La CGUE si pronuncia sulla interpretazione dell'obbligo di divulgazione ai sensi della Direttiva Danni

By decision of 19 July 2016, [1] the European Commission found that, by agreeing, first, on the prices of trucks in the European Economic Area (EEA) from 1997 to 2011 and, second, on the timing and the passing on of costs for the introduction of emission technologies required by EURO 3 to EURO 6 standards, PACCAR, DAF Trucks and DAF Trucks Deutschland (‘the manufacturers in question') participated, with a number of other truck manufacturers, in a cartel contrary to the EU law rules prohibiting cartels. [2]

On 25 March 2019, 45 parties claiming to have acquired trucks capable of falling within the scope of the infringement established by the decision of 19 July 2016 brought an action before the Juzgado de lo Mercantil no 7 de Barcelona (Commercial Court No 7, Barcelona, Spain) seeking access to various items of evidence held by the manufacturers in question in order to seek compensation for the damage resulting from the infringement established by the decision of 19 July 2016. In that regard, those parties argued that it was necessary to obtain certain types or means of proof in order to quantify the artificial price increase, in particular to carry out a comparison of recommended prices before, during and after the cartel period concerned. The manufacturers in question challenged that request, arguing, inter alia, that some of the documents requested had to be drawn up on an ad hoc basis.

Given that access to the evidence referred to in the contested request was based on a provision of

Spanish law [3] transposing Article 5(1) of Directive 2014/104, [4] the Commercial Court No 7, Barcelona referred a question to the Court of Justice for a preliminary ruling seeking, in essence, to ascertain whether the disclosure of relevant evidence, referred to in that article, in the control of the defendant or a third party relates only to documents in their control which already exist or, in contrast, also relates to new documents that they must create by compiling or classifying data in their possession.

In its judgment, the Court held that the first subparagraph of Article 5(1) of Directive 2014/104 must be interpreted as meaning that the relevant evidence in the control of the defendant or a third party, the disclosure of which may be ordered by the national courts, is not limited to documents in their possession which already exist, but also covers those documents which the party to whom the request to disclose evidence is addressed must create ex novo by compiling or classifying information, knowledge or data in its possession, subject to strict compliance by those courts with their obligation under paragraphs 2 and 3 of that article to restrict the disclosure of evidence to that which is relevant, proportionate and necessary, taking into account the legitimate interests and fundamental rights of the party to whom the request is addressed.

Findings of the Court

As a preliminary point, the Court sets out the conditions for the temporal application of Article 5(1) of Directive 2014/104, noting at the outset that Article 22 of that directive expressly lays down the conditions for the temporal application of its provisions, depending on whether or not they are substantive provisions in the light of EU law.

I

n the present case, the Court observes that the possibility of ordering the disclosure of relevant evidence held by the defendant or a third party, under the conditions laid down in the first subparagraph of Article 5(1) of Directive 2014/104, is one of the particular powers which the national courts must have when examining disputes relating to actions for damages seeking compensation for harm suffered as a result of infringements of competition law. By that requirement, that provision seeks to remedy the information asymmetry which characterises, in principle, those disputes to the detriment of the injured party. However, its subject matter relates only to the procedural measures applicable before national courts and does not directly affect the legal situation of the parties.

In those circumstances, the first subparagraph of Article 5(1) of Directive 2014/104 is not one of the substantive provisions of that directive, within the meaning of Article 22(1) thereof, rather it numbers amongst the ‘other' provisions covered by Article 22(2) of that directive, which that provision declares applicable to actions brought after 26 December 2014. It follows that the first subparagraph of Article 5(1) of Directive 2014/104 is applicable to the action brought before the referring court, since it was brought on 25 March 2019.

Taking the view, therefore, that it is necessary to provide an answer on the substance to the referring court, the Court observes, first of all, that, in so far as the wording of the first subparagraph of Article 5(1) of Directive 2014/104 leads to it being considered that a request to disclose evidence concerns only pre-existing evidence, the interpretation of that provision must also take account of its context and the objectives of the legislation of which it forms part.

