Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 28 July 2016 (1)

Case C‑411/15 P

Timab Industries,

Cie financière et de participations Roullier (CFPR)

v

European Commission

(Appeal — Agreements, decisions and concerted practices — European market for animal feed phosphates — Applicants’ withdrawal from the settlement procedure — Standard administrative procedure — Non-application of the likely range of fines indicated during the settlement procedure — Scope of the unlimited jurisdiction of the General Court of the European Union — Observance of the principles of the protection of legitimate expectations and equal treatment)

I –  Introduction

1.        The present case is an appeal brought by Timab Industries and Cie financière et de participations Roullier (CFPR) (together ‘Timab and CFPR’) against the judgment of 20 May 2015, Timab Industries and CFPR v Commission (T‑456/10, ‘the judgment under appeal’), (2) by which the General Court of the European Union dismissed their action for the annulment of Decision C(2010) 5001 final adopted by the European Commission (3) (‘the contested decision’) and the claim which they put forward in the alternative for a reduction in the fine imposed on them in that decision.

2.        Two aspects of the judgment under appeal are particularly noteworthy, inasmuch as, in the judgment, the General Court ruled for the first time on the settlement procedure in cartel cases, introduced by Regulation (EC) No 622/2008, (4) and on what it referred to as the ‘hybrid’ (5) case in which two Commission decisions imposing fines in respect of a single infringement are addressed to different addressees and follow upon two separate and distinct procedures. The situation at issue in this dispute is one in which the Commission adopted, on the same date, two decisions concerning the same infringement, the first notified to undertakings which participated in a settlement procedure until its conclusion and the second notified to undertakings, namely Timab and CFPR, which decided to withdraw from the settlement procedure and opt for the standard administrative procedure. This novel aspect of duality in the case brought before it led the General Court, sitting in extended composition, to make a number of important preliminary observations on the subject of the settlement procedure. (6)

3.        In accordance with the Court’s request, I shall restrict my analysis in this Opinion to the third and fourth grounds of appeal. These concern, essentially, the scope of the unlimited jurisdiction that may be exercised by the General Court and observance of the principles of the protection of legitimate expectations and equal treatment, in the specific context of a hybrid situation in which a settlement procedure and a standard administrative procedure are conducted in parallel. I would immediately state that, in my opinion and for the reasons which I shall set out below, the General Court neither misconstrued its unlimited jurisdiction nor infringed the abovementioned principles or the rules governing the two procedures, and that the appeal should therefore not be upheld on either of these two grounds.

II –  The background to the dispute and the procedure before the General Court

4.        The background to the present dispute is described in detail in the judgment under appeal, to which I would refer. (7) The essential facts necessary for an understanding of this Opinion may be summarised as follows.

5.        As a result of inspections carried out in 2004, the Commission concluded that six undertakings whose activities involved animal feed phosphates (‘AFP’), including Timab and CFPR, had participated in a cartel that was likely to constitute a single and continuous infringement contrary to Article 101 TFEU and Article 53 of the EEA Agreement. (8)

6.        By letters of 19 February 2009, the Commission informed all the participants in the cartel of the initiation of an administrative procedure for the adoption of a decision under Regulation (EC) No 1/2003 (9) and asked them to inform it of whether they were willing to take part in settlement discussions pursuant to Article 10a of Regulation No 773/2004, as amended by Regulation No 622/2008.

7.        All the undertakings concerned embarked upon the settlement procedure. In the context of the settlement discussions, the Commission informed Timab and SFPR (10) that it envisaged imposing on them jointly and severally a fine of between EUR 41 million and EUR 44 million for their participation in a single and continuous infringement between 31 December 1978 and 10 February 2004. It stated that that amount included, (11) apart from the 10% reduction for entering into a settlement, (12) a 35% reduction for mitigating circumstances under the applicable guidelines, (13) granted because the undertakings had enabled the Commission to extend the duration of their particular participation in the cartel, and a 17% reduction under the leniency programme. (14)

8.        By contrast with the other undertakings concerned, Timab and CFPR decided to withdraw from the settlement procedure and consequently became the subject of a standard administrative procedure. Following their withdrawal, in 2009, they were allowed access to the case-file, they replied to the statement of objections, on 2 February 2010, and they attended a hearing, which was held on 24 February 2010.

9.        On 20 July 2010, the Commission adopted two decisions relating to the same case, one of which was addressed to the cartel members that had continued with the settlement procedure to its conclusion, (15) the other being the contested decision, notified to Timab and CFPR. In the latter decision, the Commission found that the appellants had participated in the infringement in question from 16 September 1993 to 10 February 2004 and imposed on them jointly and severally a fine of EUR 59 850 000, which merely included a 5% leniency reduction. (16)

10.      By application lodged on 1 October 2010, Timab and CFPR brought an action before the General Court seeking the annulment of the contested decision in its entirety, or at least its partial annulment and, in the alternative, a reduction in the fine imposed on them in the decision. (17) The appellants argued, principally, that by imposing a fine on them that was far greater than the upper limit of the range envisaged during the settlement discussions, the Commission had unlawfully penalised them for withdrawing from the settlement procedure. (18)

11.      By the judgment under appeal, the General court dismissed the three groups of pleas (19) put forward by Timab and CFPR in support of their claims for annulment and variation and ordered them to pay the costs.

III –  The procedure before the Court and the forms of order sought by the parties

12.      By application lodged at the Registry of the Court of Justice on 27 July 2015, Timab and CFPR brought an appeal in which they ask the Court to set aside the judgment under appeal and refer the case back to the General Court for the purpose of reducing the fine as appropriate. As an ancillary claim, they seek a declaration that, by virtue of the unreasonable length of the judicial proceedings, the General Court infringed their right to a fair trial. Lastly, they request that the Commission be ordered to pay the costs in their entirety.

13.      The Commission asks the Court to dismiss the appeal on the ground that the five pleas in law raised by Timab and CFPR as primary pleas and the ancillary plea raised by them are entirely ineffective, inadmissible or unfounded, and to order the appellants to pay the costs.

14.      No hearing has been held.

IV –  Assessment

15.      The third and fourth pleas in law in support of the appeal, which together form the subject of this Opinion, concern the relationship between the settlement procedure introduced by Regulation No 622/2008, (20) which Timab and CFPR decided to terminate, and the standard administrative procedure governed by the general provisions of Regulation No 773/2004, as amended by Regulation No 622/2008, to which they ultimately became subject as a result of that decision.

