In its judgment Pometon SpA v. Commission of 28 March (T-433/16), the General Court was called on to strike a balance with regard to the exercise of the rights of defence in the context of hybrid competition proceedings.
Hybrid competition proceedings are settlement procedures (pursuant to article 7 and 23 of Regulation 1/2003) under which some of the parties involved decide to withdraw from the procedure whereas others accept to settle with the Commission.
The case at hand concerned Pometon SpA, a company then active in the sector of steel abrasives, and four other economic operators involved in an investigation for infringement of article 101 TFEU. During the settlement proceedings, Pometon SpA decided to make use of its right to withdraw from the negotiations while the four other actors involved reached a settlement agreement with the Commission. Pometon SpA was later subject to a decision from the Commission under ordinary proceedings.
Pometon SpA claimed, among other things, that its rights of defence and to the presumption of innocence had been infringed by the adoption of the settlement decision, which referred to it at various occasions.
The General Court first confirmed that the presumption of innocence applies in competition proceedings. It then went on to analyse the settlement decision and the references included in that decision to Pometon SpA’s situation. In particular, the Court operated a distinction between the general description of “the cartel as a whole” and the “legal classification of the facts specifically attributed” to the settling undertakings.
The fact that Pometon SpA was mentioned in the general description of the cartel at a stage where the Commission had not yet concluded on the actual participation of the undertakings to the cartel, does not jeopardize the impartiality of the Commission and the presumption of innocence of Pometon SpA, the General Court said. The Court considered that mention of the name of the party is objectively useful to describe the cartel.
However, the General Court confirmed that the Commission has a duty to protect the rights of the parties that withdrew from a settlement procedure and has to adopt a very cautious approach in the process of drafting the settlement decision with regard to the rights of said parties.
According to the General Court, the party withdrawing from the settlement proceedings cannot require the Commission to ignore certain facts admitted by other parties and relevant for the establishment of the cartel’s existence just in order to avoid naming it in its decision. Moreover, the respect of the rights of defence does not create an immunity in favour of the withdrawing party.
The fact that two decisions may be adopted subsequently is inherent to the very nature of the settlement proceedings, and it does not and should not prevent a non-settling party to have its rights of defence respected. The General Court concluded that, in the present case, the Commission’s settlement decision respected this requirement.
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