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Corte di giustizia UEsentenza

Corte di giustizia UE/2018

ECLI:EU:T:2018:400
Testo integrale del provvedimento

Testo integrale del provvedimento

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

3 July 2018 ( * ) (Competition — Agreements, decisions and concerted practices — French bathroom fittings and fixtures market — [OSCURATO:PERSONA] finding an infringement of [OSCURATO:PERSONA] 101 TFEU and [OSCURATO:PERSONA] 53 of the EEA Agreement — Participation of certain entities in a cartel — Reassessment of the evidence) [OSCURATO:PERSONA] T‑379/10 [OSCURATO:PERSONA] and T‑381/10 [OSCURATO:PERSONA], [OSCURATO:PERSONA] GmbH, formerly [OSCURATO:PERSONA] AG, established in Ratingen (Germany), and the other applicants whose names are set out in the annex, ( 1 ) applicants in Case T‑379/10 [OSCURATO:PERSONA],

[OSCURATO:PERSONA],

established in Helsinki (Finland), applicant in Case T‑381/10 [OSCURATO:PERSONA], represented by P. Lindfelt and K. Struckmann, lawyers, and J. Killick, Barrister, v

[OSCURATO:PERSONA],

represented by F. Castillo de la Torre, F. [OSCURATO:PERSONA] and J. Norris-Usher, acting as Agents, defendant, APPLICATION under [OSCURATO:PERSONA] 263 TFEU for, first, annulment in part of [OSCURATO:PERSONA] C(2010) 4185 final of 23 June 2010 relating to a proceeding under [OSCURATO:PERSONA] 101 TFEU and [OSCURATO:PERSONA] 53 of the EEA Agreement (Case COMP/39092 — [OSCURATO:PERSONA] and Fixtures), and, secondly, reduction of the fine imposed on the applicants in that decision,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of

I. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA], P. [OSCURATO:PERSONA] and J. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: K. Guzdek, Administrator, having regard to the written part of the procedure and further to the hearing on 27 February 2018, gives the following [OSCURATO:PERSONA] to the dispute and the contested decision 1 [OSCURATO:PERSONA] C(2010) 4185 final of 23 June 2010 relating to a proceeding under [OSCURATO:PERSONA] 101 TFEU and [OSCURATO:PERSONA] 53 of the EEA Agreement (Case COMP/39092 — [OSCURATO:PERSONA] and Fixtures) (‘the contested decision’), the [OSCURATO:PERSONA] found that there had been an infringement of [OSCURATO:PERSONA] 101(1) TFEU and [OSCURATO:PERSONA] 53 of the Agreement on the [OSCURATO:PERSONA] (EEA) in the bathroom fittings and fixtures sector.

That infringement, in which 17 undertakings had allegedly participated, was said to have taken place over various periods between 16 October 1992 and 9 November 2004 and to have taken the form of anticompetitive agreements or concerted practices covering the territory of Belgium, Germany, France, Italy, the Netherlands and [OSCURATO:PERSONA]. 2 On 15 July 2004, the [OSCURATO:PERSONA] was informed of the existence of a cartel in the bathroom fittings and fixtures sector, in the course of an application under the [OSCURATO:PERSONA] notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3). 3 On 9 and 10 November 2004, the [OSCURATO:PERSONA] conducted unannounced inspections at the premises of various companies and industry associations operating in the bathroom fittings and fixtures sector.

Between 15 November 2005 and 16 May 2006, the [OSCURATO:PERSONA] sent requests for information to those companies and associations, including some of the applicants in Case T‑379/10 [OSCURATO:PERSONA].

It then, on 26 March 2007, adopted a statement of objections, which was also notified to those applicants.

Between 15 November 2004 and 20 January 2006, a number of undertakings applied for immunity from fines or a reduction in fines. 4 Following (i) a hearing from 12 to 14 November 2007, in which the applicant in Case T‑381/10 [OSCURATO:PERSONA], [OSCURATO:PERSONA], took part, (ii) the sending, on 9 July 2009, to several companies, including some of the applicants in Case T‑379/10 [OSCURATO:PERSONA] and the applicant in Case T‑381/10 [OSCURATO:PERSONA], of a letter of facts, drawing their attention to certain evidence on which the [OSCURATO:PERSONA] was minded to rely when adopting a final decision, and (iii) the sending, between 19 June 2009 and 8 March 2010, to several companies, including some of the applicants in Case T‑379/10 [OSCURATO:PERSONA] and the applicant in Case T‑381/10 [OSCURATO:PERSONA], of further requests for information, the [OSCURATO:PERSONA], on 23 June 2010, adopted the contested decision. 5 In the contested decision, the [OSCURATO:PERSONA] found that the infringement identified consisted, first and foremost, in the coordination, by those bathroom fittings and fixtures manufacturers, of annual price increases and other pricing elements within the framework of regular meetings of national industry associations; secondly, in the fixing or coordination of prices on the occasion of specific events such as increases in raw material costs, the introduction of the euro and the introduction of road tolls; and, thirdly, in the disclosure and exchange of sensitive business information.

Those practices had followed a recurring pattern which was consistent in each of the six [OSCURATO:PERSONA] covered by the [OSCURATO:PERSONA]’s investigation. [OSCURATO:PERSONA] setting in the bathroom fittings and fixtures industry had followed an annual cycle; specifically, the manufacturers had set price lists, which generally remained in force for a year and formed the basis for commercial relations with wholesalers. 6 The applicants in Case T‑379/10 [OSCURATO:PERSONA], [OSCURATO:PERSONA] GmbH, [OSCURATO:PERSONA] BV, [OSCURATO:SOCIETA] and its subsidiary [OSCURATO:PERSONA] de Touraine SA (PCT) and [OSCURATO:SOCIETA], produced ceramic ware (‘ceramics’). [OSCURATO:PERSONA] GmbH, which is also an applicant in Case T‑379/10 [OSCURATO:PERSONA], produced shower enclosures.

At the time of the facts at issue, the applicants in Case T‑379/10 [OSCURATO:PERSONA] were all subsidiaries of [OSCURATO:PERSONA], the applicant in Case T‑381/10 [OSCURATO:PERSONA] and also an addressee of the contested decision.

In that decision, [OSCURATO:PERSONA] and its subsidiaries were collectively referred to by the [OSCURATO:PERSONA] as ‘[OSCURATO:PERSONA]’.

Throughout their participation in the infringement alleged against them, Allia was a member of the [OSCURATO:PERSONA] des Industries de [OSCURATO:PERSONA] (‘[OSCURATO:PERSONA]’), a national industry association of bathroom fittings and fixtures manufacturers in France. 7 As regards the participation of the applicants in the infringement identified, the [OSCURATO:PERSONA] found that they belonged to a central group of undertakings and were aware, or ought reasonably to have been aware, that the infringement found concerned at least three product subgroups, namely taps and fittings, shower enclosures and accessories and ceramics, and had an extensive geographic scope as it covered the territory of six [OSCURATO:PERSONA]. 8 For the purpose of setting the fines imposed on each undertaking, the [OSCURATO:PERSONA] took as a basis the Guidelines on the method of setting fines imposed pursuant to [OSCURATO:PERSONA] 23(2)(a) of [OSCURATO:PERSONA] (EC) No 1/2003 (OJ 2006 C 210, p. 2).

It determined the basic amount of the fine, explaining that this calculation was based, for each undertaking, on its sales by [OSCURATO:PERSONA] concerned, multiplied by the number of years of participation in the infringement found in the [OSCURATO:PERSONA] in question for the relevant product subgroup, so that account had been taken of the fact that certain undertakings were active only in certain [OSCURATO:PERSONA] or in only one of the three product subgroups. 9 As regards the gravity of the infringement, the [OSCURATO:PERSONA] set the multiplier at 15%, taking into account the four criteria for assessing the infringement: the nature of the conduct, the combined market shares, the geographic scope of the infringement and its implementation.

In addition, it set the multiplier to be applied, to take account of the duration of the infringement, inter alia, at 0.66 for Allia and PCT, reflecting 8 months’ participation in the infringement, between 25 February and 9 November 2004.

Finally, in order to deter the companies in question from participating in the unlawful practices with which the contested decision was concerned, the [OSCURATO:PERSONA] decided to increase the basic amount of the fine by an additional amount set at 15%. 10 This resulted in basic amounts, inter alia, of EUR 10 500 000 for Allia and EUR 5 800 000 for PCT. 11 After having determined the basic amount, the [OSCURATO:PERSONA] considered whether there were any aggravating or mitigating circumstances capable of justifying adjustments to the basic amount.