16.      By these two pleas in law, the appellants submit that, in confirming the contested decision, the General Court misconstrued the scope of its unlimited jurisdiction and vitiated its judgment with contradictory reasoning in that regard. In addition, by their fourth plea in law they allege that the General Court infringed the principles of the protection of legitimate expectations and equal treatment. Finally, in the context of their fourth plea, Timab and CFPR complain that the General Court erred in law in its application of the settlement procedure. Those therefore are the three issues that I shall address in my analysis of these pleas.

A –    The allegation that the General Court misconstrued the scope of the unlimited jurisdiction which it may exercise (the third plea and the second part of the first limb of the fourth plea)

17.      I shall begin by examining the substantial complaints which Timab and CFPR make concerning the General Court’s exercise of its unlimited jurisdiction before dealing more briefly with the contradictory reasoning which is alleged, again in connection with the General Court’s jurisdiction, in both the third and fourth pleas.

1.      The General Court’s exercise of its unlimited jurisdiction

18.      The appellants allege, in substance, that the General Court failed to fulfil its duty of judicial review in that it failed to verify adequately all the elements of the fine imposed on them in the contested decision, and in particular the reductions which they hoped to obtain.

19.      By their third plea in law, Timab and CFPR maintain that the General Court did not exercise its unlimited jurisdiction appropriately ‘by taking the view that supposed “new information” enabled the Commission, following the appellants’ withdrawal from the settlement procedure, to impose a significantly larger fine in respect of an infringement of very much shorter duration’ without verifying the relevance of the information on which that institution relied. (21) They assert that no new factual information was placed on the case-file after their withdrawal and that the only new element, if any there were, was a more careful examination of the situation on the Commission’s part, which led it to acknowledge that the appellants had not participated in the infringement from as early as 1978, (22) a conclusion which it should already have drawn at the settlement stage.

20.      The Commission argues that this plea should be dismissed as ineffective because it is based on an irrelevant comparison between the situation as it was during the settlement procedure and the situation which obtained at the time when the contested decision was adopted, whereas, as the General Court rightly stated, once a settlement has been abandoned, the decision that is taken on the conclusion of the standard procedure can only be assessed on its own merits. It adds that, in their description of the judgment under appeal, the appellants distort what the General Court actually stated. (23) The Commission claims, in the alternative, that the plea is inadmissible because the General Court reviewed the legality of the contested decision, verifying all of the factors that were taken into account in the calculation of the fine, and because the General Court’s assessment of the facts cannot form the subject of an appeal.

21.      I would point out that, as is stated in the judgment under appeal, it is settled case-law that, as regards the judicial review of Commission decisions imposing fines on undertakings for infringement of EU competition law, the review of legality is supplemented by the unlimited jurisdiction which Article 31 of Regulation No 1/2003, in conjunction with Article 261 TFEU, confers on the EU judicature. It is incumbent on the General Court, when exercising that jurisdiction, to assess the appropriateness of the amounts of such fines and, where necessary, to cancel, reduce or increase them. (24)

22.      When the Court of Justice is called upon to rule on such a matter in the context of an appeal, it may not substitute, on grounds of fairness, its own assessment for that of the General Court for the purpose of reviewing the way in which the Commission assessed, in any given case, the gravity of the unlawful conduct. (25) Indeed, the General Court has sole jurisdiction to establish and assess the factual evidence produced to it and, except where the clear sense of the evidence has been distorted, that assessment does not constitute a point of law which is subject as such to review by the Court of Justice. (26) Since the Court’s review is restricted to manifest errors, (27) it is only if the Court considers that the level of the penalty imposed is not merely inappropriate, but also excessive to the point of being disproportionate, that it should find that the General Court has erred in law and set aside the judgment under appeal. (28)

23.      In the present case, the Commission has rightly pointed out that the question put to the General Court was not so much whether there was any justification for imposing a higher fine in respect of an infringement of shorter duration, (29) as the appellants essentially argue, but whether the reasoning on which that institution had based the calculation of the fine which it imposed in the contested decision was correct and whether, in calculating that fine, it had taken into account all the information that was in its possession when it took that decision.

24.      In my view, the General Court exercised its unlimited jurisdiction fully, reviewing in depth both the legality of the contested decision and the appropriateness of the amount of the fine stipulated in that decision. (30) It duly verified the merits of the Commission’s analysis in the light of all of the circumstances prevailing when the decision was adopted, and in particular in consideration of the extent of the cooperation offered by Timab and CFPR after their withdrawal from the settlement procedure, that is to say, during the course of the standard procedure. (31) That assessment by the General Court, factual in nature, is not amenable to review by this Court in the context of the present appeal, except if distortion of the facts should be established.

25.      Moreover, I consider that the General Court did not err in law, in particular when it correctly confirmed the approach taken by the Commission, which was that the withdrawal of Timab and CFPR from the settlement procedure meant that it should resume the standard administrative procedure with regard to them, as is provided for in point 19 of the Settlement Notice. (32) It was precisely that change in procedural circumstances that enabled the appellants to have full access to the case-file, (33) to receive a full statement of objections, to reply to that statement of objections and to have the benefit of a hearing, (34) at which stage they were able to reply and formally dispute, for the first time, their involvement in the alleged infringement during the period prior to 1993. Timab and CFPR were therefore in no way placed at a legal disadvantage by the Commission’s approach of taking into account elements, which it treated as new, that existed at that stage.

26.      Lastly, it must be observed that the appellants have not shown in what way the amount of the fine that was imposed on them was ‘excessive to the point of being disproportionate’, within the meaning of the abovementioned case-law. (35)

27.      Therefore, since it fails to identify any distortion of the facts or error of law, this third plea in law should, in my view, be dismissed as inadmissible or, in any event, unfounded.

28.      In the second part of the first limb of their fourth plea, Timab and CFPR argue that the General Court also misconstrued its unlimited jurisdiction by not impugning the errors, contradictions (36) and inconsistencies (37) in the Commission’s assessment of the infringement. They complain that the General Court thereby wrongly validated the withdrawal of almost all of the reductions in the fine granted under the leniency programme or liable to be granted outside that context.