As regards, first, the context of the first subparagraph of Article 5(1) of Directive 2014/104, the Court observes that the definition of the term ‘evidence' in Article 2(13) of that directive, which refers to ‘all types of means of proof admissible before the national court seised, in particular documents and all other objects containing information, irrespective of the medium on which the information is stored', does not permit the inference that the evidence whose disclosure is sought necessarily corresponds to pre-existing ‘documents'. In that regard, the Court considers that the reference to evidence ‘in [the] control' of the defendant or a third party merely reflects a factual situation, relating to the information asymmetry referred to above, which the EU legislature intends to remedy.

According to the Court, that analysis is supported by a reading of the first subparagraph of Article 5(1) of Directive 2014/104 in the light of paragraphs 2 and 3 of that article, which require the national courts, respectively, to ensure compliance with the requirement that the request to disclose evidence must be specific and that the principle of proportionality is observed.

As regards, second, the purpose of the first subparagraph of Article 5(1) of Directive 2014/104, the Court recalls that the adoption of Directive 2014/104 started from the finding, by the EU legislature, that combating anticompetitive conduct on an initiative taken by the Commission and the national competition authorities was not sufficient to ensure full compliance with EU competition rules and, therefore, that it was important to facilitate the possibility for the private sphere of participating in the financial penalisation and thus in the prevention of such conduct. The particular powers which the national courts must have in order to remedy the information asymmetry between the parties concerned help to achieve that objective.

From that point of view, the Court considers that to restrict at the outset evidence, the disclosure of which may be sought, only to pre-existing documents in the control of the defendant or a third party could, in certain cases, run counter to the primary objective pursued by Directive 2014/104.

Nonetheless, the Court points out, finally, that such an interpretation of the first subparagraph of Article 5(1) of Directive 2014/104 does not in any way affect the application of the balancing mechanism for the interests involved, as follows from paragraphs 2 and 3 of that article. Given that the provisions of that directive must be implemented in compliance with the fundamental rights and principles recognised by the Charter of Fundamental Rights of the European Union, it is for the national courts, when they receive a request to disclose evidence, to restrict the disclosure of evidence to that which is relevant, proportionate and necessary, taking into account the legitimate interests and fundamental rights of the party to whom that request is addressed, in accordance with Article 5(2) and (3) of that directive.

Judgment of the General Court (Fourth Chamber, Extended Composition) of 9 November 2022, Ferriera Valsabbia and Valsabbia Investimenti v Commission, T-655/19

Competition – Agreements, decisions and concerted practices – Market for concrete reinforcing bars – Decision finding an infringement of Article 65 CS after the expiry of the ECSC Treaty on the basis of Regulation (EC) No 1/2003 – Fixing of prices – Limiting and controlling output and sales – Decision adopted following the annulment of earlier decisions – Holding of a new hearing attended by the competition authorities of the Member States – Rights of the defence – Principle of sound administration – Reasonable time – Obligation to state reasons

Judgment of the General Court (Fourth Chamber, Extended Composition) of 9 November 2022, Feralpi v Commission, T-657/19

Competition – Agreements, decisions and concerted practices – Market for concrete reinforcing bars – Decision finding an infringement of Article 65 CS, after expiry of the ECSC Treaty, on the basis of Regulation (EC) No 1/2003 – Price fixing – Limiting and controlling output and sales – Decision taken following the annulment of earlier decisions – New hearing held in the presence of the competition authorities of the Member States – Rights of the defence – Principle of sound administration – Reasonable period – Obligation to state reasons – Proportionality – Ne bis in idem principle – Plea of illegality – Single, complex and continuous infringement – Evidence of involvement in the cartel – Public distancing – Unlimited jurisdiction

Judgment of the General Court (Fourth Chamber, Extended Composition) of 9 November 2022, T-667/19

