CELEX: 62013TJ0216
Competition
Agreements, decisions and concerted practices
Portuguese and Spanish telecommunications markets
Non-competition clause with respect to the Iberian market inserted in the contract for the acquisition by Telefónica of Portugal Telecom’s share in the Brazilian mobile telephone operator Vivo
Legal safeguard ‘to the extent permitted by law’
Infringement by subject-matter
Ancillary restriction
Autonomy of the applicant’s conduct
Potential competition
Infringement by effects
Calculation of the amount of the fine
Request for examination of witnesses

Background to the dispute
The present dispute, which concerns Commission Decision C(2013) 306 final of 23 January 2013 relating to a proceeding under Article 101 [TFEU] (Case COMP/39.839 — Telefónica/Portugal Telecom) (‘the contested decision’), originated in a clause (‘the clause’) inserted in Article 9 of the share purchase agreement (‘the agreement’) signed by the applicant, Telefónica, SA (‘Telefónica’) and Portugal Telecom SGPS, SA (‘PT’) on 28 July 2010, whereby Telefónica was to acquire exclusive control of the Brazilian mobile network operator Vivo Participações, SA (‘Vivo’). The clause is worded as follows (recital 1 of the contested decision):
‘Ninth — Non-compete
To the extent permitted by law, each party shall refrain from engaging or investing, directly or indirectly through any affiliate, in any project in the telecommunication business (including fixed and mobile services, internet access and television services, but excluding any investment or activity currently held or performed as of the date hereof) that can be deemed to be in competition with the other within the Iberian market for a period starting on [the date of the definitive conclusion of the transaction of 27 September 2010] until [31 December] 2011.’
The European Commission considered, in accordance with its preliminary conclusion in the statement of objections of 21 October 2011, that, in the light of the clause and the circumstances (the economic and legal context of the case and the parties’ conduct), the clause amounted to a market-sharing agreement with the object of restricting competition in the internal market and thus infringed Article 101 TFEU (recitals 2 and 434 of the contested decision).
I –
Presentation of Telefónica and PT
Telefónica is the Spanish State’s former telecommunications monopoly; it was fully privatised in 1997 and is the main telecommunications operator in Spain. It has developed an international presence in several countries in the European Union, Latin America and Africa and is one of the major European telecommunications groups (recitals 12 and 16 of the contested decision).
At the time of the adoption of the decision at issue in the present proceedings, Telefónica held 2% of PT’s share capital. At the time of the facts forming the subject matter of that decision, Telefónica held a minority stake in Zon Multimedia (‘Zon’), a competitor of PT in the electronic communications sector, resulting from the spin-off, in November 2007, of PT Multimedia from its parent company, PT. In addition to its shareholdings in a number of Portuguese companies, Telefónica began to develop a direct presence in Portugal through two of its subsidiaries and the Portuguese branch of one of those subsidiaries (recitals 18 to 20 and 215 of the contested decision).
In addition, Telefónica designated, depending on the date, one or two members of PT’s board of directors. At the time of the definitive conclusion of the transaction relating to the purchase of Vivo, namely on 27 September 2010 (see paragraph 25 below), two of the members of PT’s board of directors had been designated by Telefónica (footnote 67 of the contested decision).
The Portugal Telecom group was formed in 1994 following the merger of three public companies and privatised in five phases between 1995 and 2000. Following the fifth and final privatisation phase, in 2000, the Portuguese State held 500 class-A shares (‘golden shares’) which conferred on it certain special rights, including a right of veto over amendments to the company’s by-laws and other important decisions. On 12 December 2000, Portugal Telecom, SA adopted the structure of a holding company and the denomination PT (recitals 21, 22 and 23 of the contested decision).
PT is the largest telecommunications operator in Portugal and has a strategic presence in other countries, notably in Brazil and in Sub-Saharan Africa. In Brazil, PT’s main shareholdings consisted in 50% of the shares in the joint venture controlling Vivo until Vivo was acquired by Telefónica. Following the sale of its stake in Vivo on 28 July 2010, PT entered into a strategic partnership with Oi, one of the main providers of electronic communications in Brazil (recitals 24 and 25 of the contested decision).
PT sold its 0.20% stake in Telefónica in 2010 and does not control any Spanish company. It provides telecommunications services to its Portuguese multinational customers active on the Spanish market by using other operators’ networks and, in particular, Telefónica’s network (recitals 27, 28 and 233 of the contested decision).
II –
Negotiation and signature of the agreement
Vivo is one of the major mobile telecommunications operators in Brazil. At the time when the agreement was signed (28 July 2010), Vivo was jointly controlled by Telefónica and PT through Brasilcel NV (‘Brasilcel’), an investment vehicle company incorporated in the Netherlands (recital 33 of the contested decision).
On 6 May 2010, Telefónica launched a hostile takeover offer of EUR 5.7 billion for the 50% shareholding in Brasilcel then owned by PT. That offer contained, inter alia, a provision that ‘Telefónica would not require any non-compete or non-solicitation commitment from Portugal Telecom’. That first offer was unanimously rejected by the members of PT’s board of directors (recitals 35 and 36 of the contested decision).
On 1 June 2010, at 2.53 a.m., following a meeting between the parties on 31 May 2010, PT sent Telefónica an email with a draft relating to a second offer to purchase its shareholding in Vivo. The clause was introduced for the first time in that draft (recital 38 of the contested decision).
The first draft of the clause was worded as follows (recital 39 of the contested decision):
‘Non-compete
Each party shall refrain from engaging or investing, directly or indirectly through any Affiliate, in any project in the telecommunication business (including fixed and mobile services, internet access and television services) that can be deemed to be in competition with the other within the Iberian market for a period starting on the date of Acceptance of the Offer until the latest of (i) 31 December 2011 or (ii) the date of consummation of the transfer of the last portion of Alternative B Put Shares’.).
In an email sent to PT on 1 June 2010 at 12.21 p.m., Telefónica suggested an amendment to the clause in the form of the addition of the phrase ‘excluding any investment or activity currently held or performed as of the date [of signature of the agreement]’, in order to exclude from the scope of the agreement the existing activities of each party in the other party’s national market. That amendment was incorporated in the second offer, dated 1 June 2010 (recital 40 of the contested decision).
In addition to the first draft of the clause, the second offer provided for an increased price of EUR 6.5 billion, a call option in favour of PT, under which PT could buy back its shares owned by Telefónica, and a commitment by Telefónica to buy PT’s shares in Dedic SA, a Brazilian call centre operator. Furthermore, the second offer still included Telefónica’s commitment not to require any ‘non-compete or non-solicitation commitments by Portugal Telecom’ that had already appeared in the first offer (recitals 41 and 42 of the contested decision).
On the evening of 1 June 2010, PT’s board of directors announced that it considered that Telefónica’s second offer did not reflect the real value of Vivo. However, it decided to submit its decision to the general assembly of the company on 30 June 2010 (recital 45 of the contested decision).
The second offer was made public by the parties by being posted on their respective websites and being notified to the Spanish and Portuguese Stock Exchange Authorities. In addition, the content of the clause inserted into the second offer was also made public in a brochure distributed by PT’s board of directors to its shareholders on 9 June 2010 in connection with the general shareholders’ meeting to be held on 30 June 2010 (recitals 128 and 129 of the contested decision).
On 29 June 2010, Telefónica presented a third offer of EUR 7.15 billion, containing the same terms and conditions as the second offer (recital 46 of the contested decision).
On 30 June 2010, PT’s ordinary general assembly approved Telefónica’s third offer. However, the Portuguese Government exercised the right attached to its golden shares in PT (see paragraph 6 above) to block the transaction and Telefónica extended the third offer until 16 July 2010 (recitals 47 and 48 of the contested decision).
In its judgment of 8 July 2010, Commission v Portugal (
C‑171/08
, ECR,
EU:C:2010:412
), the Court of Justice considered that, by maintaining special rights in PT such as those provided for in PT’s statutes in favour of the State and other public bodies, conferred in connection with the State’s golden shares in PT, the Portuguese Republic had failed to fulfil its obligations under Article 56 EC (recital 50 of the contested decision).
On 16 July 2010, PT asked Telefónica to extend its offer until 28 July 2010, but Telefónica refused to do so and the offer lapsed (recital 51 of the contested decision).
On 27 July 2010, a new meeting took place between PT and Telefónica and Telefónica proposed to PT that the words ‘to the extent permitted by law’ should be added at the beginning of the clause and that the duration of the clause should be from ‘the date [of the definitive conclusion of the transaction on 27 September 2010] until 31 December 2011’ (recitals 52 and 53 of the contested decision).
On 28 July 2010, Telefónica and PT entered into the agreement whereby Telefónica acquired exclusive control over Vivo by acquiring 50% of the share capital of Brasilcel for EUR 7.5 billion (recital 54 of the contested decision).
The agreement included, in clause 9, the following clause (recital 55 of the contested decision):
‘Ninth — Non-compete
To the extent permitted by law, each party shall refrain from engaging or investing, directly or indirectly through any affiliate, in any project in the telecommunication business (including fixed and mobile services, internet access and television services, but excluding any investment or activity currently held or performed as of the date hereof) that can be deemed to be in competition with the other within the Iberian market for a period starting on [the date of the definitive conclusion of the transaction of 27 September 2010] until [31 December] 2011.’
Unlike the second offer (paragraph 14 above), the agreement no longer included the call option in favour of PT, whereby PT could buy back the PT shares owned by Telefónica. On the other hand, the agreement made provision, in particular, for, in the first place, the resignation of the members of PT’s board of directors designated by Telefónica (Clause 3.6 of the agreement); in the second place, an industrial partnership programme between the two undertakings (Clause 6 of the agreement), on condition that they did not compete in Brazil (Clause 7 of the agreement); and, in the third place, the possible acquisition by Telefónica of the Brazilian company Dedic, which specialises in the provision of call centre services (Clause 10 of the agreement) (recitals 56 to 61 of the contested decision).
The transaction was definitively concluded on 27 September 2010, by means of a ‘deed of transfer of shares’ and a ‘confirmatory deed’ (recital 63 of the contested decision).
On the date of signature of the agreement, on 28 July 2010, PT had also announced that it had entered into, on the same date, a memorandum of understanding setting out the principles for the implementation of a strategic partnership with Oi (see paragraph 7 above) and that it expected to acquire 22.38% of the shares of the Oi group in order to have an important role in its management (recital 62 of the contested decision).
The Vivo transaction was notified, on 29 July and 18 August 2010, to the Agência National de Telecommunicações (Anatel, the Brazilian telecommunications regulatory authority) and the Conselho Administrativo de Defesa Econômica (CADE, the Brazilian competition authority) and, in an article published in the press on 23 August 2010, Telefónica confirmed that the agreement included a non-compete clause (recitals 103, 130 and 491 of the contested decision).
III –
Events following the conclusion of the agreement
On 26 and 29 October 2010, two telephone conversations took place between Telefónica and PT (recitals 113 and 124 of the contested decision).
On 4 February 2011, after the Commission had initiated the proceedings on 19 January 2011 (see paragraph 31 below), Telefónica and PT signed an agreement deleting the clause (recital 125 of the contested decision), worded as follows:
‘Recitals:
Whereas [PT] and Telefónica entered into an agreement (the “Agreement”) on 28 July 2010 in relation to the sale from [PT] to Telefónica of 50% (fifty) percent of the outstanding share capital of the Dutch company [Brasilcel] (“Brasilcel” or ‘the Company”).
Whereas Section Ninth of the Agreement included a Non-compete clause whereby, to the extent permitted by law, each Party would refrain from engaging in competition with the other in the Iberian market since Closing (as defined in the Agreement) until 31 December 2011.
Whereas Section Ninth of the Agreement was first discussed between the parties in relation to PT’s right to call the shares held by Telefónica in PT and eventually kept in the final agreement despite the fact that the said right was dropped, subject therefore to its conformity with law.
Whereas the Parties wish to confirm in writing their understanding that Section Ninth is not enforceable, and has not at any time been enforced, and therefore it has not affected their respective commercial decisions;
Whereas Telefónica and PT were notified on 24 January and 21 January 2011 respectively of the opening by the European Commission of formal proceedings in relation to the aforesaid Section Ninth.
In light of the above, the Parties agree as follows:
First. Amendment of the Agreement and Withdrawal of Rights
The Agreement shall be amended by deleting Section Ninth in its entirety, which will be deemed not to have had content at any time.
The Parties irrevocably and definitively confirm that Section Ninth has not and may not have conferred any rights or imposed any obligations on them or on any third party.
Second. Governing Law
This Agreement, and any question or dispute related to it or to its performance or consequences of any breach of it, shall be governed by and construed in accordance with the laws of Portugal.’
IV –
Procedure before the Commission
The clause was detected in September 2010 by the Spanish Competition Authority, which informed the Portuguese Competition Authority and the Commission, and it was decided that the investigation should be entrusted to the Commission (recital 3 of the contested decision).
On 19 January 2011, the Commission initiated proceedings against Telefónica and PT pursuant to Article 11(6) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (
OJ 2003 L 1, p. 1
) and Article 2(1) of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (
OJ 2004 L 123, p. 18
) (recital 5 of the contested decision).
In the context of the investigation, in application of Article 18(2) of Regulation No 1/2003, the Commission sent requests for information to the parties on 5 January, 1 April, 25 May, 10 and 24 June 2011 and 5 September 2012 and to certain of their multinational customers on 20 April 2011. In addition, meetings were held with PT on 17 March and 8 September 2011 and on 27 September 2012 and with Telefónica on 21 March and 7 September 2011 and on 27 September 2012 (recital 6 of the contested decision).
On 21 October 2011, the Commission adopted a statement of objections; on 4 November 2011, the parties had access to the file; and on 7 November 2011, they received the relevant documents. On 13 January 2012, Telefónica and PT replied to the statement of objections, but did not request an oral hearing (recitals 7, 8 and 9 of the contested decision).
On 23 January 2013, the Commission adopted the contested decision.
Contested decision
The Commission stated that the case giving rise to the contested decision concerned the clause in the agreement (paragraphs 1, 22 and 23 above) (recital 1 of the contested decision).
The Commission explained that it had considered in the statement of objections that, in the light of the clause and the circumstances (the economic and legal context of which the clause formed part and the behaviour of the parties), the clause amounted to a market-sharing agreement with the object of restricting competition in the internal market and constituted an infringement of Article 101 TFEU, and that it confirmed that conclusion in the contested decision (recital 2 of the contested decision).
In the first place, the Commission analysed the factual background to the negotiations between the parties that led to the introduction of the clause of the final version of the agreement, the events subsequent to the signature of the agreement (see paragraphs 10 to 29 above) and the parties’ arguments relating to that background and those events (recitals 29 to 130 of the contested decision).
In the second place, the Commission considered, in the light of the scope of the clause and the relevant markets, that, in view of its wording (paragraphs 1 and 23 above), the clause covered any project regarding electronic communications services, on condition that the other party rendered or might render that service. Consequently, and as is apparent from its wording, the clause referred to fixed and mobile telephone services, internet access and television services and also broadcasting transmission services, which are considered to be communications services although they are not mentioned in the clause. On the other hand, the Commission stated that, in accordance with the wording of the clause, any investment or activity carried out before the date of signature of the agreement, namely 28 July 2010, was excluded from the scope of the clause (recitals 132 to 136 and 185 of the contested decision).
In the latter regard, the Commission noted that global telecommunication services and wholesale international carrier services were excluded from the scope of the clause because each of the parties was present in the market for such services within the Iberian peninsula at the time of signature of the agreement (recitals 173, 174, 184 and 185 of the contested decision).
As regards the geographic scope of the clause, the Commission interpreted the expression ‘Iberian market’ as referring to the Spanish and Portuguese markets. Having regard to the parties’ commercial activities, which consisted of a presence on most of the electronic communications markets in the country of origin of each of them and little or no presence in the country of origin of the other party (paragraphs 3 to 7 above), the Commission considered that the geographic scope of the clause corresponded to Portugal for Telefónica and to Spain for PT (recitals 137 to 140 of the contested decision).
The Commission therefore concluded that the clause applied to all markets for electronic telecommunications services and television services in Spain and Portugal, with the exception of the markets for global telecommunication services and wholesale international carrier services (recital 185 of the contested decision).
In the third place, according to the Commission, there is no doubt that the clause constitutes an agreement within the meaning of Article 101(1) TFEU, since it is an agreement in written form, entered into and signed by the parties, the existence of which is undeniable and since, moreover, the clause was included in a public deed executed before a notary, the recitals to which state that a copy of the agreement is annexed to the deed (recital 237 of the contested decision).
First, in the light of the case-law on restriction of competition by object, the Commission, after analysing the parties’ arguments, considered that the clause constituted a restriction by object having regard to the content of the agreement, the objectives which the clause sought to attain, the legal and economic context of which the clause formed part, the actual conduct and behaviour of the parties and, last, their intention (recitals 238 to 242 and 243 to 356 of the contested decision).
The Commission thus concluded, as regards the object of the clause, that, taking into account its scope, the clause prevented PT from entering into any of the Spanish telecommunications markets and prevented Telefónica from expanding its limited presence in the Portuguese telecommunications markets while the clause was in force, so that, instead of competing with each other and behaving as rivals, as normally expected in an open and competitive market, Telefónica and PT had deliberately agreed to exclude or limit competition on their respective markets and the clause thus amounted to a market-sharing agreement (recital 353 of the contested decision).
In the latter regard, the Commission stated that the clause was, in addition, liable to delay integration in the electronic communications sector, since the market integration process would be seriously jeopardised if incumbents such as Telefónica and PT could reinforce their already very strong market position by participating in collusive practices with the aim of protecting their home markets and avoiding the entry of other operators to those markets (recitals 354 and 355 of the contested decision).
Second, after recalling that, according to the case-law, there was no need to take into account the actual effects of an agreement if it was shown that the agreement constituted a restriction of competition by object, which, according to the Commission, was the case here, the Commission nonetheless stated, in response to the parties’ arguments, that, first of all, the clause had been adopted by two competitors and was therefore capable of producing anti-competitive effects; that, next, even if the clause were considered to be incapable of producing any effects, that would not preclude its being regarded as constituting a restriction by object, since, if an agreement had as its object the restriction of competition, it was irrelevant, as regards the existence of the infringement, whether the agreement was or was not in the commercial interest of its participants, the fact that the clause having as its object the restriction of competition might have proved to be incapable of producing any effects in the commercial interest of Telefónica or PT thus being irrelevant; and that, last, the parties had wholly failed to show that they had engaged in new activities in Spain or Portugal that might disprove that the clause had been implemented, which did not in itself show that the clause had been implemented, but was a sign that it might have been implemented (recitals 240 and 357 to 365 of the contested decision).
The Commission considered that it must be concluded that, in this case, there was no need to show any negative effects on competition, since the anti-competitive object of the clause had been established and it was thus not necessary to carry out a detailed assessment of each telecommunications market concerned and of the effects of the clause within those markets (recital 366 of the contested decision).
Third, the Commission stated that the clause could not be analysed as a restriction ancillary to the Vivo transaction, since it related to the Iberian market whereas the Vivo transaction concerned an operator whose activity was confined to Brazil and the clause could not be considered to be necessary for the implementation of the operation (recitals 367 to 433 of the contested decision).
The Commission concluded that the clause imposed a non-compete obligation on the parties and constituted a market-sharing agreement with the object of restricting competition within the internal market and that it thereby infringed Article 101 TFEU, in view of the content of the agreement (and, in particular, the wording of the clause, which left little, if any, doubt as to its nature) and of the economic and legal context of which the agreement formed part (for example, the electronic communications markets, which were liberalised) and the actual conduct and behaviour of the parties (in particular, the fact that the agreement was terminated by the parties only on 4 February 2011, following the initiation of proceedings by the Commission on 19 January 2011 (and not as a result of the telephone conversations of October 2010, contrary to the parties’ claims) (recital 434 of the contested decision).
Fourth, the Commission stated that the clause did not fulfil the conditions laid down in Article 101(3) TFEU (recitals 436 to 446 of the contested decision) and that it might affect trade between Member States (recitals 447 to 453 of the contested decision).
Fifth, as regards the duration of the infringement, the Commission concluded that the infringement covered the period from the date of the definitive conclusion of the transaction, namely 27 September 2010 (see paragraph 25 above), until the date on which the clause had been terminated, namely 4 February 2011 (see paragraph 29 above) (recitals 454 to 465 of the contested decision).
Sixth, as regards the calculation of the amount of the fines, the Commission applied, in the contested decision, the provisions of the 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 Guidelines’).
In order to determine the basic amount of the fine to be imposed, the Commission took into account the value of sales of the services covered by the clause as defined in section 5 of the contested decision (see paragraphs 38 to 40 above) and, in particular, for each party, only the value of its own sales in its country of origin (recitals 478 to 483 of the contested decision).
The Commission also recalled that it normally took into account the sales made by the undertakings during the last full business year of their participation in the infringement, but that, in this instance, the infringement had lasted for less than one year and had taken place between 2010 and 2011. Consequently, the Commission used the undertakings’ sales in 2011, which were lower than the sales recorded by the parties in 2010 (recital 484 of the contested decision).
As regards the gravity of the infringement, which determines the percentage of the value of sales to be taken into consideration when setting the basic amount of the fine, the Commission observed that the infringement consisted of an agreement not to compete and to share the Spanish and Portuguese electronic communications and television markets and that Telefónica and PT were the incumbent telecommunications operators in their respective countries. In addition, the Commission noted that it took into account the fact that the clause had not been kept secret by the parties (see paragraphs 16 and 27 above). In the light of those factors, the Commission considered that the value of sales to be taken into consideration should be 2% for the two undertakings concerned (recitals 489 to 491 and 493 of the contested decision).
So far as the duration of the infringement was concerned, the Commission took account of the fact that it had covered the period from 27 September 2010 (date of the notarised deed and thus of the definitive conclusion of the transaction) until 4 February 2011 (date of the agreement whereby the parties terminated the clause) (recital 492 of the contested decision).
The Commission did not take any aggravating circumstance into account and considered that the date of termination of the clause, 4 February 2011, constituted a mitigating circumstance, since the clause was terminated only 16 days after the Commission initiated the proceedings and 30 days after it sent the first request for information to the parties. As, moreover, the clause had not been kept secret, the Commission considered that the basic amount of the fines to be imposed on the parties should be reduced by 20% (recitals 496, 500 and 501 of the contested decision).
The final amount of the fines came to EUR 66894000 for Telefónica and EUR 12290000 for PT (recital 512 of the contested decision). The Commission pointed out that those amounts did not exceed 10% of the total turnover of each of the parties concerned (recitals 510 and 511 of the contested decision).
The operative part of the contested decision reads as follows:
‘
Article 1
[Telefónica] and [PT] have infringed Article 101 [TFEU] by participating in a non-compete agreement, included as clause nine of the Stock Purchase Agreement entered into by them on 28 July 2010.
The duration of the infringement was from 27 September 2010 until 4 February 2011.
Article 2
For the infringement referred to in Article 1, the following fines are imposed:
(a)
[Telefónica]: EUR 66894000
(b)
[PT]: EUR 12290000
…’
Procedure and forms of order sought
By application lodged at the Court Registry on 9 April 2013, the applicant brought the present action.
On hearing the report of the Judge-Rapporteur, the Court (Second Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure provided for under Article 64 of the Rules of Procedure of 2 May 1991, put a written question to the Commission to be answered at the hearing.
On 31 March 2015, the applicant lodged a request for the examination of witnesses, thus reiterating the request for examination of witnesses submitted in the application as an ‘additional head of claim’. On 24 April 2015, the Commission submitted its observations on that request.
The parties presented oral argument and answered the oral questions and the written question put by the Court at the hearing on 19 May 2015.
The applicant claims that the Court should:
—
annul Articles 1 and 2 of the contested decision insofar as they relate to it;
—
in the alternative, declare Article 2 of the contested decision null and void in part and reduce the amount of the penalty imposed, ‘for the reasons set out in the present document or for other reasons which the Court may accept’;
—
order the Commission to pay the costs incurred by the applicant in these proceedings.
The Commission contends that the Court should:
—
dismiss the action;
—
order the applicant to pay the costs.
At the hearing, the applicant explained that by the expression ‘declare Article 2 of the contested decision null and void in part’ in its second head of claim, it sought annulment in part of the contested decision. In addition, it stated that it was merely seeking annulment in part of the contested decision for the reasons set out in the application, as the expression ‘or for other reasons which the Court might take into account’ corresponded to a form of words habitually used in Spanish law.
Law
I –
Admissibility
By way of preliminary point, the Commission disputes the admissibility of certain annexes to the application, while the applicant disputes the admissibility of certain references which the Commission makes in its pleadings to the parallel action brought by PT against the contested decision in Case T‑208/13
Portugal Telecom
v
Commission
.
A –
Admissibility of certain annexes to the application
The Commission claims that certain annexes which the applicant attaches to its application were not supplied during the administrative procedure and must therefore be declared inadmissible. It refers in that regard to Annexes A.25, A.37, A.55, A.56, A.57, A.58, A.59, A.60, A.61, A.62, A.63, A.65, A.67, A.69, A.70, A.71, A.72, A.74, A.75, A.76, A.77, A.78, A.79, A.80, A.81, A.82 and A.83 and to the press articles listed in Annex A.70 which did not yet appear in the administrative file, namely Annexes A.19, A.28, A.41, A.44, A.45, A.46, A.47, A.48, A.49, A.51 and A.53, and to parts of Annexes A.9, A.11, A.12, A.13, A.14, A.16, A.18, A.20, A.21, A.22, A.23, A.27, A.29, A.30, A.38, A.39, A.40, A.43 and A.52.
As regards the annexes put forward in support of the pleas disputing the establishment of the infringement, the Commission maintains that they are inadmissible because the legality of a European Union measure is in principle to be assessed on the basis of the elements of fact and of law to which the parties made reference during the administrative procedure.