It did not find that any aggravating or mitigating circumstances applied in the case of the applicants, and, after the ceiling of 10% of turnover was applied, pursuant to [OSCURATO:PERSONA] 23(2) of [OSCURATO:PERSONA] (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), the amount of the fine imposed on the applicants in [OSCURATO:PERSONA] 2 of the contested decision was EUR 57 690 000, which corresponded, inter alia, to EUR 9 873 060 for [OSCURATO:PERSONA], EUR 4 579 610 for Allia and [OSCURATO:PERSONA] jointly and severally and EUR 2 529 689 for PCT, Allia and [OSCURATO:PERSONA] jointly and severally.

Procedure before the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of Justice 12 By applications lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 8 September 2010, the applicants brought two actions for annulment of the contested decision. 13 [OSCURATO:PERSONA] decided on 16 December 2010 to join those cases for the purposes of the written procedure and, on 23 March 2012, to join them for the purposes of the oral procedure and of the judgment. 14 In support of their actions, the applicants raised, in essence, nine pleas in law. 15 By judgment of 16 September 2013, [OSCURATO:PERSONA] and Others v

[OSCURATO:PERSONA]

(T‑379/10 and T‑381/10, not published, ‘the initial judgment’, EU:T:2013:457), the [OSCURATO:PERSONA] rejected the majority of the pleas put forward by the applicants at first instance, but upheld the first and third parts of the third plea in law put forward by the applicants at first instance, alleging errors of assessment on the part of the [OSCURATO:PERSONA] at the stage of the analysis of the evidence concerning their participation in the infringement found in France and in Italy.

It found that the [OSCURATO:PERSONA] had erred in concluding that Allia and PCT had participated in the infringement at issue and in concluding that [OSCURATO:SOCIETA] had participated in that infringement between 10 March 1996 and 14 September 2001 when its participation had been established to the requisite legal standard only in respect of the period between 14 May 1996 and 9 March 2001.

Consequently, the [OSCURATO:PERSONA] annulled the relevant part of point 6 of [OSCURATO:PERSONA] 1(1) of the contested decision. 16 As regards the reduction of fines, the [OSCURATO:PERSONA], taking into account the fact that it had partially upheld the third plea put forward by the applicants, annulled [OSCURATO:PERSONA] 2(7) of the contested decision setting the amount of the fine imposed on the applicants at first instance, in so far as it exceeded EUR 50 580

701. 17 By application lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of Justice on 26 November 2013, the [OSCURATO:PERSONA] brought an appeal against the initial judgment, claiming that the [OSCURATO:PERSONA] should, inter alia, set aside point 1 of the operative part of the initial judgment ‘in so far as it annuls [OSCURATO:PERSONA] 1 of the contested decision as regards the events in [OSCURATO:PERSONA] and the liability of Allia, [PCT] and [OSCURATO:PERSONA] for them’, and point 2 of the operative part. 18 The applicants brought a cross-appeal against the initial judgment. 19 By judgment of 26 January 2017,

[OSCURATO:PERSONA]

v [OSCURATO:PERSONA] and Others (C‑613/13 P, ‘the judgment on appeal’, EU:C:2017:49), the [OSCURATO:PERSONA] set aside point 1 of the operative part of the initial judgment. [OSCURATO:PERSONA] also set aside point 2 of the initial judgment, in so far as it had annulled [OSCURATO:PERSONA] 2(7) of the contested decision, concerning the amount of the fine imposed on the applicants. 20 [OSCURATO:PERSONA] dismissed the remainder of the appeal, as well as the cross-appeal, and referred the case back to the [OSCURATO:PERSONA].

Procedure and forms of order sought after the referral back to the [OSCURATO:PERSONA] 21 Following the judgment on appeal, and in accordance with [OSCURATO:PERSONA] 217 of the Rules of Procedure of the [OSCURATO:PERSONA], the applicants and the [OSCURATO:PERSONA] lodged written observations at the [OSCURATO:PERSONA] on 31 March 2017 and 4 April 2017 respectively. 22 By way of measures of organisation of procedure under [OSCURATO:PERSONA] 89 of the Rules of Procedure, the [OSCURATO:PERSONA] put written questions to the parties, which the parties answered within the prescribed period. 23 By decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 17 January 2018, after taking the views of the parties, [OSCURATO:PERSONA] T‑379/10 [OSCURATO:PERSONA] and T‑381/10 [OSCURATO:PERSONA] were joined for the purposes of the oral part of the procedure and the decision which closes the proceedings, in accordance with [OSCURATO:PERSONA] 68 of the Rules of Procedure. 24 The applicants claim that the [OSCURATO:PERSONA] should: – annul point 6 of [OSCURATO:PERSONA] 1(1) of the contested decision in so far as it finds that Allia and PCT participated in an infringement relating to a cartel on the French market between 25 February 2004 and 9 November 2004; – annul [OSCURATO:PERSONA] 2(7) of the contested decision in so far as the total amount of the fine imposed on the applicants exceeds EUR 50 580 701; – order the [OSCURATO:PERSONA] to pay the costs incurred by the applicants in the appeal and in the present proceedings; – uphold the order as to costs determined in points 4 and 5 of the operative part of the initial judgment. 25 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: – reject as unfounded the first part of the third plea put forward by the applicants, relating to the evidence concerning the infringement in France; – uphold the fine imposed on the applicants; – order the applicants to pay the costs relating to the proceedings instituted before it and to the appeal proceedings before the [OSCURATO:PERSONA] of Justice. [OSCURATO:PERSONA] matter of the dispute after its referral back to the [OSCURATO:PERSONA] 26 It must be recalled that, under [OSCURATO:PERSONA] 61 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], where the appeal is well founded and the case is referred back to the [OSCURATO:PERSONA] for judgment, the latter is bound by the decision of the [OSCURATO:PERSONA] of Justice on points of law.

Thus, once the [OSCURATO:PERSONA] of Justice has set aside a judgment or an order and referred the case back to the [OSCURATO:PERSONA], that [OSCURATO:PERSONA] is seised, pursuant to [OSCURATO:PERSONA] 215 of the Rule of Procedure, of the case by the judgment of the [OSCURATO:PERSONA] of Justice and must rule again on all the pleas in law in support of annulment raised by the applicant, apart from those elements of the operative part not set aside by the [OSCURATO:PERSONA] of Justice and the considerations on which those elements are essentially founded, as those elements have acquired the authority of res judicata (judgment of 14 September 2011, Marcuccio v

[OSCURATO:PERSONA]

, T‑236/02, EU:T:2011:465, paragraph 83). 27 In the present case, as the judgment on appeal dismissed the cross-appeal brought by the applicants, the initial judgment is final in so far as it dismissed the applicants’ claims and pleas in law. 28 It is therefore for the [OSCURATO:PERSONA] to take a new decision on the part of the initial judgment set aside in the appeal, namely whether Allia and PCT participated in the infringement found by the contested decision. 29 Furthermore, in so far as point 1 of the operative part of the judgment on appeal sets aside, without limitation, point 1 of the operative part of the initial judgment, that setting aside must –– in view of, first, the form of order sought by the [OSCURATO:PERSONA] in the appeal (see paragraph 17 above) and, secondly, the principle of ne ultra petita –– be interpreted as concerning only the part of point 1 of the operative part of the initial judgment that relates to Allia and PCT’s participation in the infringement.

In their answers to the written questions put by the [OSCURATO:PERSONA], the parties agreed with that interpretation. 30 Accordingly, the subject matter of the dispute now concerns only the analysis undertaken by the [OSCURATO:PERSONA] in the context of the applicants’ third plea in law, alleging errors of law and of assessment, of the evidence relating to Allia and PCT’s participation in the infringement concerning the agreements on prices of ceramics, within [OSCURATO:PERSONA], demonstrated in particular by the [OSCURATO:PERSONA] meeting of 25 February 2004. [OSCURATO:PERSONA] will then have to draw such conclusions as may be appropriate from those findings, with regard to the fine imposed on Allia, PCT and [OSCURATO:PERSONA]. 31 Finally, it must be noted that, by its head of claim seeking confirmation of the fine imposed on the applicants, the [OSCURATO:PERSONA] is seeking the dismissal of the actions, as it had sought in those actions (see, by analogy, judgment of 22 January 2013, Budějovický Budvar v OHIM — Anheuser-Busch (BUD) , T‑225/06 [OSCURATO:PERSONA], T‑255/06 [OSCURATO:PERSONA], T‑257/06 [OSCURATO:PERSONA] and T‑309/06 [OSCURATO:PERSONA], EU:T:2013:31, paragraph 37).

