Recylex and Others v Commission (Appeal - Market for car battery recycling - Judgment) [2021] EUECJ C-563/19P (03 June 2021)

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(Appeal – Competition – Agreements, decisions and concerted practices – Market for car battery recycling – 2006 Leniency Notice – Point 26 – Partial immunity – Additional facts increasing the gravity or the duration of the infringement – Elements known to the European Commission – Reduction of the amount of the fine – Ranking for the purposes of the reduction – Chronological order)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 23 July 2019,

represented by M. Wellinger, avocat, and by S. Reinart and K. Bongs, Rechtsanwältinnen,

European Commission, represented by J. Szczodrowski, I. Rogalski, and F. van Schaik, acting as Agents,

composed of A. Arabadjiev, President of the Chamber, R. Silva de Lapuerta, Vice-President of the Court, acting as Judge of the Second Chamber, A. Kumin, T. von Danwitz (Rapporteur) and P.G. Xuereb, Judges,

after hearing the Opinion of the Advocate General at the sitting on 3 September 2020,

1 By their appeal, Recylex SA, Fonderie et Manufacture de Métaux SA and Harz-Metall GmbH seek the setting aside of the judgment of the General Court of the European Union of 23 May 2019, Recylex and Others v Commission (T‑222/17, EU:T:2019:356) (‘the judgment under appeal’), whereby that court dismissed their action seeking a reduction of the amount of the fine imposed on them by Commission Decision C(2017) 900 final of 8 February 2017 relating to a proceeding under Article 101 TFEU (AT.40018 – Car battery recycling) (‘the decision at issue’).

2 Point (a) of the first subparagraph of Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) and Article 23(3) of that regulation provide:

‘2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:

3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

3 The final paragraph of point 23(b) of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’) provided:

‘In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’

4 Points 8, 10 and 11, as well as point 12(a) of the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the 2006 Leniency Notice’), set out in Section II of that notice, entitled ‘Immunity from fines’, provide:

‘(8) The Commission will grant immunity from any fine which would otherwise have been imposed to an undertaking disclosing its participation in an alleged cartel affecting the [Union] if that undertaking is the first to submit information and evidence which in the Commission’s view will enable it to:

(a) carry out a targeted inspection in connection with the alleged cartel …; or

(b) find an infringement of [Article 101 TFEU] in connection with the alleged cartel.

(10) Immunity pursuant to point (8)(a) will not be granted if, at the time of the submission, the Commission had already sufficient evidence to adopt a decision to carry out an inspection in connection with the alleged cartel or had already carried out such an inspection.

(11) Immunity pursuant to point (8)(b) will only be granted on the cumulative conditions that the Commission did not have, at the time of the submission, sufficient evidence to find an infringement of Article [101 TFEU] in connection with the alleged cartel and that no undertaking had been granted conditional immunity from fines under point (8)(a) in connection with the alleged cartel. In order to qualify, an undertaking must be the first to provide contemporaneous, incriminating evidence of the alleged cartel as well as a corporate statement containing the kind of information specified in point (9)(a), which would enable the Commission to find an infringement of Article [101 TFEU].

(12) In addition to the conditions set out in points (8)(a), (9) and (10) or in points (8)(b) and 11, all the following conditions must be met in any case to qualify for any immunity from a fine:

(a) The undertaking cooperates genuinely …, fully, on a continuous basis and expeditiously from the time it submits its application throughout the Commission’s administrative procedure; …’

5 Under points 23 to 26 of the 2006 Leniency Notice, set out in Section III thereof, entitled ‘Reduction of a fine’:

‘(23) Undertakings disclosing their participation in an alleged cartel affecting the [Union] that do not meet the conditions under section II above may be eligible to benefit from a reduction of any fine that would otherwise have been imposed.

(24) In order to qualify, an undertaking must provide the Commission with evidence of the alleged infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must meet the cumulative conditions set out in points (12)(a) to (12)(c) above.

(25) The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the alleged cartel. In this assessment, the Commission will generally consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence subsequently established. Incriminating evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance. Similarly, the degree of corroboration from other sources required for the evidence submitted to be relied upon against other undertakings involved in the case will have an impact on the value of that evidence, so that compelling evidence will be attributed a greater value than evidence such as statements which require corroboration if contested.