As regards the annexes put forward in support of the pleas disputing the amount of the fine, the Commission claims that, while the Court, in the exercise of its unlimited jurisdiction, may, when assessing the amount of the fine, take into consideration additional information that was not mentioned in the contested decision, in the light of the principle of legal certainty the only information that may be taken into account is, in principle, information predating that decision that the Commission might have been aware of at the time when it adopted the decision. That does not apply to Annexes A.76 (a report dating from 4 April 2013), A.77, A.80, A.81 (a report and documents dating from 5 April 2013) and, last, A.82 (a document dating from 8 April 2013).
Last, the Commission asserts, with respect to the legal reports, namely Annexes A.69 and A.76, that the elements of law which they contain should be in the actual text of the applicant’s pleadings or, at least, be sufficiently identified in those pleadings. As for the economic reports, namely Annexes A.75 and A.77, the case-law shows that they are irrelevant in the case of agreements which are shown beyond dispute to have a restrictive object.
However, at the hearing the Commission stated that the legal reports were not inadmissible if the points of law which those reports were supposed to illustrate were identified with sufficient precision in the pleadings and acknowledged, in answer to a question from the Court, that that was the case here, since the applicant referred to quite specific points in the reports in question in support of clearly identified elements of its argument in paragraphs 78, 83, 85, 90 and 94 and in footnote 167 to the application. In addition, the Commission stated that it was relying on the case-law to the effect that economic reports are irrelevant in the case of agreements which are shown beyond dispute to have a restrictive object not in order to challenge the admissibility of the reports, but in order to assert that those reports did not have to be taken into account when analysing the substance of the infringement.
In the applicant’s submission, the Commission misreads the case-law: only elements of fact or of law subsequent to the date of adoption of the decision are considered inadmissible, which does not apply to the annexes which the Commission would exclude, which related to circumstances preceding the decision. In addition, economic and legal reports which are specially drawn up for the purposes of challenging the decision are also admissible.
It is necessary to distinguish, among the annexes alleged to be inadmissible, those produced in order to challenge the establishment of the infringement and those produced in order to challenge the amount of the fine.
In the first place, first, it should be noted that, among the annexes alleged to be inadmissible, the following annexes were produced in order to challenge the establishment of the infringement: Annexes A.25, A.37, A.55, A.56, A.57, A.58, A.59, A.60, A.61, A.62, A.63, A.65, A.67, A.69, A.70, A.71, A.72, A.74, A.75, A.76, A.77, A.78 and A.79 and the press articles cited in Annex A.70.
Second, it should first of all be noted that Annexes A.56 (a summary table containing details of contacts between the counsel and representatives of Telefónica and PT during the negotiation of the operation), A.69 (an opinion of Portuguese law by Mr M.P.), A.70 (a summary table of the press articles cited in the application), A.71 (a statement from the Bar of Madrid (Spain) concerning disciplinary penalties), A.75 (a PWC report), A.76 (a report concerning Brazilian law drawn up by D.W.C.A.) and A.77 (a report by S.&R.) were drawn up specifically in order to challenge the contested decision. In fact, it is clear from its argument in the rejoinder that the Commission does not dispute the admissibility of the evidence postdating the contested decision but prepared specifically in order to challenge or defend that decision.
Nor, as the Commission itself acknowledged at the hearing, can it challenge the admissibility of the legal reports drawn up specifically in order to challenge the contested decision, namely Annexes A.69 (an opinion relating to Portuguese law by Mr M.P.) and A.76 (a report relating to Brazilian law drawn up by D.W.C.A.), on the ground that, insofar as the annexes contain elements of law on which certain pleas set out in the application are based, such elements must appear in the actual text of the pleading to which the annexes are attached or, at least, be sufficiently identified in that pleading. In fact, in the present case, the elements of law in the legal reports are sufficiently identified in the applicant’s pleadings (see paragraph 72 above). In those circumstances, Annexes A.69 and A.76 must be declared admissible.
Last, the same applies, as the Commission also acknowledged at the hearing (see paragraph 72 above), to the economic reports prepared in order to challenge the contested decision, namely Annexes A.75 (a PWC report) and A.77 (a report by S.&R.), since the question of the relevance of those reports in the case of agreements which are shown beyond dispute to have a restrictive object, raised by the Commission, manifestly relates to the substance of the dispute, with the consequence that, irrespective of the answer to that question, it cannot be decisive for the admissibility of the annexes.
Third, in order to determine precisely the remaining annexes, produced in order to challenge the establishment of the infringement, the admissibility of which the Commission disputes on the ground that they were not produced during the administrative procedure, it should be noted that the Commission claims that certain of those annexes (see paragraph 75 above) are in whole or in part complementary to the evidence put forward during the administrative procedure, and was not contradicted on that point by the applicant.
In order to determine precisely the annexes or parts of annexes which in the present case are among the annexes put forward in order to challenge the legality of the contested decision which in the Commission’s submission are inadmissible, and apart from those drawn up specifically in order to challenge the contested decision (see paragraph 76 above), it is necessary to distinguish the press articles listed in Annex A.70 from the other annexes put forward in order to challenge the establishment of the infringement which the Commission claims are inadmissible.
As regards the press articles listed in Annex A.70, namely Annexes A.8, A.9, A.10, A.11, A.12, A.13, A.14, A.16, A.17, A.18, A.19, A.20, A.21, A.22, A.23, A.24, A.26, A.27, A.28, A.29, A.30, A.35, A.36, A.38, A.39, A.40, A.41, A.43, A.44, A.45, A.46, A.47, A.48, A.49, A.51, A.52, A.53 and A.54, it should be noted that the Commission acknowledged at the hearing that Annex A.70 correctly stated which of those annexes were already in whole or in part in the file and which were complementary, which was recorded in the minutes of the hearing. It follows that it must be considered that Annexes A.8, A.10, A.17, A.24, A.26, A.35, A.36 and A.54 in their entirety and the parts of Annexes A.9, A.11, A.12, A.13, A.14, A.16, A.18, A.20, A.21, A.22, A.23, A.27, A.29, A.30, A.38, A.39, A.40, A.43 and A.52 which are stated to be already in the file were already in the administrative file relating to the present case, so that their admissibility is not disputed. On the other hand, Annexes A.19, A.28, A.41, A.44, A.45, A.46, A.47, A.48, A.49, A.51 and A.53 and the parts of Annexes A.9, A.11, A.12, A.13, A.14, A.16, A.18, A.20, A.21, A.22, A.23, A.27, A.29, A.30, A.38, A.39, A.40, A.43 and A.52 that were stated to be complementary were not put forward during the administrative procedure, so that their admissibility is disputed.
As regards, moreover, the other annexes put forward in order to challenge the legality of the contested decision which in the Commission’s submission are inadmissible (see paragraph 75 above), and apart from those drawn up specifically in order to challenge the contested decision (see paragraph 76 above), namely Annexes A.25, A.37, A.55, A.57, A.58, A.59, A.60, A.61, A.62, A.63, A.65, A.67, A.72, A.74, A.78 and A.79, it is apparent from the file that only those annexes containing correspondence the authenticity of which is attested by a notary, with the exception of Annex A.58, namely Annexes A.55, A.57, A.60, A.61, A.62, A.63, A.65 and 67 and also Annex A.37, contain parts which were already in the administrative file.
In that regard, first of all, it should be noted that the Commission asserts, in footnote 11 to the defence, that the notarised acts included as Annexes A.25, A.55, A.57, A.60, A.61, A.62, A.63, A.65 and A.67 are sometimes accompanied by correspondence which is already in the administrative file, as is the case, for example, of Annex A.65. That assertion is confirmed by the applicant, which states in footnote 6 to the reply that Annexes A.55 to A.63, A.65 and A.67 contain exchanges between the parties during the negotiations which were already in the administrative file, but the date of which is now certified by a notary, and also other exchanges that reinforce the evidence of a fact of which the Commission was already aware, namely the fact that the Portuguese Government participated in the negotiations. It follows from those assertions that where the annexes thus mentioned by the parties contain correspondence, that correspondence was already in the administrative file, so that its admissibility is not disputed, whereas the notarised acts accompanying that correspondence are complementary, so that their admissibility is disputed.
Next, it should be pointed out that Annexes A.25 and A.59 do not contain correspondence but (i) a certified copy of the annual accounts of PT and of C.G. de D. and (ii) extracts from the
Diário da República
concerning the appointment and resignation of the principal private secretary of the Portuguese Prime Minister; that the applicant itself acknowledged that it had not produced Annex A.58 during the administrative procedure; and, last, that Annex A.37 was already in the Commission’s file, since PT had attached it to its reply to the statement of objections.
Last, it should be inferred upon reading footnotes 11 to the defence and 6 to the reply (paragraph 83 above) in conjunction with the findings made in the preceding paragraph that Annex A.37 and the correspondence in Annexes A.55, A.57, A.60, A.61, A.62, A.63, A.65 and A.67 were already in the file, so that their admissibility is not disputed. On the other hand, the notarised acts in those annexes and Annexes A.25, A.58, A.59, A.72, A.74, A.78 et A.79 were not put forward during the administrative procedure, so that their admissibility is disputed.
It follows from all of the preceding considerations that, among the annexes produced in order to challenge the establishment of the infringement, only the admissibility of the following annexes is disputed: in the first place, Annexes A.25, A.58, A.59, A.72, A.74, A.78 and A.79; in the second place, the notarised acts in Annexes A.55, A.57, A.60, A.61, A.62, A.63, A.65 and A.67; and, in the third place, Annexes A.19, A.28, A.41, A.44, A.45, A.46, A.47, A.48, A.49, A.51 and A.53 and the parts of Annexes A.9, A.11, A.12, A.13, A.14, A.16, A.18, A.20, A.21, A.22, A.23, A.27, A.29, A.30, A.38, A.39, A.40, A.43 and A.52 that are described as complementary in the table in Annex A.70.
As regards the admissibility of those annexes, it should be borne in mind that, as the Court of Justice has had occasion to make clear on many occasions, the scope of the review of legality provided for in Article 263 TFEU extends to all aspects of Commission decisions relating to proceedings for the application of Articles 101 TFEU and 102 TFEU, in respect of which this Court carries out an in-depth review, as regards questions of both fact and law, in the light of the pleas in law put forward by the applicants (see, to that effect, judgments of 8 December 2011, KME Germany and Others v Commission,
C‑272/09 P
, ECR,
EU:C:2011:810
, paragraphs
and
, and Chalkor v Commission,
C‑386/10 P
, ECR,
EU:C:2011:815
, paragraphs
and
, and of 10 July 2014, Telefónica and Telefónica de España v Commission,
C‑295/12 P
, ECR,
EU:C:2014:2062
, paragraphs
and
) and taking into account all the evidence adduced by the applicants, whether predating or postdating the contested decision, whether submitted in the context of the administrative procedure or for the first time in the context of the action brought before the Court, insofar as that evidence is relevant to the review of the legality of the Commission’s decision (see, to that effect, judgment of 1 July 2010, Knauf Gips v Commission,
C‑407/08 P
, ECR,
EU:C:2010:389
, paragraphs
to
), it being borne in mind, however, that the Courts of the European Union cannot, in the context of the review of legality provided for in Article 263 TFEU, substitute their own reasoning for that of the institution which adopted the measure at issue (see, to that effect, judgment of 24 January 2013, Frucona Košice v Commission,
C‑73/11 P
, ECR,
EU:C:2013:32
, paragraph
and the case-law cited).
It follows that the plea of inadmissibility raised by the Commission against the annexes produced in order to challenge the establishment of the infringement and identified in paragraph 86 above must be rejected and that those annexes must be declared admissible.
In the second place, it should be noted, as regards the annexes produced for the purposes of the claim for a reduction of the amount of the fine, the admissibility of which is challenged, and with the exception of Annexes A.75 and A.77, which were also put forward in order to challenge the legality of the contested decision, and which have already been declared admissible (see paragraphs 76 and 78 above), namely Annexes A.80, A.81, A.82 and A.83, that it has been held that the Court had power to assess, in the exercise of its unlimited jurisdiction, whether or not the amount of fines is appropriate and that that assessment might justify the production and taking into account of additional information which was not mentioned in the contested decision (judgments of 16 November 2000, SCA Holding v Commission,
C‑297/98 P
, ECR,
EU:C:2000:633
, paragraphs
to
, and of 9 July 2003, Cheil Jedang v Commission,
T‑220/00
, ECR,
EU:T:2003:193
, paragraph
). It follows that the admissibility of the annexes produced with a view to securing a reduction of the amount of the fine imposed on the applicant cannot be challenged on the ground that that information had not yet been produced during the administrative procedure.
It follows from the foregoing that the plea of inadmissibility raised by the Commission must be rejected and that all the annexes produced by the applicant are admissible.
B –
Admissibility of the references to the parallel action brought by PT against the contested decision
The applicant claims that, in referring, in paragraphs 10, 39, 67 and 75 of the defence, to the parallel action brought against the contested decision by PT, the Commission fails to have regard to the fundamental principle of adversarial proceedings and breaches the applicant’s rights of defence. It submits that the Commission cannot rely on arguments raised by a third party in separate proceedings, since the applicant has not had access to the documents in question and cannot defend itself against the arguments which they contain. In addition, it cannot be precluded that the Commission is applying a biased interpretation of PT’s assertions that serves its own interests, as, in the applicant’s submission, it did during the administrative procedure. Last, the Commission is partial insofar as it mentions only those of PT’s arguments that support the Commission’s case, without reference to the paragraphs, which must presumably exist, on which the parties are in agreement.
The Commission contends that, insofar as it refers in its pleadings to PT’s assertions, the applicant is able to challenge them and that there is thus no breach of its rights of defence. At the hearing, the Commission explained that the references to PT’s written pleadings merely reiterated matters already put forward during the administrative procedure and that in any event it referred to those pleadings only by way of illustration.
In any event, it should be observed that it follows from the case-law that, in order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be apprised of, and to be able to debate and be heard on, the matters of fact and of law which will determine the outcome of the proceedings (judgment of 2 December 2009, Commission v Ireland and Others,
C‑89/08 P
, ECR,
EU:C:2009:742
, paragraph
).
While the applicant was indeed able to be apprised of the matters put forward by the Commission in its defence, and while it was able to comment on those matters in the reply and to express its views at the hearing on the matters put forward by the Commission in the rejoinder, the fact nonetheless remains that, by not having had access to the text of PT’s pleadings to which the Commission refers, the applicant was not in a position to ascertain the reality of the references on which the Commission relied or the context in which they were formulated. The applicant claims that it cannot be precluded that the Commission cites the extracts from PT’s pleadings selectively and in a biased manner.
It follows that the references which the Commission makes to PT’s pleadings in the parallel case are inadmissible.
II –
Substance
In support of its action, the applicant puts forward eight pleas in law, the first five of which seek annulment of the contested decision, while the last three seek a reduction of the amount of the fine imposed on the applicant. The first plea alleges infringement of Article 101 TFEU, owing to the incorrect application to the clause of the case-law on restrictions by object, and breach of the principles of presumption of innocence and of the burden of proof and of the principle
in dubio pro reo
. The second plea alleges infringement of Article 101 TFEU owing to a manifest error of assessment of the facts and breach of the principle that the evidence relating to the context, to the conduct of the parties and to the purpose of the clause must be appraised as a whole. The third plea alleges breach of the principles of the burden of proof and sound administration, the rights of the defence and the presumption of innocence concerning proof of the Portuguese Government’s involvement in the negotiations of the operation and of the clause in particular. The fourth plea alleges infringement of Article 101 TFEU, insufficient reasoning and incorrect assessment of the ability of the practice to restrict competition. The fifth plea alleges infringement of Article 101 TFEU in that the clause is not a restriction by effect and breach of the rules on the burden of proof and of the principle
in dubio pro reo
. The sixth plea alleges a manifest error in the calculation of the initial value of Telefónica’s sales for the purposes of establishing the basic amount of the fine and breach of the principles of proportionality and the obligation to state reasons. The seventh plea alleges a manifest error of assessment in the calculation of the basic amount of the fine according to gravity and breach of the principle of proportionality. Last, the eighth plea alleges infringement of Article 101 TFEU and breach of the principle of proportionality and a manifest error owing to the refusal to take other mitigating circumstances into account.
A –
The claims seeking annulment of the contested decision
1. The first three pleas, alleging, in essence, infringement of Article 101 TFEU in that the clause does not constitute a restriction of competition by object.
By its first three pleas, which should be examined together, the applicant disputes the Commission’s finding that the clause constitutes a restriction by object. The applicant takes issue with the Commission for having regarded the clause as a non-compete agreement independent of the Vivo transaction and for having considered that the expression ‘to the extent permitted by law’ served no useful purpose and had been inserted only for purely aesthetic ends, in order to disguise a restriction of competition. In the applicant’s submission, it would be impossible to apprehend the clause independently of the Vivo transaction and of the process of negotiating the agreement relating to that transaction, which was characterised by the permanent involvement of the Portuguese Government, which wished to ensure, through the clause, in particular, the continuity of PT as an independent leading undertaking on the Portuguese market. In those circumstances, the clause was an essential factor in making the transaction workable and the legal safeguard ‘to the extent permitted by law’ transformed the non-compete obligation initially provided for into a self-assessment obligation concerning the legality and the scope of a restriction ancillary to the transaction in question in the form of a commitment not to compete.
a) Preliminary observations
It should be borne in mind that an agreement within the meaning of Article 101(1) TFEU arises from an expression, by the participating undertakings, of their joint intention to conduct themselves on the market in a specific way (see, with respect to Article 81(1) EC, judgment of 8 July 1999, Commission v Anic Partecipazioni,
C‑49/92 P
, ECR,
EU:C:1999:356
, paragraph
; concerning Article 65(1) CS, judgment of 11 March 1999, Thyssen Stahl v Commission,
T‑141/94
, ECR,
EU:T:1999:48
, paragraph
). That concept therefore centres around the existence of a concurrence of wills between at least two parties, the form in which it is manifested being unimportant so long as it constitutes the faithful expression of the parties’ intention (judgments of 26 October 2000, Bayer v Commission,
T‑41/96
, ECR,
EU:T:2000:242
, paragraph
, and of 19 May 2010, IMI and Others v Commission,
T‑18/05
, ECR,
EU:T:2010:202
, paragraph
).
Furthermore, it should be borne in mind that, in order to be caught by the prohibition laid down in Article 101(1) TFEU, an agreement, a decision by an association of undertakings or a concerted practice must have ‘as [its] object or effect’ the prevention, restriction or distortion of competition in the internal market.
In that regard, it is apparent from the case-law of the Court of Justice that certain types of coordination between undertakings reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects (see judgment of 11 September 2014, CB v Commission,
C‑67/13 P
, ECR,
EU:C:2014:2204
, paragraph
and the case-law cited).
That case-law arises from the fact that certain types of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (see judgment in CB v Commission, cited in paragraph
above,
EU:C:2014:2204
, paragraph
and the case-law cited).
Consequently, it is established that certain collusive behaviour, such as that leading to horizontal price fixing by cartels, may be considered so likely to have negative effects, in particular on the price, quantity or quality of the goods and services, that it may be considered redundant, for the purposes of applying Article 101(1) TFEU, to prove that they have actual effects on the market. Experience shows that such behaviour leads to falls in production and price increases, resulting in poor allocation of resources to the detriment, in particular, of consumers (judgment in CB v Commission, cited in paragraph
above,
EU:C:2014:2204
, paragraph
).
Where the analysis of a type of coordination between undertakings does not reveal a sufficient degree of harm to competition, the effects of the coordination should, on the other hand, be considered and, for it to be caught by the prohibition, it is necessary to find that factors are present which show that competition has in fact been prevented, restricted or distorted to an appreciable extent (see judgment in CB v Commission, cited in paragraph
above,
EU:C:2014:2204
, paragraph
and the case-law cited).
According to the case-law of the Court of Justice, in order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (see judgment in CB v Commission, cited in paragraph
above,
EU:C:2014:2204
, paragraph
and the case-law cited).
In addition, although the parties’ intention is not a necessary factor in determining whether an agreement between undertakings is restrictive, there is nothing prohibiting the competition authorities, the national courts or the Courts of the European Union from taking that factor into account (see judgment in CB v Commission, cited in paragraph
above,
EU:C:2014:2204
, paragraph
and the case-law cited).
It is in the light of that case-law that the Court must consider whether, in the present case, the Commission was correct to conclude that, in the light of the clause and of the circumstances (the economic and legal context of which the case formed part and the conduct of the parties), the clause amounted to a market-sharing agreement having as its object the restriction of competition within the internal market, contrary to Article 101 TFEU (recitals 2 and 434 of the contested decision).
b) The assessment of the clause as a possible restriction ancillary to the Vivo transaction
It should be noted that the applicant takes issue with the Commission for having merely claimed that the clause did not satisfy the criteria of a restriction ancillary to the Vivo transaction although, if it were possible to discuss the question whether the clause was an ancillary restriction
stricto sensu
, it would be undeniable, in the light of the context in which it was negotiated, that it was subject to the ultimate objective of concluding a much more complex transaction, since it was a ‘condition sine qua non’ in order for PT and, especially, the Portuguese Government not to block the transaction. In addition, Telefónica did its utmost to limit the anti-competitive content of the clause, notably by the insertion of the phrase ‘to the extent permitted by law’.
The Commission claims that the question is not whether the clause was independent of the transaction, but whether it could be described as ancillary to the transaction.
At the hearing, the applicant made clear that it did not dispute the Commission’s finding, in recitals 367 to 433 of the contested decision, that the clause could not be characterised as a restriction ancillary to the Vivo transaction. That assertion was recorded in the minutes of the hearing.
It follows that it is no longer necessary to examine the applicant’s arguments from the aspect of the question whether the clause might have been characterised as a restriction ancillary to the Vivo transaction.
c) The autonomy of the applicant’s conduct
At the hearing, the Court also questioned the applicant as to whether its argument alleging influence on the part of the Portuguese Government should be taken to mean that, owing to that influence, Telefónica had lost all autonomy in implementing the decisions of the public authorities, which could remove its conduct from the scope of Article 101(1) TFEU (see, to that effect, judgment of 18 September 1996, Asia Motor France and Others v Commission,
T‑387/94
, ECR,
EU:T:1996:120
, paragraphs
and
).
In answer to that question, the applicant confirmed that it had continued to be an independent player in the sense that it could have not signed the agreement. As regards, more specifically, the clause, the applicant stated that, in accordance with its written pleadings, its argument concerning Telefónica’s autonomy during the negotiation process should be understood as follows: Telefónica remained independent, in the sense that it was able to ensure that the phrase ‘to the extent permitted by law’ was inserted into the clause, but it could not have excluded the clause, as thus amended, in its entirety without being in danger of jeopardising the transaction as a whole.
In those circumstances, it is appropriate to observe that, in so far as the applicant’s statements may be taken to mean that it claims that it would have lost all autonomy in implementing the decisions of the public authorities, which should remove its conduct from the application of Article 101(1) TFEU, such an argument cannot in any event be upheld.
In that regard, it should be borne in mind that it follows from the case-law that Articles 101 TFEU and 102 TFEU apply only to anti-competitive conduct engaged in by undertakings on their own initiative. If anti-competitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Articles 101 TFEU and 102 TFEU do not apply. In such a situation, the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the undertakings (see judgment of 10 April 2008, Deutsche Telekom v Commission,
T‑271/03
, ECR,
EU:T:2008:101
, paragraph
and the case-law cited).
The possibility of excluding particular anti-competitive conduct from the scope of Articles 101 TFEU and 102 TFEU, on the ground that it has been required of the undertakings in question by existing national legislation or that the legislation has eliminated any possibility of competitive conduct on their part, has been only partially accepted by the Court of Justice (see judgment in Deutsche Telekom v Commission, cited in paragraph
above,
EU:T:2008:101
, paragraph
and the case-law cited).
In fact, although the conduct of an undertaking may escape the application of Article 101(1) TFEU on account of a lack of autonomy on its part, it does not follow, however, that all conduct sought or directed by the national authorities falls outside the scope of that provision. Thus, if a State measure encompasses the elements of an agreement concluded between traders in a given sector or is adopted after consulting the traders concerned and with their agreement, those traders cannot rely on the binding nature of the rules in order to escape the application of Article 101(1) TFEU (see judgment in Asia Motor France and Others v Commission, cited in paragraph
above,
EU:T:1996:120
, paragraph
and the case-law cited).
In the absence of any binding regulatory provision imposing anti-competitive conduct, the Commission can therefore conclude that there was a lack of autonomy on the part of the traders in question only if it appears on the basis of objective, relevant and consistent evidence that that conduct was imposed on them by the national authorities through the exercise of irresistible pressures, such as the threat to adopt State measures likely to cause them to sustain substantial losses (judgments in Asia Motor France and Others v Commission, cited in paragraph
above,
EU:T:1996:120
, paragraph
; of 11 December 2003, Minoan Lines v Commission,
T‑66/99
, ECR,
EU:T:2003:337
, paragraph
; and of 27 September 2012, Koninklijke Wegenbouw Stevin v Commission,
T‑357/06
, ECR,
EU:T:2012:488
, paragraph
).
In addition, in order to escape the application of Article 101(1) TFEU, such pressures must be applied in such a way as to deprive the traders concerned of any autonomy in implementing the decisions of the public authorities (see, to that effect, judgment in Asia Motor France and Others v Commission, cited in paragraph
above,
EU:T:1996:120
, paragraphs
and
). In the absence of such a loss of autonomy, the fact that anti-competitive conduct was favoured or encouraged by the public authorities has in itself no impact from the aspect of the applicability of Article 101 TFEU (see, to that effect, judgment in Asia Motor France and Others v Commission, cited in paragraph
above,
EU:T:1996:120
, paragraph
and the case-law cited).
In the present case, the applicant cannot claim that the alleged actions of the Portuguese Government caused it to lose all autonomy. It is apparent from the file, and in particular from Telefónica’s internal email of 6 July 2010 (see paragraphs 152 and 338 below), that the final agreement is the outcome of a joint arrangement between the parties. Nor is there any evidence to show that those provisions were imposed unilaterally by the Portuguese Government (see, to that effect, judgment in Asia Motor France and Others v Commission, cited in paragraph
above,
EU:T:1996:120
, paragraphs
and
).
Although the arguments put forward by the applicant with regard to Telefónica’s autonomy when concluding the agreement cannot therefore lead the Court to conclude that Telefónica lost all autonomy in implementing the decisions of the public authorities, which could remove its conduct from the application of Article 101(1) TFEU, it is nonetheless necessary to examine the other factors put forward by the applicant in relation to the context in which the clause was introduced and the agreement was negotiated, in accordance with the principle that, in order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition to be considered a restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms part, while the intention of the parties must also, where appropriate, be taken into account (see judgment in CB v Commission, cited in paragraph
above,
EU:C:2014:2204
, paragraphs
