CELEX: 62015CJ0411
Appeal
Agreements, decisions and concerted practices
European market for animal feed phosphates
Allocation of sales quotas, coordination of prices and conditions of sale and exchange of commercially sensitive information
Appellants’ withdrawal from the settlement procedure
Unlimited jurisdiction
Protection of legitimate expectations and of equal treatment
Reasonable length of proceedings

By their appeal, the appellants Timab Industries (‘Timab’) and Cie financière et de participations Roullier (‘CFPR’) request, primarily, the Court to set aside the judgment of the General Court of the European Union of 20 May 2015 in Timab Industries and CFPR v Commission (
T‑456/10
,
EU:T:2015:296
, ‘the judgment under appeal) by which that Court dismissed their action for annulment of Commission Decision C(2010) 5001 final of 20 July 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/38866 — Animal feed phosphates) (‘the contested decision’) and that the case be referred back to the General Court in order to reduce by the appropriate amount the fine imposed on them. In the alternative, they seek a declaration that, by virtue of the unreasonable length of the judicial proceedings, the General Court infringed their right to a fair trial.
Legal context
Regulation (EC) No 1/2003
Article 7(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (
OJ 2003 L 1, p. 1
) provides:
‘Where the Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article [101] or of Article [102 TFEU], it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end. For this purpose, it may impose on them any behavioural or structural remedies which are proportionate to the infringement committed and necessary to bring the infringement effectively to an end …’
The wording of Article 23(2) and (3) of that regulation is as follows:
‘2.   The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:
(a)
they infringe Article [101] or [102 TFEU] …
…
For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.
…
3.   In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’
Regulation (EC) No 773/2004
During 2008, the settlement procedure was established by the adoption of Commission Regulation (EC) No 622/2008 of 30 June 2008 amending Regulation No 773/2004, as regards the conduct of settlement procedures in cartel cases (
OJ 2008 L 171, p. 3
). The arrangements for implementing that regulation were set out in the Commission Notice of 2 July 2008 on the conduct of settlement procedures in view of the adoption of decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003 in cartel cases (
OJ 2008 C 167, p. 1
, ‘the settlements notice’).
Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (
OJ 2004 L 123, p. 18
), as amended by Regulation No 622/2008 (‘Regulation No 773/2004’), provides in Article 10a, entitled ‘Settlement procedure in cartel cases’ as follows:
‘1.   After the initiation of proceedings pursuant to Article 11(6) of Regulation No 1/2003, the Commission may set a time limit within which the parties may indicate in writing that they are prepared to engage in settlement discussions with a view to possibly introducing settlement submissions. The Commission shall not be obliged to take into account replies received after the expiry of that time limit.
…
2.   Parties taking part in settlement discussions may be informed by the Commission of:
(a)
the objections it envisages to raise against them;
(b)
the evidence used to determine the envisaged objections;
(c)
non-confidential versions of any specified accessible document listed in the case file at that point in time, in so far as a request by the party is justified for the purpose of enabling the party to ascertain its position regarding a time period or any other particular aspect of the cartel; and
(d)
the range of potential fines.
…
Should settlement discussions progress, the Commission may set a time limit within which the parties may commit to follow the settlement procedure by introducing settlement submissions reflecting the results of the settlement discussions and acknowledging their participation in an infringement of Article [101 TFEU] as well as their liability. Before the Commission sets a time limit to introduce their settlement submissions, the parties concerned shall be entitled to have the information specified in Article 10a(2), first subparagraph disclosed to them, upon request, in a timely manner. The Commission shall not be obliged to take into account settlement submissions received after the expiry of that time limit.
3.   When the statement of objections notified to the parties reflects the contents of their settlement submissions, the written reply to the statement of objections by the parties concerned shall, within a time limit set by the Commission, confirm that the statement of objections addressed to them reflects the contents of their settlement submissions. The Commission may then proceed to the adoption of a Decision pursuant to Article 7 and Article 23 of Regulation [No 1/2003] after consultation of the Advisory Committee on Restrictive Practices and Dominant Positions pursuant to Article 14 of Regulation [No 1/2003].
4.   The Commission may decide at any time during the procedure to discontinue settlement discussions altogether in a specific case or with respect to one or more of the parties involved, if it considers that procedural efficiencies are not likely to be achieved.’