Substance 32 It is apparent from recitals 572, 587 and 588 of the contested decision that, in order to find that the [OSCURATO:PERSONA] meeting of 25 February 2004 was anticompetitive, the [OSCURATO:PERSONA] relied in particular on the statement made by the [OSCURATO:PERSONA] group in the context of its leniency application (‘[OSCURATO:PERSONA] statement’), supplemented, on the one hand, by a chart drawn up by its representative following the meeting (‘[OSCURATO:PERSONA] chart’) and, on the other, by statistics, established by [OSCURATO:PERSONA] in July and August 2004, reporting on the sales trends and prices achieved by each of its members (‘the [OSCURATO:PERSONA] statistics’), as well as on the statement made by the Roca group in the context of its leniency application (‘Roca’s statement’). 33 With regard to that evidence, the [OSCURATO:PERSONA] of Justice noted errors made by the [OSCURATO:PERSONA] concerning, first, the assessment of Roca’s statement, secondly, the assessment of [OSCURATO:PERSONA] chart, thirdly, the assessment of the [OSCURATO:PERSONA] statistics and, fourthly, the verification of whether the evidence, viewed as a whole, could be mutually supporting.

It is therefore for the [OSCURATO:PERSONA] to reassess the probative value of that evidence, individually and as a whole, in order to determine whether the [OSCURATO:PERSONA] was justified in finding that Allia and PCT participated in an infringement in France between 25 February and 9 November 2004. 34 The applicants submit that, following the reassessment of the evidence, ruling on the case as referred back to it, the [OSCURATO:PERSONA] must repeat the findings made in the initial judgment on the lack of sufficient evidence of an infringement in France, if necessary supplementing its reasoning.

In their view, the criticism expressed by the [OSCURATO:PERSONA] of Justice relates only to the succinctness of the reasoning in the initial judgment, and not to the conclusion it reached. 35 [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] examination should confirm the findings made in recitals 556 to 590 of the contested decision.

Furthermore, and in any event, the [OSCURATO:PERSONA] submits that the principles of equal treatment and of res judicata require the outcome of the present proceedings to be consistent with the judgments of 16 September 2013, Roca v

[OSCURATO:PERSONA]

(T‑412/10, EU:T:2013:444); of 16 September 2013, Villeroy & [OSCURATO:PERSONA] v

[OSCURATO:PERSONA]

(T‑373/10 and T‑374/10, not published, EU:T:2013:455); and of 16 September 2013, Duravit and Others v

[OSCURATO:PERSONA]

(T‑364/10, not published, EU:T:2013:477), in which the [OSCURATO:PERSONA], on the basis of the same evidence, concluded that anticompetitive discussions had taken place at the [OSCURATO:PERSONA] meeting of 25 February 2004. [OSCURATO:PERSONA] statement and [OSCURATO:PERSONA] chart 36 It is apparent from recital 572 of the contested decision that [OSCURATO:PERSONA] explained, inter alia, that, at the [OSCURATO:PERSONA] meeting of 25 February 2004, the participants had examined a graph prepared by [OSCURATO:PERSONA] showing the minimum and maximum prices applied on the market for six standard products.

The participants, including Allia, had examined those figures and agreed, after discussion, to apply a 3% increase to the ‘catalogue’ prices of all products. 37 [OSCURATO:PERSONA] of Justice criticised the [OSCURATO:PERSONA], in paragraphs 53 to 55 of the judgment on appeal, for (i) submitting [OSCURATO:PERSONA] chart to requirements such that, if they were met, the chart would, by itself, have constituted sufficient evidence to show price fixing, and (ii) failing to consider whether the evidence, viewed as a whole, could be mutually supporting. 38 The applicants claim that the [OSCURATO:PERSONA] was right to require, in the initial judgment, a link between [OSCURATO:PERSONA] chart and the meeting of 25 February 2004 in order for the chart to be corroborative of [OSCURATO:PERSONA] assertion as to the discussions that occurred during that meeting.

The points set out in paragraph 119 of the initial judgment are valid reasons why the chart is not sufficient to corroborate [OSCURATO:PERSONA] statement.

Furthermore, as the chart was drawn up ‘subsequently’, according to [OSCURATO:PERSONA] statement, it has no probative value beyond that of that statement. 39 [OSCURATO:PERSONA] submits that [OSCURATO:PERSONA] chart, together with the explanations provided, constitutes corroborating evidence which may help support other pieces of evidence, taking into account in particular the very clear and precise explanations provided by [OSCURATO:PERSONA] as regards the circumstances surrounding its drafting, its author and its date. 40 It should be noted, in that regard, that [OSCURATO:PERSONA] chart bears the heading ‘[OSCURATO:PERSONA] (fourchette mini-maxi)’ (‘[OSCURATO:PERSONA] (minimum-maximum range)’) and comprises four columns entitled respectively ‘mini’, ‘maxi’, ‘IS’ and ‘Porcher’, ‘IS’ standing for [OSCURATO:PERSONA] and the sign Porcher being registered as a trade mark whose proprietor is [OSCURATO:PERSONA].

It is apparent from recitals 714 to 726 of the contested decision, which concern the findings of fact made by the [OSCURATO:PERSONA] in respect of France, that the Porcher brand was distributed by [OSCURATO:PERSONA] on the French market.

Furthermore, the chart consists of six rows corresponding to various categories of ceramics, indicated in Italian. 41 As the [OSCURATO:PERSONA] stated in paragraph 119 of the initial judgment, [OSCURATO:PERSONA] chart is undated, contains nothing that might link it to the [OSCURATO:PERSONA] meeting of 25 February 2004 or to any anticompetitive discussions and does not mention the names of competitors or any minimum or maximum prices which those competitors should apply.

The only information to be gained with certainty from the document itself is that the prices of the [OSCURATO:PERSONA] and Porcher brands, marketed by [OSCURATO:PERSONA], are at different levels within a range.

By contrast, it is not stated to which period those figures relate, or whether they are past sales statistics or a guideline for the future. 42 Only the information provided in [OSCURATO:PERSONA] statement places the chart in the context of the infringements of competition law alleged by [OSCURATO:PERSONA], namely the fact that the chart was drawn up following the meeting of 25 February 2004 by the representative of [OSCURATO:PERSONA] who was present at that meeting and his superior and that it reproduces for internal use the decisions taken at that meeting in respect of the product lines marketed by [OSCURATO:PERSONA]. 43 In actual fact, [OSCURATO:PERSONA] chart thus draws its indicative value from [OSCURATO:PERSONA] statement and its probative value stems from that statement.

In those circumstances, as the applicants maintain, the probative value of the chart does not go beyond that of [OSCURATO:PERSONA] statement and it must therefore be regarded as forming part of that statement and not as evidence corroborating it.

The corroborative quality of Roca’s statement 44 [OSCURATO:PERSONA] of Justice criticised the [OSCURATO:PERSONA], in paragraphs 41 and 42 of the judgment on appeal, for denying Roca’s statement any probative value, by relying exclusively on recital 586 of the contested decision, which summarises another item of evidence, and failing to examine recital 556 of the contested decision, which relates to Roca’s statement, or even the content of that statement. 45 The applicants claim that [OSCURATO:PERSONA] statement alone could not form the basis of a finding of infringement and submit that a high degree of corroboration was necessary, given that that statement contained inconsistencies.

The applicants also submit that the [OSCURATO:PERSONA] rightly did not take Roca’s statement into consideration to corroborate [OSCURATO:PERSONA] statement, since Roca had renounced its leniency statement in the course of the procedure. 46 [OSCURATO:PERSONA] contends that Roca’s statement is sufficiently precise to corroborate the information provided by [OSCURATO:PERSONA] regarding the anticompetitive nature of the [OSCURATO:PERSONA] meeting of 25 February 2004. 47 In the first place, in that regard, as the [OSCURATO:PERSONA] stated in paragraphs 117 and 118 of the initial judgment, being upheld on this point by the [OSCURATO:PERSONA] of Justice in paragraphs 29 and 30 of the judgment on appeal, [OSCURATO:PERSONA] statement, which was contested by other undertakings, had to be confirmed by other evidence in order to prove the anticompetitive nature of the meeting of 25 February 2004. 48 In that regard, the claim made by the applicants at the hearing to the effect that the corroboration must concern specifically the anticompetitive nature of the [OSCURATO:PERSONA] meeting of 25 February 2004 must be rejected.

The infringement alleged against the applicants, in so far as it is the subject matter of the present action, consists in the coordination of prices for low-end ceramic goods between 25 February and 9 November 2004 in the context of [OSCURATO:PERSONA]. 49 As evidence of that infringement, [OSCURATO:PERSONA] statement, which reports on the discussions and decisions on prices that occurred during the meeting of 25 February 2004, may therefore be corroborated by any evidence indicating or giving credibility to the existence of price coordination between 25 February and 9 November 2004. 50 In the second place, with regard to Roca’s statement, it is apparent from recital 556 of the contested decision that that undertaking stated, inter alia, that ceramics manufacturers had regularly discussed prices or price increases over several years, with meetings taking place at least two or three times per year.