and
and the case-law cited).
d) The context of the introduction of the clause in the agreement relating to the Vivo transaction and the conduct of the parties
The applicant claims that the fact that the clause was linked to the Vivo transaction and required by the Portuguese Government, and the fact that Telefónica did its utmost to limit the anti-competitive content of the clause, must be taken into account when analysing the clause and the practical purposes of the safeguard ‘to the extent permitted by law’ and show that that safeguard changed the clause into an obligation to undertake a self-assessment of the possibility of a restriction of competition.
The alleged pressure exercised by the Portuguese Government
The arguments put forward by the applicant in order to show that the clause was a ‘condition sine qua non’ of the completion of the Vivo transaction may be summarised, in essence, as alleging that the clause was a necessary condition in order for the Portuguese Government not to block that transaction.
– The principles relating to the burden of proof
It should be noted that in the present case the dispute does not concern the existence of the clause, which is common ground. However, the parties are disagreed on whether the evidence put forward by the applicant is capable of showing that the clause was a necessary condition in order for the Portuguese Government not to block the Vivo transaction. In addition, in the applicant’s submission, recognition of that alleged influence exercised by the Portuguese Government would establish that the clause did not contain a non-compete obligation but a self-assessment obligation and therefore did not constitute an infringement of Article 101 TFEU.
In those circumstances, it is appropriate to recall that under Article 2 of Regulation No 1/2003 and according to settled case-law, in the field of competition law, where there is a dispute as to the existence of an infringement, it is for the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (judgments of 17 December 1998, Baustahlgewebe v Commission,
C‑185/95 P
, ECR,
EU:C:1998:608
, paragraph
; of 6 January 2004, BAI and Commission v Bayer,
C‑2/01 P and C‑3/01 P
, ECR,
EU:C:2004:2
, paragraph
; of 22 November 2012, E.ON Energie v Commission,
C‑89/11 P
, ECR,
EU:C:2012:738
, paragraph
; of 17 September 2007, Microsoft v Commission,
T‑201/04
, ECR,
EU:T:2007:289
, paragraph
; and of 15 December 2010, E.ON Energie v Commission,
T‑141/08
, ECR,
EU:T:2010:516
, paragraph
). For that purpose, it must gather sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see, to that effect, judgments of 28 March 1984, Compagnie royale asturienne des mines and Rheinzink v Commission,
29/83 and 30/83
, ECR,
EU:C:1984:130
, paragraph
; of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission,
C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85
, ECR,
EU:C:1993:120
, paragraph
; of 21 January 1999, Riviera Auto Service and Others v Commission,
T‑185/96, T‑189/96 and T‑190/96
, ECR,
EU:T:1999:8
, paragraph
; and in E.ON Energie v Commission, cited above,
EU:T:2010:516
, paragraph
).
Where the Commission relies, in establishing an infringement of competition law, on documentary evidence, the burden is on the undertakings concerned not only to put forward a plausible alternative to the Commission’s view but also to allege that the evidence relied on in the contested decision to establish the existence of the infringement is insufficient (judgments of 20 April 1999, Limburgse Vinyl Maatschappij and Others v Commission,
T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94
, ECR,
EU:T:1999:80
, paragraphs
to
; of 8 July 2004, JFE Engineering and Others v Commission,
T‑67/00, T‑68/00, T‑71/00 and T‑78/00
, ECR,
EU:T:2004:221
, paragraph
; and in E.ON Energie v Commission, cited in paragraph
above,
EU:T:2010:516
, paragraph
). If the Commission finds, on the basis of the conduct of the undertakings concerned, that there has been an infringement of the competition rules, the Courts of the European Union will find it necessary to annul the decision in question where those undertakings put forward arguments which cast the facts established by the Commission in a different light and thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission in order to conclude that an infringement occurred (see judgment in E.ON Energie v Commission, cited in paragraph
above,
EU:T:2010:516
, paragraph
and the case-law cited).
In the assessment of the evidence adduced by the Commission, any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding an infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in the context of an action for annulment of a decision imposing a fine (judgments in JFE Engineering and Others v Commission, cited in paragraph
above,
EU:T:2004:221
, paragraph
; of 27 September 2006, Dresdner Bank and Others v Commission,
T‑44/02 OP, T‑54/02 OP, T‑56/02 OP, T‑60/02 OP and T‑61/02 OP
, ECR,
EU:T:2006:271
, paragraph
; and in E.ON Energie v Commission, cited in paragraph
above,
EU:T:2010:516
, paragraph
).
In the latter situation, it is necessary to take account of the principle of the presumption of innocence, which is now laid down in Article 48(1) of the Charter of Fundamental Rights of the European Union and which applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (judgments of 8 July 1999, Hüls v Commission,
C‑199/92 P
, ECR,
EU:C:1999:358
, paragraphs
and
; Montecatini v Commission,
C‑235/92 P
, ECR,
EU:C:1999:362
, paragraphs
and
; in E.ON Energie v Commission, cited in paragraph
above,
EU:C:2012:738
, paragraphs
and
; and in JFE Engineering and Others v Commission, cited in paragraph
above,
EU:T:2004:221
, paragraph
).
In addition, it follows from the case-law of the Court of Justice that it is for the party or the authority alleging an infringement of the competition rules to prove the existence thereof and it is for the undertaking or association of undertakings raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying such defence are satisfied, so that the authority will then have to resort to other evidence (judgments of 7 January 2004, Aalborg Portland and Others v Commission,
C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P
, ECR,
EU:C:2004:6
, paragraph
, and of 17 June 2010, Lafarge v Commission,
C‑413/08 P
, ECR,
EU:C:2010:346
, paragraph
).
Although according to those principles the burden of proof is borne either by the Commission or by the undertaking or association concerned, the factual evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (judgments in Aalborg Portland and Others v Commission, cited in paragraph
above,
EU:C:2004:6
, paragraph
, and in Lafarge v Commission, cited in paragraph
above,
EU:C:2010:346
, paragraph
).
It should also be pointed out that an undertaking cannot transfer the burden of proof to the Commission by relying on circumstances which it is not in a position to establish. In other words, when the Commission relies on evidence which is in principle sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence in order for the Commission to bear the burden of proving that that circumstance was not capable of affecting the probative value of the evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned on account of the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, first, the existence of the circumstance relied on by it and, second, that that circumstance calls into question the probative value of the evidence relied on by the Commission (see judgment in E.ON Energie v Commission, cited in paragraph
above,
EU:T:2010:516
, paragraph
and the case-law cited).
It is in the light of those principles that the arguments put forward by the applicant should be assessed.
– Contested decision
In the present case, the Commission stated, in recital 71 of the contested decision, that it did not dispute that the Portuguese Government had followed the negotiations of the Vivo transaction, made public statements and blocked the third offer by exercising the special rights attached to the golden shares that it held in PT. The Commission acknowledged in that recital that, as submitted by the parties and shown in the numerous press articles placed on the file, the Vivo transaction was particularly sensitive in Portugal, from a political viewpoint.
In recital 72 of the contested decision, the Commission noted that the parties seemed to have a different interpretation of the Portuguese Government’s position during the negotiations. According to Telefónica, the protection afforded to PT (by means of the clause) allowed the Portuguese Government not to oppose the Vivo transaction. According to PT, the Portuguese Government was particularly concerned that PT would maintain a presence in Brazil. On that point, and according to PT, the signature of the draft agreement ensuring PT’s presence in Brazil was essential in order to reassure the Portuguese Government and thus to unblock the situation.
The Commission proceeded, in recital 73 of the contested decision, to point out that Telefónica had not placed on the file any statement of the Portuguese Government referring to its desire or the need to insert the clause in the context of the Vivo transaction, even if it were considered that the Portuguese Government had suggested that it would oppose any takeover of PT by Telefónica, in order to preserve PT’s Portuguese dimension.
In conclusion, the Commission noted, in recital 74 of the contested decision, that even if Telefónica was convinced that the clause was regarded as essential or even desired by the Portuguese Government, no statement of that Government supported that position, and that Telefónica had never shown that the clause constituted a response to a requirement of the Portuguese Government in the context of the negotiations relating to the Vivo transaction.
– The evidence adduced by the applicant
The applicant claims that the Portuguese Government had two linked objectives, namely to protect PT in Brazil and to protect PT in Portugal, and that the instruments whereby those two objectives were to be achieved were separate. In order to safeguard PT’s dimension and role on the Brazilian market, the solution was to increase Vivo’s selling price as much as possible and to replace the investment in that operator with the investment in another operator of similar size in Brazil, which explains the pressure applied to increase the price of the transaction and the fact that the agreement was not signed before a preliminary agreement had been secured for the acquisition of a significant shareholding in Oi. Furthermore, in order to ensure that PT continued as a leading undertaking in the Portuguese market, independent of non-Portuguese undertakings, the solution was the clause. The Government no doubt thought that the collaboration with Telefónica that had thus far existed through Vivo should be replaced by a contractual non-aggression protection on the Iberian market. The clause thus became an essential element in order to avoid the Government veto and to ensure the success of the transaction.
The limited and decontextualised references in the contested decision to the actions of the Portuguese Government do not permit a proper understanding of the scope of that Government’s intervention to protect PT both in Brazil and in Portugal, which consisted in ‘direct and indirect interlocution’ with Telefónica throughout the negotiation of the transaction.
Although the applicant accepts that it is not easy to follow the documentary trail of those contacts, it claims that there is a series of indicia and consistent factors which, taken together, demonstrate the Portuguese Government’s influence.
In that regard, first, the applicant refers to the numerous public messages which the Portuguese Government conveyed via the press and the harmony between PT, the Government and the hard core of PT’s shareholders, which was covered in the press; the conduct of the Portuguese Government during the negotiation of the extension of the third offer on the morning of 17 July 2010, attested by an email from the Portuguese Prime Minister’s principal private secretary, and, last, the pressure applied by that Government on the occasion of the fourth offer, which was subject to its approval, as PT acknowledged in paragraph 136 of its observations on the statement of objections.
Second, the applicant claims that it expressly asked PT, on 27 July 2010, to exclude any non-compete agreement, but that PT refused to do so, no doubt owing to the pressure exercised by the Portuguese Government. In order to demonstrate that point, the applicant asks the Court to take witness evidence by inviting Telefónica’s representatives who took part in the negotiations to testify before it.
Third, the applicant submits that the actual origin of the clause in PT’s counter-offer (see paragraph 11 above) is clear proof of the pressure exercised by the Portuguese Government, since the clause papered among the messages from that Government concerning the protection of the national strategic asset that was PT, at the very time when the rumours of a possible takeover of PT by Telefónica as a means of acquiring Vivo began to spread. The non-compete agreement clearly appeared as a response to the Portuguese Government’s requirement that PT must be protected against a possible takeover by Telefónica.
Fourth, the applicant asserts that the Portuguese Government consistently threatened Telefónica that it would block the transaction by exercising its veto, and recalls that the Portuguese Government blocked the transaction at PT’s general assembly on 30 June 2010; that that Government took issue with PT’s shareholders and its board of directors for not having served the national interests by accepting the third offer at the meeting on 30 June 2010 and closely followed the ensuing negotiations, which is the only explanation for the fact that PT’s offers systematically referred to the interests of ‘all the parties’; that the Government sent personal messages to Telefónica in its public statements, quoted in press articles, such as ‘Telefónica should listen to us’ or ‘I am thinking about the strategic interests of PT and of my country’; that it sent messages to PT’s board of directors via C.G. de D., a public financial entity forming part of PT’s shareholders; and, last, that Telefónica’s internal email of 6 July 2010 is particularly revealing of the pressure exercised by the Portuguese Government.
As a preliminary point, it is appropriate to note that Telefónica stated at the hearing, in answer to a question from the Court, that the evidence adduced in order to demonstrate the alleged pressure exercised by the Portuguese Government in order to have the clause inserted in the agreement were press articles annexed to the application, correspondence with the Office of the Portuguese Prime Minister supplied in Annex A.58, the Telefónica internal email supplied in Annex A.50, PT’s reply to the Commission’s request for information of 5 January 2011 and PT’s reply to the statement of objections.
Next, it should be pointed out that the evidence and indicia adduced by the applicant are not capable of demonstrating that the Portuguese Government imposed the clause. It appears appropriate to distinguish the Portuguese Government’s interest in the Vivo transaction as a whole and its actions in order to protect PT during that transaction from the assertion that that Government imposed the clause. Although it relies on the alleged actions of the Portuguese Government in connection with the Vivo transaction, the applicant does not refer to any measure or any action that might have related to the clause. Although the evidence on which the applicant relies shows that the Portuguese Government followed the negotiations relating to the Vivo transaction and was concerned to protect PT’s position, which, moreover, the Commission acknowledges in the contested decision, that evidence is not capable of demonstrating that the Portuguese Government imposed the clause: none of that evidence shows any action on the part of the Portuguese Government in connection with the clause; and, moreover, and in any event, as the Commission points out, even if the Portuguese Government’s interest had been to protect PT against a takeover by Telefónica, the clause would not be capable of preventing such a takeover.
In the first place, it should be stated that the evidence adduced by the applicant does not contain indicia capable of showing that the Portuguese Government imposed the clause.
First, as regards the public messages that the Portuguese Government distributed in the press and the harmony between PT, the Government and the hard core of PT’s shareholders, which was covered in the press, it must be stated that the applicant does not refer to any press article that mentions that the Government desired the clause and that the applicant acknowledged at the hearing that none of the articles which it had submitted contained an express statement by the Portuguese Government asserting that it required or desired the clause or that it would not sign the agreement in the absence of the clause or, at the very least, an express reference to the clause. That absence of any statements relating to the clause or, more generally, to a non-compete commitment relating to the Iberian market is all the more striking because the Portuguese Government clearly asserted elsewhere that its main requirement as regards the agreement was to protect PT’s position in Brazil.
Second, as regards the correspondence supplied as Annex A.58 to the application, namely a series of SMS sent, in particular, by Mr A.V., Telefónica’s external counsel and representative in the contacts and negotiations with the Portuguese Government, during July 2010, which concerned an alleged agreement of the Portuguese Prime Minister concerning the agreement relating to the Vivo transaction, and an email sent by the principal private secretary of the Portuguese Prime Minister to Mr A.V. on 17 July 2010, it is sufficient to note, without there being any need to examine further whether the person mentioned in the exchange of SMS was indeed the Portuguese Prime Minister, which the Commission doubts, that, while that exchange of SMS and that email may attest to the Portuguese Government’s interest in the Vivo transaction, they make no mention of the clause, as the applicant confirmed at the hearing, in answer to a question from the Court.
Third, concerning the fact that the fourth offer was submitted to the Portuguese Government for its approval, it must be stated that, in paragraph 136 of its reply to the statement of objections, PT merely asserts that it consulted its shareholders, including the State, which appears to be the procedure. In any event, as the Commission correctly states, even if the offer was subject to the approval of the Portuguese Government, which was one of PT’s shareholders, that would neither prove nor suggest that that Government required or desired the clause.
Fourth, as regards the assertion that Telefónica expressly asked PT on 27 July 2010 to exclude any non-compete agreement and, moreover, that PT refused to do so, even on the assumption that there was a genuine attempt on Telefónica’s part to have the clause deleted, it cannot be inferred from PT’s alleged refusal — on the assumption that it is true — to delete the clause that the Portuguese Government had any interest in the clause, so that the request for examination of witnesses on that point (see paragraph 140 above) is ineffective in the present context: in fact, the applicant does not claim that the witnesses which it requests the Court to examine would be capable of confirming that PT stated that its alleged refusal to delete the clause was attributable to any action whatsoever on the part of the Portuguese Government.
Fifth, as regards the assertion that the actual origin of the clause in PT’s counter-offer (see paragraph 1 above) is clear proof of the pressure exercised by the Portuguese Government, since the clause appeared among the messages from that Government relating to the protection of the national strategic asset that was PT and therefore constitutes the response to the requirement to protect PT against a possible takeover by Telefónica, it must be stated that that is a hypothesis which finds no support whatsoever in the messages from the Portuguese Government and must therefore be rejected.
Nor, sixth, are the alleged indicia referred to in paragraph 107 capable of demonstrating that the Portuguese Government imposed the clause. The Government’s threat to block the transaction and the actual implementation of that threat by the exercise of the veto attached to the Government’s golden shares (see paragraphs 6 and 18 above) do indeed demonstrate its desire to protect PT, and in particular PT’s presence in Brazil, but do not demonstrate that it desired the clause. The same applies to the criticisms allegedly made of PT’s shareholders, the statements reported by the press and the messages allegedly sent to PT’s board of directors via C.G. de D., whereas the fact that PT’s offers systematically mentioned the interests of ‘all the parties’ is irrelevant so far as the clause is concerned.
As regards, last, the Telefónica internal email of 6 July 2010, it should be pointed out that, as the Commission observes (recitals 49, 68, 165 and 171 of the contested decision), the applicant transcribes that email inaccurately in paragraph 44 of the application. The options for amending the offer contemplated by Telefónica in that internal email — including the option of extending the term of applicability of the clause — do not respond solely to the objective of ‘including aspects which, without being able to harm us, would help the Portuguese Government to reconsider its radical position’, but also the objective of ‘recasting the offer, without increasing the price, in such a way that it can be discussed and approved by at PT board level’. The email does not distinguish, among the options, those which respond to one objective or to another. In addition, in that email, Telefónica stated that ‘it would be necessary to envisage a liturgy/scenario for any new conditions, giving the impression that, as was explained to us, we sat down at the negotiating table and new conditions were “imposed” on us (when in fact we proposed them)’. It cannot therefore be inferred from that email that the Portuguese Government forced Telefónica to include the clause in the agreement relating to the Vivo transaction.
Seventh, the applicant takes issue with the Commission for having refused to recognise that the clause constituted a ‘condition sine qua non’ of the implementation of the transaction, on the basis of an alleged difference between PT and Telefónica as to the assessment of the importance of the clause in the agreement, when such a difference did not exist. The Commission pointed to alleged inconsistencies between the approaches taken by PT and Telefónica with respect to secondary aspects of the facts, in order to deprive their assertions in their defence of all credibility. Yet the applicant does not refer to any statement indicating that PT acknowledged that the Portuguese Government imposed the clause, but merely relies on paragraphs 48 to 51 of PT’s reply to the statement of objections, where PT stated, in particular, that ‘the purchase [of its] main assets in Brazil and the possibility of a takeover by Telefónica … were scenarios that should be treated with the utmost caution’, that, ‘in addition, the State was a shareholder and held a [golden share] in the undertaking’ and that ‘the Portuguese Government [had] clearly stated that it was not prepared to yield an inch in [its] defence … publicly putting pressure on [its] board of directors’.
Eighth, and last, it should also be noted, as the Commission observes, that the applicant has not provided a satisfactory explanation of the fact that the clause imposed a bilateral non-compete obligation, that is to say, an obligation that also benefited Telefónica, or of the fact that the Portuguese Government wished to impose a non-compete obligation on PT for the benefit of Telefónica. Telefónica’s argument in that regard cannot succeed, without there being any need to settle the question, on which the parties are divided, whether the initiative for the bilateral nature of the clause lay with PT or with Telefónica.
In that regard, the applicant maintains that, since it was always its intention to deactivate the clause, it would have maintained the bilateral nature of the clause, since that allowed it to avoid any legal disputes that might arise and provided a simple and expeditious way to resolve the required test of legality. That argument cannot be upheld, since, in any event, the fact that such a test was applied cannot be taken to be established (see paragraphs 181 to 192 below).
Furthermore, the applicant claims that the non-compete obligation imposed on PT for the applicant’s benefit was introduced by PT for purely aesthetic reasons, in order to facilitate the negotiations with it, but were of no advantage to it, since PT was not a potential competitor in Spain. However, the applicant has not shown that any insurmountable barriers prevented PT from entering the Spanish market (see paragraphs 223 and 224 below), in such a way that a clause intended to prevent it from doing so would have been of no benefit to Telefónica. As the Commission correctly points out, moreover, the argument that ‘PT was the main beneficiary of the clause’ amounts in any event to recognition that there was potential competition between the parties in Portugal.
In the second place, as regards the applicant’s argument that the Portuguese Government wished to protect PT in Portugal by preventing a takeover of PT by Telefónica, that assertion is irrelevant in relation to the clause, since the clause does not prohibit Telefónica from buying PT. It must be stated that the clause prohibits the parties from competing (see paragraph 1 above) and purchasing PT is not the same as competing with it.
According to the applicant and its submissions at, in particular, the hearing, the wording of the clause would have allowed PT and the Portuguese Government to interpret the clause protectively in the event of a takeover, since the clause prevented Telefónica from entering the sector in which PT was present, and acquiring control of PT would mean entering the sectors in which PT was present. The applicant claims that that interpretation is consistent with the Commission’s, according to which the clause prohibited the parties from acquiring shareholdings or increasing such shareholdings in other undertakings, and also with the Portuguese Government’s intention of protecting the PT’s Portuguese character. In the latter regard, the applicant emphasises, in particular, that the introduction of a non-compete clause was the direct consequence of PT’s and the Portuguese Government’s concerns about a possible takeover of PT by Telefónica.
In addition, the applicant claims that ‘the drafting of the clause is not a legal model, but the result of tortuous negotiation on which the political and media-related objectives weighed heavily’. In the applicant’s submission, in order to satisfy the Government’s interest, it was sufficient that the existence of an intention to protect PT fully was clearly expressed for the benefit of the media and that that intention was reflected in the agreement.
The applicant’s argument lacks conviction. Even on the assumption that the Portuguese Government wished to protect PT, by means of the clause, from being taken over by Telefónica, it is not credible that it would validate the clause without concerning itself with the precise wording of the document; on the contrary, the expectation would have been that the Government would ascertain that the clause which it had imposed would really ensure that its objectives would be pursued.
Furthermore, it must be stated that there is nothing in the file that would undermine the finding that it is clear from the terms of the clause that it does not prohibit Telefónica from making a takeover bid for PT. The clause prohibits each of the parties from engaging in projects in the telecommunication business that could be deemed to be in competition with the other party within the Iberian market during the relevant period and a takeover of PT would not constitute engaging in a project that could be deemed to be in competition with PT, unlike the acquisition of shares in other undertakings.
Since the applicant has neither put forward any evidence capable of showing that the Portuguese Government had imposed the clause, nor shown that the Portuguese Government’s actions could be interpreted as meaning that it wished, by means of the clause, to prevent a takeover of PT by Telefónica, the applicant’s argument alleging that pressure was applied by the Portuguese Government in respect of the clause must be rejected.
– The alleged breach of the obligations associated with the investigation and of the principle of sound administration
Having regard to the fact that the applicant has not put forward any indicia apt to show that the Portuguese Government imposed the clause, the arguments whereby it takes issue with the Commission for having breached its obligations associated with the investigation and, accordingly, the principles relating to the burden of proof must be rejected. In application of the case-law cited in paragraph 130 above, it must be considered that the evidence adduced by the Commission is such as to require the applicant to provide an explanation or justification, failing which it is permissible to conclude that the Commission satisfied its obligations as regards the burden of proof. In so far as the applicant has merely adduced the evidence which has just been examined and from which it is in no way apparent that the Portuguese Government manifested any interest whatsoever in the clause, it must be concluded that the applicant has failed to adduce evidence in support of its assertion that the clause had been imposed by that Government or that it had in any event been a ‘condition sine qua non’ for it not to block the agreement relating to the Vivo transaction (see, to that effect, judgment in Lafarge v Commission, cited in paragraph
above,
EU:C:2010:346
, paragraph
).
It follows that, in the absence of indicia to that effect, the applicant also cannot plead breach of the principle of sound administration owing to the Commission’s alleged failure to use the legal instruments available to it in order to investigate the pressure allegedly applied to Telefónica by the Portuguese Government. Although the principle of sound administration requires the Commission to play its part, using the means available to it, in establishing the facts and the relevant circumstances, and although it must examine carefully and impartially all the relevant aspects of the individual case (see judgment in E.ON Energie v Commission, cited in paragraph
above,
EU:T:2010:516
, paragraphs
and
and the case-law cited), in this instance the applicant has not shown that the Commission had not sufficiently examined the evidence adduced by the parties and the Commission cannot be required to use its powers of investigation in order to prove a matter which is only alleged, but which is not supported by any element of the evidence adduced by the parties (see, to that effect, judgment in E.ON Energie v Commission, cited in paragraph
above,
EU:T:2010:516
, paragraph
and the case-law cited).
In addition, the applicant’s assertion that to believe that there may be proof that a Government intervened in order to impose an illegal clause amounts to ‘naïveté’ and is ‘contrary to common sense’, and that to require such proof constitutes a breach of the principles applicable to the burden of proof, cannot be upheld. As the Commission correctly states, if, as the applicant maintains, the clause was an essential factor of the success of the transaction, it would then be unlikely that there would be no contemporaneous document referring to it,
a fortiori
when there is, on the other hand, proof of the actions of the Portuguese Government concerning aspects of the transaction unconnected with the clause, notably the importance of PT’s presence in Brazil.
Last, in that connection, it should also be noted that, as was confirmed at the hearing, it was not until October 2010 that the Commission became aware of the existence of the clause, namely after the signature of the agreement and even after it had entered into force. It follows that the applicant’s criticisms of the Commission’s inactivity during the negotiation of the clause are unfounded.
Telefónica’s alleged actions to minimise the anti-competitive content of the clause