The settlements notice
Paragraph 1 of the settlements notice states as follows:
‘This Notice sets out the framework for rewarding cooperation in the conduct of proceedings commenced in view of the application of Article [101 TFEU] to cartel cases. … The cooperation covered by this Notice is different from the voluntary production of evidence to trigger or advance the Commission’s investigation, which is covered by the Commission Notice on Immunity from fines and reduction of fines in cartel cases … Provided that the cooperation offered by an undertaking qualifies under both Commission Notices, it can be cumulatively rewarded accordingly.’
Part 2.1. of that Notice, entitled ‘Initiation of proceedings and exploratory steps regarding settlement’ provides, in paragraph 11:
‘Should the Commission consider it suitable to explore the parties’ interest to engage in settlement discussions, it will set a time-limit of no less than two weeks pursuant to Articles 10a(1) and 17(3) of Regulation [No 773/2004] within which parties to the same proceedings should declare in writing whether they envisage engaging in settlement discussions in view of possibly introducing settlement submissions at a later stage. This written declaration does not imply an admission by the parties of having participated in an infringement or of being liable for it.’
Paragraphs 15 to 17 and 19 of the settlements notice, which are included in part 2.2 of that notice, entitled ‘Commencing the settlement procedure: settlement discussions’, provides as follows:
‘15.
The Commission retains discretion to determine the appropriateness and the pace of the bilateral settlement discussions with each undertaking. In line with Article 10a(2) of Regulation [No 773/2004], this includes determining, in view of the progress made overall in the settlement procedure, the order and sequence of the bilateral settlement discussions as well as the timing of the disclosure of information, including the evidence in the Commission file used to establish the envisaged objections and the potential fine. Information will be disclosed in a timely manner as settlement discussions progress.
16.
Such an early disclosure in the context of settlement discussions pursuant to Article 10a(2) … of Regulation [No 773/2004] will allow the parties to be informed of the essential elements taken into consideration so far, such as the facts alleged, the classification of those facts, the gravity and duration of the alleged cartel, the attribution of liability, an estimation of the range of likely fines, as well as the evidence used to establish the potential objections. This will enable the parties effectively to assert their views on the potential objections against them and will allow them to make an informed decision on whether or not to settle. …
17.
When the progress made during the settlement discussions leads to a common understanding regarding the scope of the potential objections and the estimation of the range of likely fines to be imposed by the Commission, and the Commission takes the preliminary view that procedural efficiencies are likely to be achieved in view of the progress made overall, the Commission may grant a final time-limit of at least 15 working days for an undertaking to introduce a final settlement submission …
…
19.
Should the parties concerned fail to introduce a settlement submission, the procedure leading to the final decision in their regard will follow the general provisions … instead of those regulating the settlement procedure.’
Part 2.3 of the settlements notice, entitled ‘Settlement submissions’, provides in paragraph 20 that parties opting for a settlement procedure must introduce a formal request to settle in the form of a settlement submission. That submission should contain, inter alia, an acknowledgement in clear and unequivocal terms of the parties’ liability with respect to the infringement, together with the confirmation by those parties that they do not envisage requesting access to the file or requesting to be heard again in an oral hearing, unless the Commission does not reflect their settlement submissions in the statement of objections and the decision.
Paragraph 21 of the settlements notice, which is also included in part 2.3, states :
‘The acknowledgments and confirmations provided by the parties in view of settlement constitute the expression of their commitment to cooperate in the expeditious handling of the case following the settlement procedure. However, those acknowledgments and confirmations are conditional upon the Commission meeting their settlement request, including the anticipated maximum amount of the fine.’
Part 2.4 of that notice, entitled ‘Statement of objections and reply’ provides in paragraphs 23, 24 and 26 as follows:
‘23.
Pursuant to Article 10(1) of Regulation [773/2004], the notification of a written statement of objections to each of the parties against whom objections are raised is a mandatory preparatory step before adopting any final decision. Therefore, the Commission will issue a statement of objections also in a settlement procedure.
24.
For the parties’ rights of defence to be exercised effectively, the Commission should hear their views on the objections against them and supporting evidence before adopting a final decision and take them into account by amending its preliminary analysis, where appropriate. The Commission must be able not only to accept or reject the parties’ relevant arguments expressed during the administrative procedure, but also to make its own analysis of the matters put forward by them in order to either abandon such objections because they have been shown to be unfounded or to supplement and reassess its arguments both in fact and in law, in support of the objections which it maintains.
…
26.
Should the statement of objections reflect the parties’ settlement submissions, the parties concerned should within a time-limit … set by the Commission … reply to it by simply confirming (in unequivocal terms) that the statement of objections corresponds to the contents of their settlement submissions and that they therefore remain committed to follow the settlement procedure …’
Part 2.5 of the settlements notice, entitled ‘Commission decision and settlement reward’, states in paragraphs 28, 30, 32 and 33:
‘28.