Competition – Agreements, decisions and concerted practices – Market for concrete reinforcing bars – Decision finding an infringement of Article 65 CS, after expiry of the ECSC Treaty, on the basis of Regulation (EC) No 1/2003 – Price fixing – Limiting and controlling output and sales – Decision taken following the annulment of earlier decisions – New hearing held in the presence of the competition authorities of the Member States – Rights of the defence – Principle of sound administration – Reasonable period – Obligation to state reasons – Proportionality – Ne bis in idem principle – Plea of illegality – Evidence of involvement in the cartel – Aggravating circumstances – Repeated infringement – Mitigating circumstances – Equal treatment – Unlimited jurisdiction

By decision of 17 December 2002, the European Commission found that eight undertakings and an association of undertakings had infringed Article 65(1) of the Treaty establishing the European Coal and Steel Community (‘CS') by taking part, between December 1989 and July 2000, in a cartel on the Italian market for concrete reinforcing bars having as its object or effect the fixing of prices and the limiting and control of output (‘the first decision').

The Court annulled that decision because its legal basis, that is to say, Article 65(4) and (5) CS, was no longer in force at the time of its adoption, since the CS Treaty expired on 23 July 2002. The Commission therefore adopted a new decision, on 30 September and 8 December 2009, finding the same infringement but based on the EC Treaty and Regulation (EC) No 1/2003 (‘the second decision').

That second decision, which was upheld by the General Court by judgments of 9 December 2014 (‘the judgments of 9 December 2014'), was annulled by the Court of Justice. According to the Court of Justice, the General Court had erred in law in considering that the Commission was not obliged to organise a new hearing in the context of the procedure which led to the adoption of the second decision, the failure to hold such a hearing constituting an infringement of an essential procedural requirement. Thus, the Court of Justice took the view that the first hearing organised with a view to the adoption of the first decision did not meet the procedural requirements relating to the adoption of a decision on the basis of Regulation No 1/2003, since the competition authorities of the Member States had not participated in that hearing. The Court of Justice had therefore set aside the judgments of 9 December 2014 in their entirety.

Resuming the procedure at the point at which the illegality had been found to exist by the Court of Justice, the Commission organised a new hearing and, by decision of 4 July 2019 (‘the contested decision'), again found the infringement forming the subject matter of the second decision. However, on account of the duration of the procedure, a 50% reduction was applied to all the fines imposed on the undertakings to which the contested decision was addressed.

Four of the eight undertakings concerned, namely Ferriera Valsabbia SpA and Valsabbia Investimenti SpA, Alfa Acciai SpA, Feralpi Holdings SpA and Ferriere Nord SpA (‘the applicants'), brought actions for annulment of the contested decision, which imposed on them penalties ranging from EUR 2.2 million to EUR 5.1 million. All those actions are rejected by the Fourth Chamber (Extended Composition) of the Court, which, in that context, clarifies the conditions in which the Commission may adopt a decision imposing a penalty almost thirty years after the start of the facts constituting the infringement without prejudicing the rights of defence of the interested parties or infringing the reasonable time principle. The Court also rules on the legality of the scheme governing the interruption and suspension of limitation periods for the imposition of fines and on the conditions in which account is to be taken of repeated infringements in the calculation of the fines.

Assessment of the Court

In Cases T-655/19, T-656/19, T-657/19 and T-667/19, the Court rejects the plea in law alleging irregularities in the organisation of the new hearing by the Commission.

Recalling that the annulment of an act concluding an administrative procedure does not affect all the stages prior to its adoption but only those concerned by the grounds which justified the annulment, the Court confirms, in the present case, that it was open to the Commission to resume the procedure from the hearing stage.

In that context, the Court dismisses, in the first place, the applicant's arguments that the impartiality of the representatives of the competition authorities of the Member States sitting on the Advisory Committee was not guaranteed at the new hearing, since those representatives were aware of the first and second decisions of the Commission and of the position taken by the Court in the judgments of 9 December 2014.

In that connection, the Court observes that, when an act is annulled, it disappears from the legal order and is deemed never to have existed. Similarly, judgments of the Court disappear retroactively from the legal order if they are set aside on appeal. Accordingly, both the decisions of the Commission and the judgments of 9 December 2014 had disappeared, with retroactive effect, from the EU legal order when the Advisory Committee delivered its opinion. In addition, since knowledge of the solution adopted in case-law by the Court of Justice in its judgment setting aside the General Court judgments is inherent in the obligation to give due effect to that judgment, a lack of impartiality of the competition authorities concerned cannot be inferred from such knowledge.