The applicant claims that the Commission erred in assessing its consistent actions to minimise the content of the clause and to eliminate any risk of illegality. While it acknowledges, in recital 338 of the contested decision, that the use of the expression ‘to the extent permitted by law’ was not in itself a sign of fraudulent intent, that Telefónica had taken steps to limit the scope and duration of the clause and that the safeguard ‘to the extent permitted by law’ was included at Telefónica’s initiative, the Commission does not draw any inference from those factors.
First, the applicant claims that it is not true that it wished ‘from the outset’ to have a non-compete clause. However, as the Commission states, it did not assert that Telefónica desired a non-compete clause from the outset, but, in recitals 36 and 42 to 44 of the contested decision, merely rejected the argument that Telefónica excluded any non-compete obligation from the first offer.
In that regard, it should be noted that the first two drafts of the agreement contained a commitment by Telefónica not to require ‘any non-compete or non-solicitation commitment from PT’. In the abovementioned recitals of the contested decision, the Commission stated that, in their replies to the request for information of 5 January 2011, the parties had asserted that that commitment concerned any non-compete clause relating to the Brazilian market and not to the Iberian market. Furthermore, the Commission correctly pointed out that the second offer contained both the Telefónica’s commitment, referred to above, not to impose a non-compete clause on PT and the non-compete clause relating to the Iberian market, which argued in favour of the interpretation that the first commitment concerned the Brazilian market and not the Iberian market.
Second, although the applicant rejects PT’s assertion in paragraph 164 of its reply to the statement of objections, reproduced in the contested decision (recitals 86 and 293 of the contested decision), that Telefónica was at the origin of the inclusion of television services in the scope of the clause, it produces no probative element in support of its claims. In any event, even on the assumption that those services were included in the scope of the clause at PT’s initiative, it could not be inferred that there was any ‘consistent action by Telefónica to minimise the scope of the clause’.
Third, the applicant denies having played any leading role in determining the bilateral nature of the clause. However, even on the assumption that the applicant did not play such a role, and although the Commission does not claim that it did, the applicant does not deny that the first version of the clause and also the version finally adopted were bilateral in nature. Nor does the applicant succeed in proving that PT or the Portuguese Government imposed the bilateral nature of the clause (see paragraph 154 above).
Fourth, and last, the applicant claims that the decision unduly plays down the impact of the exception to the scope of the clause that Telefónica succeeded in introducing, consisting in the exclusion of activities currently being performed (see paragraph 13 above). In fact, the Commission failed to recognise that the services provided in Portugal by Zon, which were regarded by the applicant as activities currently being performed, were also covered by that exception. However, the applicant has failed to rebut the assertions in recitals 156 to 164 of the contested decision, according to which activities provided by companies not controlled by the parties were not covered by the exception introduced into the scope of the clause.
In that regard, it should be noted that the Commission explained that, if the activity carried by a company in which one of the parties held shares but which it did not control was relevant for the determination of the scope of the clause, the clause ought to have stated that it would apply to the activities of companies not controlled by the parties. In addition, if such activities were relevant for the determination of the scope of the clause, they should also have been relevant for compliance with the provisions of the clause, so that the launch of an activity prohibited by the clause by a company not controlled by the parties, in which one of the parties held a minority shareholding, would constitute a breach of the clause. The Commission continued on that point by asserting that the parties cannot claim to have entered into such an obligation on behalf of the companies in which they held a minority shareholding but which they did not control, since they would not be in a position to guarantee compliance with such an obligation. Consequently, in order for an activity to be excluded from the scope of the clause, it must have been carried out directly by one of the parties or indirectly by one of the companies controlled by them.
In the absence of evidence or, at least, arguments capable of casting doubt on that conclusion, from which it necessarily follows that the activities of Zon, in which the applicant held only a minority shareholding (see paragraph 4 above), cannot be considered to be covered by the exception introduced into the scope of the clause, the applicant’s claims in that respect must be rejected.
It follows from all of the foregoing considerations, and insofar as the applicant’s request for the examination of witnesses must be rejected (see paragraph 357 et seq. below), that the applicant has not adduced evidence capable of showing that the clause was a condition for the Portuguese Government not to block the Vivo transaction and that, for that reason, Telefónica had no choice other than to endeavour to limit the impact of the clause, in particular by transforming it into a self-assessment clause by introducing the phrase ‘to the extent permitted by law’.
e) The alleged material content and the alleged practical purposes of the safeguard ‘to the extent permitted by law’
In the applicant’s submission, if the fact that the clause was closely linked to the Vivo transaction were taken into account, it would be immediately apparent that, far from serving no practical purpose, it would have fulfilled a good part of the traditional and legitimate purposes which legal safeguard clauses are supposed to fulfil in practice relating to contracts, namely: to reduce the transaction costs, provide strategic leverage in order to reach a consensus and ensure that the transaction continued. In addition, the Commission’s interpretation of the clause is manifestly contrary to its wording.
As a preliminary point, it should be noted that that argument is based on the premiss that the Portuguese Government imposed the clause as a condition of the Vivo transaction, thus compelling Telefónica to do its utmost to limit its impact. In fact, it is apparent from the reasoning set out in paragraphs 136 to 162 and 167 to 175 above that the applicant has put forward no evidence to substantiate that premiss and its argument based on that premiss cannot therefore succeed. Nor, in any event, does the applicant put forward any evidence to establish the alleged material content and the alleged practical purposes of the safeguard ‘to the extent permitted by law’.
The alleged function of reducing transactions costs
As regards the function of reducing transaction costs, the applicant claims that legal safeguards are generally used in the case of doubts or discrepancies in the parties’ legal analysis and where they wish to avoid wasting money, time and energy in legal discussions that may last forever and delay the negotiation process. In the applicant’s submission, that is exactly what happened in the present case: when PT introduced the clause in its counter-offer, it claimed that it could be justified as an ancillary restriction. Telefónica was not convinced, but recognised that the doubt was possible.
In spite of having had doubts as to the justification for the clause, the applicant, owing to the importance of the clause for the Portuguese Government, was forced to allow the negotiations to proceed by accepting the clause, while introducing the objective and temporal limitations that it was able to, in the knowledge that, ultimately, it would be able to sign it only on condition that its legality and scope would be verified subsequently. The non-compete agreement was ‘sanitised’ and it was ensured that it could not have effects if, after individual verification — and not, as the Commission misconstrues it, joint verification — of its legality, it should be found not to be legally permissible. In making the restriction subject to verification of its legality, Telefónica also precluded any type of liability with regard to its social or political reputation vis-à-vis PT if it had taken initiatives incompatible with the restriction.
It should be noted that it is apparent from the applicant’s position that those arguments are, in essence, based on the concept that there were doubts as to whether the clause might be characterised as a restriction ancillary to the Vivo transaction. As the legal verification of the conditions necessary in that respect would have been long and expensive, the parties inserted the legal safeguard ‘to the extent permitted by law’, putting off until later the analysis of the legality of the clause.
Without there being any need to rule on whether PT’s or the applicant’s alleged doubts about the possible legality of the clause are well founded, it must be stated that the argument based on the idea that the parties in some way ‘provisionally agreed’ on a non-compete obligation, subject to subsequent verification of its legality, must be rejected on the ground that the applicant has failed to explain why it would not have been possible to clarify that point before signing the agreement on 28 July 2010 or, at least, before it entered into force at the time of the definitive conclusion of the transaction on 27 September of that year, and also to prove that such a verification was carried out after the agreement had entered into force.
In that context, it should be borne in mind that, in recitals 96 to 100 of the contested decision, the Commission noted that the parties maintained that a self-assessment exercise had been provided for in the clause and that that exercise had been carried out during the conference calls on 26 and 29 October 2010 (see paragraph 28 above). In addition, the Commission stated that the parties had put forward different reasons to justify the fact that that exercise had not taken place before the entry into force of the agreement at the time of the definitive conclusion of the transaction on 27 September 2010 (see paragraph 25 above), namely:
—
in view of the fact that the agreement was signed on behalf of PT without having been authorised by its general shareholders meeting, there was, in Telefónica’s submission, a risk that the Portuguese Government would challenge that manner of proceeding; however, the Commission rebutted that argument, since it is not supported by any evidence in the file and since Article 4 of the agreement, read in conjunction with Annex 4.1, shows that PT guaranteed to Telefónica that ‘the execution and delivery of this agreement and the consummation of the transactions contemplated hereby have been duly and validly authorised by [its] board of directors and [that of] PT Movéis, and [that] no other corporate proceedings on the part of each [of] PT and PT Móveis are necessary to authorise the execution, delivery and performance of this agreement or the consummation of the transaction contemplated hereby’;
—
the self-assessment and sharing of results between the parties would have required discussions on the scope and effects of the clause, which allegedly could have endangered the balance found in the agreement; the Commission claimed, however, in that regard that if the parties had in fact agreed, in order to postpone such discussions until later, on the obligation to carry out such a self-assessment exercise later of the legality of the clause, such an obligation ought to have been included in the terms of the agreement;
—
there would have been uncertainties regarding the Oi transaction and the implementation of the ‘Industrial Partnership Programme’, whereas it was only ‘a few weeks’ after the conclusion of the transaction that the press announced that the renewal of PT’s presence in Brazil was imminent; however, the Commission considered that the transition from a stage of uncertainty to certainty regarding the Oi transaction in October 2010 had not been proved by Telefónica;
—
the requests for information from the Comisión Nacional de la Competencia (CNC, the Spanish national competition commission) of 9 and 30 September 2010, which, among others, sought information in order to investigate possible anti-competitive agreements between the parties in the context of the Vivo transaction, could have reinforced the doubts as to the legality of a non-compete commitment; in fact, the Commission noted that CNC’s first request for information dated from 9 September 2010, or around seven weeks before the dates on which the alleged self-assessment exercise took place, namely on 26 and 29 October 2010 (see paragraph 28 above).
The Commission therefore concluded, in recital 98 of the contested decision, that Telefónica’s explanations regarding the delay in carrying out the alleged self-assessment exercise were not supported by any evidence in the file.
In addition, in recitals 99 and 100, the Commission rejected the arguments which PT based on the fact that the clause was no longer a priority once the agreement had been signed. First, PT claimed that it focused on the conclusion of the Vivo and Oi transactions. Second, the non-compete clause was subject to confirmation of its lawfulness and scope. Third, the clause did not enter into force before the date of the definitive conclusion of the transaction, namely 27 September 2010. Fourth, PT maintained that it had not been contacted by any competition authority. Fifth, PT believed that the result of the self-assessment would conclude that the implementation of a non-compete commitment had little chance of success, irrespective of its scope. It was the information published at the end of August 2010 in
Jornal de Negócios
and
Cinco Días
, concerning the clause binding on the parties, and on 19 October 2010 in
Diario Economico
, concerning the investigation by CNC in connection with the clause, that led the parties to contact each other.
In the Commission’s contention, those arguments do not suffice to explain the reasons why a binding contractual obligation, namely the alleged obligation to carry out a self-assessment exercise, would not have been fulfilled. What is more, even if the clause had contained any obligation to carry out a self-assessment, the fulfilment of that obligation ought to have been an integral part of the conclusion of the Vivo transaction, on which PT was apparently focusing its attention. Furthermore, the fact that the non-compete commitment enters into force on the date of the definitive conclusion of the transaction, namely on 27 September 2010, cannot justify the delay in carrying out the self-assessment exercise, which took place in October. Quite to the contrary, the evaluation of the legality of the clause might have been expected to take place before the clause entered into force. Last, the fact that the non-compete commitment was unlikely to have been justified ought to have suggested that it would be deleted rapidly rather than maintained.
The Commission finally asserted, in recital 298 of the contested decision, that the evidence in the file regarding the actual conduct of the parties in relation to the clause and, in particular, the agreement of 4 February 2011 terminating the clause (see paragraph 29 above) showed that the clause did not provide for a self-assessment obligation. On that point, the Commission then examined the corresponding evidence, namely, (i), the parties’ statements on the nature of the clause preceding their replies to the statement of objections; (ii) the agreement of 4 February 2011 terminating the clause; (iii) the conference calls of October 2010; (iv) the date on which the alleged self-assessment was carried out; and (v) other factors alleged by the parties, such as the fact that the clause was made public (recitals 299 to 328 of the contested decision).
It must be stated that the applicant has adduced no evidence capable of calling into question the Commission’s findings as to the alleged self-assessment exercise carried out in order to verify the legality of the clause.
The applicant merely asserts that the Commission has misunderstood the self-assessment exercise, which in its submission did not require a joint self-assessment exercise, but an individual assessment followed by a comparison of the results, so that the fact that that comparison took place only four weeks after the agreement entered into force cannot be described as an excessive delay. However, even on the assumption that the parties did individually evaluate the clause, that would not justify a period of four weeks between its entry into force and the alleged comparison of the results of the alleged self-assessment of its legality.
Although, moreover, the applicant claims that it adduced proof of the content of the conversations that took place on 26 and 29 October 2010, it merely refers to the parties’ statements in their replies to the statement of objections and to the statements of two external legal counsel, a representative of Telefónica and a representative of PT. While the statements made by the parties’ representatives must not be regarded as wholly lacking in credibility, especially where such statements are made before a notary, it must nonetheless be stated that, as the Commission points out in recitals 313 to 323 of the contested decision, the results and the content of the conferences to which Telefónica refers find no support in the terms of the agreement of 4 February 2011 deleting the clause, although that agreement explains in detail the circumstances in which the parties decided to delete the clause (see paragraph 29 above).
Furthermore, as the Commission observes (recitals 120 and 122 of the contested decision), those statements do not constitute contemporaneous evidence of what was said in the conversations of October 2010, which would confer higher probative value on them (see, to that effect, judgments of 11 March 1999, Ensidesa v Commission,
T‑157/94
, ECR,
EU:T:1999:54
, paragraph
, and of 16 December 2003, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission,
T‑5/00 and T‑6/00
, ECR,
EU:T:2003:342
, paragraph
). In addition, although testimony provided by a direct witness of the circumstances which he has described must in principle be characterised as evidence with a high probative value (judgment of 3 March 2011, Siemens v Commission,
T‑110/07
, ECR,
EU:T:2011:68
, paragraph
), it is also necessary to take into account the fact that the statements at issue in the present case were made by a person who might have a direct interest in the case and who cannot be classified as independent of the applicant (see, to that effect, judgment in Siemens v Commission,
EU:T:2011:68
, cited above, paragraphs 69 and 70).
It follows that, in the light of all of the evidence produced, those statements, as the sole evidence, are not sufficient to demonstrate that the clause contained a self-assessment obligation, bearing in mind that, as regards the probative value to be placed on the various evidence, the only relevant criterion for assessing evidence freely produced lies in its credibility (see judgments of 8 July 2004, Mannesmannröhren-Werke v Commission,
T‑44/00
, ECR,
EU:T:2004:218
, paragraph
and the case-law cited; Dalmine v Commission,
T‑50/00
, ECR,
EU:T:2004:220
, paragraph
and the case-law cited; and JFE Engineering and Others v Commission,
T‑67/00, T‑68/00, T‑71/00 and T‑78/00
, ECR,
EU:T:2004:221
, paragraph
) and that, according to the rules generally applicable in relation to evidence, the credibility and, accordingly, the probative value of a document depend on its origin, the circumstances in which it was drawn up, the person to whom it is addressed and its content (judgment of 15 March 2000, Cimenteries CBR and Others v Commission,
T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95
, ECR,
EU:T:2000:77
, paragraph
).
It follows from the foregoing considerations that the arguments which the applicant bases on the alleged self-assessment exercise carried out in October 2010 must be rejected, as must all the arguments alleging that the clause fulfilled the function of reducing the transaction costs.
The alleged function as a strategic lever to arrive at a consensus
As regards the alleged function of the phrase ‘to the extent’ as a strategic lever in order to arrive at a consensus, Telefónica maintains that it always wished to delete the clause, but that it became aware during the negotiations, owing to the political agenda of the Portuguese Government, that it could not delete the clause without jeopardising the transaction, and therefore chose to neutralise it by using the words ‘to the extent’. As its wish was to delete the clause, it always maintained the bilateral nature of the clause, since that would have made it possible, where necessary, to avoid legal disputes and to resolve easily and expeditiously the requisite test of legality.
In so far as that argument is based on the theory that the Portuguese Government required the clause — which was rejected in paragraphs 136 to 162 above — it cannot succeed. Furthermore, it has already been held in paragraphs 154 and 171 above that the applicant’s arguments relating to the bilateral nature of the clause must be rejected.
The alleged function of security in maintaining the transaction
In the applicant’s submission, the phrase ‘to the extent permitted by law’ also fulfilled the function of security in maintaining the transaction, by ensuring that it would survive in the event of a disputed or an
ex post facto
decision. The significance which PT placed on the clause gave the impression that it regarded the clause as essential, entailing the risk that if the clause were void, PT would attempt to have the entire agreement declared void; that risk was reduced, but not eliminated, by the ‘standard divisibility clause’, which, in Portuguese law, merely reverses the burden of proof as regards the essential nature of the clause vis-à-vis the agreement as a whole.
That argument cannot succeed, since it is based on the assertion that, with the phrase ‘to the extent permitted by law’, the applicant wished to ensure that, if the non-compete obligation should be declared void, the agreement would not be found to be invalid in its entirety. However, that assumes that the clause would be considered to be essential for the agreement as a whole and, since the applicant does not claim that the clause was a restriction ancillary to the Vivo transaction (see paragraphs 107 to 110 above) and does not establish, in particular by means of a legal opinion produced as an annex, that Telefónica’s subjective perception or PT’s alleged concerns might have been relevant with regard to the significance of the clause for the agreement as a whole, it must be stated that the applicant has adduced no evidence capable of explaining why a non-compete clause on the Iberian market could be objectively considered essential for a transaction relating to the acquisition of shares in a Brazilian operator.
The interpretation of the wording of the clause
The applicant maintains that the Commission takes only part of the wording of the clause into account, as it focuses on the heading ‘Non-compete’ and disregards the phrase ‘to the extent’, thus breaching the rights of the defence and the burden of proof which it bears. The really relevant wording of the clause is to be found in its operative part, which shows that the intention was not to restrict competition but to comply with the law. The fact that the clause was made public, and the short period during which it was in force, are inconceivable in the context of a market-sharing agreement, as the Commission claims. Nor did the clause provide for mechanisms to monitor compliance with the restriction, and its scope was far from clear. ‘Bare’ market-sharing agreements are neither made public, nor subject to an assessment of legality, nor negotiated with the Government, nor concluded for such a limited period and, above all, those agreements are applied and implemented.
The argument which the applicant bases on the wording of the clause cannot be upheld, since, contrary to its contention, the clause does not clearly state that the parties’ intention was not to restrict competition but to comply with the law.
It is telling, in that regard, that the applicant claims that it might be imagined that the clause could have stated that ‘the parties [were] free to compete throughout the Iberian market (PT in Spain and Telefónica in Portugal), except where the existence of a legitimate ground [permitted] the legal restriction of competition’. The applicant is of the opinion that, if the clause had been drafted thus, the Commission would have arrived at a different decision, which would not necessarily have been the case, because the actual and alternative versions would be equivalent from a functional viewpoint. In fact, without there being any need to adjudicate on the question whether the alternative wording suggested by the applicant is actually equivalent to the wording of the clause, the mere fact of thus proposing an alternative version allegedly equivalent from a functional viewpoint clearly shows that an interpretation of the clause cannot be based solely on its wording, but must take account of its context, which, as may be seen from the previous considerations, does not support the interpretation proposed by the applicant.
It follows from all of the foregoing considerations that the applicant has not shown that, in the light of all of the circumstances, the clause did not constitute a restriction of competition by object because the phrase ‘to the extent permitted by law’ had transformed it into a clause providing for the self-assessment of the legality of a non-compete commitment. The first three pleas must therefore be rejected.
2. Fourth plea, alleging infringement of Article 101 TFEU, insufficient reasoning and incorrect assessment of the capacity of the practice to restrict competition
The applicant maintains that the Commission made a manifest error of assessment with respect to the capacity of the clause to restrict competition between PT and the applicant and that the Commission did not provide sufficient reasons on that point in the contested decision. It submits that the Commission failed to examine that point, which was raised in the reply to the statement of objections, and did not carry out the slightest study of the structure of the affected markets, the economic context and the real and actual possibilities that the parties would enter their respective neighbouring markets during the brief period provided for in the clause. According to the applicant, if the Commission had carried out such an examination, it would have found that the parties were not potential competitors. In the absence of potential competition capable of being restricted, the clause cannot be a restriction of competition by object. Last, the factors put forward by the Commission in the contested decision in order to justify the failure to carry out a detailed market analysis and to respond to the arguments which the parties put forward in their replies to the statement of objections cannot, in the applicant’s submission, be upheld.
Furthermore, the applicant takes issue with the Commission for having asserted, in recital 364 of the contested decision (see paragraph 46 above), that, even if the clause was not capable of restricting competition, that would not prevent its being considered to constitute a restriction of competition by object.
As a preliminary point, it must be noted, in response to the latter argument, that it cannot be asserted that, even if the clause was not capable of restricting competition, that cannot prevent its being considered to constitute a restriction of competition by object. As the Court of Justice has held, in order for an agreement to be regarded as having an anti-competitive object, it must have the potential to have a negative impact on competition, that is to say, it must be capable in an individual case of resulting in the prevention, restriction or distortion of competition within the internal market (judgment of 14 March 2013, Allianz Hungária Biztosító and Others,
C‑32/11
, ECR,
EU:C:2013:160
, paragraph
).
However, it should be observed that the applicant fails to state that, in recital 364 of the contested decision, the Commission cited the judgment of 25 January 2007, Sumitomo Metal Industries and Nippon Steel v Commission (
C‑403/04 P and C‑405/04 P
, ECR,
EU:C:2007:52
, paragraphs
and
), and that it stated that, if an agreement had as its object the restriction of competition, it was irrelevant, as regards the existence of the infringement, whether it was in the commercial interest of some of the participants. The Commission therefore concluded that the fact that the clause might have proved to be incapable of producing effects in the commercial interest of Telefónica or of PT was irrelevant (see paragraph 46 above).
It follows from that recital, therefore, that the Commission did not assert, generally, that it was irrelevant that an agreement would be capable of producing effects in order to characterise it as a restriction of competition by object, but that, in the present case, Telefónica’s argument set out, in particular, in recital 359(d) of the contested decision, that there was no incentive for the parties to enter each other’s market, was irrelevant, since it was immaterial, in the context of an agreement having the objective of restricting competition, that the conclusion of the agreement was or was not in the commercial interest of the parties.
Furthermore, as regards, in the first place, the complaint alleging insufficient reasoning, it is clear from the applicant’s argument that it does not, strictly speaking, call into question the reasoning set out in the contested decision, but the fact that the Commission — wrongly, in the applicant’s submission — failed to carry out a study of the structure of the affected markets and the real possibilities for the parties to compete in those markets. The applicant disputes the arguments put forward in recitals 265 to 278 of the contested decision.
In any event, it follows from those recitals that the Commission explained the reasons why it had not considered it necessary to carry out a detailed analysis of the structure of the affected markets and that it responded to the arguments set out by the parties in their replies to the statement of objections concerning the existence of potential competition between them, as summarised in recitals 268 to 270 of the contested decision. In so far as the applicant’s argument may be taken to mean that it criticises an alleged failure to state reasons in the contested decision on that point, it cannot therefore succeed.
As regards, in the second place, the complaint alleging incorrect assessment of the ‘capacity’ of the clause to restrict competition between PT and Telefónica on account of the Commission’s view that in this case it was not required to carry out a detailed analysis of the structure of the markets concerned, it is appropriate, as is apparent from the contested decision, to point to three factors on which the Commission relied in order to conclude that there was no need for a detailed analysis of potential competition between the parties regarding each specific market for the purposes of assessing whether the agreement constituted a restriction of competition by object (recital 278 of the contested decision).
First of all, the Commission observed that concluding a non-compete agreement or envisaging the need for a self-assessment of the legality and scope of an ancillary non-compete commitment, if the parties’ proposed interpretation of the clause were to be followed, constituted recognition by the parties that they were at least potential competitors for certain services. In fact, in the absence of any potential competition, there would have been no need to conclude any non-compete agreement whatsoever, or to envisage carrying out a self-assessment of a non-compete commitment (recital 271 of the contested decision).
Next, the Commission noted that the clause had a broad scope, since it applied to all electronic telecommunication services and also to television services (recitals 141, 265 and 278 of the contested decision).
Last, the Commission stated that those services had been liberalised in accordance with the EU regulatory framework, which permitted and encouraged competition among operators (recital 265 of the contested decision), and that that liberalised context, in which competition was possible and encouraged, should be the starting point for the assessment of the clause (recital 267 of the contested decision).