(26) The Commission will determine in any final decision adopted at the end of the administrative procedure the level of reduction an undertaking will benefit from, relative to the fine which would otherwise be imposed. For the:

– first undertaking to provide significant added value: a reduction of 30-50%,

– second undertaking to provide significant added value: a reduction of 20-30%,

– subsequent undertakings that provide significant added value: a reduction of up to 20%.

In order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point (24) was submitted and the extent to which it represents added value.

If the applicant for a reduction of a fine is the first to submit compelling evidence in the sense of point (25) which the Commission uses to establish additional facts increasing the gravity or the duration of the infringement, the Commission will not take such additional facts into account when setting any fine to be imposed on the undertaking which provided this evidence.’

6 Recylex, Fonderie et Manufacture de Métaux and Harz-Metall (collectively, ‘Recylex’) are companies which are established in France, Belgium and Germany respectively and which are active in the sector for the production of recycled lead and other products.

7 Following an application for immunity from fines submitted on 22 June 2012, pursuant to the 2006 Leniency Notice, by Johnson Controls Inc., Johnson Controls Tolling GmbH & Co. KG and Johnson Controls Recycling GmbH (collectively, ‘JCI’), an investigation was opened in respect of Recylex, JCI and two other groups of undertakings, namely Campine NV and Campine Recycling NV (collectively, ‘Campine’), as well as Eco-Bat Technologies Ltd, Berzelius Metall GmbH and Société de traitement chimique des métaux SAS (collectively, ‘Eco-Bat’), concerning a cartel in the sector for the purchase of scrap car batteries. On 13 September 2012, the Commission granted JCI conditional immunity under point 18 of that notice.

8 Between 26 and 28 September 2012, the Commission carried out unannounced inspections at the premises of the various undertakings concerned in Belgium, Germany and France.

9 On 27 September 2012 and 23 October 2012 respectively, Eco-Bat and Recylex filed applications for immunity or, failing that, applications for a reduction of the amount of the fine, in connection with which they submitted corporate statements and documentary evidence. On 4 December 2012, Campine submitted, in turn, an application for a reduction of the amount of the fine.

10 On 24 June 2015, the Commission initiated the administrative procedure in respect of JCI, Recylex, Eco-Bat and Campine and sent them the statement of objections relating to that procedure. By letter of the same date, the Commission informed Eco-Bat and Recylex of its provisional finding that the evidence those undertakings had submitted to it had significant added value for the purposes of points 24 and 25 of the 2006 Leniency Notice and, accordingly, informed them of its intention to reduce the amount of the fine to be imposed on them. The Commission also informed Campine of its intention not to reduce the amount of its fine.

11 By the decision at issue, adopted on 8 February 2017, the Commission found that Recylex, JCI, Campine and Eco-Bat had participated, in breach of Article 101 TFEU, in a cartel constituting a single and continuous infringement in the sector for the purchase of scrap car batteries, committed during the period from 23 September 2009 to 26 September 2012 and consisting of agreements and/or concerted practices aimed at coordinating prices.

12 By that decision, the Commission imposed on Recylex, jointly and severally, a fine of EUR 26 739 000 for its participation in the infringement found for the period from 23 September 2009 to 26 September 2012, an infringement covering the territories of several Member States, including France.

13 In that context, the Commission took a decision on the application of the 2006 Leniency Notice to the undertakings responsible for that infringement.

14 In the first place, that institution granted JCI immunity from fines under point 8(a) of that notice, after finding that that undertaking’s cooperation had satisfied the conditions laid down in point 12 thereof.

15 In the second place, the Commission considered that Eco-Bat had been the first undertaking to submit evidence representing significant added value and granted it the maximum reduction of the amount of the fine, namely 50%, under the first indent of the first paragraph of point 26 of the 2006 Leniency Notice.