29.      I would immediately emphasise, as does the Commission, that the General Court devoted lengthy passages of its judgment to the systematic verification of the factors which the Commission took into account when calculating the fine which it imposed in the contested decision. (38) In particular, it reviewed in detail the way in which the Commission had taken into account the factors which did or did not enable it to grant the appellants reductions in their fine, both under the leniency programme (39) and ‘outside the leniency programme’. (40) In light of the extensive consideration which the General Court gave to the matter, I consider that it in no way misconstrued the extent of its unlimited jurisdiction in this regard.

30.      It appears to me that, on the pretext of supposed errors of law, the appellants are in reality criticising the General Court for entirely confirming the Commission’s analysis of the facts, and are asking the Court of Justice to carry out a new factual assessment, something which, in accordance with the abovementioned case-law, falls outside the Court’s jurisdiction. (41) I therefore take the view that all of the complaints formulated on this basis in the context of the fourth plea should be declared inadmissible.

31.      As to the substance, I would simply point out that the Commission and the General Court (42) were correct to take the view that any reductions in fines that may be given for cooperation, under the leniency programme or ‘outside the leniency programme’, and the level of such reductions, are not decided upon with reference solely to the duration of the infringement complained of, but depend on the quality of the cooperation offered and the added value of the information provided by the undertakings concerned, and that those contributions must be evaluated by the Commission when it takes its final decision, that is to say, in the case of Timab and CFPR, on the conclusion of the standard administrative procedure, subject to effective review by the General Court. I therefore consider, in the alternative, that these complaints are, in any event, unfounded.

2.      The contradictory reasoning alleged by the appellants

32.      In both their statement of appeal and their reply, Timab and CFPR claim that, in the exercise of its unlimited jurisdiction, the General Court vitiated its judgment with various contradictions inherent in the grounds thereof. (43) However, none of these has been established, in my opinion.

33.      First of all, the appellants complain that the General Court took the view that their withdrawal from the settlement procedure led to a situation of ‘tabula rasa’, erasing what had gone on before, and yet, at the same time, found that they had altered their position in the reply which they gave to the statement of objections in the course of the standard procedure. (44) They submit that the General Court should not have accepted, in breach of their fundamental rights, (45) the Commission’s argument that a ‘new element’ had arisen when they gave that reply, justifying a revision of the fine.

34.      However, like the Commission, I would emphasise that Timab and CFPR complain of an alleged contradiction between two series of paragraphs in the judgment under appeal that address different legal questions, the first relating to the settlement procedure and the second concerning the rewards that might be given under the leniency programme. (46) Indeed, the rules relating to settlement and those which apply to leniency are not the same, given that they pursue quite different objectives, as the General Court pointed out. (47) Moreover, in the judgment under appeal, the General Court rightly dissociated the conduct of the settlement procedure, which in this case did not reach a conclusion, from the conduct of the standard administrative procedure, which culminated in the contested decision. This first complaint is therefore unfounded.

35.      Secondly, Timab and CFPR maintain that paragraph 96 of the judgment under appeal, in which the General Court held, quite rightly in my view, that ‘the Commission [was] not bound by the range indicated during discussions [that took place] as part of the settlement procedure’, is contradicted by paragraph 91 of the judgment, in which the General Court referred to a mere ‘adjustment of the method of calculation of the fine’, on the basis, according to the appellants, of that same range.

36.      In the main, I consider this complaint to be inadmissible in that it fails to satisfy the requirements that must be met by an appeal, which derive from Article 168(1)(d) of the Rules of Procedure of the Court of Justice and the case-law on this point. (48) Indeed, Timab and CFPR do no more than cite the abovementioned passages of the judgment under appeal, without advancing any legal argument in support of the alleged contradiction in reasoning.

37.      In the alternative, in so far as the substance of the present complaint may be examined, I share the Commission’s view that the appellants misrepresent the findings of the General Court and wrongly take the words ‘adjustment of the method of calculation of the fine’, which appear in paragraph 91 of the judgment under appeal, out of context. Indeed, on reading that paragraph as a whole, and those surrounding it, it is clear that the General Court found that, having taken the alteration in the appellants’ position regarding the duration of their participation in the infringement into account, the Commission proceeded to ‘review’ the fine which it had fixed on the basis of the rules contained in the Leniency Notice and the 2006 Guidelines, albeit following the same methodology as it had used for the range of fines which it had indicated to Timab and CFPR.

38.      Lastly, in their reply, the appellants allege for the first time another contradiction in the General Court’s reasoning, which they connect with the third ground of their appeal without even specifying the passages of the judgment under appeal to which they are referring, (49) contrary to the requirements of Article 169(2) of the Rules of Procedure of the Court of Justice. (50) That argument is manifestly inadmissible, as it is new, (51) incomplete and, again, without legal foundation.

39.      The complaints which I have just examined, which are put forward in the context of the third plea and the second part of the first limb of the fourth plea, should therefore all be rejected.

B –    The alleged infringement of the principles of the protection of legitimate expectations and equal treatment (the first part of the first limb of the fourth plea)

40.      The appellants begin their fourth plea by claiming that, ‘by endorsing the withdrawal of almost all of the reductions for cooperation, which [they themselves] could not reasonably have anticipated occurring to such an extent’, the General Court infringed both the principle of the protection of legitimate expectations and the principle of equal treatment. I should like to state at this stage that I consider that cartel members that decide to withdraw from a settlement procedure lose, by reason of that withdrawal, the benefit of any positive effects which the parties that agree to commit to the procedure until its conclusion might enjoy. As a result, the appellants’ very reliance on these two principles is, in my view, misplaced. (52)

1.      The principle of the protection of legitimate expectations

41.      Timab and CFPR allege an infringement of the principle of the protection of legitimate expectations in the fixing of the fine that was imposed on them, on the ground that, contrary to what the General Court stated, they could not have ‘reasonably anticipated’ (53) that their decision to withdraw from the settlement procedure would result in the reductions for cooperation falling from 52% in the context of the settlement procedure to 5% in the contested decision. According to the appellants, the Commission made an ‘about-turn’ which had the ‘paradoxical’ effect of increasing the fine considerably while, at the same time, the duration of the infringement was significantly reduced.