It is necessary, moreover, to bear in mind the case-law already cited in paragraph 104 above, according to which, in order to determine whether an agreement between undertakings or a decision by an association of undertakings reveals a sufficient degree of harm to competition to be considered a restriction of competition by object within the meaning of Article 101(1) TFEU, regard must be had to the content of its provisions, its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (see judgment in CB v Commission, cited in paragraph
above,
EU:C:2014:2204
, paragraph
and the case-law cited).
However, although, when interpreting the context of an agreement, it is necessary to take into consideration the actual conditions of the functioning and the structure of the market or markets in question, the Commission is not always required to produce a precise definition of the markets concerned. The definition of the relevant market differs according to whether Article 101 TFEU or Article 102 TFEU is to be applied. For the purposes of Article 102 TFEU, the appropriate definition of the relevant market is a necessary precondition for any judgment concerning allegedly anti-competitive behaviour (judgments of 10 March 1992, SIV and Others v Commission,
T‑68/89, T‑77/89 and T‑78/89
, ECR,
EU:T:1992:38
, paragraph
, and of 11 December 2003, Adriatica di Navigazione v Commission,
T‑61/99
, ECR,
EU:T:2003:335
, paragraph
), since, before an abuse of a dominant position is ascertained, it is necessary to establish the existence of a dominant position in a given market, which presupposes that such a market has already been defined. On the other hand, it has consistently been held that, for the purposes of applying Article 101 TFEU, the reason for defining the relevant market is to determine whether the agreement in question is liable to affect trade between Member States and has as its object or effect the prevention, restriction or distortion of competition within the internal market (judgments of 21 February 1995, SPO and Others v Commission,
T‑29/92
, ECR,
EU:T:1995:34
, paragraph
, and in Adriatica di Navigazione v Commission, cited above,
EU:T:2003:335
, paragraph
; see also judgment of 12 September 2007, Prym and Prym Consumer v Commission,
T‑30/05
,
EU:T:2007:267
, paragraph
and the case-law cited).
Thus, for the purposes of applying Article 101(1) TFEU, a prior definition of the relevant market is not required where the agreement at issue has in itself an anti-competitive object, that is to say, where the Commission was able to conclude correctly, without first defining the market, that the agreement at issue distorted competition and was liable to have an appreciable effect on trade between Member States. That applies, in particular, to the case of the most serious restrictions, expressly prohibited by Article 101(1)(a) to (e) TFEU (Opinion of Advocate General Bot in Joined Cases Erste Group Bank and Others v Commission,
C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P
, ECR,
EU:C:2009:192
, points
to
). If the actual object of an agreement is to restrict competition by ‘market sharing’, it is not necessary to define the markets in question precisely, provided that actual or potential competition was necessarily restricted (judgment in Mannesmannröhren-Werke v Commission, cited in paragraph
above,
EU:T:2004:218
, paragraph
).
Accordingly, since in the present case the Commission found that the clause to which the Commission took exception in the contested decision had market sharing as its object, the applicant cannot maintain that a detailed analysis of the markets concerned was necessary in order to determine whether the clause constituted a restriction of competition by object.
Undertakings which conclude an agreement whose purpose is to restrict competition cannot, in principle, avoid the application of Article 101(1) TFEU by claiming that their agreement should not have an appreciable effect on competition (judgment in Mannesmannröhren-Werke v Commission, cited in paragraph
above,
EU:T:2004:218
, paragraph
). The agreement impugned in the present case consisted of a non-compete clause, defined by the parties as applicable to ‘any project in the telecommunication business (including fixed and mobile services, internet access and television services, but excluding any investment or activity currently held or performed as of the date hereof) that can be deemed to be in competition with the other within the Iberian market’, its existence made sense only if there was competition to be restricted (judgments in Mannesmannröhren-Werke v Commission, cited in paragraph
above,
EU:T:2004:218
, paragraph
, and of 21 May 2014, Toshiba v Commission,
T‑519/09
,
EU:T:2014:263
, paragraph
).
In that regard, the applicant’s argument that, if it could be accepted that, if it had been shown that the parties’ real intention was to restrict competition unlawfully, the clause would constitute an indication of potential competition, that would not be the position in this case, since the clause did not have a restrictive purpose, but met strategic negotiating strategies, must be rejected.
Not only has the applicant not shown that the clause met such strategic requirements (see paragraphs 121 to 175 above), although that was the main premiss of its argument, but, in addition, it must be stated, as the Commission contends, that the applicant’s argument is somewhat inconsistent. Even if the clause contained only an obligation to assess whether a non-compete obligation was legally possible and if the insertion of such an obligation into the agreement had been perceived as necessary by one of the players involved in the Vivo transaction, that would constitute strong evidence of the existence of potential competition between the parties.
Nor, moreover, can the applicant rely on the judgment of 29 June 2012, E.ON Ruhrgas and E.ON v Commission (
T‑360/09
, ECR,
EU:T:2012:332
), to support its contention that, generally, the existence of a non-compete agreement cannot constitute proof of the existence of potential competition between the parties.
Thus, in paragraph 115 of that judgment, the Court merely stated that, during the period when a market had barriers to entry and structures preventing entry by new competitors, the mere existence of a non-compete agreement could not suffice to demonstrate that there was potential competition on the market in question.
On the other hand, that case-law shows, in particular, that, where the relevant market has been liberalised, as in the present case, the Commission is not required to analyse the structure of the market and the question whether entry to that market would correspond to a viable economic strategy for each of the parties (see, to that effect, judgment in E.ON Ruhrgas and E.ON v Commission, cited in paragraph
above,
EU:T:2012:332
, paragraphs
to
), but that it is required to examine whether there are insurmountable barriers to entry to the market that would rule out any potential competition (see, to that effect, judgment in Toshiba v Commission, cited in paragraph
above,
EU:T:2014:263
, paragraph
).
In the present case, the Commission not only found that the market for telecommunications and television services in Spain and Portugal was fully liberalised (see paragraph 211 above), but also observed that, according to the parties themselves, they were present on the markets for the provision of global telecommunication services and wholesale international carrier services, on the whole of the Iberian market (recitals 173, 174 and 272 of the contested decision); that they had not proved that duration of the clause would have been insufficient to acquire an existing telecommunications operator, as a means of becoming the holder of certain networks without the need to deploy them (recital 273 of the contested decision); that the current situation of the Spanish and Portuguese markets could not be invoked to exclude the possibility of investing in the sector, since, in spite of the crisis, investment in the sector had increased or at least remained stable (recital 274 of the contested decision); and, last, that Telefónica itself had acknowledged that the launch of a takeover for a company such as PT was possible, during the negotiations relating to the Vivo transaction, so that the acquisition of a competitor of PT could also have been possible (recitals 37 and 275 to 277 of the contested decision).
The applicant does not put forward in the application anything to indicate that, in spite of those factors, a detailed analysis of the markets in question would have been necessary in order to determine whether the clause constituted a restriction of competition by object or in order to establish that no insurmountable obstacle prevented the parties from entering their respective neighbouring markets.
It should be noted that, in addition to the argument already dealt with in paragraphs 201 to 221 above, the applicant, in its pleadings, merely disputes the Commission’s argument summarised in paragraph 222 above, although its contention does not appear to be capable of calling in question the Commission’s conclusion that in this case it was not required to carry out a detailed analysis of potential competition between the parties on the markets to which the clause applied.
Likewise, the applicant’s additional argument, which consists in suggesting factors that are supposed to show that entry to the markets concerned would not have corresponded to the parties’ strategic priorities or would not have been economically advantageous or attractive, cannot be upheld.
In fact, without there being any need to examine that argument in detail, or to rule on the methodology, disputed by the Commission, of one of the economic reports produced by the applicant, it is sufficient to observe that, while the intention of an undertaking to enter a market may be of relevance in order to determine whether it can be considered to be a potential competitor in that market, nonetheless the essential factor on which such a description must be based is whether it has the ability to enter that market (see judgment in E.ON Ruhrgas and E.ON v Commission, cited in paragraph
above,
EU:T:2012:332
, paragraph
and the case-law cited).
It follows from the foregoing considerations that it cannot be asserted that — in spite of the fact that the very existence of the clause is a strong indication of potential competition between the parties, that its object consisted in a market-sharing agreement, that it had a broad scope and that it formed part of a liberalised economic context — the Commission ought to have carried out a detailed analysis of the structure of the markets concerned and of potential competition between the parties on those markets in order to reach the conclusion that the clause constituted a restriction of competition by object. The fourth plea must therefore be rejected.
3. Fifth plea, alleging infringement of Article 101(1) TFEU in that the clause is not a restriction by effect, and breach of the rules on the burden of proof and of the principle
in dubio pro reo
The applicant claims that, insofar as the clause does not constitute a restriction by object, it was for the Commission to prove that the allegedly restrictive conduct had taken place, that that conduct had had actual or potential effects on the market and that those effects had been appreciable. As the Commission had not shown that the clause was restrictive by its effects, Article 101 TFEU was applied incorrectly and there was thus a breach of the principles of the presumption of innocence and of the burden of proof.
Since that argument is based on the erroneous premiss that the conduct in question cannot be regarded as a restriction of competition by object, it must be rejected. It follows from the very wording of Article 101(1) TFEU that agreements between undertakings are prohibited, regardless of their effect, where they have an anti-competitive object. Consequently, it is not necessary to show actual anti-competitive effects where the anti-competitive object of the conduct in question is proved (see judgment of 3 March 2011, Siemens and VA Tech Transmission & Distribution v Commission,
T‑122/07 to T‑124/07
, ECR,
EU:T:2011:70
, paragraph
and the case-law cited).
For the purpose of applying Article 101(1) TFEU, there is no need to take account of the concrete effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition. That applies in particular in the case of obvious restrictions of competition such as price-fixing and market-sharing (judgment of 8 December 2011, KME Germany and Others v Commission,
C‑389/10 P
, ECR,
EU:C:2011:816
, paragraph
).
The fifth plea, alleging that the Commission did not examine the effects of the clause, must therefore be rejected.
B –
The claims seeking a reduction of the amount of the fine
By the sixth, seventh and eighth pleas, which are raised in the alternative, the applicant alleges that there were various errors in the calculation of the fine.
1. Preliminary observations
a) The principles relating to the calculation of fines
It should be borne in mind that it is settled case-law that the Commission enjoys a broad discretion as regards the method for calculating fines. That method, which is defined in the Guidelines, displays flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with Article 23(2) of Regulation No 1/2003 (see, to that effect and by analogy, judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission,
C‑322/07 P, C‑327/07 P et C‑338/07 P
, ECR,
EU:C:2009:500
, paragraph
and the case-law cited).
The gravity of infringements of EU competition law must be determined by reference to numerous factors such as, in particular, the specific circumstances and context of the case and the deterrent effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (judgments of 19 March 2009, Archer Daniels Midland v Commission,
C‑510/06 P
, ECR,
EU:C:2009:166
, paragraph
, and of 3 September 2009, Prym and Prym Consumer v Commission,
C‑534/07 P
, ECR,
EU:C:2009:505
, paragraph
).
As stated in paragraph 52 above, the Commission, in the present case, determined the amounts of the fines by applying the method defined in the Guidelines.
Although the Guidelines may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form a rule of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment (see, by analogy, judgments 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
, ECR,
EU:C:2005:408
, paragraph
and the case-law cited, and of 8 October 2008, Carbone-Lorraine v Commission,
T‑73/04
, ECR,
EU:T:2008:416
, paragraph
).
In adopting such rules of conduct and announcing through their publication that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (see, by analogy, judgments in Dansk Rørindustri and Others v Commission, cited in paragraph
above,
EU:C:2005:408
, paragraph
and the case-law cited, and in Carbone-Lorraine v Commission, cited in paragraph
above,
EU:T:2008:416
, paragraph
).
Furthermore, the Guidelines determine, generally and abstractly, the method which the Commission has bound itself to use in setting the amount of the fines and, consequently, ensure legal certainty on the part of the undertakings (see, by analogy, judgment in Dansk Rørindustri and Others v Commission, cited in paragraph
above,
EU:C:2005:408
, paragraphs
and
).
Points 4 and 5 of the Guidelines read as follows:
‘4.
The Commission’s power to impose fines on undertakings or associations of undertakings which, intentionally or negligently, infringe Article [101 TFEU] or [102 TFEU] is one of the means conferred on it in order for it to carry out the task of supervision entrusted to it by the Treaty. That task not only includes the duty to investigate and sanction individual infringements, but it also encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaty and to steer the conduct of undertakings in the light of those principles. For this purpose, the Commission must ensure that its action has the necessary deterrent effect. Accordingly, when the Commission discovers that Article [101 TFEU] or [102 TFEU] has been infringed, it may be necessary to impose a fine on those who have acted in breach of the law. Fines should have a sufficiently deterrent effect, not only in order to sanction the undertakings concerned (specific deterrence) but also in order to deter other undertakings from engaging in, or continuing, behaviour that is contrary to Articles 81 and 82 of the EC Treaty (general deterrence).
5.
In order to achieve these objectives, it is appropriate for the Commission to refer to the value of the sales of goods or services to which the infringement relates as a basis for setting the fine. The duration of the infringement should also play a significant role in the setting of the appropriate amount of the fine. It necessarily has an impact on the potential consequences of the infringement on the market. It is therefore considered important that the fine should also reflect the number of years during which an undertaking participated in the infringement.’
The Guidelines define a calculation method consisting of two steps (point 9 of the Guidelines). They provide, by way of a first calculation step, for the determination by the Commission of a basic amount for each undertaking or association of undertakings concerned and include, in that regard, the following provisions:
‘12.
The basic amount will be set by reference to the value of sales and applying the following methodology.
…
13.
In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly relates in the relevant geographic area within the EEA. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement.
…
19.
The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.
20.
The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case.
21.
As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales.
22.
In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.
23.
Horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.
24.
In order to take fully into account the duration of the participation of each undertaking in the infringement, the amount determined on the basis of the value of sales (see paragraphs 20 to 23 above) will be multiplied by the number of years of participation in the infringement. Periods of less than six months will be counted as half a year; periods longer than six months but shorter than one year will be counted as a full year.
25.
In addition, irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum of between 15% and 25% of the value of sales as defined in Section A above in order to deter undertakings from even entering into horizontal price-fixing, market-sharing and output-limitation agreements. The Commission may also apply such an additional amount in the case of other infringements. For the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred in point 22.
…’
The Guidelines provide, by way of a second calculation step, that the Commission may adjust the basic amount upwards or downwards, on the basis of an overall assessment which takes account of all the relevant circumstances (points 11 and 27 of the Guidelines).
In respect of those circumstances, point 29 of the Guidelines states:
‘The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as:
—
where the undertaking concerned provides evidence that it terminated the infringement as soon as the Commission intervened: this will not apply to secret agreements or practices (in particular, cartels);
—
where the undertaking provides evidence that the infringement has been committed as a result of negligence;
—
where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market; the mere fact that an undertaking participated in an infringement for a shorter duration than others will not be regarded as a mitigating circumstance since this will already be reflected in the basic amount;
—
where the undertaking concerned has effectively cooperated with the Commission outside the scope of the Leniency Notice and beyond its legal obligation to do so;
—
where the anti-competitive conduct of the undertaking has been authorised or encouraged by public authorities or by legislation.’
Last, as the Court of Justice recalled in its judgments in KME Germany and Others v Commission, cited in paragraph
above (
EU:C:2011:816
, paragraph
), and of 8 December 2011, KME Germany and Others v Commission (paragraph
above , ECR,
EU:C:2011:810
, paragraph
), the Courts of the European Union must carry out the review of legality incumbent upon them on the basis of the evidence adduced by the applicant in support of the pleas in law put forward. In carrying out such a review, the Courts cannot use the Commission’s margin of discretion — either as regards the choice of factors taken into account in the application of the criteria mentioned in the Guidelines or as regards the assessment of those factors — as a basis for dispensing with the conduct of an in-depth review of the law and of the facts.
The review of legality is supplemented by the unlimited jurisdiction which the Courts of the EU were afforded by Article 17 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959 to 1962, p. 87) and which is now recognised by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (judgment in KME Germany and Others v Commission, cited in paragraph
above,
EU:C:2011:810
, paragraph
).
b) Contested decision
The Commission considered that, on the basis of the facts described in the contested decision, the infringement had been committed intentionally and had consisted of a clearly unlawful agreement not to compete and to share the Spanish and Portuguese electronic communications markets between the parties. According to the Commission, with respect to this type of obvious infringement, the parties could not claim that they had not acted deliberately (recital 477 of the contested decision).
As regards the value of sales that would serve as a reference for the setting of the basic amount, the Commission found that the non-compete clause applied to all electronic communication services and also to television services supplied in Spain and Portugal, with the exception of global telecommunication services and wholesale international carrier services in the Iberian Peninsula, for which the parties competed with each other at the time of signature of the agreement and which were thus excluded from its application. Furthermore, in view of the fact that the clause excluded from its scope any investment and activity already current at the time of the agreement that could be deemed to be in competition with the activities and investments of the other party in the Iberian market, the Commission took into account for each party only the value of its own sales in its country of origin. It therefore did not take into consideration, in particular, the value of sales of each party in the country of origin of the other party, since those amounts corresponded, in principle, to pre-existing activities not covered by the clause. That means that, as regards Telefónica, the value of its sales was set by the Commission by reference to the value of its sales in Spain, while, as regards PT, the value of its sales was determined by reference to the value of its sales in Portugal (recitals 482 and 483 of the contested decision).
The Commission then stated that it normally took into account the sales made by the undertakings during the last full business year of their participation in the infringement. Taking into account that the infringement lasted for less than one year and that it took place in 2010 and 2011, the Commission used the undertakings’ sales in 2011, which were lower than the sales recorded by the parties in 2010 (recital 484 of the contested decision).
As regards the gravity of the infringement, which determines the percentage of the value of sales to be taken into consideration when setting the amount of the fine, the Commission stated that, in this instance, the infringement had consisted of an agreement not to compete and to share the Spanish and Portuguese electronic communications and television markets between the parties and that Telefónica and PT were the incumbent operators in their respective countries (recital 489 of the contested decision).
The Commission stated that it took into account that the clause had not been kept secret by the parties from the moment it was introduced for the first time in the offer dated 1 June 2010. As explained in recitals 128 to 130 of the contested decision, the second offer including the first version of the clause was uploaded by the parties on to their respective websites and communicated to the Spanish and Portuguese Stock Exchange Authorities, which also published it on their own websites. In addition, on 9 June 2010, PT distributed to its shareholders a brochure containing an explanation of the transaction and the clause. Furthermore, the agreement including the final version of the clause was part of the filings by Telefónica and PT to Anatel and CADE. Last, in a press article published by the
Jornal de Negócios
on 23 August 2010, Telefónica confirmed that the agreement included a non-compete clause (recital 491 of the contested decision).
As regards the duration of the infringement, the Commission took account of the fact that it had lasted from 27 September 2010, the date of the notarised declaration, and therefore, of the definitive conclusion of the transaction, until 4 February 2011, the date of the agreement whereby the parties terminated the clause (recital 492 of the contested decision).
On the basis of those factors, the size of the undertakings and the short duration of the restrictive agreement, the Commission considered that, in the specific circumstances of the present case, it was proportionate and sufficient in terms of deterrence to take a low proportion of the value of sales into account in setting the basic amount of the fines. The Commission therefore considered that the percentage of the value of sales to be taken into consideration should be 2% for the two undertakings concerned (recital 493 of the contested decision). The percentage of the value of sales taken for each undertaking was multiplied by the coefficient applied for duration, namely 0.33, corresponding to four months of a full year.
The Commission took the amounts thus calculated as final basic amounts, and thus did not add a fixed amount for deterrence (entry fee) in this case, as provided for in point 25 of the Guidelines (see paragraph 202 above), which, moreover, it confirmed at the hearing.
As regards the adjustment of the basic amount, the Commission considered that no aggravating circumstance was to be applied in this case (recital 496 of the contested decision).
On the other hand, the Commission pointed out that the parties had decided to terminate the clause on 4 February 2011, thus putting an end to the anti-competitive practice in question. Taking into account the fact that the clause was terminated only 16 days after the Commission had initiated the proceedings and 30 days after it had sent the first request for information to the parties, and as the clause had not been secret, the termination of the clause must be regarded as a mitigating circumstance that should be applied to both parties (recital 500 of the contested decision).
In the light of those circumstances, the Commission considered that the basic amount of the fines to be imposed on the parties should be reduced by 20% (recital 501 of the contested decision) and rejected all the arguments put forward by the parties alleging other mitigating circumstances (recitals 502 to 507 of the contested decision).
The final amounts of the fines therefore came to EUR 66894400 for Telefónica and EUR 12290400 for PT.
2. Sixth plea, alleging a manifest error of assessment in the calculation of the initial value of Telefónica’s sales for the purpose of establishing the basic amount of the fine, and breach of the principle of proportionality and the requirement to state reasons
The applicant maintains that the volume of Telefónica’s sales taken into account for the purposes of determining the basic amount of the find must be reduced and set at the lower amount applied to PT and that the Commission wrongly included in the volume of Telefónica’s sales services not subject to competition or excluded from the scope of the clause, namely sales made in Spain but outside the Iberian Peninsula, sales in respect of services supplied under the monopoly arrangement, sales in respect of other wholesale services to which PT could not have access and, last, Telefónica’s sales in respect of services supplied via Zon and also sales corresponding to activities for which the parties were effective competitors.
a) First part, alleging that the volume of sales taken into account for Telefónica should be the same as for PT
The applicant objects to the fact that, in recital 483 of the contested decision, the volume of sales for each party in its Member State of origin was taken into account for the purposes of determining the basic amount of the fine. Under the principle of proportionality, on the other hand, the indication was that the volume of sales taken into account for Telefónica should be reduced to the lower amount applied to PT, in order not to penalise Telefónica unfairly in respect of the same reciprocal infringement solely because the Spanish market was much larger than the Portuguese market.
Furthermore, just as in the case giving rise to the judgment in E.ON Ruhrgas and E.ON v Commission, cited in paragraph
above (
EU:T:2012:332
), there are exceptional circumstances in the present case that justify such a reduction, namely the separate role played by each of the two undertakings in the insertion of the clause into the contract, which shows that only PT was genuinely interested, whereas Telefónica was forced by the Portuguese Government to accept the clause, and, furthermore, the lack of impact which an actual application of the clause might have had on effective competition on the Spanish telecommunications markets.
It should be pointed out that, according to settled case-law, in setting fines such as those at issue in the present case, the Commission is bound to comply with the general principles of law, in particular the principles of equal treatment and proportionality, as developed by the case-law of the Courts of the European Union (judgments of 5 April 2006, Degussa v Commission,
T‑279/02
, ECR,
EU:T:2006:103
, paragraphs
and
, and of 8 October 2008, Schunk and Schunk Kohlenstoff-Technik v Commission,
T‑69/04
, ECR,
EU:T:2008:415
, paragraph
). In particular, the principle of proportionality requires that the measures adopted by the institutions must not exceed what is appropriate and necessary for attaining the objective pursued (judgments of 27 September 2006, Jungbunzlauer v Commission,
T‑43/02
, ECR,
EU:T:2006:270
, paragraph
, and Prym and Prym Consumer v Commission, cited in paragraph
above,
EU:T:2007:267
, paragraph
).
It is also settled case-law that the proportion of the turnover accounted for by the goods in respect of which the infringement was committed gives a proper indication of the scale of the infringement on the relevant market (judgment of 7 June 1983, Musique Diffusion française and Others v Commission,
100/80 to 103/80
, ECR,
EU:C:1983:158
, paragraph
). In particular, the turnover in the products which were the subject of a restrictive practice constitutes an objective criterion giving a proper measure of the harm which that practice does to normal competition (judgments of 11 March 1999, British Steel v Commission,
T‑151/94
, ECR,
EU:T:1999:52
, paragraph
, and of 8 July 2008, Saint-Gobain Gyproc Belgium v Commission,
T‑50/03
,
EU:T:2008:252
, paragraph
). The Commission may therefore properly choose to rely on that turnover as the starting point for the calculation of the basic amount of the fine to be imposed for an infringement of the competition rules, as it did in the Guidelines (see, to that effect, judgment of 16 June 2011, Putters International v Commission,
T‑211/08
, ECR,
EU:T:2011:289
, paragraph
).
It has also been held, moreover, that it is appropriate to rely on the turnover of the undertakings involved in the same infringement for the purpose of determining the proportions between the fines to be imposed (judgment of 12 July 2011, Toshiba v Commission,
T‑113/07
, ECR,
EU:T:2011:343
, paragraph
).
In the present case, as the Commission correctly submits, using PT’s turnover, as the applicant claims should be done, to calculate the basic amount of the fine to be imposed on Telefónica would run counter to the principle of proportionality and to the principle that the fine must be set at a level that will ensure that it is sufficiently deterrent.