16 In the third place, the Commission granted Recylex a 30% reduction of the amount of the fine under the second indent of the first paragraph of point 26 of the 2006 Leniency Notice, taking the view that Recylex had been the second undertaking to provide evidence representing significant added value as regards, in particular, the origins of the cartel, various anticompetitive exchanges not reported by other undertakings, the multilateral meeting in Windhagen, which had taken place in September 2009 (‘the Windhagen meeting’), and which had marked the beginning of the infringement, as well as various telephone conversations and exchanges of messages between Recylex and its competitors.

17 The Commission rejected Recylex’s arguments seeking a greater reduction of the amount of the fine, of 30 to 50%. In particular, while taking the view that Recylex had been the first to provide details relating to the Windhagen meeting, the Commission noted that the information thus provided related only to organisational matters and that it had already gathered, during its inspection carried out at Campine’s premises, ‘compelling evidence’ as to the agenda and content of that meeting. The Commission also rejected Recylex’s argument that that undertaking had been the first to submit evidence relating to the territorial scope of the cartel, which extended to France. In that regard, the Commission observed, in particular, that it already had information regarding the geographic scope of the cartel, including in France.

18 Lastly, in the fourth place, the Commission refused to grant the application for a reduction of the amount of the fine submitted by Campine.

19 By application lodged at the Registry of the General Court on 18 April 2017, Recylex brought an action under Article 263 TFEU seeking a reduction of the amount of the fine imposed on it by the decision at issue. Six pleas in law were relied on in support of that action. The first and second pleas in law alleged an error in the application of the third paragraph of point 26 of the 2006 Leniency Notice. In that regard, Recylex argued, in essence, that it should have been granted the partial immunity from a fine provided for in that paragraph as regards the evidence adduced concerning the fact, first, that the infringement had begun at the Windhagen meeting (first plea in law) and, second, that the territorial scope of the infringement extended to France (second plea in law). In the context of the fourth plea in law, Recylex submitted that, by not granting it a 50% reduction of the amount of the fine, the Commission had erred in its application of the first paragraph of point 26 of that notice. The other three pleas in law relied on before the General Court are irrelevant for the purposes of the examination of the appeal.

20 By the judgment under appeal, the General Court dismissed, in its entirety, the action brought before it.

– set aside the judgment under appeal in so far as it upholds the fine imposed on Recylex by the decision at issue and in so far as it orders Recylex to pay the costs;

– annul the decision at issue, in so far as it imposes a fine of EUR 26 739 000 on Recylex;

– reduce the amount of the fine imposed on Recylex in the light of the grounds of appeal upheld; and

– order the Commission to pay the costs, including those relating to the proceedings before the General Court.

22 The Commission contends that the Court should dismiss the appeal and order Recylex to pay the costs.

The first part of the first ground of appeal and the second ground of appeal

23 By the first part of the first ground of the appeal, directed against paragraphs 79 to 99 of the judgment under appeal and alleging an error of law, Recylex submits that the General Court’s reasoning lacks consistency and clarity as regards the legal criteria applicable to the grant of partial immunity under the third paragraph of point 26 of the 2006 Leniency Notice.

24 By the second ground of the appeal, directed against paragraphs 100 to 108 of the judgment under appeal, Recylex also submits that the General Court erred in law in its interpretation and application of the criteria for the grant of partial immunity referred to in the third paragraph of point 26 of that notice, by considering that it could not claim such immunity, on the ground that the Commission was already aware of the facts to which the information provided by that undertaking related, namely, first, the existence of the Windhagen meeting and, second, the territorial scope of the cartel, which extended to France. Recylex considers that it was entitled to claim that immunity, since the Commission was not in a position to establish those facts, to the requisite legal standard, by means of the evidence already in its possession. According to Recylex, the issue of whether or not those facts were previously unknown to the Commission was irrelevant.

25 In support of that line of argument, Recylex remarks that the wording of the third paragraph of point 26 of the 2006 Leniency Notice differs from the corresponding provision of the 2002 Leniency Notice, namely the final paragraph of point 23(b) of that notice, which refers expressly to ‘facts previously unknown’ to the Commission. Thus, the criterion that the facts concerned were known to the Commission, which was relevant in the context of the 2002 Leniency Notice, is no longer applicable under the 2006 Leniency Notice. In that context, it is necessary to compare the evidential value of the information communicated by the undertaking in question with that of the information already contained in the Commission’s file.