Moreover, it is apparent from recital 573 of the contested decision that Roca stated that members of [OSCURATO:PERSONA] had tried to halt the downward trend in prices for low-end goods, either by means of a price increase of 3% or by introducing ‘floor’ prices, for example a minimum price of EUR 15 for a washbasin at a given point in time.

The accuracy of that summary, by the [OSCURATO:PERSONA], of Roca’s statement has not been disputed by the applicants. 51 In the third place, it must be noted, in that regard, that, while Roca’s statement does not contain any reference to the [OSCURATO:PERSONA] meeting of 25 February 2004, it nevertheless confirms, generally, that discussions on prices occurred regularly within [OSCURATO:PERSONA].

Furthermore, it mentions the mechanism of floor prices and a decision concerning a 3% price increase for low-end products, which coincides with at least some of the information provided by [OSCURATO:PERSONA] (which concerned all products).

Specifically, in its conclusion as to price coordination in France, set out in recital 590 of the contested decision, the [OSCURATO:PERSONA] found that there was price coordination in the ceramics sector solely in respect of low-end products. 52 In those circumstances, it must be held that Roca’s statement, although it may, in some respects, be less precise than [OSCURATO:PERSONA] statement, does not contradict it and, on the contrary, confirms it in several important respects.

Therefore, in those respects, and, in particular, in respect of the fact that discussions on prices of products and, especially, those of low-end products occurred regularly over several years and the fact that a 3% increase could have been decided upon during the meetings, it may serve as evidence corroborating [OSCURATO:PERSONA] statement.

The [OSCURATO:PERSONA] statistics 53 [OSCURATO:PERSONA] of Justice criticised the [OSCURATO:PERSONA], in paragraph 64 of the judgment on appeal, for failing to consider whether the [OSCURATO:PERSONA] statistics could, as the [OSCURATO:PERSONA] expressly argued, corroborate the statements of [OSCURATO:PERSONA] and Roca. 54 The applicants argue that the [OSCURATO:PERSONA] statistics do not demonstrate that a discussion on prices took place during the meeting of 25 February 2004, especially since they are dated 1 October 2004 and contain data for the months of July and August 2004 which are not anticompetitive in nature. 55 [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] statistics constitute significant corroborating evidence which supports the findings of the contested decision. 56 In that regard, it must be noted that the [OSCURATO:PERSONA] statistics — which are in the form of tables dated 1 October 2004 — contain, for each [OSCURATO:PERSONA] member, and in the aggregate for all members, data for the months of July and August 2004 and cumulative data for the year 2004, relating to two subgroups of products, namely, first, ‘[OSCURATO:PERSONA] et éviers’ (‘[OSCURATO:PERSONA] including shower trays and kitchen sinks’) and, secondly, ‘Porc.

G.F.’ (‘[OSCURATO:PERSONA]’ (‘[OSCURATO:PERSONA] and [OSCURATO:PERSONA]’)).

According to the parties’ concurring information, those two subgroups covered, respectively, generally larger ceramic products (shower trays, kitchen sinks, ceramic tabletops for bathroom furniture) and smaller sanitary products (toilet bowls, washbasins and pedestals), which are generally produced at different factories.

Production volumes, delivery volumes and values on the French market and for export outside of France and unit prices are indicated for each of those subgroups of products, as well as the evolution of those data as compared with the same months of 2003.

The words ‘CONFIDENTIEL À [OSCURATO:PERSONA]’ (‘[OSCURATO:PERSONA] [OSCURATO:PERSONA]’) appear diagonally across each page. 57 It must be noted that the fact that those data were able to be put together and distributed within [OSCURATO:PERSONA], as a national industry organisation, shows the existence, over a prolonged period, of a regular exchange of sensitive commercial data, enabling each [OSCURATO:PERSONA] member to be aware of the volumes produced and sold by its competitors, allowing it to calculate its own share of the overall market, to follow the turnover generated by its competitors and to monitor in the aggregate, yet accurately, the evolution of sales and prices on the market.

It must be held that such an exchange of sensitive commercial data, without any apparent legitimate reason, goes beyond the limits of normal competitive conduct. 58 In those circumstances, even if it is true that, as the [OSCURATO:PERSONA] accepts, the [OSCURATO:PERSONA] statistics do not prove that a discussion on prices occurred at the meeting of 25 February 2004, they show that price coordination took place during 2004 and must therefore be regarded as evidence corroborating [OSCURATO:PERSONA] statements to that effect.

The overall assessment of the evidence 59 [OSCURATO:PERSONA] of Justice criticised the [OSCURATO:PERSONA], in paragraph 69 of the judgment on appeal, for failing to ascertain whether the evidence, viewed as a whole, could be mutually supporting. 60 The applicants reiterate that the criticism expressed by the [OSCURATO:PERSONA] of Justice relates to the extent of the reasoning set out in the initial judgment.

In their view, the conclusions of the [OSCURATO:PERSONA] in the initial judgment in respect of the evidence contained in the file were well founded.

Since that evidence remains the same, the [OSCURATO:PERSONA] should now reach the same conclusion, if necessary supplementing its reasoning. 61 [OSCURATO:PERSONA] submits that the various pieces of evidence, taken together, demonstrate that there was a discussion on prices at the [OSCURATO:PERSONA] meeting of 25 February 2004. 62 In the overall assessment of the evidence, it is necessary to examine whether that evidence, taken as a whole, supports the [OSCURATO:PERSONA]’s conclusion, deriving from recitals 556, 590, 1149 and 1170 of the contested decision, that manufacturers of ceramics in the bathroom fittings and fixtures sector in France — including Allia and its subsidiary PCT — coordinated, between 15 February and 9 November 2004, their minimum prices for low-end products in the context of [OSCURATO:PERSONA]. 63 It should be noted, in that regard, that [OSCURATO:PERSONA] statement, according to which, inter alia, the [OSCURATO:PERSONA] meeting of 25 February 2004 gave rise to a discussion on prices and a decision to increase them by 3%, has been corroborated by Roca’s statement, which stated, more generally, that discussions on prices and, especially, those for low-end products had occurred regularly over several years within [OSCURATO:PERSONA].

In particular, Roca referred, as an example, to an increase of 3% of the minimum prices for some products and to the application of floor prices.

Furthermore, the [OSCURATO:PERSONA] statistics show that price coordination, within [OSCURATO:PERSONA], took place at least during 2004 and therefore also corroborate [OSCURATO:PERSONA] statements to that effect.

It must also be noted that those statistics are contemporaneous documents which are dated and of which the author ([OSCURATO:PERSONA]) is known, and they are therefore of high probative value. 64 It follows that the evidence referred to above, taken as a whole, confirms the conclusion reached by the [OSCURATO:PERSONA] in the contested decision, summarised in paragraph 62 above. 65 Accordingly, the applicants’ third plea must be rejected. 66 Consequently, the action, in so far as it continues in the present proceedings referred back to the [OSCURATO:PERSONA], must be dismissed in its entirety.

Costs 67 Pursuant to [OSCURATO:PERSONA] 219 of the Rules of Procedure, in decisions of the [OSCURATO:PERSONA] given after its decision has been set aside and the case referred back to it, it is to decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the [OSCURATO:PERSONA] of Justice.

However, in the present case, as the judgment on appeal did not set aside the initial judgment in respect of the decision as to costs, the present proceedings no longer concern the costs relating to the proceedings in [OSCURATO:PERSONA] T‑379/10 and T‑381/10. 68 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. [OSCURATO:PERSONA] 134(3) of those rules, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.

However, if it appears justified in the circumstances of the case, the [OSCURATO:PERSONA] may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party. 69 Having regard to the circumstances of the present case, since the applicants have been largely unsuccessful in the appeal and unsuccessful in the proceedings referred back to the [OSCURATO:PERSONA], they must be ordered to bear all their own costs and to pay all the costs incurred by the [OSCURATO:PERSONA] before the [OSCURATO:PERSONA] of Justice and the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] C‑613/13 P, T‑379/10 [OSCURATO:PERSONA] and T‑381/10 [OSCURATO:PERSONA].

On those grounds,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

hereby: 1. Dismisses the action; 2. [OSCURATO:PERSONA] GmbH and the other applicants whose names are set out in the annex to bear their own costs and to pay those incurred by the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] C ‑ 613/13 P, T ‑ 379/10 [OSCURATO:PERSONA] and T ‑

381/10 [OSCURATO:PERSONA].