As regards the reference to the case giving rise to the judgment in E.ON Ruhrgas and E.ON v Commission, cited in paragraph
above (
EU:T:2012:332
), it must be borne in mind that it is settled case-law that the Commission’s practice in previous decisions does not service as a legal framework for fines imposed in competition matters, since the Commission enjoys a wide discretion in the area of setting fines and is not bound by assessments which it has made in the past, so that Telefónica’s simple reference to the decision that led to the judgment in E.ON Ruhrgas and E.ON v Commission, cited in paragraph
above (
EU:T:2012:332
), is in itself ineffective, as the Commission was not required to assess this case in the same way (see, to that effect, judgment in Archer Daniels Midland v Commission, cited in paragraph
above,
EU:C:2009:166
, paragraph
).
It should be noted, moreover, that, as the Commission points out, the circumstances that justified the application of the same value of sales for the two undertakings involved in the case giving rise to the judgment in E.ON Ruhrgas and E.ON v Commission, cited in paragraph
above (
EU:T:2012:332
), do not apply in this case. Thus, in that case, the two parties participating in a market-sharing agreement had equivalent market shares. However, since a large part of the French gas market was not open to competition, the application of the criterion set out in the Guidelines would have resulted in a large difference between the sales of the two undertakings. However, the market-sharing agreement allowed GDF to protect the whole of the French market. In addition, it was pointed out that it would be unfair if GDF should benefit from the fact that the French market was being liberalised more slowly. Those circumstances do not apply in the present case, as the markets in question were fully liberalised.
Last, the other arguments whereby the applicant claims that the value of PT’s sales ought to have been taken into account when calculating Telefónica’s fine in the present case must also be rejected.
First, as regards what is alleged to be the separate roles played by the undertakings in the insertion of the clause into the contract, which is supposed to show that only PT was genuinely interested, whereas Telefónica was forced to accept the clause, that role cannot be taken into account in the setting of the basic amount of the fine, but only, where appropriate, as a mitigating circumstance (see, in that regard, paragraph 330 et seq. below).
Second, as regards the alleged lack of impact that the actual implementation of the clause could have had on effective competition on the Spanish telecommunications markets, reference must be made to the examination of the fourth plea (see paragraphs 201 to 227 above), where it was held that the applicant had not shown that the two undertakings should not be characterised as potential competitors during the period to which the clause related. The applicant cannot therefore maintain that the actual implementation of the clause could not have had any impact.
In addition, it should be borne in mind that one of the examples of agreements given in Article 101(1)(c) TFEU and expressly declared to be incompatible with the internal market is specifically an agreement to ‘share markets’. The practice that was the object of the clause is expressly prohibited by Article 101(1) TFEU, as it involves inherent restrictions on competition in the internal market (see, by analogy, judgment of 14 March 2013, Fresh Del Monte Produce v Commission,
T‑587/08
, ECR,
EU:T:2013:129
, paragraph
).
Article 101 TFEU, like the other competition rules of the Treaty, is designed to protect not only the immediate interests of individual competitors or consumers but also to protect the structure of the market and thus competition as such. Therefore, in order to find that an agreement has an anti-competitive object, there does not need to be a direct link between that agreement and consumer prices (see, by analogy, judgments of 4 June 2009, T-Mobile Netherlands and Others,
C‑8/08
, ECR,
EU:C:2009:343
, paragraphs
and
, and in Fresh Del Monte Produce v Commission, cited in paragraph
above,
EU:T:2013:129
, paragraph
).
The system of penalties for infringement of the competition rules, as established by Regulations No 17 and No 1/2003 and interpreted by the case-law, shows that, by reason of their very nature, cartels merit the severest fines. The effect of an anti-competitive practice is not in itself a decisive factor for determining the level of fines (judgments of 12 November 2009, Carbone-Lorraine v Commission,
C‑554/08 P
,
EU:C:2009:702
, paragraph
, and in Fresh Del Monte Produce v Commission, cited in paragraph
above,
EU:T:2013:129
, paragraph
).
It must also be noted that, unlike the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (
OJ 1998 C 9, p. 3
), the 2006 Guidelines no longer mention the need to take account of ‘the effective economic capacity of offenders to cause significant damage to other operators’ in order to assess gravity, nor the ‘actual impact [of the infringement] on the market, where this can be measured’ (judgments of 16 June 2011, Gosselin Group v Commission,
T‑208/08 and T‑209/08
, ECR,
EU:T:2011:287
, paragraph
, and in Fresh Del Monte Produce v Commission, cited in paragraph
above,
EU:T:2013:129
, paragraph
). Accordingly, the Commission was not required to consider the effect of the infringement in order to determine the proportion of the value of sales to be taken into account on the basis of the gravity of the infringement in accordance with points 19 to 24 of the Guidelines: and it does not appear from the applicant’s arguments that it calls into question the lawfulness of those Guidelines.
It follows from the foregoing that the first part of the sixth plea, alleging that the volume of sales taken into account for Telefónica should be the same as for PT, must be rejected.
b) Second part, alleging that the value of certain sales should be excluded from the calculation of the fine
The applicant claims that certain sales, corresponding to services not subject to competition or excluded from the scope of the clause, should be excluded from the calculation of the amount of the fine, namely sales made in Spain, but outside the Iberian Peninsula, sales in respect of services supplied under the monopoly arrangement, sales in respect of wholesale services to which PT could not have access and, last, Telefónica’s sales in respect of services supplied via Zon, and also sales corresponding to activities for which the parties were effective competitors. It maintains that the contested decision does not state the reasons why the explanations provided by the applicant in that regard during the administrative procedure were not accepted, and thus committed a serious breach of the applicant’s rights of defence.
The statement of reasons
It must be recalled that the statement of reasons must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its jurisdiction to review legality (see judgment of 29 September 2011, Elf Aquitaine v Commission,
C‑521/09 P
, ECR,
EU:C:2011:620
, paragraph
and the case-law cited). It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 2 April 1998, Commission v Sytraval and Brink’s France,
C‑367/95 P
, ECR,
EU:C:1998:154
, paragraph
and the case-law cited).
As regards the scope of the obligation to state reasons concerning the calculation of the amount of a fine imposed for infringement of the EU competition rules, it should be noted that Article 23(3) of Regulation No 1/2003 provides that, ‘in fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement’. In this connection, the Guidelines and the Notice on immunity from fines and reduction of fines in cartel cases (
OJ 2006 C 298, p. 17
) contain rules that indicate what factors the Commission takes into consideration in measuring the gravity and duration of an infringement (see, to that effect, judgment in Cheil Jedang v Commission, paragraph
above,
EU:T:2003:193
, paragraph
and the case-law cited).
That being so, the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which it took into account in accordance with the Guidelines and, where appropriate, the Notice on immunity from fines and reduction of fines in cartel cases and which enabled it to determine the gravity of the infringement and its duration for the purpose of calculating the amount of the fine (see, to that effect, judgment in Cheil Jedang v Commission, cited in paragraph
above,
EU:T:2003:193
, paragraph
).
In the present case, in sections 5 and 6.3.3.2 of the contested decision, and especially in recitals 153, 184, 185 and 278, the Commission stated that the parties must be regarded at least as potential competitors in all markets for electronic communication services and television services in Spain and Portugal, that their arguments that certain activities should be excluded from the scope of the clause could not be accepted and that, since the parties’ arguments concerning the existence of potential competition between them must be rejected, and given the broad scope of the clause, there was no need in the present case for a detailed analysis of whether the parties were potential competitors with respect to each specific market for the purposes of analysing whether the agreement should be regarded as constituting a restriction by object. Next, the Commission noted, in recital 482 of the contested decision, under the heading ‘The value of sales’, that it found that the non-compete clause applied to all types of electronic communication services and television services, with the exception of global telecommunication services and wholesale international carrier services and that all services provided in Spain and Portugal and included in the markets listed in section 5.3, with the exception of the global telecommunication services and wholesale international carrier services, were directly or indirectly related to the infringement.
It follows that the Commission sufficiently explained the way in which it determined the value of sales to be taken into account for the purposes of calculating the fine and the reasons why it considered that there was no need to examine each of the services which the applicant had claimed in its reply to the statement of objections should be excluded for the purposes of calculating the fines. The argument whereby the applicant alleges a breach of the obligation to state reasons and thus of its rights of defence must therefore be rejected.
Substance
– The sales corresponding to activities outside the Iberian Peninsula
The applicant maintains that sales in Spain outside the Iberian Peninsula, that is to say, in the Canary Islands, Ceuta, Melilla and the Balearic Islands, should be excluded from the calculation of the fine.
That argument must be rejected.
Contrary to the applicant’s contention, the wording of the clause does not refer literally to ‘the Iberian Peninsula’, but to ‘the Iberian market’. It is apparent that the reference to ‘the Iberian market’ must be understood not in a strictly geographical sense, as referring solely to the Iberian Peninsula, but as referring to the markets of Spain and Portugal, which include the markets in their territories not situated in the Iberian Peninsula. There is nothing to indicate, nor does the applicant put forward any arguments to show, that the territories of those States situated outside the Iberian Peninsula were excluded from the scope of the clause.
In that regard, it should be noted that the applicant merely criticises the Commission’s interpretation of the geographic scope of the clause and observes that the parties unanimously indicated that the relevant geographic area was the Iberian Peninsula,, but puts forward no argument to challenge the Commission’s findings with respect to the geographic scope of the clause, set out in recitals 175 to 182 of the contested decision. In those circumstances, its claims cannot but be rejected.
– Sales corresponding to pre-existing activities
In the applicant’s submission, sales in respect of services for which the parties were effective competitors should be excluded from the calculation of the fine.
Sales of global telecommunication services and wholesale international carrier services, for which the parties were effective competitors at the time of signature of the agreement and which were thus excluded from the scope of the agreement, should therefore be excluded from the calculation of the fine.
It should be noted that, at the hearing, in the light of recitals 482 and 483 of the contested decision, from which it is clear that the value of sales of global telecommunication services and wholesale international carrier services, for which the parties were effective competitors at the time of signature of the agreement, were not taken into account in the calculation of the fine, the applicant withdrew its initial claim that those services should be excluded from the calculation of the fine, which was noted in the minutes of the hearing.
The applicant claims, moreover, that the sales in respect of the services provided via Zon must be excluded from the calculation of the value of its sales. In the applicant’s submission, since it held shares in that competitor of PT, which was active in the electronic communications sector (see paragraph 4 above), the services provided by Zon were excluded from the scope of the clause, which excluded ‘any investment or activity currently held or performed as of the date of [the signature of the agreement]’ (see paragraph 1 above).
In fact, the applicant held only a minority shareholding in Zon (5.46%) and therefore did not control it. Furthermore, as already noted in paragraphs 172 to 174 above, the applicant has not rebutted the assertions in recitals 156 to 164 of the contested decision, according to which the activities supplied by companies not controlled by the parties were not covered by the exception introduced into the scope of the clause. It follows that the argument that the value of sales in respect of services provided via Zon must be excluded from the calculation of the fine cannot be upheld.
In any event, it should be noted that the claim that the value of sales made by Zon should be excluded from the value of sales taken into consideration for the purposes of calculating the amount of the applicant’s fine is ineffective, since Zon’s sales were made in Portugal and the only sales taken into account for the purposes of calculating the amount of Telefónica’s fine are sales made in Spain (see paragraphs 53 and 246 above). Accordingly, the exclusion of the value of Zon’s sales from the scope of the clause would have no impact on the value of sales taken into consideration in the calculation of the applicant’s fine.
– Sales corresponding to activities not subject to competition
The applicant maintains that the volume of sales on markets or with services not subject to potential competition, even in theory, which did not fall within the scope of the clause, should also be excluded from the calculation of the fine, namely sales in respect of services provided under the monopoly arrangement and sales in respect of other wholesale services to which PT could not have access.
On this point, the applicant claims that, during the period 2010-2011, it supplied various telecommunications services under the monopoly arrangement. For those services, its offer could not be covered by other companies, either for reasons of exclusivity or by reason of the actual nature of the service. The applicant refers, in particular, first, to the universal service; second, to the ‘sistema de radiocomunicaciones digitales de emergencia del Estado’ (SIRDEE, emergency digital radiocommunications system of the Spanish State); third, to call termination services on its fixed network and its mobile network; and, fourth, to wholesale main line rental services on certain submarine routes. In addition, PT could not have competed in the fields of call access and origination services on the public fixed location telephone network, call access and origination services on the public mobile telephone networks and wholesale data services. The applicant submits that, for the reasons stated by the Court in the case giving rise to the judgment in E.ON Ruhrgas and E.ON v Commission, cited in paragraph
above (
EU:T:2012:332
), the amount of the applicant’s sales for those services should be excluded from the value of its sales taken into account in calculating the fine.
In the first place, it should be noted that, in recital 478 of the contested decision, the Commission referred to point 12 of the Guidelines, which states that the basic amount of the fine is to be set by reference to the value of sales according to the methodology set out in the following points. In that recital, the Commission also explained that the basic amount of the fine to be imposed on the undertakings would be set by reference to the value of the undertakings’ sales of goods or services to which the infringement directly or indirectly related in the relevant geographic area in the European Union. In recital 482 of the contested decision (see paragraph 278 above), the Commission stated that it found that the non-compete clause applied to every type of electronic communication services and television services, with the exception of global telecommunication services and wholesale international carrier services, and that, thus, all services provided in Spain and Portugal and included in the markets listed in section 5.3, with the exception of global telecommunication services and wholesale international carrier services, were directly or indirectly related to the infringement.
At the hearing, the Commission, in answer to the questions put by the Court, explained that, in the light of the very broad scope of the clause, it was not required to analyse potential competition between the parties for each of the services on which the applicant relied for the purposes of determining the value of sales to be taken into consideration when calculating the amount of the fine. The Commission submitted that, in the context of an infringement by object such as that in the present case, where such an exercise was not required for the purposes of establishing the infringement, it was also unnecessary to carry out that exercise for the purposes of determining the amount of the fine. In the alternative, the Commission added that the services to which the applicant refers were not ‘genuine’ markets, but services supplied on a market on which the parties were potential competitors and which was therefore covered by the scope of the clause.
That argument cannot succeed.
In fact, the clause applied, according to its terms, to ‘any project in the telecommunication business (including fixed and mobile services, internet access and television services, but excluding any investment or activity currently held or performed as of the date hereof) that can be deemed to be in competition with the other within the Iberian market’. In addition, for the purposes of calculating the fine, the Commission used the value of sales of activities which in its view came within the scope of the clause and excluded sales corresponding to current activities, which, according to the terms of the clause, were excluded from its scope. Accordingly, sales corresponding to activities that could not be in competition with the other party during the period of application of the clause, which were also excluded from its scope according to its terms, also had to be excluded for the purposes of calculating the fine.
It follows that, irrespective of whether the services which the applicant claims should be excluded for the purposes of the calculation of the fine were separate markets in respect of which the Commission was required to assess potential competition for the purposes of establishing the infringement (see paragraph 215 above), the Commission ought to have considered whether the applicant was correct to maintain that the value of the sales of the services in question should be excluded from the calculation of the fine on the ground that there was no potential competition between the parties with respect to those services.
In that regard, it should be borne in mind that, as the Court of Justice has already held, the Commission must assess, in each specific case and having regard both to the context and the objectives pursued by the scheme of penalties created by Regulation No 1/2003, the intended impact on the undertaking in question, taking into account in particular a turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed (judgments of 7 June 2007, Britannia Alloys & Chemicals v Commission,
C‑76/06 P
, ECR,
EU:C:2007:326
, paragraph
; of 12 November 2014, Guardian Industries and Guardian Europe v Commission,
C‑580/12 P
, ECR,
EU:C:2014:2363
, paragraph
; and of 23 April 2015, LG Display and LG Display Taiwan v Commission,
C‑227/14 P
, ECR,
EU:C:2015:258
, paragraph
).
It is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which therefore gives an indication of the scale of the infringement (judgments of 7 June 1983, Musique Diffusion française and Others v Commission, paragraph
above ,
EU:C:1983:158
, paragraph
; Guardian Industries and Guardian Europe v Commission, cited in paragraph
above,
EU:C:2014:2363
, paragraph
; and LG Display and LG Display Taiwan v Commission, cited in paragraph
above,
EU:C:2015:258
, paragraph
).
Although Article 23(2) of Regulation No 1/2003 leaves the Commission a margin of discretion, it nonetheless limits the exercise of that discretion by laying down objective criteria to which the Commission must adhere. Thus, the amount of the fine that may be imposed on an undertaking is subject to a quantifiable and absolute ceiling, so that the maximum amount of the fine that can be imposed on a given undertaking can be determined in advance. Furthermore, the exercise of that discretion is also limited by the rules of conduct which the Commission has imposed on itself, in particular in the Guidelines (judgments in Guardian Industries and Guardian Europe v Commission, cited in paragraph
above,
EU:C:2014:2363
, paragraph
, and in LG Display and LG Display Taiwan v Commission, cited in paragraph
above,
EU:C:2015:258
, paragraph
).
Thus, where, as in the present case, the Commission determines the basic amount of the fine in accordance with the methodology set out in the Guidelines, it must comply with that methodology.
In that regard, it should be borne in mind that, according to point 13 of the Guidelines, ‘in determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly … relates in the relevant geographic area within the EEA’. Those Guidelines state, in point 6, that ‘the combination of the value of sales to which the infringement relates and of the duration of the infringement is 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’.
Furthermore, as observed in paragraph 261 above, it follows from the case-law that the proportion of the turnover accounted for by the goods in respect of which the infringement was committed gives a proper indication of the scale of the infringement on the relevant market, while the turnover in the products which were the subject of a restrictive practice constitutes an objective criterion giving a proper measure of the harm which that practice does to normal competition (see, to that effect, judgments in Musique Diffusion française and Others v Commission, cited in paragraph
above,
EU:C:1983:158
, paragraph
; in British Steel v Commission, cited in paragraph
above,
EU:T:1999:52
, paragraph
; and in, Saint-Gobain Gyproc Belgium v Commission, cited in paragraph
above,
EU:T:2008:252
, paragraph
).
Point 13 of the Guidelines thus pursues the objective of adopting as the starting point for the setting of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it (judgments of 11 July 2013, Team Relocations and Others v Commission,
C‑444/11 P
,
EU:C:2013:464
, paragraph
; in Guardian Industries and Guardian Europe v Commission, cited in paragraph
above,
EU:C:2014:2363
, paragraph
; and in LG Display and LG Display Taiwan v Commission, cited in paragraph
above,
EU:C:2015:258
, paragraph
).
Consequently, the concept of value of sales referred to in point 13 of the Guidelines extends to sales made in the market to which the infringement relates in the EEA, without there being any need to determine whether those sales were actually affected by the infringement, as the proportion of turnover deriving from the sale of products in respect of which the infringement was committed is best able to reflect the economic importance of the infringement (see, to that effect, judgments in Team Relocations and Others v Commission, cited in paragraph
above,
EU:C:2013:464
, paragraphs
to
; in Guardian Industries and Guardian Europe v Commission, cited in paragraph
above,
EU:C:2014:2363
, paragraphs
to
; of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission,
C‑286/13 P
, ECR,
EU:C:2015:184
, paragraphs
and
; and in LG Display and LG Display Taiwan v Commission, cited in paragraph
above,
EU:C:2015:258
, paragraphs
to
and
).
Nonetheless, while it would, admittedly, be contrary to the goal pursued by that provision if the concept of value of sales to which it refers were understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by the impugned cartel, that concept cannot be extended to cover the undertaking’s sales which do not fall, directly or indirectly, within the scope of that cartel (see, to that effect, judgments in Team Relocations and Others v Commission, cited in paragraph
above,
EU:C:2013:464
, paragraph
, and in Dole Food and Dole Fresh Fruit Europe v Commission, cited in paragraph
above,
EU:C:2015:184
, paragraph
).
In that connection, it should be noted that the Commission cannot, admittedly, be required, when faced with a restriction by object such as that at issue in the present case, to carry out on its own initiative an examination of potential competition for all the markets and services concerned by the scope of the infringement, under pain of derogating from the principles established in the case-law cited in paragraphs 213, 214 and 216 above, and to introduce, by determining the value of sales to be taken into account when calculating the fine, the obligation to examine potential competition when such an exercise is not required in the case of a restriction of competition by object (see paragraph 215 above). In that regard, the Court of Justice has held, in a case governed by the 1998 Guidelines referred to in paragraph 272 above, that, in the case of an infringement consisting of market sharing, an interpretation which would result in an obligation being imposed on the Commission in respect of the method of calculating fines to which it is not subject for the purposes of applying Article 101 TFEU where the infringement in question has an anti-competitive object cannot be upheld (judgment in Prym and Prym Consumer v Commission, cited in paragraph
above,
EU:C:2009:505
, paragraph
).
The solution adopted in the present case does not consist in imposing on the Commission, when determining the amount of the fine, an obligation by which it is not bound for the purposes of applying Article 101 TFEU in the case of an infringement which has an anti-competitive object, but in drawing the inferences from the fact that the value of sales must be directly or indirectly related to the infringement within the meaning of point 13 of the Guidelines and cannot cover the sales which do not fall, directly or indirectly, within the scope of the infringement (see the case-law cited in paragraph 305 above). It follows that, from the time when the Commission chooses to rely, in order to determine the amount of the fine, on the value of sales directly or indirectly related to the infringement, it must determine that value precisely.
In that regard, it should be observed that, in the present case, in the light of the wording of the clause, which refers expressly to ‘any project in the telecommunication business (including fixed and mobile services, internet access and television services, but excluding any investment or activity currently held or performed as of the date hereof) that can be deemed to be in competition with the other within the Iberian market’, and of the fact that the applicant put forward, in its reply to the statement of objections, factual material in order to demonstrate that the value of the sales of certain services thus relied on should be excluded for the purposes of the calculation of the fine on the ground that there was no competition between the parties, the Commission ought to have examined that material in order to determine the value of the sales of products or services made by the undertaking that were directly or indirectly related to the infringement.
Thus, in the present case, in so far as the sales directly or indirectly related to the infringement are sales of services falling within the scope of the clause, namely sales of any project in the telecommunication business, with the exception of current activities, that could be deemed to be in competition with the other party within the Iberian market, the Commission ought, in order to determine the value of those sales, to have determined the services for which the parties were not in potential competition within the Iberian market, by examining the material put forward by them in their replies to the statement of objections in order to demonstrate the absence of potential competition between them with respect to certain services during the period of application of the clause. Only on the basis of such a factual and legal analysis would it have been possible to determine the sales directly or indirectly related to the infringement, the value of which ought to have served as the starting amount for the calculation of the basic amount of the fine.
It follows that the argument whereby the applicant maintains that the Commission ought to have determined, on the basis of the material put forward by the applicant concerning the absence of potential competition between Telefónica and PT with respect to certain services, the value of sales directly or indirectly related to the infringement must be upheld and Article 2 of the contested decision must be annulled, solely in so far as it fixes the amount of the fine on the basis of the value of sales taken into account by the Commission.
In the second place, it should be borne in mind that the system of judicial review of Commission decisions relating to proceedings under Articles 101 TFEU and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of applicants, by the Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission (judgment in
Telefónica and Telefónica de España
v
Commission
, cited in paragraph 87 above, paragraph 42). In that regard, it should be observed that, in the present case, the illegality found concerns the value of sales taken into consideration for the purposes of determining the amount of the fine imposed on the applicant and, therefore, the actual basis for the calculation of the fine.
In that context, it is appropriate to point out again that the Commission, in recital 482 of the contested decision, did not carry out an analysis of potential competition between the parties for the services to which the applicant refers. Furthermore, in answer to the questions put by the Court at the hearing with a view to obtaining a response from the Commission to the applicant’s arguments concerning the alleged absence of potential competition between Telefónica and PT with respect to certain services in Spain (see paragraphs 61 and 293 above), the Commission merely reiterated its position that it was not required to analyse potential competition between the parties for the purposes of determining the amount of the fine and, moreover, merely answered all the applicant’s arguments by stating that Telefónica was a potential competitor of PT with respect to the services in question, since it would have been able to participate in the calls for tenders or to buy an existing operator.
It follows from the foregoing that, in the present case, the Court does not have sufficient material in order to determine the final amount of the fine to be imposed on the applicant.
It is true that the unlimited jurisdiction which the Court enjoys under Article 31 of Regulation No 1/2003 empowers it, in addition to merely reviewing the lawfulness of the penalty, to substitute its own assessment for the Commission’s. However, in the present case, the Commission did not analyse the material put forward by the applicant in order to demonstrate the absence of potential competition between the parties with respect to certain services when determining the value of sales to be taken into consideration in the calculation of the amount of the fine. If the Court were to determine the value of those sales that would therefore mean that it was led to fill in a gap in the investigation of the file.
