants.
5 On 28 January 2011, [confidential] applied for immunity from fines in accordance with paragraph 14 of the Leniency Notice and, failing that, in the alternative, for a reduction of the fine in accordance with paragraph 27 of the Leniency Notice. [confidential] and [confidential] followed suit.
6 Over the course of the investigation, the Commission sent several requests for information to, inter alia, the applicants, 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 [101 and 102 TFEU] (OJ 2003 L 1, p. 1).
7 On 20 November 2014, the Commission initiated proceedings pursuant to Article 11(6) of Regulation No 1/2003 against the applicants and the legal entities of the undertakings referred to in paragraph 2 above and adopted a statement of objections which it notified to all those entities, including the applicants.
8 Following notification of the statement of objections, the addressees of that statement had access to the Commission’s investigation file.
9 During [confidential], the addressees of the statement of objections approached the Commission informally and asked it to continue the case under the settlement procedure provided for in 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). The Commission decided to initiate a settlement procedure after each of the addressees of the statement of objections confirmed its willingness to engage in settlement discussions.
10 Between [confidential] and [confidential], settlement discussions took place between each addressee of the statement of objections and the Commission. Following those discussions, certain addressees of the statement of objections individually submitted to the Commission a formal settlement request pursuant to Article 10a(2) of Regulation No 773/2004 (‘the settling parties’). The applicants did not make such a request.
11 On 19 July 2016, the Commission adopted, on the basis of Article 7 and of Article 23(2) of Regulation No 1/2003, Decision C(2016) 4673 final relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39824 – Trucks) addressed to the settling parties (‘the settlement decision’).
12 Since the applicants chose not to submit a formal settlement request, the Commission continued the investigation relating to them under the standard (non-settlement) procedure.
13 On 23 September 2016, the applicants, having had access to the file, submitted their written response to the statement of objections.
14 On 18 October 2016, the applicants attended a hearing.
15 On 7 April 2017, the Commission, in accordance with paragraph 111 of its Notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ 2011 C 308, p. 6), sent Scania AB a Letter of Facts. On 23 June 2017, the Commission also sent that Letter of Facts to Scania CV AB and Scania DE.
16 On 12 May 2017, Scania AB sent to the Commission its written observations on the evidence annexed to the Letter of Facts, which also reflected the position of Scania CV AB and Scania DE.
17 On 27 September 2017, the Commission adopted the contested decision.
B. Contested decision
1. Structure of the truck market and the price-setting mechanism in the truck industry
18 The Commission began the contested decision by presenting, in recitals 22 to 50, the structure of the truck market and the price-setting mechanism in the truck industry, including in respect of Scania.
(a) The structure of the truck market
19 As regards the structure of the truck market, the Commission states that it is characterised by a high level of transparency and concentration, the parties having several opportunities to meet each year and discuss the market situation. According to the Commission, through all the exchanges, the parties were able to have a precise idea of each other’s competitive situation (recitals 22 and 23 of the contested decision).
20 The Commission also states that the parties, including Scania, have subsidiaries in key national markets acting as distributors of their products. Those national distributors have their own network of dealers (recital 25 of the contested decision). The Commission notes that Scania sells its trucks through national distributors, which are wholly owned subsidiaries of Scania, in all the EEA States with the exception of [confidential]. Scania’s national distributors sell the trucks that are bought from the headquarters to dealers which are either wholly owned subsidiaries or independent companies. The Commission states that, in Germany, Scania has [confidential] dealers which are wholly owned subsidiaries (recital 26 of the contested decision).
(b) Price-setting mechanism in the truck industry
21 As regards the price-setting mechanism, the Commission states that it comprises the same steps for all the parties and begins, generally, in the first stage, with the setting of an initial gross price list by the headquarters. In addition, according to the Commission, in the second stage, transfer prices are set for the sale of trucks in the different national markets between the headquarters of the manufacturers and national distributors which are independent undertakings or wholly owned by the headquarters. Furthermore, according to the Commission, in the third stage, the prices paid by dealers to the distributors are set and, in the fourth stage, the final net price paid by customers, which is negotiated by the dealers or by the manufacturers themselves when they sell directly to dealers or to fleet customers, is set (recital 38 of the contested decision).
22 The Commission finds that, although the final price paid by customers may vary (for example, because of the application of different rebates at different levels of the distribution chain), all the prices applicable at each stage of the distribution chain derive directly (in the case of the transfer price between the headquarters...
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