[OSCURATO:PERSONA] in open court in Luxembourg on 3 July 2018. E. Coulon

I. [OSCURATO:PERSONA]

* Language of the case: English. 1 The list of the other applicants is annexed only to the version sent to the parties.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 3 July 2018 ( * ) (Competition — Agreements, decisions and concerted practices — French bathroom fittings and fixtures market — [OSCURATO:PERSONA] finding an infringement of [OSCURATO:PERSONA] 101 TFEU and [OSCURATO:PERSONA] 53 of the EEA Agreement — Participation of certain entities in a cartel — Reassessment of the evidence) [OSCURATO:PERSONA] T‑379/10 [OSCURATO:PERSONA] and T‑381/10 [OSCURATO:PERSONA], [OSCURATO:PERSONA] GmbH, formerly [OSCURATO:PERSONA] AG, established in Ratingen (Germany), and the other applicants whose names are set out in the annex, ( 1 ) applicants in Case T‑379/10 [OSCURATO:PERSONA], [OSCURATO:PERSONA], established in Helsinki (Finland), applicant in Case T‑381/10 [OSCURATO:PERSONA], represented by P. Lindfelt and K. Struckmann, lawyers, and J. Killick, Barrister, v [OSCURATO:PERSONA], represented by F. Castillo de la Torre, F. [OSCURATO:PERSONA] and J. Norris-Usher, acting as Agents, defendant, APPLICATION under [OSCURATO:PERSONA] 263 TFEU for, first, annulment in part of [OSCURATO:PERSONA] C(2010) 4185 final of 23 June 2010 relating to a proceeding under [OSCURATO:PERSONA] 101 TFEU and [OSCURATO:PERSONA] 53 of the EEA Agreement (Case COMP/39092 — [OSCURATO:PERSONA] and Fixtures), and, secondly, reduction of the fine imposed on the applicants in that decision, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of I. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA], P. [OSCURATO:PERSONA] and J. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: K. Guzdek, Administrator, having regard to the written part of the procedure and further to the hearing on 27 February 2018, gives the following [OSCURATO:PERSONA] to the dispute and the contested decision 1 [OSCURATO:PERSONA] C(2010) 4185 final of 23 June 2010 relating to a proceeding under [OSCURATO:PERSONA] 101 TFEU and [OSCURATO:PERSONA] 53 of the EEA Agreement (Case COMP/39092 — [OSCURATO:PERSONA] and Fixtures) (‘the contested decision’), the [OSCURATO:PERSONA] found that there had been an infringement of [OSCURATO:PERSONA] 101(1) TFEU and [OSCURATO:PERSONA] 53 of the Agreement on the [OSCURATO:PERSONA] (EEA) in the bathroom fittings and fixtures sector. That infringement, in which 17 undertakings had allegedly participated, was said to have taken place over various periods between 16 October 1992 and 9 November 2004 and to have taken the form of anticompetitive agreements or concerted practices covering the territory of Belgium, Germany, France, Italy, the Netherlands and [OSCURATO:PERSONA]. 2 On 15 July 2004, the [OSCURATO:PERSONA] was informed of the existence of a cartel in the bathroom fittings and fixtures sector, in the course of an application under the [OSCURATO:PERSONA] notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3). 3 On 9 and 10 November 2004, the [OSCURATO:PERSONA] conducted unannounced inspections at the premises of various companies and industry associations operating in the bathroom fittings and fixtures sector. Between 15 November 2005 and 16 May 2006, the [OSCURATO:PERSONA] sent requests for information to those companies and associations, including some of the applicants in Case T‑379/10 [OSCURATO:PERSONA]. It then, on 26 March 2007, adopted a statement of objections, which was also notified to those applicants. Between 15 November 2004 and 20 January 2006, a number of undertakings applied for immunity from fines or a reduction in fines. 4 Following (i) a hearing from 12 to 14 November 2007, in which the applicant in Case T‑381/10 [OSCURATO:PERSONA], [OSCURATO:PERSONA], took part, (ii) the sending, on 9 July 2009, to several companies, including some of the applicants in Case T‑379/10 [OSCURATO:PERSONA] and the applicant in Case T‑381/10 [OSCURATO:PERSONA], of a letter of facts, drawing their attention to certain evidence on which the [OSCURATO:PERSONA] was minded to rely when adopting a final decision, and (iii) the sending, between 19 June 2009 and 8 March 2010, to several companies, including some of the applicants in Case T‑379/10 [OSCURATO:PERSONA] and the applicant in Case T‑381/10 [OSCURATO:PERSONA], of further requests for information, the [OSCURATO:PERSONA], on 23 June 2010, adopted the contested decision. 5 In the contested decision, the [OSCURATO:PERSONA] found that the infringement identified consisted, first and foremost, in the coordination, by those bathroom fittings and fixtures manufacturers, of annual price increases and other pricing elements within the framework of regular meetings of national industry associations; secondly, in the fixing or coordination of prices on the occasion of specific events such as increases in raw material costs, the introduction of the euro and the introduction of road tolls; and, thirdly, in the disclosure and exchange of sensitive business information. Those practices had followed a recurring pattern which was consistent in each of the six [OSCURATO:PERSONA] covered by the [OSCURATO:PERSONA]’s investigation. [OSCURATO:PERSONA] setting in the bathroom fittings and fixtures industry had followed an annual cycle; specifically, the manufacturers had set price lists, which generally remained in force for a year and formed the basis for commercial relations with wholesalers. 6 The applicants in Case T‑379/10 [OSCURATO:PERSONA], [OSCURATO:PERSONA] GmbH, [OSCURATO:PERSONA] BV, [OSCURATO:SOCIETA] and its subsidiary [OSCURATO:PERSONA] de Touraine SA (PCT) and [OSCURATO:SOCIETA], produced ceramic ware (‘ceramics’). [OSCURATO:PERSONA] GmbH, which is also an applicant in Case T‑379/10 [OSCURATO:PERSONA], produced shower enclosures. At the time of the facts at issue, the applicants in Case T‑379/10 [OSCURATO:PERSONA] were all subsidiaries of [OSCURATO:PERSONA], the applicant in Case T‑381/10 [OSCURATO:PERSONA] and also an addressee of the contested decision. In that decision, [OSCURATO:PERSONA] and its subsidiaries were collectively referred to by the [OSCURATO:PERSONA] as ‘[OSCURATO:PERSONA]’. Throughout their participation in the infringement alleged against them, Allia was a member of the [OSCURATO:PERSONA] des Industries de [OSCURATO:PERSONA] (‘[OSCURATO:PERSONA]’), a national industry association of bathroom fittings and fixtures manufacturers in France. 7 As regards the participation of the applicants in the infringement identified, the [OSCURATO:PERSONA] found that they belonged to a central group of undertakings and were aware, or ought reasonably to have been aware, that the infringement found concerned at least three product subgroups, namely taps and fittings, shower enclosures and accessories and ceramics, and had an extensive geographic scope as it covered the territory of six [OSCURATO:PERSONA]. 8 For the purpose of setting the fines imposed on each undertaking, the [OSCURATO:PERSONA] took as a basis the Guidelines on the method of setting fines imposed pursuant to [OSCURATO:PERSONA] 23(2)(a) of [OSCURATO:PERSONA] (EC) No 1/2003 (OJ 2006 C 210, p. 2). It determined the basic amount of the fine, explaining that this calculation was based, for each undertaking, on its sales by [OSCURATO:PERSONA] concerned, multiplied by the number of years of participation in the infringement found in the [OSCURATO:PERSONA] in question for the relevant product subgroup, so that account had been taken of the fact that certain undertakings were active only in certain [OSCURATO:PERSONA] or in only one of the three product subgroups. 9 As regards the gravity of the infringement, the [OSCURATO:PERSONA] set the multiplier at 15%, taking into account the four criteria for assessing the infringement: the nature of the conduct, the combined market shares, the geographic scope of the infringement and its implementation. In addition, it set the multiplier to be applied, to take account of the duration of the infringement, inter alia, at 0.66 for Allia and PCT, reflecting 8 months’ participation in the infringement, between 25 February and 9 November 2004. Finally, in order to deter the companies in question from participating in the unlawful practices with which the contested decision was concerned, the [OSCURATO:PERSONA] decided to increase the basic amount of the fine by an additional amount set at 15%. 10 This resulted in basic amounts, inter alia, of EUR 10 500 000 for Allia and EUR 5 800 000 for PCT. 11 After having determined the basic amount, the [OSCURATO:PERSONA] considered whether there were any aggravating or mitigating circumstances capable of justifying adjustments to the basic amount. It did not find that any aggravating or mitigating circumstances applied in the case of the applicants, and, after the ceiling of 10% of turnover was applied, pursuant to [OSCURATO:PERSONA] 23(2) of [OSCURATO:PERSONA] (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), the amount of the fine imposed on the applicants in [OSCURATO:PERSONA] 2 of the contested decision was EUR 57 690 000, which corresponded, inter alia, to EUR 9 873 060 for [OSCURATO:PERSONA], EUR 4 579 610 for Allia and [OSCURATO:PERSONA] jointly and severally and EUR 2 529 689 for PCT, Allia and [OSCURATO:PERSONA] jointly and severally. Procedure before the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] of Justice 12 By applications lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 8 September 2010, the applicants brought two actions for annulment of the contested decision. 