In fact, the exercise of unlimited jurisdiction cannot go so far as to lead the Court to carry out such an investigation, which would go beyond the substitution of the Court’s assessments for the Commission’s, since the Court’s assessment would be the only and the first assessment of the material that the Commission ought to have taken into account when determining the value of the sales directly or indirectly related to the infringement within the meaning of point 13 of the Guidelines and which it fell to the Commission to analyse.
It follows that, in the present case, it is not appropriate to exercise the Court’s unlimited jurisdiction and it is therefore for the Commission to draw all the inferences from the illegality found when it implements the present judgment and to make a new finding on the fixing of the amount of the fine. Furthermore, the Court considers that it must examine the other pleas relating to the amount of the fine.
3. Seventh plea, alleging infringement of Article 101 TFEU, by reason of a manifest error of assessment in the calculation of the basic amount of the fine according to gravity, and breach of the principle of proportionality
The applicant claims that, when calculating the basic amount of the fine, the Commission did not take proper account of the following factors, which would have justified the imposition of a symbolic fine or, at least, a lower fine than that imposed in the present case: primarily, the clause was determined by the conduct of the Portuguese Government; the clause was not implemented; the parties stated in writing, immediately after the Commission became involved, that they considered that the restriction could not be effective and that it had never been effective; in the alternative, the restriction to which the clause refers was never implemented and had no consequence, and Telefónica made sure that the restriction could not be implemented if that was illegal; the absence of precedents in which an agreement as exceptional as the agreement in question was penalised; and, last, the fact that the clause was made public.
It should be borne in mind that the amount of the fine is set by the Commission according to the gravity of the infringement and, where appropriate, to its duration. The gravity of an infringement has to be determined by reference to criteria such as the particular circumstances of the case, its context and the deterrent effect of the fines. Objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements (judgments in Aalborg Portland and Others v Commission, cited in paragraph
above,
EU:C:2004:6
, paragraphs
to
, and in Toshiba v Commission, cited in paragraph
above,
EU:T:2011:343
, paragraph
).
It should also be borne in mind that, in the present case, the Commission took into account, to reflect the gravity of the infringement, a small percentage of the value of the sales of the undertakings concerned, namely 2% (see paragraph 251 above). In addition, it should be observed that in this case the Commission did not apply an ‘entry fee’, as provided for in point 25 of the Guidelines (see paragraph 240 above), in order to deter undertakings from participating in horizontal price-fixing, market-sharing and output-limitation agreements (see paragraph 252 above). Last, the Commission stated that it had taken account, when fixing the percentage to be applied to reflect the gravity of the infringement, in particular, the fact that the clause had not been kept secret and also the short period during which it was to be applicable (see paragraphs 249 and 251 above).
In view of the fact that the clause constituted a market-sharing agreement, an infringement which is normally among the most serious, and in view of the fact that the proportion of the value of sales taken into account is set at a level of up to 30% for that type of infringement (see points 21 and 23 of the Guidelines and paragraph 240 above), it is apparent that the Commission took into account to a large extent the factors that would mitigate the gravity of the infringement in the present case.
Also, the arguments whereby the applicant claims that the Commission did not take proper account of other factors that ought to have reduced the percentage applied for the gravity of the infringement cannot succeed.
First, as regards the taking into account of the alleged conduct of the Portuguese Government in determining the gravity of the infringement, it should be noted that the Guidelines expressly provide that the fact that ‘[the anti-competitive conduct] has been authorised or encouraged by public authorities or by legislation’ may be taken into account as a mitigating circumstance (see, in that regard, paragraph 333 et seq. below). Accordingly, such encouragement, on the assumption that it is established, cannot also be taken into account when determining the gravity of the infringement.
Second, as regards the implementation of the clause, it should be observed that it has not been shown whether it was implemented or not. The Commission merely noted, in recital 365 of the contested decision, that, while it cannot be directly inferred from the lack of new competing activities that the clause was implemented, the observation that the parties did not show that they had developed new activities in Spain or Portugal, from which it might be concluded that the clause had not been applied, should be maintained, as a (non-conclusive) sign that the clause might have been implemented. In the light of those circumstances, it cannot be maintained that the Commission ought to have applied a lower percentage to reflect the gravity of the infringement because of the alleged non-implementation of the clause. In addition, the argument that Telefónica made sure that the clause could not be implemented if it proved to be illegal cannot be accepted, since it was found in the context of the examination of the first three pleas (see, in particular, paragraphs 121 and 176 to 199 above) that the applicant had not established that the safeguard ‘to the extent permitted by law’ had transformed the clause into an obligation to self-assess the possibility of a restriction of competition.
Third, as the Commission stated in recital 500 of the contested decision (see paragraph 254 above), it took into account, as mitigating circumstances, in accordance with point 29 of the Guidelines (see paragraph 242 above), the fact that the parties had deleted the clause shortly after the Commission had become involved, and there is thus no need to take that factor into account under the head of the gravity of the infringement as well.
Fourth, the applicant maintains that the fact that the clause was not kept secret was not taken into consideration in an appropriate manner. It should be noted that the Commission stated in recital 491 of the contested decision that the fact that the clause had been made public had been one of the factors that justified applying only a small percentage of the value of sales to reflect the gravity of the infringement (see paragraphs 249 and 319 above). If the fact of being kept secret is a factor taken into account when determining the gravity of cartel-type agreements (see point 23 of the Guidelines, paragraph 240 above), it is apparent that, in this case, by taking only 2% of the value of sales into consideration to reflect the gravity of the infringement, the Commission properly took into account the fact that the clause had been made public.
Fifth, and last, as regards what is alleged to be the exceptional nature of the agreement at issue in this case, it should be recalled that the applicant attempted to justify the existence of the clause, in particular, by the fact that the assessment of whether it could be characterised as a restriction ancillary to the Vivo transaction was difficult, so that it was put off until later with the safeguard ‘to the extent permitted by law’ (see paragraph 178 above). As the Commission correctly points out, there are precedents in the matter of ancillary restrictions, so that the parties were perfectly capable of assessing whether the clause might constitute such an ancillary restriction. Accordingly, a diligent undertaking such as the applicant, which, moreover, has an ample supply of high-quality legal counsel, cannot rely on an unreasonable margin of doubt as to the legality of the clause.
Nor can the applicant maintain that the contested decision establishes a new rule on the assessment of restrictions the implementation of which is subject to a legal safeguard, according to which such restrictions would constitute infringements by object except where, when carrying out an
ex post facto
assessment, the Commission considers that there had been reasonable doubt as to their restrictive nature and the parties immediately carry out a self-assessment and terminate or amend the agreement providing for the restriction accordingly. In fact, it is apparent that the Commission merely considered, correctly, that, in the circumstances of the case, the fact that there was not a broad margin of doubt as to the legality of the clause at the time when the agreement was signed and also the fact that the parties did not examine the legality of the clause before the agreement entered into force, two months after being signed, contradicted the parties’ assertion that the legal safeguard transformed the non-compete clause into a self-assessment clause. If such circumstances were not taken into account in the assessment of a clause containing a legal safeguard, it would be sufficient for the parties to include the phrase ‘to the extent permitted by law’ for an anti-competitive agreement to be no longer capable of constituting a restriction by object and for the Commission to be required to examine its effects. In fact, not only would such a situation disproportionately increase the Commission’s burden of proving conduct contrary to Article 101 TFEU and thus be incompatible with its task of monitoring the proper application of those provisions entrusted to it by the Treaties, but it would also pave the way for all manner of abuse on the part of the parties to an anti-competitive agreement.
In any event, in that it consisted in a market-sharing agreement, the clause cannot be exempt from a penalty, even on the assumption that it was novel in nature owing to the phrase ‘to the extent permitted by law’. The fact that conduct with the same features has not been examined in past decisions does not exonerate an undertaking (judgment of 1 July 2010, AstraZeneca v Commission,
T‑321/05
, ECR,
EU:T:2010:266
, paragraph
).
It follows from the foregoing considerations that the seventh plea must be rejected.
4. Eighth plea, alleging infringement of Article 101 TFEU by reason of a breach of the principle of proportionality and a manifest error of assessment owing to the refusal to accept other mitigating circumstances
The applicant maintains that the Commission made a manifest error of assessment, in so far as it did not take proper account, under the head of mitigating circumstances, of the Portuguese Government’s influence in the creation and introduction of the clause and of the proactive role played by Telefónica and the fact that it acted in good faith.
It should be recalled that it is apparent from the contested decision and the Guidelines, the principles of which are applied in that decision, as well as from the case-law, that, while the gravity of the infringement is initially assessed on the basis of the particular characteristics of the infringement, such as its nature, the cumulative market share of all the undertakings involved, the geographic scope of the infringement and whether it was implemented, that assessment is subsequently adjusted to take account of aggravating and mitigating circumstances specific to each of the undertakings which participated in the infringement (see judgment of 25 October 2011, Aragonesas Industrias y Energía v Commission,
T‑348/08
, ECR,
EU:T:2011:621
, paragraph
and the case-law cited).
As stated in paragraphs 254 and 255 above, in the present case the Commission applied a reduction of 20% under the head of mitigating circumstances, since the parties terminated the clause — which, moreover, was not kept secret — shortly after the Commission became involved, and it rejected the arguments whereby the parties claimed that there were other mitigating circumstances.
In the first place, the applicant maintains that the Commission did not take proper account of the fact that the clause had been imposed by the Portuguese Government, although it accepts, in recital 75 of the contested decision, that that Government’s conduct might have convinced Telefónica that the restriction was essential for the viability of the transaction.
That argument cannot be upheld. It should be noted that, while the Guidelines expressly provide that the fact that anti-competitive conduct has been authorised or encouraged by public authorities or by legislation may constitute a mitigating circumstance (see paragraph 242 above), in the present case it follows from paragraphs 122 to 175 above that the applicant has not shown that the Portuguese Government had encouraged the insertion of the clause into the agreement, so that such encouragement cannot be taken into account as a mitigating circumstance. Since the applicant has adduced no evidence capable of showing that the Portuguese Government had any interest whatsoever in the clause, it cannot claim, either, that that Government’s conduct encouraged it to believe that the clause was essential for the implementation of the transaction. In that regard, it should be noted, moreover, that, contrary to the applicant’s assertion, the Commission did not accept, in recital 75 of the contested decision, that the Portuguese Government’s conduct might have convinced Telefónica that the clause was essential for the viability of the transaction, but merely noted that, even if Telefónica had considered that that was the case, that would not be sufficient to characterise the clause as a restraint ancillary to the Vivo transaction.
In the second place, the applicant claims that the Commission ought to have taken into account the fact that it acted in good faith and did not deliberately wish to implement a market-sharing agreement; otherwise, the phrase ‘to the extent’ would have served no purpose and the publicising of the agreement would have been absurd. Likewise, the alleged delay in implementing the self-assessment of the legality of the clause can be regarded at most as negligence, but not as a deliberate intention to restrict competition.
That argument cannot be upheld either.
First of all, examination of the first three pleas has shown that the applicant has not demonstrated either that it had been forced to accept the clause (see paragraphs 122 to 175 above) or that it had adopted a proactive approach to limiting its impact (see paragraphs 167 to 174 above).
Next, to accept the applicant’s alleged ‘good faith’ as a mitigating circumstance would be to disregard the fact that the non-compete obligation in the clause was bilateral in nature, so that it could also be of advantage to Telefónica, and also the fact that the agreement had been agreed by both parties. In that regard, it is appropriate to bear in mind, moreover, as the Commission observes, the Telefónica internal email of 6 July 2010, which states that ‘it would be necessary to envisage a liturgy/scenario for any new conditions, giving the impression that, as was explained to us, we sat down at the negotiating table and new conditions were “imposed” on us (when in fact we proposed them)’. In the light of that factor, the applicant cannot claim that it played a purely defensive role when negotiating the agreement.
Last, the applicant maintains that the delay in the alleged evaluation of the legality of the clause and its termination might be regarded at most as negligence, but not as a deliberate intention to restrict competition. However, in view of the significance of the Vivo transaction, which the applicant itself highlights, it is simply not credible that the failure to implement in good time a supposed binding contractual obligation allegedly contained in the agreement relating to that transaction — namely, to assess the legality of the non-compete obligation in the clause — should be due to negligence on the part of undertakings such as Telefónica and PT, which have access and recourse to expert legal counsel.
It follows from the foregoing considerations that the eighth plea must be rejected.
C –
The request for the examination of witnesses
By its additional request, reiterated by letter of 31 March 2015 (see paragraph 62 above), the applicant requests the Court, in support of its assertion that the Commission made a manifest error of assessment of the facts relating to the negotiation of the third and fourth offers and also of those relating to the parties’ self-assessment of the clause and the comparison of the results of that self-assessment by means of various telephone contacts on 26 and 29 October 2010, to take oral evidence from the persons who took part in those events.
In its request for the examination of witnesses submitted by separate letter of 31 March 2015, the applicant also emphasises the importance of examining one of the witnesses requested, namely Mr A.V., its external counsel, who took part in the contacts and negotiations with the Portuguese Government.
In its written pleadings and in its response to the request for the examination of witnesses, the Commission disputes the relevance of the examination of the witnesses proposed by the applicant to the outcome of the dispute.
It must be pointed out that the Court is the sole judge of whether the information available to it concerning the cases before it needs to be supplemented (see order of 10 June 2010, Thomson Sales Europe v Commission,
C‑498/09 P
,
EU:C:2010:338
, paragraph
and the case-law cited).
As the Court of Justice has already held in a case concerning competition law, even where a request for the examination of witnesses, made in the application, states precisely about what facts and for what reasons the witness or witnesses should be examined, it falls to the General Court to assess the relevance of the application to the subject-matter of the dispute and the need to examine the witnesses named (see judgment of 19 December 2013, Siemens v Commission,
C‑239/11 P, C‑489/11 P and C‑498/11 P
,
EU:C:2013:866
, paragraph
and the case-law cited).
The Court of Justice has also stated that the General Court’s discretion in that regard was in line with the fundamental right to a fair hearing and, in particular, Article 6(3)(d) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (ECHR). It is apparent from the case-law of the Court of Justice that that provision does not confer on the accused an absolute right to obtain the attendance of witnesses before a court and that it is in principle for the court hearing of the case to determine whether it is necessary or appropriate to call a witness. Article 6(3) of the ECHR does not require that every witness be called but is aimed at full equality of arms, ensuring that the procedure in issue, considered in its entirety, gave the accused an adequate and proper opportunity to challenge the suspicions concerning him (see judgment in Siemens v Commission, cited in paragraph
above,
EU:C:2013:866
, paragraphs
and
and the case-law cited).
In that regard, this Court has already held that a request for the examination of witnesses submitted by an applicant undertaking could not be granted where the statements which the applicant sought to obtain by means of such testimony before the Court had already been made before the Commission, where they had been considered not to be supported by documentary evidence and had even been contradicted by certain information in the file (see, to that effect, judgment of 13 July 2011, ThyssenKrupp Liften Ascenseurs v Commission,
T‑144/07, T‑147/07 to T‑150/07 and T‑154/07
, ECR,
EU:T:2011:364
, paragraphs
and
).
In addition, it should be noted that an application seeking that the Court should supplement the information available to it is inoperative where, even if the Court were to grant that application, the meaning of its decision would not be affected (see, to that effect, order in Thomson Sales Europe v Commission, cited in paragraph
above,
EU:C:2010:338
, paragraph
).
If the Court is able to rule on the basis of the forms of order sought, the pleas in law and the arguments put forward in the course of both the written and the oral procedure and in the light of the documents produced, the applicant’s request for examination of a witness put forward by the applicant must be rejected without the Court being required to provide specific reasons for its finding that it is unnecessary to seek additional evidence (see, to that effect, order of 15 September 2005, Marlines v Commission,
C‑112/04 P
,
EU:C:2005:554
, paragraph
, and judgment of 9 September 2009, Clearstream v Commission,
T‑301/04
, ECR,
EU:T:2009:317
, paragraph
).
However, while it is true that a party is not entitled to require the Courts of the European Union to adopt a measure of organisation of procedure or a measure of inquiry, the fact nonetheless remains that the Court cannot draw conclusions from the fact that certain information is not in the file unless it has exhausted the means laid down in its Rules of Procedure for obtaining production of that information from the party concerned (see order of 8 October 2013, Michail v Commission,
T‑597/11 P
, ECR-FC,
EU:T:2013:542
, paragraph
and the case-law cited).
In the present case, the applicant asks the Court to examine the persons who took part in the negotiation of the extension of the third offer on 16 and 17 July 2010, in the negotiation of the fourth offer on 26, 27 and 28 July 2010 and in the contacts between Telefónica and PT on 26 and 29 October 2010.
As regards the latter contacts, it should be observed that the statements of the persons concerned are already in the file.
In that regard, it should be borne in mind, as already stated in paragraph 347 above, that this Court has held that a request for the examination of witnesses submitted by an applicant undertaking could not be granted where the statements which the applicant sought to obtain by means of such testimony before the Court had already been made before the Commission, where they had been considered not to be supported by documentary evidence and had even been contradicted by certain information in the file.
In the present case, it should be borne in mind that the Commission stated, as already noted in paragraphs 189 to 191 above, that it had taken the statements in question into account and that it had evaluated them in accordance with the principles applicable to the appraisal of evidence. The Commission thus took account of the fact that those statements had been produced by persons who might have a direct interest in the case (recital 122 of the contested decision) and in carrying out its appraisal it weighed that evidence against the rest of the evidence available (recitals 121, 124 and 308 of the contested decision). At no time did the Commission cast doubt on the fact that the persons making that statement had actually expressed their views in the manner recorded in those statements.
In those circumstances, the request that the Court should order the person who made that statement to be examined before the Court must be rejected, as the information contained in the file is sufficient to enable the Court to rule on the October 2010 conference calls (see, to that effect, judgment in ThyssenKrupp Liften Ascenseurs v Commission, cited in paragraph
above,
EU:T:2011:364
, paragraph
and
; see also, to that effect and by analogy, judgment of 7 October 2004, Mag Instrument v OHIM,
C‑136/02 P
, ECR,
EU:C:2004:592
, paragraph
).
That conclusion cannot be called in question by the applicant’s assertion that, under the principle of immediacy, the examination of witnesses by the Court has undeniable added value by comparison with the taking into account of a statement recorded in writing. Since the content of the statement is not called in question and since all that is required is to appraise that item of evidence by reference to all the evidence, the arguments put forward by the applicant at the hearing cannot call in question the finding that the examination of the author of the statement in question before the Court is superfluous.
As regards, moreover, the testimony offered concerning the negotiation of the third and fourth offers on 16, 17, 26, 27 and 28 July 2010, the requests for the examination of witnesses must also be rejected.
Concerning, in the first place, the negotiation of the third offer on 16 and 17 July 2010, first, it should be noted that the applicant stated in its request for the examination of witnesses of 31 March 2015, and confirmed at the hearing, that Mr A.V., its external counsel, who was involved in the contacts and negotiations with the Portuguese Government, was the only one of the proposed witnesses who had had contacts with that Government and, therefore, ‘the only direct witness of the causal relationship between the Portuguese Government’s actions and the existence of the clause’ and the only one ‘with direct knowledge of the Portuguese Government’s actions and of its influence on the outcome of the impugned transaction’. It follows that there is no need to examine, with regard to the negotiations of 16 and 17 July 2010, the need to hear the other persons proposed by the applicant, since, as the applicant itself states, they had no direct knowledge of the alleged actions of the Portuguese Government.
Second, it must be noted that the applicant claims that the content of the statements of Mr A.V., its external counsel, who took part in the contacts and negotiations with the Portuguese Government, which do not appear in any document in the file, is essential for its defence, since that witness would be able to provide evidence of the causal relationship between the Portuguese Government’s actions and the clause. At the hearing, the applicant stated that the purpose of the examination of that witness would be, in particular, to clarify the circumstances of Annex A.58 (see paragraph 147 above), which was noted in the minutes of the hearing.
In that regard, it should be recalled that it has already been found that Annex A.58 (see paragraph 147 above) and, more generally, all the evidence adduced by the applicant in order to demonstrate the Portuguese Government’s alleged interest in the clause (see paragraphs 136 to 162 above) contain nothing that would reveal such an interest. Although the Portuguese Government’s interest in the negotiation of the agreement has been proved, the applicant has not put forward the slightest evidence to show that that Government imposed or, at least, desired the clause and has failed to explain how the testimony of its external counsel, who was involved in the contacts and negotiations with the Portuguese Government concerning the correspondence in Annex A.58, would reveal ‘the causal link between the Portuguese Government’s actions and the clause’, while the applicant itself appears, on the contrary, to acknowledge in its pleadings that the ‘indicia’ adduced up to then were ‘the highest level of evidence of the … practice [of the Portuguese Government] to which Telefónica could have access, since — owing to its very nature — the pressure exercised by a Government in delicate matters is generally discreet and informal’.
In that respect, it should be pointed out that the applicant acknowledged at the hearing, in order to explain why it had neither produced the correspondence in Annex A.58 nor proposed that its external counsel, who had taken part in the contacts and negotiations with the Portuguese Government, should be examined as a witness concerning that correspondence during the administrative procedure, that, owing to the significant volume of documents to be reviewed in the context of the present case, it had not found that correspondence — which is supposed to reveal the key role played by that counsel in this case and the crucial importance of his testimony in proving the alleged influence of the Portuguese Government with respect to the clause — until later, during an electronic search. In the light of that assertion, as the Commission correctly observed, it should be noted that, if the counsel in question had really played the key role that the applicant attributes to him, and if he could give direct testimony concerning the Portuguese Government’s actions with respect to the clause, it is unlikely that he suffered a loss of memory until such an electronic search revealed correspondence testifying to his alleged importance in the present case.
Testimony limited to repeating the elements which the applicant has already put forward in the application and the truth of which is not disputed, and to drawing the same conclusions as those which the applicant draws in his written pleadings (see paragraphs 136 to 143 above) cannot constitute factual evidence capable of being relevant for the outcome of the present case. It is common ground that the Portuguese Government closely followed the negotiation of the agreement, but that does not mean that it wished to impose the clause. Testimony of facts showing generally the Portuguese Government’s interest in the agreement without revealing facts proving that Government’s alleged interest in the clause would therefore be irrelevant for the purpose of verifying the merits of the applicant’s argument.
In those circumstances, the Court is not required to order the measures of inquiry sought (see, to that effect, judgments in Siemens v Commission, cited in paragraph
above,
EU:C:2013:866
, paragraph
, and of 27 October 1994, Fiatagri and New Holland Ford v Commission,
T‑34/92
, ECR,
EU:T:1994:258
, paragraph
).
As regards, in the second place, the request to have Mr R.S.L.G.-O., Telefónica’s secretary general and a member of its board of directors, Mr A.V.B., Telefónica’s director general of finance and business development, Mr J.S.B., director of industrial alliances and subsidiaries, Ms M.L.M.A., Telefónica’s vice-secretary general and a member of its board of directors and, again, Mr A.V., Telefónica’s external counsel, who participated in the contacts and negotiations with the Portuguese Government, examined as witnesses concerning Telefónica’s insistence on having the clause deleted and PT’s refusal to delete it on 27 July 2010, it must be stated that that request is inoperative.
Even on the assumption that the witnesses whom the applicant seeks to have examined asserted that Telefónica asked PT, on 27 July 2010, to delete the clause and that PT refused to do so, in the light of all the evidence and, in particular, the bilateral nature of the clause (see paragraphs 154 and 171 above) and Telefónica’s approach during the negotiations (see paragraphs 152 and 338 above), that would not show either that the clause contained a self-assessment obligation or that it would be appropriate, when determining the amount of the fine, to take Telefónica’s alleged efforts to limit the impact of the clause into account as mitigating circumstances (see paragraphs 335 to 338 above).
In those circumstances, and in so far as a request for the Court to supplement the information available to it is inoperative where, even if the Court granted such a request, the meaning of its decision would not be affected (see the case-law cited in paragraph 348 above), the request for the examination of the witnesses of the negotiations on 26 and 27 July 2010 must be rejected, as must the request for examination of witnesses in its entirety.
It follows from all of the foregoing considerations that the sixth plea must be upheld in part in that, in order to determine the value of the applicant’s sales to be taken into consideration in the calculation of the amount of the fine, the Commission was required to examine the arguments whereby the applicant sought to show that there was no potential competition between Telefónica and PT concerning certain services. Accordingly, Article 2 of the contested decision must be annulled, solely in that it sets the amount of the fine on the basis of the value of sales taken into consideration by the Commission, and the action must be rejected for the remainder.
Costs
Under Article 134(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing his own costs, pay a proportion of the costs of the other party.
Since the action has been only partly successful, the Court considers it fair, having regard to the circumstances of the case, to order the applicant to bear three quarters of its own costs and to pay one quarter of the Commission’s costs. The Commission will bear three quarters of its own costs and one quarter of the applicant’s costs.