42.      The appellants assert that the Commission’s decision was not justified since, first of all, the same standard of proof (54) and the same ‘general methodology’ (55) for calculating the fine ought to have applied in both the standard procedure and the settlement procedure, secondly, no new information was placed on the case-file following their withdrawal from the settlement procedure and, lastly, the effects of other mechanisms, such as the leniency procedure, ought to continue notwithstanding such withdrawal. They submit that, given those circumstances, they had not been in a position to make an ‘informed’ (56) decision on whether or not to settle.

43.      The Commission maintains that the allegations which Timab and CFPR make are ineffective. It replies that what gave rise to the new amount of the fine that was adopted in the contested decision was not the appellants’ decision to withdraw from the settlement procedure, but simply the defence which they put forward in their reply to the statement of objections, which consisted in henceforth denying their participation in the cartel prior to 1993. The Commission adds that the re-assessment of the fine could have been anticipated by Timab and CFPR, inasmuch as the amount of the fine that was imposed resulted from the strict application of the relevant calculation rules in the light of the information that existed at the time when the contested decision was adopted. It argues that, if the appellants misjudged the consequences of the position which they had adopted, then that was their mistake entirely and cannot be attributed to any lack of information.

44.      In my opinion the complaint which Timab and CFPR put forward should not succeed, since it seems to me to be at least unfounded and possibly inadmissible. The reasons are as follows.

45.      The Commission is right to emphasise that the appellants cannot validly complain that the General Court failed to check whether they had been in a position to make an ‘informed’ decision on withdrawing from the settlement procedure, since it is clear from the judgment under appeal that it did review that point. (57) Given that the General Court itself reviewed in depth the observance of the principle of the protection of legitimate expectations in this case, (58) the aim of this complaint is, in reality, to incite the Court to re-examine the factual assessment carried out by the General Court, in the absence of any established error of law or distortion of the facts, with a view to obtaining the revision of the fine, something which falls outside the jurisdiction of this Court in the context of an appeal. (59) This argument should therefore be declared inadmissible, in my view.

46.      For the sake of completeness, I would point out, regarding the substance, that it is settled case-law that the principle of the protection of legitimate expectations is among the fundamental principles of EU law and any economic operator which a competent authority has caused to entertain justified expectations by providing precise, unconditional and consistent assurances may rely on that principle. (60)

47.      However, the Court has already held, with reference to cartels infringing EU law, that the Commission cannot, in the phase of the procedure prior to the adoption of the final decision, give any precise assurances as to any reduction in, or immunity from fines, and that cartel members cannot therefore entertain a legitimate expectation in that regard. (61) Indeed, economic operators cannot claim an expectation of any specific level of the fine, which must be calculated at the time when the party concerned decides to implement its intention to cooperate with the Commission (62) and in light of all of the factual and legal circumstances of the case at that time. (63)

48.      In the present case, Timab and CFPR cannot claim to have had any ‘legitimate expectation’ that the estimates which the Commission had given it in the course of the settlement procedure, in the form of ‘the range of likely fines’ calculated on the basis of ‘the … elements taken into consideration so far’, (64) that is to say, relating to a period of infringement then expected to span the years 1978 to 2004, would be maintained. (65)

49.      Even if the appellants had continued with the settlement to its conclusion, the range of likely fines could still have been adjusted in the final decision, to take account of information brought to the Commission’s notice after it had made its estimates, since such a range is merely indicative, and not binding, as seems clear to me from the applicable provisions on the subject. (66) That absence of ‘justified expectations’ is all the more evident from the fact that, after withdrawing from the settlement procedure, the appellants put forward, for the first time in the standard procedure, information suggesting that their participation in the infringement had been of a shorter duration. That new situation led the Commission to revise its initial analysis entirely. (67)

50.      I would also note, as does the Commission, that when the appellants withdrew from the settlement, they were in possession of all the information that they required to foresee that disputing their involvement in the infringement during the period prior to 1993 would necessarily have an effect on the reductions they might be granted both under the leniency programme and ‘outside the leniency programme’, (68) since they knew that the cooperation for which they might be rewarded essentially concerned that period. (69) They cannot therefore criticise the General Court in any way for infringing the principle of the protection of legitimate expectations.

51.      Lastly, I would emphasise that, if the argument put forward by Timab and CFPR were to be upheld by the Court, that would in practice have the consequence of encouraging undertakings under investigation to opt, initially, for the settlement procedure, which involves their admission of liability in the infringement, (70) for the sole purpose of obtaining information about the case against them and an assurance as to the maximum fine, expressed in a range of likely fines, before subsequently withdrawing in order to gain full access to the evidence in the Commission’s possession and the right to a hearing at which they could dispute the infringement (71) in the context of the standard procedure, without ever risking an increase in the fine, even if new circumstances should arise.

52.      The appellants submit that they can combine the benefits offered by the two types of procedure without accepting the constraints which are the corollary of those benefits. Such a prospect seems to me to be contrary to the objectives of Regulation No 773/2004, as amended by Regulation No 622/2008, in particular in so far as concerns the simplification and effectiveness of the procedures. (72) Indeed, where certain undertakings that have participated in a cartel decide not to continue with a settlement procedure to its conclusion, while others do continue, the Commission’s task is made more difficult, since, in such a hybrid case, that institution will be constrained to pursue two procedures in parallel and to give two separate decisions in respect of one and the same infringement. (73)

2.      The principle of equal treatment

53.      In their statement of appeal, Timab and CFPR claim that the General Court infringed the principle of equal treatment, arguing merely that ‘having been unable to withdraw in an “informed” manner from the settlement procedure and having been confronted with an outcome that was “paradoxical” at best, they were treated less favourably than the other participants which, being able to anticipate the amount of the fine that would be imposed on them, agreed to make a settlement offer’.