13 [OSCURATO:PERSONA] decided on 16 December 2010 to join those cases for the purposes of the written procedure and, on 23 March 2012, to join them for the purposes of the oral procedure and of the judgment. 14 In support of their actions, the applicants raised, in essence, nine pleas in law. 15 By judgment of 16 September 2013, [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] (T‑379/10 and T‑381/10, not published, ‘the initial judgment’, EU:T:2013:457), the [OSCURATO:PERSONA] rejected the majority of the pleas put forward by the applicants at first instance, but upheld the first and third parts of the third plea in law put forward by the applicants at first instance, alleging errors of assessment on the part of the [OSCURATO:PERSONA] at the stage of the analysis of the evidence concerning their participation in the infringement found in France and in Italy. It found that the [OSCURATO:PERSONA] had erred in concluding that Allia and PCT had participated in the infringement at issue and in concluding that [OSCURATO:SOCIETA] had participated in that infringement between 10 March 1996 and 14 September 2001 when its participation had been established to the requisite legal standard only in respect of the period between 14 May 1996 and 9 March 2001. Consequently, the [OSCURATO:PERSONA] annulled the relevant part of point 6 of [OSCURATO:PERSONA] 1(1) of the contested decision. 16 As regards the reduction of fines, the [OSCURATO:PERSONA], taking into account the fact that it had partially upheld the third plea put forward by the applicants, annulled [OSCURATO:PERSONA] 2(7) of the contested decision setting the amount of the fine imposed on the applicants at first instance, in so far as it exceeded EUR 50 580 701. 17 By application lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of Justice on 26 November 2013, the [OSCURATO:PERSONA] brought an appeal against the initial judgment, claiming that the [OSCURATO:PERSONA] should, inter alia, set aside point 1 of the operative part of the initial judgment ‘in so far as it annuls [OSCURATO:PERSONA] 1 of the contested decision as regards the events in [OSCURATO:PERSONA] and the liability of Allia, [PCT] and [OSCURATO:PERSONA] for them’, and point 2 of the operative part. 18 The applicants brought a cross-appeal against the initial judgment. 19 By judgment of 26 January 2017, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others (C‑613/13 P, ‘the judgment on appeal’, EU:C:2017:49), the [OSCURATO:PERSONA] set aside point 1 of the operative part of the initial judgment. [OSCURATO:PERSONA] also set aside point 2 of the initial judgment, in so far as it had annulled [OSCURATO:PERSONA] 2(7) of the contested decision, concerning the amount of the fine imposed on the applicants. 20 [OSCURATO:PERSONA] dismissed the remainder of the appeal, as well as the cross-appeal, and referred the case back to the [OSCURATO:PERSONA]. Procedure and forms of order sought after the referral back to the [OSCURATO:PERSONA] 21 Following the judgment on appeal, and in accordance with [OSCURATO:PERSONA] 217 of the Rules of Procedure of the [OSCURATO:PERSONA], the applicants and the [OSCURATO:PERSONA] lodged written observations at the [OSCURATO:PERSONA] on 31 March 2017 and 4 April 2017 respectively. 22 By way of measures of organisation of procedure under [OSCURATO:PERSONA] 89 of the Rules of Procedure, the [OSCURATO:PERSONA] put written questions to the parties, which the parties answered within the prescribed period. 23 By decision of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 17 January 2018, after taking the views of the parties, [OSCURATO:PERSONA] T‑379/10 [OSCURATO:PERSONA] and T‑381/10 [OSCURATO:PERSONA] were joined for the purposes of the oral part of the procedure and the decision which closes the proceedings, in accordance with [OSCURATO:PERSONA] 68 of the Rules of Procedure. 24 The applicants claim that the [OSCURATO:PERSONA] should: –        annul point 6 of [OSCURATO:PERSONA] 1(1) of the contested decision in so far as it finds that Allia and PCT participated in an infringement relating to a cartel on the French market between 25 February 2004 and 9 November 2004; –        annul [OSCURATO:PERSONA] 2(7) of the contested decision in so far as the total amount of the fine imposed on the applicants exceeds EUR 50 580 701; –        order the [OSCURATO:PERSONA] to pay the costs incurred by the applicants in the appeal and in the present proceedings; –        uphold the order as to costs determined in points 4 and 5 of the operative part of the initial judgment. 25 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        reject as unfounded the first part of the third plea put forward by the applicants, relating to the evidence concerning the infringement in France; –        uphold the fine imposed on the applicants; –        order the applicants to pay the costs relating to the proceedings instituted before it and to the appeal proceedings before the [OSCURATO:PERSONA] of Justice. [OSCURATO:PERSONA] matter of the dispute after its referral back to the [OSCURATO:PERSONA] 26 It must be recalled that, under [OSCURATO:PERSONA] 61 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], where the appeal is well founded and the case is referred back to the [OSCURATO:PERSONA] for judgment, the latter is bound by the decision of the [OSCURATO:PERSONA] of Justice on points of law. Thus, once the [OSCURATO:PERSONA] of Justice has set aside a judgment or an order and referred the case back to the [OSCURATO:PERSONA], that [OSCURATO:PERSONA] is seised, pursuant to [OSCURATO:PERSONA] 215 of the Rule of Procedure, of the case by the judgment of the [OSCURATO:PERSONA] of Justice and must rule again on all the pleas in law in support of annulment raised by the applicant, apart from those elements of the operative part not set aside by the [OSCURATO:PERSONA] of Justice and the considerations on which those elements are essentially founded, as those elements have acquired the authority of res judicata (judgment of 14 September 2011, Marcuccio v [OSCURATO:PERSONA] , T‑236/02, EU:T:2011:465, paragraph 83). 27 In the present case, as the judgment on appeal dismissed the cross-appeal brought by the applicants, the initial judgment is final in so far as it dismissed the applicants’ claims and pleas in law. 28 It is therefore for the [OSCURATO:PERSONA] to take a new decision on the part of the initial judgment set aside in the appeal, namely whether Allia and PCT participated in the infringement found by the contested decision. 29 Furthermore, in so far as point 1 of the operative part of the judgment on appeal sets aside, without limitation, point 1 of the operative part of the initial judgment, that setting aside must –– in view of, first, the form of order sought by the [OSCURATO:PERSONA] in the appeal (see paragraph 17 above) and, secondly, the principle of ne ultra petita –– be interpreted as concerning only the part of point 1 of the operative part of the initial judgment that relates to Allia and PCT’s participation in the infringement. In their answers to the written questions put by the [OSCURATO:PERSONA], the parties agreed with that interpretation. 30 Accordingly, the subject matter of the dispute now concerns only the analysis undertaken by the [OSCURATO:PERSONA] in the context of the applicants’ third plea in law, alleging errors of law and of assessment, of the evidence relating to Allia and PCT’s participation in the infringement concerning the agreements on prices of ceramics, within [OSCURATO:PERSONA], demonstrated in particular by the [OSCURATO:PERSONA] meeting of 25 February 2004. [OSCURATO:PERSONA] will then have to draw such conclusions as may be appropriate from those findings, with regard to the fine imposed on Allia, PCT and [OSCURATO:PERSONA]. 31 Finally, it must be noted that, by its head of claim seeking confirmation of the fine imposed on the applicants, the [OSCURATO:PERSONA] is seeking the dismissal of the actions, as it had sought in those actions (see, by analogy, judgment of 22 January 2013, Budějovický Budvar v OHIM — Anheuser-Busch (BUD) , T‑225/06 [OSCURATO:PERSONA], T‑255/06 [OSCURATO:PERSONA], T‑257/06 [OSCURATO:PERSONA] and T‑309/06 [OSCURATO:PERSONA], EU:T:2013:31, paragraph 37). Substance 32 It is apparent from recitals 572, 587 and 588 of the contested decision that, in order to find that the [OSCURATO:PERSONA] meeting of 25 February 2004 was anticompetitive, the [OSCURATO:PERSONA] relied in particular on the statement made by the [OSCURATO:PERSONA] group in the context of its leniency application (‘[OSCURATO:PERSONA] statement’), supplemented, on the one hand, by a chart drawn up by its representative following the meeting (‘[OSCURATO:PERSONA] chart’) and, on the other, by statistics, established by [OSCURATO:PERSONA] in July and August 2004, reporting on the sales trends and prices achieved by each of its members (‘the [OSCURATO:PERSONA] statistics’), as well as on the statement made by the Roca group in the context of its leniency application (‘Roca’s statement’). 