GC, 6th chamber, July 10, 2014, No T-82/08 REV

Order

Background to the application

1 The applicants, Guardian Industries Corp. and Guardian Europe Sàrl (together, "Guardian"), are part of a group of companies which is active in the production of flat glass and automotive glass. Guardian Industries is the parent company of that group and indirectly owns 100% of the capital in

Guardian Europe.

2 On 28 November 2007, the Commission of the European Communities adopted Decision C(2007) 5791 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39165 - Flat glass) ("the contested decision"), a summary of which was published in the Official Journal of the European Union of 24 May 2008 (OJ 2008 C 127, p. 9), and which was notified to the applicants on 3 December 2007.

3 The contested decision was also notified to Asahi Glass, Glaverbel, Pilkington Deutschland AG, Pilkington Group Ltd, Pilkington Holding GmbH, and to Compagnie de Saint-Gobain SA and Saint-Gobain Glass France SA (taken together, 'Saint-Gobain').

4 In the contested decision, the Commission stated that the companies to which that decision was addressed had participated in a single and continuous infringement of Article 81(1) EC, which covered the territory of the European Economic Area (EEA) and consisted in the fixing of price increases, minimum prices, target prices, price freezing and other commercial conditions in respect of sales to independent customers of four categories of flat glass products used in the building industry, namely float glass, low-e glass, laminated glass and unprocessed mirrors, as well as in the exchange of commercially sensitive information.

5 The applicants were found guilty of the infringement for the period from 20 April 2004 to 22 February 2005 and a fine of EUR 148 million was imposed on them jointly and severally.

6 By application lodged at the Registry of the General Court on 12 February 2008, the applicants brought an action for the annulment of the contested decision.

7 By judgment in Case T-82-08 Guardian Industries and Guardian Europe v Commission [2012] ECR, the General Court dismissed the action. On 10 December 2012, the applicants lodged an appeal against that judgment before the Court of Justice (C-580-12 P).

Procedure and forms of order sought

8 By document lodged at the Registry of the General Court on 24 May 2013, the applicants brought, pursuant to Article 44 of the Statute of the Court of Justice of the European Union and Article 125 of the Rules of Procedure of the General Court, an application for revision of the judgment in Guardian Industries and Guardian Europe v Commission.

9 By letter lodged at the Court Registry on 7 July 2013, the Commission submitted its observations on the application for revision of the judgment in Guardian Industries and Guardian Europe v Commission.

10 The applicants claim that the Court should:

- grant the application for revision of the judgment in Guardian Industries and Guardian Europe v

Commission;

- grant Guardian's original plea to reduce the fine imposed on it to ensure equal treatment with Guardian's vertically integrated competitors;

- taking into account the gravity of the Commission's conduct, further reduce the amount of the fine imposed on the applicants;

- order the Commission to pay the costs of this application, the cost of the earlier proceedings in Case T-82/08, and the costs of the proceedings before the Court of Justice in Case C-580-12 P.

11 The Commission contends that the Court should :

- dismiss the application for revision of the judgment in Guardian Industries and Guardian Europe v Commission as inadmissible, or in any event, as unfounded;

- order the applicants to pay the costs.

Law

Arguments of the parties

12 In support of the application for revision of the judgment in Guardian Industries and Guardian Europe v Commission, the applicants submit that the Commission misrepresented the evidence in its administrative file regarding the relationship between prices for captive sales of flat glass and for sales to independent customers in the proceedings before the General Court.

13 The applicants claim that, during the appeal proceedings against the judgment in Guardian Industries and Guardian Europe v Commission, the Commission, relying on Saint-Gobain's statement, argued that any cartel-related price increases for flat glass to independent customers would also be reflected in higher transfer prices to the downstream operations of vertically integrated companies. They submit that that claim contradicts the position adopted by the Commission during the proceedings before the General Court, namely that there was no evidence that the conduct sanctioned in the contested decision affected the transfer prices for captive sales in vertically integrated companies. That change of position constitutes a misrepresentation of the evidence in the Commission's administrative file.