54.      The Commission asserts, on the contrary, that it is clear from the information given in the contested decision that there was no discrimination between the appellants and the other cartel members, inasmuch as the same parameters were applied in the setting of all the fines and that the only difference lay in the 10% reduction granted to the undertakings which did settle. (74)

55.      I would observe that it is established case-law that the principle of equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, compliance with which is ensured by the Court of Justice and the General Court, inter alia, where fines for infringements of competition law are concerned. (75) That principle requires that comparable situations are not treated differently and that different situations are not treated in the same way, unless such treatment is objectively justified. (76)

56.      However, in support of their allegation of infringement of that principle, the appellants in no way establish that the abovementioned conditions for the application of the principle are fulfilled in the present case. They have failed to demonstrate to the Court that they were in a comparable situation to that of the other cartel members, which agreed to continue with the settlement to its conclusion, or that they were treated less favourably than them, (77) and that any purported discrimination was not justified by objective reasons. In my opinion, this argument should therefore be regarded as inadmissible, in accordance with the abovementioned case-law of the Court. (78)

57.      In the alternative, as to the substance, I would emphasise that, in the judgment under appeal, the General Court took pains to clarify that, even in a hybrid case such as the present, in which two decisions addressed to different addressees are adopted following two separate and distinct procedures, one a settlement procedure and the other the standard procedure, the principle of equal treatment must apply, because at issue are participants in one and the same cartel. It concluded from that, rightly, that the 2006 Guidelines remained fully applicable in that context and that the same criteria and methods for calculating the fines had to be applied, with no discrimination between the cartel members, (79) leaving aside the specific rules inherent in the settlement procedure, such as the entitlement to a 10% reduction for the parties that settle. (80) In accordance with those precepts, the General Court duly reviewed the question of whether the Commission had indeed observed the principle in the contested decision, with reference to a number of aspects, as Timab and CFPR had requested that court to do. (81)

58.      In conclusion, I am of the opinion that the complaints which the appellants formulate in the first part of the first limb of the fourth plea must be declared inadmissible, or in any event unfounded.

C –    The purported errors of law in the application of the rules relating to the settlement procedure (the second limb of the fourth plea)

59.      First of all, Timab and CFPR maintain that it was on the basis of an error in law that the General Court found that they had been informed by the Commission of the effect that their withdrawal from the settlement procedure would have. In their opinion, the General Court erred in law in its description, in paragraph 125 of the judgment under appeal, (82) of the content of the exchanges that had taken place at the hearing on 24 February 2010, during which the Commission indicated that it would take account, in its calculation of the fine, of the position expressed by Timab and CFPR, which was that they had not joined the cartel until 1993. The appellants argue that, contrary to what the general term ‘cooperation’, (83) used in that passage of the judgment, might imply, the Commission never expressly mentioned in the course of the standard procedure the withdrawal of the 35% reduction for cooperation ‘outside the leniency programme’ and that the ‘leniency’ referred to at that hearing simply meant the 17% reduction envisaged in the course of the settlement procedure. (84)

60.      The Commission submits that this first complaint is ineffective. It states, rightly in my view, that it needlessly confuses the effects of the withdrawal from the settlement decided upon by Timab and CFPR with the possible consequences of the alteration in their position regarding the duration of their participation in the infringement which the appellants expressed in their reply of 2 February 2010 to the statement of objections. It seems to me that the passage of the judgment under appeal to which the appellants refer merely refers to the warning which the Commission gave the appellants at the hearing on 24 February 2010 in response to that altered position, rather than in connection with their withdrawal from the settlement procedure, as the appellants claim. (85) It is therefore clear that this complaint, which is based on a mistaken premiss, is unfounded.

61.      Secondly, the appellants assert that the Commission ought to have admitted at the settlement stage what it treated as ‘new information’, that is to say, its inability to prove a single and continuous infringement dating back to 1978. They allege that the General Court misconstrued its unlimited jurisdiction by failing to point out the errors which they consider the Commission to have made in its assessment of the infringement at the stage of the settlement procedure and by endorsing in this manner the withdrawal of almost all of the reductions in the fine.

62.      As the Commission objects, this is purely and simply a repetition of a complaint already made in the context of the third plea, and it should be rejected for the same reasons: (86) on the pretext of alleged errors of law on the General Court’s part, the appellants are in reality attempting to dispute the factual analysis carried out by the Commission and then by the General Court, that being an analysis which falls outside this Court’s jurisdiction. (87) This complaint is therefore inadmissible.

63.      The parts of the judgment under appeal referred to in the second limb of the fourth plea are not vitiated by any error of law in my opinion and the fourth plea should not be upheld on those grounds, in my opinion.

64.      Consequently, I consider that the body of complaints made in the context of the third and fourth pleas in support of the appeal should be held, in part, inadmissible and, in part if not entirely, rejected as to their substance.

V –  Conclusion

65.      In light of the foregoing considerations, and without pre-judging the merits of the other pleas in law in support of the appeal, I propose that the Court reject the third plea as inadmissible or, in the alternative, unfounded and reject the fourth plea as partly inadmissible and partly unfounded or, in the alternative, entirely unfounded. The costs should be reserved.

1 – Original language: French.

2 – EU:T:2015:296.

3 – Decision of 20 July 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/38866 — Animal feed phosphates).

4 – Commission Regulation of 30 June 2008 amending Regulation (EC) No 773/2004, as regards the conduct of settlement procedures in cartel cases (OJ 2008 L 171, p. 3). Commission Regulation No 773/2004 of 7 April 2004 (OJ 2004 L 123, p. 18) relates to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (now Articles 101 and 102 TFEU). The law in force after the entry into force, on 1 December 2009, of the Lisbon Treaty applies to the present case, since the contested decision was adopted after that date.

5 – The adjective is used in paragraph 72 of the judgment under appeal.

6 – See paragraphs 58 to 74 of the judgment under appeal.

7 – See paragraphs 1 to 28 of the judgment under appeal. An even fuller description of the background, and in particular of the elements of the infringement alleged against Timab and CFPR, is given in the contested decision (p. 5 et seq.).

8 – According to the contested decision (in particular, p. 6, recital 3, and p. 99, Article 1), the infringement consisted in the sharing of a large part of the European market for AFP, by the allocation of sales quotas and customers to cartel members, and in the coordination of prices and conditions of sale.

9 – Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the [EC] Treaty (OJ 2003 L 1, p. 1).

10 – In accordance with Article 10a(2) of Regulation No 773/2004, as amended by Regulation No 622/2008. See also point 16 of the Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (OJ 2008 C 167, p. 1, ‘the Settlement Notice’). Article 7 of Regulation No 1/2003 concerns the ‘finding and termination of [an] infringement’ and Article 23 thereof concerns ‘fines’.

11 – See paragraph 79 of the judgment under appeal.

12 – Points 20 to 22 and 31 to 33 of the Settlement Notice indicate that the Commission may reward parties for their cooperation in the expeditious resolution of the case by means of the completion of the settlement procedure by reducing the fine they are liable to pay by 10%.