26 The Commission contends that that line of argument must be rejected as unfounded.

27 As a preliminary point, it should be noted that, as from its publication in the Official Journal of the European Union on 8 December 2006, the 2006 Leniency Notice replaced the 2002 Leniency Notice. In that context, the third paragraph of point 26 of the 2006 Leniency Notice replaced the final paragraph of point 23(b) of the 2002 Leniency Notice.

28 In that regard, it should be noted that the final paragraph of point 23(b) of the 2002 Leniency Notice provided that, ‘if an undertaking [provided] evidence relating to facts previously unknown to the Commission which [had] a direct bearing on the gravity or duration of the suspected cartel, the Commission [would] not take these elements into account when setting any fine to be imposed on the undertaking which [had] provided this evidence’. The third paragraph of point 26 of the 2006 Leniency Notice provides that, ‘if the applicant for a reduction of a fine is the first to submit compelling evidence … which the Commission uses to establish additional facts increasing the gravity or the duration of the infringement, the Commission will not take such additional facts into account when setting any fine to be imposed on the undertaking which provided this evidence’.

29 Thus, while the 2002 Leniency Notice referred expressly to ‘facts previously unknown to the Commission’ having a ‘direct bearing on the gravity or duration of the suspected cartel’, the 2006 Leniency Notice refers to ‘additional facts increasing the gravity or the duration of the infringement’.

30 In its case-law relating to the final paragraph of point 23(b) of the 2002 Leniency Notice, the Court considered that the partial immunity provided for therein required two conditions to be satisfied: first, the undertaking in question is the first to prove facts previously unknown to the Commission; and, second, those facts, which have a direct bearing on the gravity or the duration of the suspected cartel, enable the Commission to make new findings concerning the infringement (judgment of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission, C‑617/13 P, EU:C:2016:416, paragraph 66 and the case-law cited).

31 The Court explained that the wording ‘facts … unknown to the Commission’ is unambiguous and allows the adoption of a restrictive interpretation of the final paragraph of point 23(b) of the 2002 Leniency Notice, by limiting that provision to cases in which a company party to a cartel provides the Commission with new information relating to the gravity or the duration of the infringement (judgment of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission, C‑617/13 P, EU:C:2016:416, paragraph 67 and the case-law cited).

32 The Court also held that the meaning to be given to those words must be able to guarantee the objectives of the final paragraph of point 23(b) of that notice and, in particular, the effectiveness of the leniency programme, the objective of which is to obtain the termination of the infringement by those committing it, in order to end it quickly and completely (see, to that effect, judgment of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission, C‑617/13 P, EU:C:2016:416, paragraph 68 and the case-law cited).

33 In that regard, the Court held that it was necessary to ensure the effectiveness of that provision, which – where the undertaking which was the first to submit to the Commission, in order to obtain total immunity from a fine under the 2002 Leniency Notice, evidence enabling the Commission to find an infringement of Article 101 TFEU, but has chosen not to disclose information which demonstrates that the duration of the infringement at issue was longer than disclosed by that evidence – seeks to provide an incentive, by means of partial immunity from a fine, to any other undertaking having participated in that infringement to be the first to disclose such information (judgment of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission, C‑617/13 P, EU:C:2016:416, paragraph 69 and the case-law cited).

34 It should be noted that the differences between the wording of the third paragraph of point 26 of the 2006 Leniency Notice and that of the final paragraph of point 23(b) of the 2002 Leniency Notice are not such as to suggest that the restrictive interpretation adopted by the Court as regards the latter provision cannot be applied to the third paragraph of point 26 of the 2006 Leniency Notice. In particular, the fact that the words ‘facts previously unknown’, referred to in the final paragraph of point 23(b) of the 2002 Leniency Notice, were not expressly reproduced in the third paragraph of point 26 of the 2006 Leniency Notice cannot justify a different interpretation of the latter provision.