The Court rejects, in the second place, the complaint that, by failing to invite various entities which had played a significant role in the investigation of the case to the hearing, the Commission had affected the applicants' rights of defence.

With regard more specifically to the absence of the entities which, at an earlier stage in the procedure, had decided not to contest the first or second decision that had been addressed to them, the Court considers that, since that decision had become final in their regard, the Commission did not err in excluding those entities from the new hearing. As regards the absence of a third-party entity whose right to participate in the administrative procedure had been recognised in 2002, the Court takes the view that the Commission rightly found that, since that entity had taken part in the first hearing but had not attended the second organised in connection with the adoption of the first decision, it had lost its interest to intervene again.

In the third place, the Court dismisses the argument that the changes that had occurred, on account of the time that had elapsed, in the identity of the stakeholders and the structure of the market prevented the organisation of a new hearing in conditions equivalent to those which prevailed in 2002. According to the Court, the Commission had made a correct assessment in concluding, in the light of the circumstances existing at the time the procedure resumed, that the continuation of that procedure was still an appropriate solution.

The pleas in law alleging a breach of the reasonable time principle are, in turn, rejected. First, the applicants alleged that the Commission had failed to examine whether the adoption of the contested decision was still compatible with the reasonable time principle. Second, they contested the duration of the procedure that led to the adoption of that decision.

In that regard, the Court finds, in the first place, that the Commission had analysed the length of the administrative procedure before adopting the contested decision, the reasons that could explain the duration of the procedure and the consequences that may be drawn from its duration. Thus, it had complied with its obligation to take into account the requirements arising from the reasonable time principle in its assessment of whether to initiate proceedings and to adopt a decision in accordance with the competition rules.

As for the duration of the procedure, the Court observes, in the second place, that exceeding a reasonable time can entail the annulment of a decision only on the two-fold condition that the length of the procedure was unreasonable and that exceeding a reasonable time hampered the exercise of the rights of the defence.

Having regard to the importance of the case for the persons concerned, its complexity and the conduct of the applicants and of the competent authorities, the duration of the administrative stages of the procedure had not been unreasonable in the present case. Furthermore, the overall duration of the procedure was, in part, attributable to the interruptions caused by the judicial review connected with the number of actions brought before the Courts of the European Union concerning different aspects of the case. Moreover, since the applicants had had, on at least seven occasions, the opportunity to set out their views and to put forward their arguments over the entire procedure, their rights of defence had not been hampered.

In the Court's view, the Commission had also satisfied its duty to state reasons in relation to the account taken of the duration of the procedure. It had specifically justified the adoption of a new decision establishing the existence of the infringement and imposing a fine on the undertakings concerned in order to satisfy the objective of not allowing those undertakings to go unpunished and of dissuading them from committing a similar infringement in the future.

In Cases T-657/19 and T-667/19, the Court also rejects the pleas in law alleging infringement of the non bis in idem principle and those questioning the legality of the scheme governing the interruption and the suspension of the limitation period set out in Article 25(3) to (6) of Regulation No 1/2003.

As a reminder, the non bis in idem principle precludes an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision.

However, where the first decision was annulled for procedural reasons without any ruling having been given on the substance of the facts alleged, that principle does not preclude the resumption of proceedings in respect of the same anti-competitive conduct where the penalties imposed by the new decision are not added to those imposed by the annulled decision but replace them.

In that regard, the General Court observes that both the first and the second decision had been annulled without a definitive position being adopted on the substance. In addition, even if, in its judgments of 9 December 2014, the General Court had ruled on the substantive pleas in law raised by the applicants, those judgments had been set aside in their entirety by the Court of Justice. Furthermore, the penalties imposed by the contested decision had taken the place of those imposed by the second decision which, themselves, had replaced the penalties imposed by the first decision. On that basis, the General Court concludes that the Commission had not infringed the non bis in idem principle by adopting the contested decision.