13 – Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2, ‘the 2006 Guidelines’). See points 10, 11 and 29 of the guidelines.

14 – See points 20 to 27 of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3, ‘the Leniency Notice’).

15 – Commission Decision C(2010) 5004 final relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/38886 — Animal feed phosphates), concerning the Kemira group (Yara Phosphates Oy, Yara Suomi Oy and Kemira Oy), Tessenderlo Chemie, the Ercros group (Ercros SA and Ercros Industriel SA), the FMC group (FMC Foret SA, FMC Netherlands BV and FMC Corporation) and Quimitécnica.com-Comércia e Indústria Química and its parent company José de Mello SGPS.

16 – See p. 83, recital 303, p. 96, recital 340, and p. 102, recital 359, of the contested decision and paragraph 80 of the judgment under appeal.

17 – See paragraphs 29, 41 and 44 et seq., as well as paragraph 214 et seq. of the contested decision.

18 – See, in particular, paragraphs 45 to 57 of the judgment under appeal.

19 – According to paragraph 43 of the judgment under appeal, ‘the first group of pleas relates to the settlement procedure and, in particular, to the fact that the applicants withdrew from that procedure [see paragraph 44 et seq. of the judgment], the second group of pleas relates to certain practices which constitute elements of the cartel at issue, namely the compensation mechanism and the conditions of sale [paragraph 128 et seq.] and, finally, the third group relates to several aspects of the calculation of the amount of the fine [paragraph 142 et seq.]’ It is the first of these groups of pleas that is the most relevant to the subject of the present Opinion.

20 – In addition to the comprehensive description of the settlement procedure given by the General Court in the judgment under appeal (paragraphs 58 to 74), numerous academic sources describe this procedure, including those listed by Hauviller, M., and Perret, G., in ‘La procédure de transaction en droit de la concurrence: Bilan de la pratique décisionnelle de la Commission européenne (mai 2010-mai 2015)’ in Concurrences, 2015, No 3 p. 241. See, in particular, the table set out in Ledoux, V., and Roda, J.-C., ‘Adoption par la Commission européenne d’une procédure de “transaction” en matière d’ententes’ in Contrats Concurrence Consommation, 2008, Nos 8-9, Study 10, and the synoptic table set out in Petit, N., ‘Aperçu de la procédure communautaire de transaction’ in Concurrences, 2009, No 1, p. 233. I shall therefore not make any detailed observations in this Opinion on the settlement procedure itself.

21 – The appellants expressly refer, in this connection, to paragraphs 78 and 90 of the judgment under appeal.

22 – On this point, the appellants cite recital 318 of the contested decision.

23 – According to the Commission, the ‘new element’ mentioned in paragraph 90 of the judgment under appeal is not any fresh analysis of the situation that the institution may have carried out on its own initiative, but rather the different clarification given by Timab and CFPR, for the first time, in their reply to the statement of objections, the very purpose of which is to afford the undertakings concerned an opportunity to set out their own point of view and so ensure the adversarial nature of the standard procedure (on this last point, see the Opinion of Advocate General Jääskinen in Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2015:482, point 50 and the case-law cited).

24 – See the judgment under appeal, paragraph 215 and the case-law cited, and judgment of 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38, paragraph 75 and the case-law cited).

25 – See, in particular, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 244 and 245).

26 – See, in particular, judgment of 16 June 2016, SKW Stahl-Metallurgie and SKW Stahl-Metallurgie Holding v Commission (C‑154/14 P, EU:C:2016:445, paragraph 33).

27 – Advocate General Kokott emphasised in her Opinion in Pilkington Group and Others v Commission (C‑101/15 P, EU:C:2016:258, point 112 and the case-law cited) that ‘errors of that kind must be assumed, first, where the General Court has failed to take into account the extent of its powers under Article 261 TFEU, second, where it did not fully consider all the material points, and, third, where it has applied incorrect legal criteria, not least having regard to the principles of equal treatment and proportionality’.

28 – See, in particular, judgments of 10 April 2014, Areva and Others v Commission (C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 177), and of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062, paragraph 205 and the case-law cited).

29 – The General Court nevertheless took pains to answer all of the arguments put to it by Timab and CFPR in this connection (see paragraph 75 et seq. of the judgment under appeal, which deals with the complaints concerning ‘the increase in the amount of the fine in relation to the notified range’), doing so in the interests of the sound administration of justice (see, to that effect, Barennes, M., ‘L’arrêt du Tribunal Timab c/ Commission ou comment une transaction en matière de cartels aurait mieux valu qu’un bon procès’ in Revue Lamy de la Concurrence, 2015, No 45, p. 58).

30 – See paragraphs 43 to 220 of the contested decision.

31 – See, in particular, paragraphs 90 to 107 of the contested decision.

32 – See paragraphs 76 and 104 of the judgment under appeal. I would observe that point 19 of the Settlement Notice states that ‘should the parties concerned fail to introduce a settlement submission, the procedure leading to the final decision in their regard will follow the general provisions, in particular Articles 10(2), 12(1) and 15(1) of [Regulation No 773/2004], instead of those regulating the settlement procedure’. The EU judicature is certainly not bound by the indicative rules defined by the Commission in that notice, or in the 2006 Guidelines, but those indicative rules may provide the EU Courts with guidance when exercising their unlimited jurisdiction (see judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 90).

33 – On the fact that access to the case-file is limited during the settlement procedure, see in particular Bernardeau, L., and Christienne, J.-P., Les amendes en droit de la concurrence, Pratique décisionnelle et contrôle juridictionnel du droit de l’Union, Larcier, Brussels, 2013, point I.716.

34 – For a comparative table of the conduct of the settlement procedure and the conduct of the standard administrative procedure, see Barbier de la Serre, E., ‘Le dispositif communautaire en matière de transactions’ in Revue Lamy de la Concurrence, 2008, No 17, p. 95.

35 – See point 22 of this Opinion.

36 – According to the appellants, there is a contradiction, which the General Court should have noticed, between the rejoinder that the Commission lodged in the proceedings before it, which indicated that the 35% reduction envisaged for cooperation ‘outside the leniency programme’ was to reward the cooperation offered by Timab and CFPR in relation to the period from 1978 to 2004, and paragraphs 94 and 95 of the judgment under appeal, in which the General Court stated that the period taken into account was merely from 1978 to 1992.