Upon the parties’ replies to the statement of objections confirming their commitment to settle, Regulation (EC) No 773/2004 allows the Commission to proceed, without any other procedural step, to the adoption of the subsequent final decision pursuant to Articles 7 and/or 23 of Regulation (EC) No 1/2003 … In particular, this implies that no oral hearing or access to the file may be requested by those parties once their settlement submissions have been reflected by the statement of objections …
…
30.
The final amount of the fine in a particular case is determined in the decision finding an infringement pursuant to Article 7 and imposing a fine pursuant to Article 23 of Regulation (EC) No 1/2003.
…
32.
Should the Commission decide to reward a party for settlement in the framework of this Notice, it will reduce by 10% the amount of the fine to be imposed after the 10% cap has been applied having regard to the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 …
33.
When settled cases involve also leniency applicants, the reduction of the fine granted to them for settlement will be added to their leniency reward.’
The 2006 Guidelines
The Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (
OJ 2006 C 210, p. 2
, ‘the 2006 Guidelines’) determine the methodology used by the Commission for setting the fine to be imposed on undertakings and associations of undertakings where, intentionally or negligently, they infringe the provisions of Articles 101 or 102 TFEU.
In accordance with points 10 and 11 of the 2006 Guidelines:
‘10.
First, the Commission will determine a basic amount for each undertaking or association of undertakings …
11.
Second, it may adjust that basic amount upwards or downwards …’
Point 27 of the 2006 Guidelines, which is included in Part 2 of thereof, entitled ‘Adjustments to the basic amount’, states:
‘In setting the fine, the Commission may take into account circumstances that result in an increase or decrease in the basic amount … It will do so on the basis of an overall assessment which takes account of all the relevant circumstances.’
Point 29 of the 2006 Guidelines, which begins Part B of those Guidelines, entitled ‘Mitigating circumstances’, states:
‘The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as:
…
—
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;
…’
The leniency notice
Under points 20 to 23 of the Commission notice on immunity from fines and reduction of fines in cartel cases (
OJ 2002 C 45, p. 3
) (‘the leniency notice’), included in Part B of that notice, entitled ‘Reduction of a fine’:
‘20.
Undertakings that do not meet the conditions under section A above may be eligible to benefit from a reduction of any fine that would otherwise have been imposed.
21.
In order to qualify, an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence.
22.
The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the facts in question. In this assessment, the Commission will generally consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence subsequently established. Similarly, evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance.
23.
The Commission will determine in any final decision adopted at the end of the administrative procedure:
(a)
whether the evidence provided by an undertaking represented significant added value with respect to the evidence in the Commission’s possession at that same time;
(b)
the level of reduction an undertaking will benefit from, relative to the fine which would otherwise have been imposed, as follows. For the:
—
first undertaking to meet point 21: a reduction of 30-50%,
—
second undertaking to meet point 21: a reduction of 20-30%,
—
subsequent undertakings that meet point 21: a reduction of up to 20%.
In order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value. It may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission.
In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’
Background to the dispute
The background to the dispute and the contested decision, as set out in paragraphs 1 to 28 of the judgment under appeal, may be summarised as follows.
Timab, subsidiary of the Roullier group of which CFPR is the holding company, produces and sells chemical products, namely animal feed phosphates (‘AFP’).
The Kemira Group was the first to inform the Commission of a secret AFP cartel, by way of an application for immunity from fines under the leniency notice of 28 November 2003. That application concerned the period between 1989 and 2003.
The information provided by the Kemira group enabled the Commission to carry out inspections on 10 and 11 February 2004 in France and Belgium, on the premisses of a number of undertakings active in the AFP sector, inter alia in those of Timab.
Three other companies then applied for immunity from fines under the leniency notice.
Thus, on 18 February 2004, Tessenderlo Chemie NV made such an application for immunity, this time covering the whole period from 1969 to 2004.
On 27 March 2007, Quimitécnica.com-Comércia e Indústria Química SA and its parent company José de Mello SGPS SA applied, in turn, for immunity under the leniency notice.
On 14 October 2008, the appellants also lodged an application for immunity, completed on 28 October 2009.
By letters of 19 February 2009, the Commission informed the participants in the cartel, including Timab, of the initiation of proceedings for the adoption of a decision under Chapter III of Regulation No 1/2003 and gave them a period of two weeks within which to inform it in writing whether they were willing to take part in settlement discussions within the meaning of Article 10a of Regulation No 773/2004.