On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:

1.
Annuls Article 2 of Commission Decision C(2013) 306 final of 23 January 2013 relating to a proceeding under Article 101 [TFEU] (Case COMP/39.839 — Telefónica/Portugal Telecom) in that it sets the amount of the fine imposed on Telefónica, SA at EUR 66894000, in so far as that amount was set on the basis of the value of sales taken into account by the European Commission;

2.
Dismisses the action as to the remainder;

3.
Orders Telefónica to bear three quarters of its own costs and to pay one quarter of the Commission’s costs, and the Commission to bear three quarters of its own costs and to pay one quarter of Telefónica’s costs.

Martins Ribeiro
Gervasoni
Madise
Delivered in open court in Luxembourg on 28 June 2016.
Table of contents

Background to the dispute

I — Presentation of Telefónica and PT

II - Negotiation and signature of the agreement

III - Events following the conclusion of the agreement

IV — Procedure before the Commission

Contested decision

Procedure and forms of order sought

Law

I — Admissibility

A — Admissibility of certain annexes to the application

B — Admissibility of the references to the parallel action brought by PT against the contested decision

II - Substance

A — The claims seeking annulment of the contested decision

1. The first three pleas, alleging, in essence, infringement of Article 101 TFEU in that the clause does not constitute a restriction of competition by object.

a) Preliminary observations

b) The assessment of the clause as a possible restriction ancillary to the Vivo transaction

c) The autonomy of the applicant’s conduct

d) The context of the introduction of the clause in the agreement relating to the Vivo transaction and the conduct of the parties

The alleged pressure exercised by the Portuguese Government

– The principles relating to the burden of proof

– Contested decision

– The evidence adduced by the applicant

– The alleged breach of the obligations associated with the investigation and of the principle of sound administration

Telefónica’s alleged actions to minimise the anti-competitive content of the clause

e) The alleged material content and the alleged practical purposes of the safeguard ‘to the extent permitted by law’

The alleged function of reducing transactions costs

The alleged function as a strategic lever to arrive at a consensus

The alleged function of security in maintaining the transaction

The interpretation of the wording of the clause

2. Fourth plea, alleging infringement of Article 101 TFEU, insufficient reasoning and incorrect assessment of the capacity of the practice to restrict competition

3. Fifth plea, alleging infringement of Article 101(1) TFEU in that the clause is not a restriction by effect, and breach of the rules on the burden of proof and of the principle in dubio pro reo

B — The claims seeking a reduction of the amount of the fine

1. Preliminary observations

a) The principles relating to the calculation of fines

b) Contested decision

2. Sixth plea, alleging a manifest error of assessment in the calculation of the initial value of Telefónica’s sales for the purpose of establishing the basic amount of the fine, and breach of the principle of proportionality and the requirement to state reasons

a) First part, alleging that the volume of sales taken into account for Telefónica should be the same as for PT

b) Second part, alleging that the value of certain sales should be excluded from the calculation of the fine

The statement of reasons

Substance

– The sales corresponding to activities outside the Iberian Peninsula

– Sales corresponding to pre-existing activities

– Sales corresponding to activities not subject to competition

3. Seventh plea, alleging infringement of Article 101 TFEU, by reason of a manifest error of assessment in the calculation of the basic amount of the fine according to gravity, and breach of the principle of proportionality

4. Eighth plea, alleging infringement of Article 101 TFEU by reason of a breach of the principle of proportionality and a manifest error of assessment owing to the refusal to accept other mitigating circumstances

C — The request for the examination of witnesses

Costs
(
*1
)	Language of the case: Spanish.