37 – In particular, the appellants allege that it is inconsistent that the reduction granted under the leniency programme should ultimately have been reduced to 5% in respect of a period spanning the years 1993 to 2004 when it had initially been set at 17% in respect of a period spanning the years 1978 to 2004.

38 – See paragraphs 142 to 220 of the judgment under appeal.

39 – See in particular paragraphs 170 to 195 of the judgment under appeal.

40 – As regards the mitigating circumstances that might give rise to a reduction referred to in point 29 of the 2006 Guidelines, see in particular paragraphs 95, 188 and 189 of the judgment under appeal.

41 – See point 22 of this Opinion.

42 – See paragraphs 90 to 95 of the judgment under appeal.

43 – That is to say, contradictions affecting the very grounds of the judgment, as opposed to the contradictions which the appellants claim result from the General Court’s confirmation of the inconsistencies which allegedly invalidated the reasoning followed by the Commission in the contested decision (see point 28 et seq. of this Opinion).

44 – In this connection, Timab and CFPR refer, in particular, to paragraphs 104 and 105 of the judgment under appeal, rather than to paragraphs 90, 96, 122 and 179 of the judgment. They claim that, if there had been a situation of ‘tabula rasa’, then it would have retroactively erased anything they may have said during the settlement procedure, which could not, therefore, constitute a previous position.

45 – The appellants maintain that the contradictions which they allege infringed their right to discuss matters freely with the Commission in the context of the settlement procedure and to withdraw from that procedure equally freely and their right to defend themselves in the standard procedure without being bound by any ‘position’ it may supposedly have expressed earlier.

46 – In their statement of appeal, Timab and CFPR contrast paragraphs 104 and 105 of the judgment under appeal with paragraph 122, wrongly in my view, since the first two concern information communicated during the settlement procedure, in particular the likely range of fines, while the third deals with the impact, in terms of leniency, of the fact that part of the period of the infringement to which the appellants’ statements related was no longer taken into consideration.

47 – In paragraph 65 of the judgment under appeal, the General Court rightly emphasised that, ‘while the purpose of the leniency policy is to reveal the existence of cartels and to facilitate the Commission’s work in that regard, the purpose of the settlement policy is to serve the effectiveness of the procedure in dealing with cartels [by offering] a simplified procedure’, one that the General Court described in paragraph 60 et seq. of the judgment. See also point 1 of the Settlement Notice.

48 – It is clear from the settled case-law of the Court that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (see, in particular, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 43 and the case-law cited).

49 – In that pleading, Timab and CFPR laconically allege that ‘it was wrong for the General Court on the one hand to assert that, under the Settlement Notice, “the Commission does not negotiate the question of the existence of an infringement” and on the other to ascribe to informal discussions the status of negotiations characterised by the appellants’ supposed admission of their participation in the infringement prior to 1993’.

50 – That provision expressly requires that ‘the pleas in law and legal arguments relied on shall identify precisely those points in the grounds of the decision of the General Court which are contested’. (See also judgment of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062, paragraphs 29, 30 and 78 and the case-law cited).

51 – In its judgment of 22 June 2016 in DK Recycling und Roheisen v Commission (C‑540/14 P, EU:C:2016:469, paragraph 62 et seq.), the Court pointed out that, in accordance with the Rules of Procedure of the Court of Justice, ‘no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure’. The conditions for the application of that exception are not fulfilled in this case.

52 – Indeed, I consider that parties that have withdrawn from a particular regime, such as settlement, cannot claim to have entertained a legitimate expectation as to the potential effects of the legal regime to which they have chosen to switch; nor can they claim the benefit of absolutely equal treatment with the parties that have remained under the first regime.

53 – The appellants borrow this expression from recital 2 of Regulation No 622/2008 amending Regulation No 733/2004, which states that ‘parties to the proceedings may be prepared to acknowledge their participation in a cartel … if they can reasonably anticipate the Commission’s envisaged findings as regards their participation in the infringement and the level of potential fines and agree with those findings’ (my italics).

54 – Timab and CFPR claim, with reference to recital 318 of the contested decision, that it was precisely because the Commission did not apply the same standard of proof before and after their withdrawal from the settlement procedure that it finally admitted that it was unable to conclude that they had participated, since 1978, in a single and continuous infringement.

55 – The appellants borrow this expression from point 37 of the 2006 Guidelines in order to take issue, once again, with paragraph 91 of the judgment under appeal, in which the General Court referred to an ‘adjustment of the method of calculation of the fine’ on the Commission’s part. However, I would immediately emphasise that the General Court in no way disputed that the 2006 Guidelines applied to both types of procedure, as is shown, in particular, by paragraphs 74 and 82 of the judgment.

56 – The appellants are referring here to point 16 of the Settlement Notice, which states that ‘such an early disclosure in the context of settlement discussions … will allow the parties to be informed of the essential elements taken into consideration so far, such as … the gravity and duration of the alleged cartel, … an estimation of the range of likely fines … This will enable the parties effectively to assert their views on the potential objections against them and will allow them to make an informed decision on whether or not to settle’ (my italics).

57 – The Commission refers in this connection to paragraph 122 of the judgment under appeal, in which the General Court held that ‘it is foreseeable that a reward by way of leniency will be reviewed when the statement made as part of the leniency application relates in part to a period which has not been taken into consideration. In the same way, since the applicants’ statement was the element which made it possible to extend the duration of their participation, the reduction “outside the leniency programme” originally envisaged also became irrelevant’ (my emphasis).

58 – See paragraphs 52 and 57 and paragraphs 123 and 124 of the judgment under appeal.

59 – See, in particular, judgments of 30 May 2013, Quinn Barlo and Others v Commission (C‑70/12 P, not published, EU:C:2013:351, paragraph 26), and of 19 December 2013, Koninklijke Wegenbouw Stevin v Commission (C‑586/12 P, not published, EU:C:2013:863, paragraph 26).

60 – See, inter alia, judgments of 24 October 2013, Kone and Others v Commission (C‑510/11 P, not published, EU:C:2013:696, paragraph 76), and of 14 June 2016, Marchiani v Parliament (C‑566/14 P, EU:C:2016:437, paragraph 77) and the case-law of the General Court cited in paragraph 123 of the judgment under appeal.