35 Under the third paragraph of point 26 of the 2006 Leniency Notice, in order to rely on partial immunity, the undertaking concerned must submit to the Commission evidence relating to additional facts which have the effect of increasing the gravity or duration of the infringement in question. These are facts which complement or supplement those of which the Commission is already aware and which alter the material or temporal scope of the infringement, as found by the Commission. It is only in relation to such facts, which add to the initial scope of the infringement, that partial immunity may apply.

36 As the General Court correctly observed in paragraph 86 of the judgment under appeal, the wording of the third paragraph of point 26 of the 2006 Leniency Notice does not change the logic of partial immunity as interpreted by the case-law in the light of the wording of the final paragraph of point 23(b) of the 2002 Leniency Notice.

37 In those circumstances, the third paragraph of point 26 of the 2006 Leniency Notice must be interpreted as referring to cases in which a company which has taken part in a cartel provides compelling evidence to the Commission, enabling it to establish new facts relating to the gravity or duration of the infringement, excluding cases in which that company has merely provided information which strengthens the evidence relating to the existence of the infringement.

38 As the Advocate General stated, in essence, in points 59 to 62 of his Opinion, that interpretation is borne out by the structure of point 26 of that notice. As regards the facts of which the Commission has already become aware, the submission of evidence which represents significant added value may already give rise to a reduction of the amount of the fine, in accordance with the first paragraph of point 26 of the 2006 Leniency Notice, read in conjunction with points 24 and 25 thereof. It is therefore appropriate to reserve the benefit of partial immunity, provided for in the third subparagraph of point 26 of that notice, to undertakings that adduce evidence concerning new facts previously unknown to the Commission.

39 Lastly, as the Advocate General noted in point 63 of his Opinion, that interpretation is also in line with the objective pursued by the rule of partial immunity set out in the third paragraph of point 26 of the 2006 Leniency Notice, which is identical to the objective previously pursued by the final paragraph of point 23(b) of the 2002 Leniency Notice, as set out in paragraphs 32 and 33 of the present judgment. The purpose of the third paragraph of point 26 of the 2006 Leniency Notice is to encourage undertakings to cooperate fully with the Commission, even if they have not been granted conditional immunity pursuant to point 8 of that notice. Were it not for the rule laid down in the third paragraph of point 26 of the 2006 Leniency Notice, such undertakings might fear that, by submitting evidence which might affect the duration or the gravity of the infringement and of which the Commission was not previously aware, they might run the risk of an increase in the amount of the fines which might be imposed on them.

40 In that context, as the General Court emphasised in paragraph 88 of the judgment under appeal, it should be borne in mind that, when interpreting the final paragraph of point 23(b) of the 2002 Leniency Notice, the Court of Justice considered that, where the information provided by an undertaking concerns facts which were not previously unknown to the Commission, the application for partial immunity made by such an undertaking must be refused, and there is no need to compare the evidential value of the information provided with that of the information previously provided by other parties (see, to that effect, judgment of 23 April 2015, LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 81). That finding is also valid, in the context of the third paragraph of point 26 of the 2006 Leniency Notice, as regards evidence that does not concern ‘additional facts’ within the meaning of that provision.

41 Consequently, it must be held that the General Court did not err in law in interpreting and applying the requirements laid down in the third paragraph of point 26 of the 2006 Leniency Notice, since the Commission was already aware of the existence of the Windhagen meeting and of the territorial scope of the cartel before Recylex filed its application for partial immunity.

42 As regards Recylex’s complaint as set out in paragraph 23 of the present judgment, concerning the alleged lack of consistency and clarity of the reasoning followed by the General Court in paragraphs 79 to 99 of the judgment under appeal, it is sufficient to point out, as was noted by the Advocate General in points 46 to 56 of his Opinion, that the General Court set out to the requisite legal standard, in those paragraphs of the judgment under appeal, the reasons justifying the confirmation of the decision at issue regarding the refusal to grant partial immunity under the third paragraph of point 26 of that notice.

43 In the light of the foregoing considerations, the first part of the first ground of appeal and the second ground of appeal must be rejected as unfounded.

