In Case T‑799/17

552The applicants put forward three arguments in support of their assertion that the level of the fine imposed infringes the principle of equal treatment.

553In the first place, the applicants submit that the wording of the contested decision exaggerates their role in the infringement and largely ignores the role of the other truck manufacturers, thereby distorting the reality. According to the applicants, because of that wording of the contested decision, it is impossible to compare their role with that of the other truck manufacturers in the infringement and, since that comparison is not possible, several assessments made by the Commission in the contested decision, relating to the level of the fine, infringe the principle of equal treatment. The applicants refer to recital444 of the contested decision, in which the Commission concluded that there were no aggravating or mitigating circumstances in the present case. The applicants also refer to recital432 of the contested decision, in which the Commission stated that, for the purposes of calculating the basic amount of the fine imposed on Scania, it retained the same proportion of the value of Scania’s sales as the proportion of the value of sales of the settling parties retained in the settlement decision.

554The applicants also submit that the fact that the contested decision describes their role in the conduct in question in a more precise and more focused manner than the description of the role of the other competitors in the settlement decision puts the applicants at a disadvantage in actions for damages to which they are exposed.

555In the second place, the applicants argue that the contested decision infringes the principle of equal treatment in so far as it applies the same method of calculating the fine to all the manufacturers without taking account of the fact that the applicants’ market share at European level was lower than that of the other manufacturers and that the gap with the market leaders was very significant, in particular in Germany.

556The applicants also submit that the contested decision infringed the principle of equal treatment in so far as it did not take into account the fact that the Scania DE employees played a passive role or, at the very least, they did not play a leading role in the conduct at issue, in comparison with the two major manufacturers on the market.

557In the third place, the applicants claim that the contested decision infringes the principle of equal treatment in so far as the methodology followed by the Commission for setting the amount of the fine imposed on the applicants is the same as the methodology applied to the other truck manufacturers, despite the fact that the applicants, unlike the other manufacturers, do not build medium trucks.

558The Commission disputes the applicants’ arguments.

559Before addressing each of the abovementioned arguments, it must be noted that the principle of equal treatment is a general principle of EU law, enshrined in Articles20 and 21 of the Charter. According to settled case-law, that principle requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (judgments of 11July 2013, Ziegler v Commission, C‑439/11P, EU:C:2013:513, paragraph132, and of 26January 2017, Zucchetti Rubinetteria v Commission, C‑618/13P, EU:C:2017:48, paragraph38). Furthermore, it is also the Court of Justice’s settled case-law that, when the amount of the fine is determined, there cannot, by the application of different methods of calculation, be any discrimination between the undertakings which have participated in an agreement or a concerted practice contrary to Article101(1) TFEU (judgments of 11July 2013, Ziegler v Commission, C‑439/11P, EU:C:2013:513, paragraph133; of 12November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12P, EU:C:2014:2363, paragraph62; and of 26January 2017, Zucchetti Rubinetteria v Commission, C‑618/13P, EU:C:2017:48, paragraph38).

560As regards the applicants’ argument set out in paragraph553 above, first, it must be observed, as did the Commission, that that institution was required, under Article296 TFEU, to state to the requisite legal standard the reasons for the contested decision, which it did. In so far as Scania was the sole addressee of the contested decision, it was normal for the assessment to focus on its role in the cartel. The other parties to the cartel had already been the subject of the settlement decision, which established their liability for the role which they played in the cartel.

561Secondly, it should be noted that, contrary to the applicants’ assertion, the wording of the contested decision does not ‘ignore’ the role of the other truck manufacturers in the cartel. Their conduct is clear from the chronology of events, described in point6.2 of the contested decision, which explains in detail the nature and content of the exchanges as well as the participants in those exchanges. It follows that the applicants’ claim that it is impossible to compare their role in the cartel with that of the other parties is unfounded.

562Thirdly, the Court finds, on the basis of the contested decision and the file before it, that Scania’s role in the cartel did not differ from that of the other parties and that the applicants have not put forward any arguments and have adduced no evidence to the contrary. Furthermore, as the Commission correctly notes, each of the factors taken into consideration in order to determine, in the calculation of the basic amount of the fine, the gravity of the infringement and the ‘entry fee’, namely the nature of the infringement, the combined market share of the undertakings involved, the geographic scope of the infringement and its implementation, applied in the same way to Scania and to the other parties.