14 In particular, the applicants submit that they learned of the Commission's misrepresentation of the evidentiary record by the Commission to the General Court only when the Registrar of the Court of Justice served the Commission's response on them in the appeal proceedings. They emphasise that it is the misrepresentation of the evidentiary record which constitutes a new fact and not the existence of Saint-Gobain's statement.

15 Moreover, the applicants submit that both they and the General Court were unaware of that fact, since they had no reason to suspect that the Commission had misrepresented the record that it had assembled.

16 Lastly, the applicants claim that that fact has an impact on the judgment of the General Court, since the General Court relied on the misrepresentation of the record by the Commission in its dismissal of the action for annulment.

17 The Commission disputes the applicants' arguments.

Findings of the Court

18 Pursuant to Article 111 of the Rules of Procedure, where an action is manifestly inadmissible, the General Court may, by reasoned order, without taking further steps in the proceedings, give a decision on the action, it being specified that that article applies to all actions brought before the General Court, including exceptional applications such as applications for revision (see, to that effect, order in Case T-4-89 REV BASF v Commission [1992] ECR II-1591, paragraph 17, and order of 16 April 2012 in Joined Cases T-40-07 P-REV and T-62-07 P-REV de Brito Sequeria Carvalho v Commission, not published in the ECR, paragraph 10). In the present case, the Court considers that it has sufficient information from the documents before it and has decided, pursuant to that article, that there is no need to take any further steps in the proceedings.

19 In assessing the admissibility of the present application for revision, it should be borne in mind that, under the first paragraph of Article 44 of the Statute of the Court of Justice, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 of that statute, an application for revision of a judgment may be made only on discovery of one or more facts which are of such a nature as to be a decisive factor, and which, when the judgment was given, were unknown to the Court seised and to the party claiming the revision. Under the second paragraph of that Article 53, it is only where the Court finds that a new fact exists, recognises that it is of such a character as to lay the case open to revision and declares the application admissible on that ground that it can examine the substance of the case.

20 According to settled case-law, revision is not an appeal procedure but an exceptional review procedure that allows the authority of res judicata attaching to a final judgment to be called in question on the basis of the findings of fact relied upon by the Court. Revision presupposes the discovery of elements of a factual nature which existed prior to the judgment and which were unknown at that time to the Court which delivered the judgment as well as to the party applying for revision and which, had the Court been able to take them into consideration, could have led it to a different determination of the proceedings. Moreover, in the light of the exceptional nature of the revision procedure, the conditions governing the admissibility of an application for revision of a judgment are to be interpreted strictly (see, to that effect, judgment of 2 April 2009 in Case C-255-06 P-REV Yedas Tarim ve Otomotiv Sanayi ve Ticaret v Council and Commission, not published in the ECR, paragraphs 16 and 17 and the case-law cited).

21 In support of the application for revision of the judgment in Guardian Industries and Guardian Europe v Commission, the applicants claim that the Commission misrepresented evidence in the administrative file submitted before the General Court. They claim that that misrepresentation came to light only during the appeal proceedings, pending before the Court of Justice, in which the Commission based a new line of argument on the statement made by Saint-Gobain during the administrative procedure.

22 In that regard, it is sufficient to note that the applicants themselves concede that they had access to Saint-Gobain's statement and to the administrative file before they brought their application for annulment of the contested decision before the General Court. They were therefore able to rely on that statement in support of their arguments, including in order to claim that the Commission had misrepresented the record in the contested decision, or was misrepresenting it before the General Court. Any misrepresentation by the Commission of Saint-Gobain's statement or of the content of the administrative file cannot be regarded as a fact which was unknown to the applicants for the purposes of the case-law referred to in paragraph 21 above.

23 It follows from all the foregoing that the present application for revision must be rejected as manifestly inadmissible, and that there is no need to examine the applicants' arguments relating to the merits of that application.

Costs

24 Under Article 87(2) 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.

25 As the applicants have been unsuccessful in the present case, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Sixth Chamber) hereby orders, 1. The application for revision is dismissed as manifestly inadmissible, 2. Guardian Industries Corp. and Guardian Europe SARL are to pay the costs.