33 With regard to that evidence, the [OSCURATO:PERSONA] of Justice noted errors made by the [OSCURATO:PERSONA] concerning, first, the assessment of Roca’s statement, secondly, the assessment of [OSCURATO:PERSONA] chart, thirdly, the assessment of the [OSCURATO:PERSONA] statistics and, fourthly, the verification of whether the evidence, viewed as a whole, could be mutually supporting. It is therefore for the [OSCURATO:PERSONA] to reassess the probative value of that evidence, individually and as a whole, in order to determine whether the [OSCURATO:PERSONA] was justified in finding that Allia and PCT participated in an infringement in France between 25 February and 9 November 2004. 34 The applicants submit that, following the reassessment of the evidence, ruling on the case as referred back to it, the [OSCURATO:PERSONA] must repeat the findings made in the initial judgment on the lack of sufficient evidence of an infringement in France, if necessary supplementing its reasoning. In their view, the criticism expressed by the [OSCURATO:PERSONA] of Justice relates only to the succinctness of the reasoning in the initial judgment, and not to the conclusion it reached. 35 [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] examination should confirm the findings made in recitals 556 to 590 of the contested decision. Furthermore, and in any event, the [OSCURATO:PERSONA] submits that the principles of equal treatment and of res judicata require the outcome of the present proceedings to be consistent with the judgments of 16 September 2013, Roca v [OSCURATO:PERSONA] (T‑412/10, EU:T:2013:444); of 16 September 2013, Villeroy & [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑373/10 and T‑374/10, not published, EU:T:2013:455); and of 16 September 2013, Duravit and Others v [OSCURATO:PERSONA] (T‑364/10, not published, EU:T:2013:477), in which the [OSCURATO:PERSONA], on the basis of the same evidence, concluded that anticompetitive discussions had taken place at the [OSCURATO:PERSONA] meeting of 25 February 2004. [OSCURATO:PERSONA] statement and [OSCURATO:PERSONA] chart 36 It is apparent from recital 572 of the contested decision that [OSCURATO:PERSONA] explained, inter alia, that, at the [OSCURATO:PERSONA] meeting of 25 February 2004, the participants had examined a graph prepared by [OSCURATO:PERSONA] showing the minimum and maximum prices applied on the market for six standard products. The participants, including Allia, had examined those figures and agreed, after discussion, to apply a 3% increase to the ‘catalogue’ prices of all products. 37 [OSCURATO:PERSONA] of Justice criticised the [OSCURATO:PERSONA], in paragraphs 53 to 55 of the judgment on appeal, for (i) submitting [OSCURATO:PERSONA] chart to requirements such that, if they were met, the chart would, by itself, have constituted sufficient evidence to show price fixing, and (ii) failing to consider whether the evidence, viewed as a whole, could be mutually supporting. 38 The applicants claim that the [OSCURATO:PERSONA] was right to require, in the initial judgment, a link between [OSCURATO:PERSONA] chart and the meeting of 25 February 2004 in order for the chart to be corroborative of [OSCURATO:PERSONA] assertion as to the discussions that occurred during that meeting. The points set out in paragraph 119 of the initial judgment are valid reasons why the chart is not sufficient to corroborate [OSCURATO:PERSONA] statement. Furthermore, as the chart was drawn up ‘subsequently’, according to [OSCURATO:PERSONA] statement, it has no probative value beyond that of that statement. 39 [OSCURATO:PERSONA] submits that [OSCURATO:PERSONA] chart, together with the explanations provided, constitutes corroborating evidence which may help support other pieces of evidence, taking into account in particular the very clear and precise explanations provided by [OSCURATO:PERSONA] as regards the circumstances surrounding its drafting, its author and its date. 40 It should be noted, in that regard, that [OSCURATO:PERSONA] chart bears the heading ‘[OSCURATO:PERSONA] (fourchette mini-maxi)’ (‘[OSCURATO:PERSONA] (minimum-maximum range)’) and comprises four columns entitled respectively ‘mini’, ‘maxi’, ‘IS’ and ‘Porcher’, ‘IS’ standing for [OSCURATO:PERSONA] and the sign Porcher being registered as a trade mark whose proprietor is [OSCURATO:PERSONA]. It is apparent from recitals 714 to 726 of the contested decision, which concern the findings of fact made by the [OSCURATO:PERSONA] in respect of France, that the Porcher brand was distributed by [OSCURATO:PERSONA] on the French market. Furthermore, the chart consists of six rows corresponding to various categories of ceramics, indicated in Italian. 41 As the [OSCURATO:PERSONA] stated in paragraph 119 of the initial judgment, [OSCURATO:PERSONA] chart is undated, contains nothing that might link it to the [OSCURATO:PERSONA] meeting of 25 February 2004 or to any anticompetitive discussions and does not mention the names of competitors or any minimum or maximum prices which those competitors should apply. The only information to be gained with certainty from the document itself is that the prices of the [OSCURATO:PERSONA] and Porcher brands, marketed by [OSCURATO:PERSONA], are at different levels within a range. By contrast, it is not stated to which period those figures relate, or whether they are past sales statistics or a guideline for the future. 42 Only the information provided in [OSCURATO:PERSONA] statement places the chart in the context of the infringements of competition law alleged by [OSCURATO:PERSONA], namely the fact that the chart was drawn up following the meeting of 25 February 2004 by the representative of [OSCURATO:PERSONA] who was present at that meeting and his superior and that it reproduces for internal use the decisions taken at that meeting in respect of the product lines marketed by [OSCURATO:PERSONA]. 43 In actual fact, [OSCURATO:PERSONA] chart thus draws its indicative value from [OSCURATO:PERSONA] statement and its probative value stems from that statement. In those circumstances, as the applicants maintain, the probative value of the chart does not go beyond that of [OSCURATO:PERSONA] statement and it must therefore be regarded as forming part of that statement and not as evidence corroborating it. The corroborative quality of Roca’s statement 44 [OSCURATO:PERSONA] of Justice criticised the [OSCURATO:PERSONA], in paragraphs 41 and 42 of the judgment on appeal, for denying Roca’s statement any probative value, by relying exclusively on recital 586 of the contested decision, which summarises another item of evidence, and failing to examine recital 556 of the contested decision, which relates to Roca’s statement, or even the content of that statement. 45 The applicants claim that [OSCURATO:PERSONA] statement alone could not form the basis of a finding of infringement and submit that a high degree of corroboration was necessary, given that that statement contained inconsistencies. The applicants also submit that the [OSCURATO:PERSONA] rightly did not take Roca’s statement into consideration to corroborate [OSCURATO:PERSONA] statement, since Roca had renounced its leniency statement in the course of the procedure. 46 [OSCURATO:PERSONA] contends that Roca’s statement is sufficiently precise to corroborate the information provided by [OSCURATO:PERSONA] regarding the anticompetitive nature of the [OSCURATO:PERSONA] meeting of 25 February 2004. 47 In the first place, in that regard, as the [OSCURATO:PERSONA] stated in paragraphs 117 and 118 of the initial judgment, being upheld on this point by the [OSCURATO:PERSONA] of Justice in paragraphs 29 and 30 of the judgment on appeal, [OSCURATO:PERSONA] statement, which was contested by other undertakings, had to be confirmed by other evidence in order to prove the anticompetitive nature of the meeting of 25 February 2004. 48 In that regard, the claim made by the applicants at the hearing to the effect that the corroboration must concern specifically the anticompetitive nature of the [OSCURATO:PERSONA] meeting of 25 February 2004 must be rejected. The infringement alleged against the applicants, in so far as it is the subject matter of the present action, consists in the coordination of prices for low-end ceramic goods between 25 February and 9 November 2004 in the context of [OSCURATO:PERSONA]. 49 As evidence of that infringement, [OSCURATO:PERSONA] statement, which reports on the discussions and decisions on prices that occurred during the meeting of 25 February 2004, may therefore be corroborated by any evidence indicating or giving credibility to the existence of price coordination between 25 February and 9 November 2004. 50 In the second place, with regard to Roca’s statement, it is apparent from recital 556 of the contested decision that that undertaking stated, inter alia, that ceramics manufacturers had regularly discussed prices or price increases over several years, with meetings taking place at least two or three times per year. Moreover, it is apparent from recital 573 of the contested decision that Roca stated that members of [OSCURATO:PERSONA] had tried to halt the downward trend in prices for low-end goods, either by means of a price increase of 3% or by introducing ‘floor’ prices, for example a minimum price of EUR 15 for a washbasin at a given point in time. The accuracy of that summary, by the [OSCURATO:PERSONA], of Roca’s statement has not been disputed by the applicants. 