563In the light of the foregoing considerations, the Court concludes that the Commission did not err in its decision to retain the same proportion of value of sales by Scania as the proportion retained for the other manufacturers and to apply the same gravity multiplier (17%) and the same ‘entry fee’ (17%) as those applied to the other manufacturers in the settlement decision.

564The argument set out in paragraph553 above must therefore be rejected.

565As regards the argument referred to in paragraph554 above, it should be noted that the fact that the contested decision sets out in detail, in accordance with the requirements of the Commission’s obligation to state reasons, Scania’s unlawful conduct, results from the fact that that decision was addressed solely to Scania, since that undertaking did not acknowledge its liability in the cartel, unlike the other parties which made a formal settlement request. It follows that the applicants are not in the same situation as the settling parties and, consequently, their argument set out in paragraph554 above does not show that there has been an infringement of the principle of equal treatment.

566As regards the applicants’ argument referred to in paragraph555 above, it should be noted that the Commission, both in the contested decision and in the settlement decision, referred, inter alia, in order to determine the fines, to the value of the sales of goods to which the infringement by the undertakings involved in the EEA relates, in accordance, moreover, with its Guidelines on the method of setting fines. In paragraph6 of those guidelines, the Commission explained that the combination of the value of sales to which the infringement related and of the duration of the infringement was to be regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement.

567In the present case, the Court has no reason to call into question the Commission’s decision to refer, as regards all the undertakings involved, to the value of their sales of goods to which the infringement in the EEA related. That was a reasonable choice in order to reflect the relative weight of each undertaking participating in the infringement and it concerned all the undertakings participating in the cartel, not only Scania.

568Furthermore, the Court of Justice has held that EU law contains no general principle that the penalty be proportionate to the undertaking’s size on the product market in respect of which the infringement was committed (judgment of 18May 2006, Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, C‑397/03P, EU:C:2006:328, paragraph101).

569On the basis of those considerations, it must be concluded that the applicants’ argument set out in paragraph555 above does not demonstrate that the Commission infringed the principle of equal treatment and that argument must be rejected.

570As regards the applicants’ argument referred to in paragraph556 above, it must be rejected in so far as it is not apparent from the file that the Scania DE employees played a passive role or a secondary role in the unlawful conduct established in the present case. Accordingly, there is no need to reduce the amount of the fine on that basis.

571As regards the applicants’ argument set out in paragraph557 above, it must be noted that, as is apparent from recital429 of the contested decision, the Commission, in order to calculate the amount of the fine imposed on the applicants, took into account the value of their sales of heavy trucks in the EEA, contrary to what it did for the purposes of calculating the fines imposed on the settling parties in the settlement decision, in which it took into account the value of sales of medium and heavy trucks in the EEA (recital109 of the contested decision). It follows that the applicants’ complaint that the Commission did not take into account the fact that Scania did not manufacture medium trucks is unfounded.

572In the light of all of the foregoing, it must be concluded that none of the applicants’ arguments relating to an infringement of the principle of equal treatment demonstrates that the fine must be reduced.

(c)The amount of the fine

573It must be noted that, in the light of the Court’s unlimited jurisdiction in respect of fines for infringement of competition rules, nothing in the complaints, arguments and matters of law and of fact put forward by the applicants in all of the pleas in law examined above supports the conclusion that the amount of the fine imposed by the contested decision must be amended.

IV.Costs

574Under Article134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

575Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Tenth Chamber, Extended Composition),

hereby:

1.Dismisses the action;

2.Orders Scania AB, Scania CV AB and Scania Deutschland GmbH to bear their own costs and to pay those incurred by the European Commission.

Delivered in open court in Luxembourg on 2February 2022.

Table of contents

I. Background to the dispute

A. Administrative procedure which led to the contested decision

B. Contested decision

1. Structure of the truck market and the price-setting mechanism in the truck industry

(a) The structure of the truck market

(b) Price-setting mechanism in the truck industry

(c) Price-setting mechanism within Scania

(d) The impact of price increases at European level on prices at national level

2. Collusive contacts between Scania and the settling parties

3. Application of Article101 TFEU and of Article53 of the EEA Agreement

(a) Agreements and concerted practices

(b) Restriction of competition

(c) Single and continuous infringement

(d) Geographic scope of the infringement

4. Addressees

5. Calculation of the amount of the fine

(a) Basic amount of the fine

(b) Final amount of the fine

6. Operative part of the contested decision

II. Procedure and forms of order sought

III. Law

A. The omission of certain information vis-à-vis the public

B. Substance

1. The first plea in law, alleging infringement of the rights of the defence, the principle of good administration and the presumption of innocence