44 By the second part of the first ground of the appeal, Recylex submits that the General Court manifestly distorted the handwritten notes drawn up by a Campine employee and seized during the inspection of that undertaking’s premises, read in the light of the information provided by JCI in the context of its application for immunity from fines of 22 June 2012, since it considered, in paragraph 95 of the judgment under appeal, that that evidence enabled the Commission to establish, to the requisite legal standard, the existence of the Windhagen meeting and to set the date of that meeting as the beginning of the infringement. First, Recylex argues that the information provided by JCI in no way refers to a meeting or to anticompetitive exchanges that took place in September 2009 and, moreover, that it also does not suggest that the cartel began at that particular time. Second, Recylex observes that those handwritten notes referred to a date which differs from that used by the Commission, namely 24 September 2009 rather than 23 September 2009, that those notes provide hardly any information as to the participants in that meeting or the nature of that meeting, and, lastly, that Campine consistently denied, throughout the administrative procedure, that those notes had anticompetitive content.

45 By the third part of the first ground of the appeal, Recylex submits that the General Court failed to have regard to the fact that it is for the Commission to prove the existence of the facts constituting an infringement. The handwritten notes drafted by a Campine employee, even read in the light of the information provided by JCI, do not constitute precise and consistent evidence of the existence of an infringement committed at the Windhagen meeting. By concluding that those notes enabled the Commission to establish the existence of that meeting to the requisite legal standard, the General Court infringed the rules regarding the burden of proof.

46 According to the Commission, the arguments relied on by Recylex in that context are, on the one hand, inadmissible, in so far as they constitute a request for re-examination of the evidence, and, on the other hand, unfounded.

47 Without it being necessary to examine the issue of whether or not Recylex’s arguments constitute a request for re-examination of the evidence and, on that basis, to rule on the admissibility of such a request, it should be noted that Recylex relies on a manifestly incorrect reading of the judgment under appeal, in particular paragraphs 85 to 97 thereof, in so far as it presupposes that the General Court ruled on the issue of whether the handwritten notes seized during the inspection of Campine’s premises, read in the light of the information previously provided by JCI, were inherently sufficient to establish, to the requisite legal standard, the date and content of the Windhagen meeting as the starting point of the infringement.

48 As the Advocate General observed, in essence, in points 81 to 84 of his Opinion, it is clear from paragraphs 93 to 97 of the judgment under appeal that the General Court merely found that those handwritten notes, read in the light of the information provided by JCI, enabled the Commission to become aware of the existence of the Windhagen meeting and the anticompetitive nature of that meeting. Contrary to what Recylex claims, the General Court did not in any way rule on the issue of whether they alone made it possible to establish, to the requisite legal standard, the date and content of that meeting.

49 In that regard, it should be noted that Recylex does not dispute, in its appeal, that the handwritten notes and the information produced by JCI enabled the Commission to become aware that the Windhagen meeting had taken place.

50 Although Recylex asserts that the General Court should have compared the information already available to the Commission with that provided by Recylex, a comparison which should have led it to hold that the information available to the Commission at the date of Recylex’s application for partial immunity would not have enabled it to establish, to the requisite legal standard, the existence and content of that meeting, it must be pointed out that the General Court considered, in paragraph 97 of the judgment under appeal, that the arguments relied on by Recylex in that regard were ineffective. For the reasons set out in paragraph 40 of the present judgment, that finding by the General Court is justified, given that such a comparison was not required.

51 Consequently, it must be held that the second and third parts of the first ground of the appeal are manifestly unfounded, so that, in view of the considerations set out in paragraph 43 of the present judgment, the first ground of appeal must be rejected in its entirety.

52 By its third ground of appeal, directed against paragraphs 136 to 154 of the judgment under appeal, Recylex submits that the General Court erred in law in its application of the first paragraph of point 26 of the 2006 Leniency Notice by holding that neither the wording of that notice nor its logic supported an interpretation whereby, where two undertakings have provided evidence having significant added value, the undertaking which provided that evidence second is to take the place of the first undertaking if the cooperation of that first undertaking does not meet the requirements set out in point 12 of that notice. Consequently, the General Court erred in law by holding, in paragraph 153 of the judgment under appeal, that the Commission had been correct to refuse to grant Recylex a 30 to 50% reduction of the fine under the first indent of the first paragraph of point 26 of that notice, even though Eco-Bat had, according to Recylex, failed to fulfil its duty of cooperation by providing only incomplete and misleading information regarding the territories covered by the infringement found.

