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2017-713 Report – Riva Fire v Commission

 

Court Court of Justice
 Date of ruling  21 September 2017
Case name (short version) Riva Fire v Commission
 Case citation Case C-89/15 P

ECLI:EU:C:2017:713

 Key words  Appeal — Agreements, decisions and concerted practices — Italian producers of reinforcing bars — Fixing of prices and limiting and controlling output and sales — Infringement of Article 65 CS — Annulment of the initial decision by the General Court of the European Union — Decision re-adopted on the basis of Regulation (EC) No 1/2003 — Failure to issue a new statement of objections — Lack of a hearing following the annulment of the initial decision — Time taken in the proceedings before the General Court
 Basic context  By its appeal, Riva Fire SpA (‘Riva’) asks the Court to set aside the judgment of the General Court of the European Union of 9 December 2014, Riva Fire v Commission (T‑83/10, not published, EU:T:2014:1034, ‘the judgment under appeal’) by which the latter dismissed its action for annulment of Commission Decision C(2009) 7492 final of 30 September 2009 relating to a breach of Article 65 of the ECSC Treaty (COMP/37.956 — Reinforcing bars, re-adoption, ‘the decision of 30 September 2009’), as amended by Commission Decision C(2009) 9912 final of 8 December 2009 (‘the amending decision’) (the decision of 30 September 2009, as amended by the amending decision, ‘the decision at issue’).
 Points arising – admissability  –
 Points arising – substance The first ground of appeal

25      After expiry of that Treaty, on 12 August 2002 the Commission sent the undertakings the supplementary statement of objections based on Article 19(1) of Regulation No 17, in which it explained its position regarding the change in the legal framework and invited them to make known their own points of view on the supplementary statement of objections. A hearing took place on 30 September 2002 in the presence of representatives of the Member States, in application of Article 11(2) of Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles [81] and [82] of the EC Treaty (OJ 1998 L 354, p. 18).

26      Following the annulment of the 2002 decision, the Commission, by letter dated 30 June 2008, informed Riva and the other undertakings concerned of its intention to re-adopt that decision on the legal basis of Regulation No 1/2003, in accordance with the procedural rules laid down in that regulation.

29      In this case, as the decision at issue was adopted on the basis of Article 7(1) and Article 23(2) of Regulation No 1/2003, the procedure leading to that decision had to be conducted in accordance with that regulation and Regulation No 773/2004, the legal basis of which is Regulation No 1/2003 (see, to that effect, judgment of 29 March 2011, ThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 90), despite the fact that the procedure had been initiated before Regulation No 1/2003 came into force.

34      In this connection, the General Court was entitled to refer to paragraph 73 of the judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission (C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582), in which it is noted that the annulment of an EU measure does not necessarily affect the preparatory acts, and the procedure for replacing such a measure may, in principle, be resumed at the very point at which the illegality occurred.

35      As the General Court noted in paragraph 115 of the judgment under appeal, the 2002 decision was annulled on the ground that the Commission did not have power to adopt it on the basis of the ECSC Treaty, which was no longer in force at the date of adoption of the decision, such that it was on that exact date that the illegality occurred. As a result, that annulment did not affect the statement of objections or the supplementary statement of objections.

38      As a result, the General Court did not make an error of law in concluding, in paragraph 124 of the judgment under appeal, that the Commission was not obligated to adopt a new statement of objections.

40      In this respect, it is important to note that, under the procedural rules established by Regulation No 1/2003, as made explicit in Regulation No 773/2004, it is laid down in Article 14(3) of the latter regulation that the competition authorities of the Member States are to be invited to participate in the oral hearing which, upon the request of the addressees of the statement of objections, is to follow the issuing of that statement.

44      Yet, according to the case-law noted in paragraphs 28 and 29 of the present judgment, when a decision is adopted on the basis of Regulation No 1/2003, the procedure resulting in that decision must conform to the procedural rules laid down by that regulation, even if the procedure began before that regulation came into force.

45      It follows that, before adopting the decision at issue, the Commission was required, in application of Articles 12 and 14 of Regulation No 773/2004, to give the parties the opportunity to develop their arguments during a hearing to which the competition authorities of the Member States were invited. Therefore, it cannot be held that the hearing of 13 June 2002, concerning the substance of the case, fulfilled the procedural requirements in relation to the adoption of a decision on the basis of Regulation No 1/2003.

47      As the Advocate General pointed out in points 56 and 57 of his Opinion, having regard to the importance, in the context of a procedure provided for by Regulations No 1/2003 and 773/2004, of holding an oral hearing to which the competition authorities of the Member States are invited, in accordance with Article 14(3) of the latter regulation, failure to hold such a hearing constitutes infringement of an essential procedural requirement.

48      In so far as the right to such a hearing, provided for by Regulation No 773/2004, was not respected, it is not necessary for the undertaking, the rights of which have been infringed in this way, to demonstrate that such infringement might have influenced the course of the proceedings and the content of the decision at issue to its detriment.

49      Accordingly, the procedure is necessarily vitiated, regardless of any possible detrimental consequences for Riva that could result from that infringement (see, to that effect, judgments of 6 November 2012, Commission v Éditions Odile Jacob, C‑553/10 P and C‑554/10 P, EU:C:2012:682, paragraphs 46 to 52, and of 9 June 2016, CEPSA v Commission, C‑608/13 P, EU:C:2016:414, paragraph 36).

The request for an incidental ruling

54       In respect of Riva’s request to the Court to declare a breach of Article 47 of the Charter of Fundamental Rights, it should be recalled that a breach, by a Court of the European Union, of its obligation under that provision to adjudicate on the cases before it within a reasonable time must be sanctioned in an action for damages brought before the General Court, since such an action constitutes an effective remedy. Accordingly, a claim for compensation for the damage caused by the failure on the part of the General Court to adjudicate within a reasonable time may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself. The General Court, which has jurisdiction under Article 256(1) TFEU, hearing a claim for damages, is required to rule on such a claim sitting in a different composition from that which heard the dispute which gave rise to the procedure whose duration is criticised (judgment of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission, C‑617/13 P, EU:C:2016:416, paragraphs 98 and 99 and the case-law cited).

 Intervention  –
Interim measures
 Order
  1. Sets aside the judgment of the General Court of the European Union of 9 December 2014, Riva Fire v Commission (T‑83/10, not published, EU:T:2014:1034);
  2. Annuls Commission Decision C(2009) 7492 final of 30 September 2009 relating to a proceeding under Article 65 CS (Case COMP/37.956 — Reinforcing bars, re-adoption), as amended by Commission Decision C(2009) 9912 final of 8 December 2009, in so far as it concerns Riva Fire SpA;
  3. Orders the European Commission to bear its own costs and to pay those incurred by Riva Fire SpA both at first instance and in the present appeal.
Fine changed No
Case duration 19 months
Judge-rapporteur Vajda
Advocate-general Wahl
Notes on academic writings

 

About the Author

Kiran Desai

Desai Kiran

Kiran S. Desai has over 25 years’ experience of private practice in EU competition law. He is engaged in all aspects of EU competition law, including litigation before the courts and has written extensively on EU competition law matters. He is a partner at HVG advocaten-avocats, based in Brussels, and is the EU Competition Law Leader for EY Law.


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