51 In the third place, it must be noted, in that regard, that, while Roca’s statement does not contain any reference to the [OSCURATO:PERSONA] meeting of 25 February 2004, it nevertheless confirms, generally, that discussions on prices occurred regularly within [OSCURATO:PERSONA]. Furthermore, it mentions the mechanism of floor prices and a decision concerning a 3% price increase for low-end products, which coincides with at least some of the information provided by [OSCURATO:PERSONA] (which concerned all products). Specifically, in its conclusion as to price coordination in France, set out in recital 590 of the contested decision, the [OSCURATO:PERSONA] found that there was price coordination in the ceramics sector solely in respect of low-end products. 52 In those circumstances, it must be held that Roca’s statement, although it may, in some respects, be less precise than [OSCURATO:PERSONA] statement, does not contradict it and, on the contrary, confirms it in several important respects. Therefore, in those respects, and, in particular, in respect of the fact that discussions on prices of products and, especially, those of low-end products occurred regularly over several years and the fact that a 3% increase could have been decided upon during the meetings, it may serve as evidence corroborating [OSCURATO:PERSONA] statement. The [OSCURATO:PERSONA] statistics 53 [OSCURATO:PERSONA] of Justice criticised the [OSCURATO:PERSONA], in paragraph 64 of the judgment on appeal, for failing to consider whether the [OSCURATO:PERSONA] statistics could, as the [OSCURATO:PERSONA] expressly argued, corroborate the statements of [OSCURATO:PERSONA] and Roca. 54 The applicants argue that the [OSCURATO:PERSONA] statistics do not demonstrate that a discussion on prices took place during the meeting of 25 February 2004, especially since they are dated 1 October 2004 and contain data for the months of July and August 2004 which are not anticompetitive in nature. 55 [OSCURATO:PERSONA] submits that the [OSCURATO:PERSONA] statistics constitute significant corroborating evidence which supports the findings of the contested decision. 56 In that regard, it must be noted that the [OSCURATO:PERSONA] statistics — which are in the form of tables dated 1 October 2004 — contain, for each [OSCURATO:PERSONA] member, and in the aggregate for all members, data for the months of July and August 2004 and cumulative data for the year 2004, relating to two subgroups of products, namely, first, ‘[OSCURATO:PERSONA] et éviers’ (‘[OSCURATO:PERSONA] including shower trays and kitchen sinks’) and, secondly, ‘Porc. G.F.’ (‘[OSCURATO:PERSONA]’ (‘[OSCURATO:PERSONA] and [OSCURATO:PERSONA]’)). According to the parties’ concurring information, those two subgroups covered, respectively, generally larger ceramic products (shower trays, kitchen sinks, ceramic tabletops for bathroom furniture) and smaller sanitary products (toilet bowls, washbasins and pedestals), which are generally produced at different factories. Production volumes, delivery volumes and values on the French market and for export outside of France and unit prices are indicated for each of those subgroups of products, as well as the evolution of those data as compared with the same months of 2003. The words ‘CONFIDENTIEL À [OSCURATO:PERSONA]’ (‘[OSCURATO:PERSONA] [OSCURATO:PERSONA]’) appear diagonally across each page. 57 It must be noted that the fact that those data were able to be put together and distributed within [OSCURATO:PERSONA], as a national industry organisation, shows the existence, over a prolonged period, of a regular exchange of sensitive commercial data, enabling each [OSCURATO:PERSONA] member to be aware of the volumes produced and sold by its competitors, allowing it to calculate its own share of the overall market, to follow the turnover generated by its competitors and to monitor in the aggregate, yet accurately, the evolution of sales and prices on the market. It must be held that such an exchange of sensitive commercial data, without any apparent legitimate reason, goes beyond the limits of normal competitive conduct. 58 In those circumstances, even if it is true that, as the [OSCURATO:PERSONA] accepts, the [OSCURATO:PERSONA] statistics do not prove that a discussion on prices occurred at the meeting of 25 February 2004, they show that price coordination took place during 2004 and must therefore be regarded as evidence corroborating [OSCURATO:PERSONA] statements to that effect. The overall assessment of the evidence 59 [OSCURATO:PERSONA] of Justice criticised the [OSCURATO:PERSONA], in paragraph 69 of the judgment on appeal, for failing to ascertain whether the evidence, viewed as a whole, could be mutually supporting. 60 The applicants reiterate that the criticism expressed by the [OSCURATO:PERSONA] of Justice relates to the extent of the reasoning set out in the initial judgment. In their view, the conclusions of the [OSCURATO:PERSONA] in the initial judgment in respect of the evidence contained in the file were well founded. Since that evidence remains the same, the [OSCURATO:PERSONA] should now reach the same conclusion, if necessary supplementing its reasoning. 61 [OSCURATO:PERSONA] submits that the various pieces of evidence, taken together, demonstrate that there was a discussion on prices at the [OSCURATO:PERSONA] meeting of 25 February 2004. 62 In the overall assessment of the evidence, it is necessary to examine whether that evidence, taken as a whole, supports the [OSCURATO:PERSONA]’s conclusion, deriving from recitals 556, 590, 1149 and 1170 of the contested decision, that manufacturers of ceramics in the bathroom fittings and fixtures sector in France — including Allia and its subsidiary PCT — coordinated, between 15 February and 9 November 2004, their minimum prices for low-end products in the context of [OSCURATO:PERSONA]. 63 It should be noted, in that regard, that [OSCURATO:PERSONA] statement, according to which, inter alia, the [OSCURATO:PERSONA] meeting of 25 February 2004 gave rise to a discussion on prices and a decision to increase them by 3%, has been corroborated by Roca’s statement, which stated, more generally, that discussions on prices and, especially, those for low-end products had occurred regularly over several years within [OSCURATO:PERSONA]. In particular, Roca referred, as an example, to an increase of 3% of the minimum prices for some products and to the application of floor prices. Furthermore, the [OSCURATO:PERSONA] statistics show that price coordination, within [OSCURATO:PERSONA], took place at least during 2004 and therefore also corroborate [OSCURATO:PERSONA] statements to that effect. It must also be noted that those statistics are contemporaneous documents which are dated and of which the author ([OSCURATO:PERSONA]) is known, and they are therefore of high probative value. 64 It follows that the evidence referred to above, taken as a whole, confirms the conclusion reached by the [OSCURATO:PERSONA] in the contested decision, summarised in paragraph 62 above. 65 Accordingly, the applicants’ third plea must be rejected. 66 Consequently, the action, in so far as it continues in the present proceedings referred back to the [OSCURATO:PERSONA], must be dismissed in its entirety. Costs 67 Pursuant to [OSCURATO:PERSONA] 219 of the Rules of Procedure, in decisions of the [OSCURATO:PERSONA] given after its decision has been set aside and the case referred back to it, it is to decide on the costs relating to the proceedings instituted before it and to the proceedings on the appeal before the [OSCURATO:PERSONA] of Justice. However, in the present case, as the judgment on appeal did not set aside the initial judgment in respect of the decision as to costs, the present proceedings no longer concern the costs relating to the proceedings in [OSCURATO:PERSONA] T‑379/10 and T‑381/10. 68 [OSCURATO:PERSONA] 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. [OSCURATO:PERSONA] 134(3) of those rules, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the [OSCURATO:PERSONA] may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party. 69 Having regard to the circumstances of the present case, since the applicants have been largely unsuccessful in the appeal and unsuccessful in the proceedings referred back to the [OSCURATO:PERSONA], they must be ordered to bear all their own costs and to pay all the costs incurred by the [OSCURATO:PERSONA] before the [OSCURATO:PERSONA] of Justice and the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] C‑613/13 P, T‑379/10 [OSCURATO:PERSONA] and T‑381/10 [OSCURATO:PERSONA]. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the action; 2. [OSCURATO:PERSONA] GmbH and the other applicants whose names are set out in the annex to bear their own costs and to pay those incurred by the [OSCURATO:PERSONA] in [OSCURATO:PERSONA] C ‑ 613/13 P, T ‑ 379/10 [OSCURATO:PERSONA] and T ‑ 381/10 [OSCURATO:PERSONA]. [OSCURATO:PERSONA] in open court in Luxembourg on 3 July 2018. E. Coulon I. [OSCURATO:PERSONA] * Language of the case: English. 1 The list of the other applicants is annexed only to the version sent to the parties.
Sentenza Corte di giustizia UE/2018 — Fons Iuris — Fons Iuris