53 According to Recylex, it follows from the wording, logic and objectives of the 2006 Leniency Notice that an undertaking whose cooperation does not meet the requirements set out in point 12 of that notice must be disregarded for the purposes of the ranking referred to in the first paragraph of point 26 of that notice, so that the question of its position within that ranking does not arise.

55 Under point 24 of the 2006 Leniency Notice, in order to qualify for a reduction of the fine, as provided for in the first paragraph of point 26 of that notice, an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already available to the Commission, and must satisfy the cumulative conditions laid down in point 12 of that notice, which involves, inter alia, genuine, complete, continuous and expeditious cooperation throughout the administrative procedure.

56 Thus, an undertaking may be denied the benefit of a reduction of the fine if it does not adopt conduct which is in line with the requirements set out in point 12 of that notice. However, the fact that that undertaking is excluded from the benefit of the reduction cannot have the result that undertakings which have subsequently produced evidence representing significant added value may replace that undertaking in the chronological ranking defined in the first paragraph of point 26 of that notice.

57 In that regard, it should be noted that no provision of the 2006 Leniency Notice provides for the change of ranking on which Recylex claims to rely in the present case. The first paragraph of point 26 of that notice lays down only a criterion of a chronological nature by establishing the fine reduction bands, which depend exclusively on the order in which the undertakings in question have provided the Commission with evidence representing significant added value. Similarly, none of the information mentioned in points 23, 24, 29 and 30 of that notice provides for such a change of ranking. In that respect, neither the wording of those points nor the logic of the 2006 Leniency Notice gives the second undertaking in the ranking, namely Recylex, the right to replace the first undertaking in that ranking, namely Eco-Bat, on the ground that the first undertaking failed to observe the conditions laid down in point 12 of that notice.

58 In addition, an interpretation to the contrary, as championed by Recylex, cannot be justified in the light of the objective pursued by the leniency programmes, which, as the General Court noted in paragraph 148 of the judgment under appeal, are intended to create a climate of uncertainty within cartels in order to encourage the reporting of them to the Commission (see, to that effect, judgment of 20 January 2016, DHL Express (Italy) and DHL Global Forwarding (Italy), C‑428/14, EU:C:2016:27, paragraph 82 and the case-law cited).

59 In order to achieve that objective, it is necessary to encourage undertakings to cooperate as quickly and effectively as possible with the Commission in its investigative work. To allow a change in the ranking of undertakings which were not the quickest to cooperate because another undertaking failed to comply with the requirements set out in point 12 of the 2006 Leniency Notice would be detrimental to the objective of speeding up the dismantling of cartels pursued by that notice.

60 Consequently, it must be held that the General Court did not err in law in holding, in paragraphs 136 to 154 of the judgment under appeal, that Recylex could not claim the highest fine reduction band, namely 30 to 50%, since, according to the decision at issue, it was only the second undertaking to have provided significant added value for the purposes of the second indent of the first paragraph of point 26 of the 2006 Leniency Notice.

61 In the light of the foregoing considerations, the third ground of the appeal must be rejected as unfounded.

62 Since none of the three grounds of appeal relied on by Recylex in support of its appeal can be upheld, the appeal must be dismissed in its entirety.

63 Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

64 Since the Commission has requested that Recylex be ordered to pay the costs and Recylex has been unsuccessful, Recylex must be ordered to pay the costs.

2. Orders Recylex SA, Fonderie et Manufacture de Métaux SA and Harz-Metall GmbH to pay the costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Recylex and Others v Commission (Appeal - Market for car battery recycling - Judgment) [2021] EUECJ C-563/19P (03 June 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/C56319P.html Cite as: ECLI:EU:C:2021:428, [2021] EUECJ C-563/19P, EU:C:2021:428, [2021] 5 CMLR 8

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