2. The second plea in law, alleging infringement of Article48(2) of the Charter and of Article27(1) and (2) of Regulation No1/2003

3. The third, fourth, fifth, sixth and seventh pleas in law, in so far as they relate to the Commission’s conclusion as to the existence of a single and continuous infringement and its imputation to Scania

(a) Preliminary observations

(1) The concept of a single and continuous infringement

(2) The burden of proof and the standard of proof

(3) Contested decision

(4) The applicants’ argument that the concept of a single and continuous infringement requires the Commission to identify several infringements which are clearly interrelated

(b) The third plea in law, alleging misapplication of Article101 TFEU and of Article53 of the EEA Agreement in so far as the exchanges of information at lower headquarters level were considered to constitute an infringement of those provisions

(1) Contested decision

(2) The first complaint

(3) The second complaint

(c) The fourth plea in law, alleging infringement of the obligation to state reasons and misapplication of Article101 TFEU and of Article53 of the EEA Agreement in that the Commission found that the applicants had concluded an agreement or had engaged in a concerted practice concerning the timing of the introduction of emission technologies

(1) The first part of the fourth plea in law, alleging infringement of the obligation to state reasons

(2) The second part of the fourth plea in law, alleging misapplication of Article101 TFEU and of Article53 of the EEA Agreement in that the Commission found that the applicants had concluded an agreement or had engaged in a concerted practice on the timing of the introduction of emission technologies onto the market

(3) The third part of the fourth plea in law, alleging that the exchanges of information on the timing of the introduction of emission technologies do not constitute an infringement by object

(d) The fifth plea in law, alleging misapplication of Article101 TFEU and of Article53 of the EEA Agreement in so far as the Commission classified the exchanges of information at German level as an infringement ‘by object’

(1) Preliminary observations

(2) The content of the information exchanged

(i) The intended changes to gross prices and gross price lists and the timing of those changes, referred to in recital238(a) of the contested decision

– The applicants’ argument relating to the current or future nature of the information exchanged at German level

– The applicants’ argument concerning the public nature of the gross prices exchanged at German level

– The applicants’ argument that the gross prices exchanged at German level had no informative value as regards the prices actually applied in market transactions

(ii) The intended changes to net prices and rebates offered to customers, as referred to in recital238(a) of the contested decision

(iii) The passing on of costs relating to the introduction of emission technologies for medium and heavy trucks, required by Euro3 to 6 standards, referred to in recital238(b) of the contested decision

(iv) The exchange of other commercially sensitive information, referred to in recital238(c) of the contested decision

(3) The aim of the exchanges of information at German level

(4) The context of the exchange of information at German level

(e) The sixth plea in law, alleging misapplication of Article101 TFEU and of Article53 of the EEA Agreement in that the Commission considered that the geographic scope of the infringement relating to German level extended to the whole of the EEA

(1) The geographic scope of the information obtained by Scania DE

(2) The geographic scope of the information provided by Scania DE

(f) The seventh plea in law, alleging misapplication of Article101 TFEU and of Article53 of the EEA Agreement in that the Commission considered that the identified conduct constituted a single and continuous infringement and that the applicants were liable in that regard

(1) The existence of a single and continuous infringement in the present case

(i) Preliminary observations

(ii) Contested decision

(iii) Assessment

– The overall assessment of the three levels of contacts

– The nature of the information exchanged within the three levels of contacts

– The continuous nature of the infringement

(2) The imputability of the single and continuous infringement to Scania

4. The eighth plea in law, alleging misapplication of Article101 TFEU and of Article53 of the EEA Agreement, as well as of Article25 of Regulation No1/2003, in that the Commission imposed a fine in relation to conduct that is time-barred and, in any event, by not taking into account that the conduct was not continuous

5. The ninth plea in law, alleging infringement of the principle of proportionality and of the principle of equal treatment as regards the amount of the fine and, in any event, alleging the need to reduce the amount of the fine under Article261 TFEU and under Article31 of Regulation No1/2003

(a) Infringement of the principle of proportionality

(b) Infringement of the principle of equal treatment

(c) The amount of the fine

IV. Costs

*Language of the case: English.

1Confidential information omitted.