Key facts of the case:
(Appeals — Agreements, decisions and concerted practices — Market for flat glass — Calculation of the fine — Inclusion of an undertaking’s internal sales — Reasonable time — Admissibility of documents produced out of time)
Results (sanctions) and key consequences of the case:
144. Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. Article 138(3) of the same Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) of those rules, provides that, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
145. In this appeal, since the Commission has been unsuccessful, it must be ordered to pay Guardian’s costs. On the other hand, since Guardian and the Commission were unsuccessful in part of their claims in the proceedings at first instance, it is appropriate to decide that each of them shall bear its own costs relating to those proceedings.
V – Conclusion
146. In the light of the foregoing considerations, I propose that the Court should rule as follows:
- declare that, in its judgment in Case T‑82/08 Guardian Industries and Guardian Europe v Commission EU:T:2012:494, the General Court of the European Union erred in law in ruling the European Commission’s letter of 10 February 2012 admissible even though it was produced out of time, declare that letter inadmissible and remove it from the case-file;
- annul that judgment in so far as, by upholding the Commission’s decision to exclude the captive sales from its calculation of the fines imposed on the other addressees of the decision, and thus discriminating against the applicants, the General Court erred in law;
- consequently reduce by 37% the fine imposed on the applicants and set the fine at EUR 93 240 000 instead of EUR 148 000 000;
- declare that the General Court failed to adjudicate within a reasonable time;
- decide that each party is to bear its own costs relating to the proceedings at first instance and that the Commission is to pay all the costs of these proceedings.