Raising a plea of illegality of the applicable scheme governing the interruption and suspension of the limitation period, the applicants further contested the absence of an absolute maximum period, defined by the EU legislature, beyond which any proceedings by the Commission would be precluded, notwithstanding any suspensions or interruptions of the initial limitation period.

In accordance with Article 25 of Regulation No 1/2003, the five-year limitation period for the imposition of fines or periodic penalty payments is to be suspended during appeal proceedings brought before the Court of Justice against the Commission's decision, in which case that period is extended by the period of the suspension. In the General Court's view, that system is the result of a compromise arrived at by the EU legislature between two separate objectives, namely: the need to ensure legal certainty and the requirement to ensure respect for the law by pursuing, establishing and penalising infringements of EU law. In striking that balance, the EU legislature did not, however, exceed the margin of discretion afforded to it within that context.

According to the General Court, while the limitation period is suspended in the event of an action brought before the Courts of the European Union, the fact remains that that option requires, in order to be taken up, that steps are taken by the undertakings themselves. Accordingly, the EU legislature cannot be criticised for the fact that, after a number of actions were brought by the undertakings concerned, the decision reached at the end of the procedure was adopted after a certain period of time. Furthermore, individuals complaining of the unreasonable length of a procedure can contest that duration by seeking the annulment of the decision adopted at the end of that procedure, once provided that the exercise of the rights of the defence was hampered by exceeding the reasonable period. If exceeding that period does not give rise to an infringement of such rights, the individuals can then bring an action for damages before the EU judicature.

In the context of Cases T-657/19 and T-667/19, the Court, exercising its unlimited jurisdiction, considers that account should be taken, for the purpose of determining the amount of the fines imposed on the applicants, of the weakening of their deterrent effect because of the period of almost twenty years that has elapsed between the end of the infringement and the adoption of the contested decision, thus confirming, by a substitution of grounds, the need to impose a fine on those applicants. In that regard, it considers that the 50% reduction of that amount, as granted by the Commission, was appropriate to that end.

Lastly, in Case T-667/19, the Court rejects the plea in law raised by Ferriere Nord SpA, alleging the illegality of the increase in the amount of the fine imposed for repeated infringements.

With regard to the respect for the rights of defence of Ferriere Nord SpA, the Court observes that, when the Commission intends to impute an infringement of competition law to a legal person and considers, in that context, using against it the existence of repeated infringements as an aggravating circumstance, the statement of objections addressed to that person must contain all the information necessary for the person to defend itself, in particular that information capable of demonstrating that the conditions for a finding of repeated infringements are satisfied.

In the light of an examination of all the circumstances that surrounded the case, the Court finds that the Commission's intention to take into account, in connection with repeated infringements, the decision imposing a penalty previously addressed to Ferriere Nord SpA was sufficiently foreseeable.

Moreover, that undertaking had had the opportunity to submit its observations on that point in the course of the procedure which led to the adoption of the contested decision.

As for the complaints based on the time elapsed between the two infringements taken into account in respect of a repeated infringement, the Court clarifies that, although no limitation period precludes a finding of repeated infringement, the fact remains that, in order to comply with the principle of proportionality, the Commission cannot take into consideration previous decisions penalising an undertaking without any time limit. That said, given the short period that had elapsed between the two infringements at issue (three years and eight months), the Commission was right to consider that an increase in the basic amount of the fine in respect of repeated infringement was justified, having regard to the propensity of Ferriere Nord SpA to infringe competition rules, notwithstanding the fact that the investigation took a certain amount of time.

In the light of the foregoing, the actions brought by the applicants are dismissed in their entirety.

[1] Commission Decision C(2016) 4673 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (AT.39824 – Trucks).

[2] Article 101 TFEU and Article 53 of the EEA Agreement.

[3] In the present case, Article 283a(a) of the Ley de Enjuiciamiento Civil (Law No 1/2000 establishing the Code of Civil Procedure) of 7 January 2000 (BOE No 7 of 8 January 2000, p. 575).

[4] Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1).