61 – See, in particular, judgment of 24 October 2013, Kone and Others v Commission (C‑510/11 P, not published, EU:C:2013:696, paragraph 78 and the case-law cited). See, by analogy, on the Commission’s entitlement to adjust its previous fining practice to take account of changing circumstances concerning, for example, the frequency, complexity and severity of infringements, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 169, 191 and 227), and the Opinion of Advocate General Kokott in Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:248, paragraphs 169 to 174 and the case-law cited).

62 – See, in particular, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission (C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 188).

63 – Moreover, point 37 of the 2006 Guidelines, to which the appellants refer, expressly states that ‘the particularities of a given case or the need to achieve deterrence in a particular case may justify [the Commission’s] departing from [the general] methodology’ set out in the guidelines.

64 – This wording appears in point 16 of the Settlement Notice, cited in footnote 56 to this Opinion (my emphasis).

65 – I would observe that, during the settlement procedure, Timab and CFPR did not dispute their participation during the period from 1978 to 1993, although they did dispute it once they had withdrawn from that procedure.

66 – Recital 4 of Regulation No 622/2008, Article 10a of Regulation No 773/2004, as amended by Regulation No 622/2008, and points 5, 20 to 22 and 27 to 32 of the Settlement Notice indicate that, while undertakings remain free to withdraw from settlement procedures, the Commission retains a broad margin of discretion, in particular, to alter the amount of the fine or terminate the settlement procedure in the light of new information, provided that a final decision has not yet been adopted (see, in particular, Bernardeau, L., and Christienne, J.-P., op. cit., points I.738 and I.749).

67 – As the General Court rightly held in paragraphs 96, 123 and 124 of the judgment under appeal.

68 – The Commission emphasises that Timab and CFPR had been given details of how the range of likely fines had been calculated, including information relating to potential reductions, during the settlement procedure.

69 – It is clear from paragraph 82 et seq. of the judgment under appeal that the increase in the final amount of the fine was also linked to the basis on which the fine was calculated, the appellants’ value of sales being significantly higher in the infringement period established in the contested decision (see Idot, L., ‘Cartels et procédure de transaction’ in Europe, 2015, No 7, Commentary 267, paragraph 1).

70 – The concessions which must be made by parties agreeing to settle include acknowledgment of the case against them, acceptance of a maximum amount of the fine, confirmation that they have been able to make their views known and a waiver of access to the file and an oral hearing (see Article 10a of Regulation No 773/2004, as amended by Regulation No 622/2008, and point 20 of the Settlement Notice).

71 – See point 19 and, by analogy, point 29 of the Settlement Notice.

72 – See recital 4 of Regulation No 622/2008.

73 – See, to that effect, Idot, L., op. cit., paragraph 1, and Idot, L., ‘Le Tribunal de l’Union se prononce pour la première fois sur la procédure de transaction’ in Revue des contrats, 2015, No 4, p. 928.

74 – In this connection the Commission refers to recital 320 et seq. of the contested decision, summarised in paragraphs 17 to 26 of the judgment under appeal, which set out, for all the cartel members, the method by which their fines were calculated, giving details of the amounts arrived at each stage.

75 – See, in particular, judgments of 10 April 2014, Commission and Others v Siemens Österreich and Others (C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 105), and of 12 June 2014, Deltafina v Commission (C‑578/11 P, EU:C:2014:1742, paragraph 75).

76 – See, in particular, judgments of 10 April 2014, Commission and Others v Siemens Österreich and Others (C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 106), and of 12 November 2014, Guardian Industries and Guardian Europe v Commission (C‑580/12 P, EU:C:2014:2363, paragraph 51) and the case-law cited in paragraphs 72 and 201 of the judgment under appeal.

77 – In particular, I fail to see the basis of the appellants’ allegation that the parties which agreed to settle were treated more favourably in that they were supposedly better ‘able to anticipate the amount of the fine that would be imposed on them’.

78 – See footnote 48 to this Opinion.

79 – Indeed, as Advocate General Kokott stated in her Opinion in Pilkington Group and Others v Commission (C‑101/15 P, EU:C:2016:258, point 96 and the case-law cited), ‘the principle of equal treatment is satisfied if all cartel participants are dealt with by reference to the same criteria as regards the calculation of the fines imposed on them, so that, in qualitative terms, in relation to a single cartel offence two different standards are not applied’. The application of the same calculation parameters does not, however, prevent the Commission from reflecting in the amount of the fine any mitigating or aggravating circumstances pertaining to one or other of the participants.

80 – See paragraphs 71 to 74 of the judgment under appeal and, to the same effect, paragraph 216 thereof.

81 – See paragraphs 160 to 164 and 201 to 206 of the judgment under appeal. In that last passage of its judgment, the General Court rightly held that the reduction in the fine obtained by another cartel member and the non-reduction of the appellants’ fine flowed from an objective analysis conducted by the Commission in accordance with point 35 of the 2006 Guidelines and that the appellants’ ability to pay was not comparable to that of that other party.

82 – The appellants expressly refer to the following extract: ‘at the hearing on 24 February 2010, [the Commission] asked the applicants to clarify the relationship between their application for leniency and the facts prior to 1993 and indicated that the new characterisation of the infringement could have an impact on the calculation of the amount of the fines and, in particular, on the added value of [the] cooperation [offered by Timab and CFPR]’ (emphasis added in the application initiating the appeal).

83 – Timab and CFPR argue that the concept of ‘cooperation’ covers both reductions granted under the leniency rules and reductions granted outside that context. In paragraphs 92 and 93 of the judgment under appeal, the General Court emphasised that, in accordance with the case-law cited therein, the Commission is under no obligation, either under the Leniency Notice or ‘outside the leniency programme’, to reward cooperation with a reduction in the fine where it does not facilitate the investigation by enabling the Commission to establish the existence of an infringement more easily and, where relevant, to bring it to an end.

84 – As regards the reductions which the Commission envisaged in the context of the settlement procedure, see point 7 of this Opinion.

85 – The Commission adds that the effects of the appellants’ denial on the calculation of the fine, which it pointed out to Timab and CFPR, would have been exactly the same if there had never been a settlement attempt or if, in the course of settlement, the appellants had successfully disputed their participation in the infringement during the period prior to 1993.

86 – See, by analogy, judgment of 14 June 2016, Marchiani v Parliament (C‑566/14 P, EU:C:2016:437, paragraph 113).

87 – See point 19 et seq. of this Opinion.

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