In an opinion rendered on 8 December 2016, AG Wahl recommends to the Court of Justice to set aside the ruling of the General Court and therefore to annul in its entirety the decision of the European Commission in relation to the cartel for concrete reinforcing bars. This decision had been adopted in 2009 following annulment by the General Court of the initial decision of the European Commission adopted in 2002. AG Wahl concludes that the European Commission failed to protect the right of the defense and to apply the appropriate administrative procedure when adopting the subsequent decision in 2009.
The European Commission adopted in 2002 a decision against several parties for participation in a cartel in the market for concrete reinforcing bars. The proceedings were initiated in 2000 under the competition provisions of the Treaty establishing the European Coal and Steel Community (ECSC Treaty) and a statement of objections was issued under the ECSC Treaty on 26 March 2002. On 13 June 2002, the European Commission held an oral hearing at which the parties were heard. However the ECSC Treaty expired on 23 July 2002 before the proceedings were finalised. The European Commission issued a supplementary statement of objections on 12 August 2002, stating therein that following the expiry of the ECSC Treaty, it had initiated a procedure under Regulation 17/62 (the predecessor to Regulation 1/2003). A second oral hearing was held on 30 September 2002 and ultimately, the decision was adopted on 17 December 2002. In the decision, the European Commission concluded that several parties had infringed Article 65(1) of the ECSC Treaty (similar in substance to Article 101(1) TFEU) and fines were imposed (the 2002 decision).
On appeal, the General Court annulled in 2007 the 2002 decision on the ground that it was based on the ECSC Treaty which was no longer in force at the time the 2002 decision was adopted. Following the ruling, the European Commission decided to re- issue a decision by relying on its powers under Regulation 1/2003 (which by then had replaced Regulation 17/62). This new decision was adopted in 2009 (the 2009 decision). Prior to adopting the 2009 decision, the European Commission sent a letter to the parties on 30 June 2008 indicating that it intended to re-adopt the 2002 decision on the basis of a different legal provision but relying on the evidence already contained in the statement of objections and supplementary statement of objection adopted in 2002. In the letter, the European Commission offered the parties the opportunity to submit their observations.
On appeal of the 2009 decision, the General Court upheld the Commission’s decision. The General Court’s ruling is the subject of these appeals and opinion of AG Wahl.
Advocate-General Wahl was asked to provide his opinion regarding several grounds of appeal presented by the appellants. The key ground of appeal is that in adopting the 2009 decision, the European Commission failed to protect the rights of defence and to follow the appropriate administrative procedure. AG Wahl concludes that this ground of appeal is well founded and therefore suggests setting aside the General Court ruling and consequently the 2009 decision.
The European Commission argued in these appeals that the 2009 decision consisted merely in the re-adoption of the 2002 decision under a different legal basis, namely Regulation 1/2003. As a result it could rely on the procedure used to adopt the 2002 decision as the procedures was based on the ECSC Treaty which is analogous to that of Regulation 1/2003 and its implementing regulation. The European Commission referred in support of this argument to existing case-law, namely PVC II where the Court of Justice had stated that the annulment of a decision does not affect the preparatory acts and therefore that a decision can be re-issued by finalizing the procedure from the point where the illegality occurred. AG Wahl takes the view that this case-law is not applicable in this case because PVC II concerned two decisions adopted pursuant to the same legal basis and they were almost identical. In this instance, the 2009 decision was adopted under Regulation 1/2003 whereas the 2002 decision was adopted in the context of a procedure based on the ECSC Treaty. Contrary to PVC II, the legal basis of the 2002 decision and the 2009 decision was therefore different and as a result the decisions were not identical (even though there are similarities between the relevant provisions of the ECSC Treaty and Regulation 1/2003).
In addition, AG Wahl concludes that the procedure followed prior to adoption of the 2002 decision did not comply fully with Regulation 1/2003. As a result, the European Commission should therefore have remedied this irregularity prior to adopting the 2009 decision. Two procedural irregularities are discussed. The first one concerns the statement of objection which the European Commission is required to issue under Regulation 1/2003. The European Commission did issue a statement of objection in March 2002 under the ECSC Treaty supplemented by a letter dated 30 June 2008. A supplementary statement of objections was also issued under Regulation 17/65 in August 2008 but it did not concern the substance of the case (only the change in legal basis resulting from the expiry of the ECSC Treaty). However, AG Wahl leaves open the question whether the statement of objection did meet the requirements of Regulation 1/2003 and its implementing regulation because the European Commission failed to comply in any event with a second procedural requirement of Regulation 1/2003 and its implementing regulation, namely allowing the parties to make their views known in an oral hearing.
The European Commission failed to adopt a supplementary statement of objections prior to adopting the 2009 decision. A supplementary statement of objections would have given the parties the right to request an oral hearing. In addition, the oral hearings prior to the 2002 decision did not comply with the requirement of Regulation 1/2003: the oral hearing held in June 2002 did not include representatives of the Member States in accordance with procedure of the ECSC Treaty. The oral hearing of September 2002 which took place under Regulation 17/65 and included representatives of the Member States did not concern the substance of the case. AG Wahl emphasises that an oral hearing is “a procedural step of great significance”, in particular because it provides the parties with an opportunity to make known their views before representatives of Member States. In turn, these representatives of the Member States can influence the European Commission through the Advisory Committee before it adopts its decision. In this case, the parties were deprived of this essential procedural right.
Other grounds of appeal were also put forward by the appellants. AG Wahl recommends dismissing all of them, except for an argument presented by Ferriere Nord relating to the aggravating circumstance of recidivism in setting the amount of the fine. The limited information provided by the European Commission to Ferriere Nord regarding the fact that the repeated infringements constituted an aggravating circumstance made it difficult for Ferriere Nord to exercise its rights of defence. In the event that the decision is not annulled in its entirety on the ground discussed above, AG Wahl concludes therefore that the Court of Justice should nonetheless annul the decision with respect to the amount of the fine set for Ferriere Nord and re-calculate it without taking into account the aggravating circumstance of recidivism.
The opinion emphasises the paramount importance of the rights of defence contained in Regulation 1/2003 and its implementing regulation. It highlights also the significant role which the Court of Justice as an institution plays in protecting these rights and in ensuring that the proper administrative procedure is followed in administrative proceedings such as competition investigations. It serves as a crucial reminder that the rights of defence must be preserved under all circumstances and upheld throughout competition proceedings. A thorough analysis is necessary before concluding that the specific procedural rights of defence set out in relevant EU rules have effectively been protected.