After several bilateral meetings between the Commission and the undertakings concerned, including Timab, during which the substance of the objections and the evidence underpinning them were presented, the Commission determined the range of potential fines. That estimate, namely a range of fines from EUR 41 million to EUR 44 million for Timab’s participation in a single and continuous infringement from 31 December 1978 to 10 February 2004, was communicated to the Commission on 16 September 2009.
Subsequently, the Commission gave the undertakings concerned, including Timab, time to submit formal proposals for a settlement pursuant to Article 10a(2) of Regulation No 772/2004. All the participants in the cartel submitted proposals for a settlement within the allotted time limit, except for the appellants, who decided to withdraw from the settlement procedure.
On 23 November 2009, the Commission adopted a set of six statements of objections addressed to the appellants on the one hand, and to each of the participants in the cartel accepting the settlement on the other.
After having obtained access to the file, the appellants responded to the statement of objections on 2 February 2010 and took part in a hearing which was held on 24 February 2010.
On 20 July 2010 the Commission adopted the contested decision, in which it found that there was a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement in the AFP sector. According to the Commission, that single and continuous infringement took place from 16 September 1993 to 10 February 2004 and consisted in the sharing of a large part of the European market for AFPs by the allocation of sales quotas and customers to the participants in the cartel, in the coordination of prices and, to the extent necessary, of the conditions of sale.
In essence, it is apparent from the contested decision that the original agreement, concluded during 1969 between the top five producers of AFP at the time, was intended to resolve a situation of overcapacity in the European market. The constituent arrangements of the cartel were named ‘CEPA’ (Centre d’étude des phosphates alimentaires — Centre for the Study of feed phosphates). In order to ensure the functioning and the permanence of the cartel, the agreement is alleged to have resulted in additional specific agreements and other regional sub-arrangements. The participation of the French producers in CEPA was confirmed as from 1970. After a reorganisation, by the cartel participants, into three sub-arrangements, those participants contemplated, at the beginning of the 1990s, a return to a single structure, the ‘Super CEPA’, encompassing, first, the undertakings located in the five countries of Central Europe, namely Belgium, Germany, the Netherlands, Austria and Switzerland and, secondly, Denmark, Ireland, Hungary, Poland, Finland, Sweden, the UK and Norway. The discussions are alleged to have been held at two levels: the ‘central meetings’ or meetings ‘at European level’, during which general policy decisions were taken, and ‘expert meetings’, during which more in-depth discussions were allegedly held at national or regional level by the participants in the cartel which were active in a country or region.
With respect, more specifically, to the participation of the appellants, it is apparent from the contested decision that Timab was integrated into the ‘Super CEPA’ regional framework in addition to its participation in the French part of the cartel, when it began to export large quantities of AFP from France. Timab is alleged to have started participating in the ‘Super CEPA’ arrangements in September 1993. Furthermore, in parallel with the meetings of the Super CEPA, it allegedly participated in the meetings concerning France and those concerning Spain.
Thus, after finding, in Article 1 of the contested decision, the infringement, committed by the appellants, of Articles 101 TFEU and Article 53 of the EEA Agreement in the AFP sector, the Commission, under Article 2 of that decision, imposed jointly and severally on Timab and CFPR a fine of EUR 59850000. For the purpose of calculating that fine, the Commission relied on the 2006 Guidelines.
On 20 July 2010, the Commission also adopted Decision C(2010) 5004 final, concerning the same matter, addressed to the parties who had agreed to take part in the settlement procedure and made a proposal for a settlement.
The procedure before the General Court and the judgment under appeal
By application lodged at the Registry of the General Court on 1 October 2010, Timab and CFPR brought an action for the annulment in part of the contested decision and, in the alternative, for the annulment of Article 1 of the contested decision, in so far as the Commission stated that they had taken part in practices relating to the conditions of sale and in a system of compensation. In any event, the appellants requested an alteration of Article 2 of the contested decision and a substantial reduction in the amount of the fine imposed on them jointly and severally.
The appellants raised a number of pleas in support of their claim for annulment of the contested decision, which can be divided into three groups. The first group of those pleas concerned the settlement procedure. The appellants claimed, in essence, that the Commission had applied to an undertaking that withdrew from the settlement procedure a fine higher than the maximum figure of the range envisaged during those settlement discussions.
The second group of those pleas concerned certain practices constituting elements of the cartel in question, namely the compensation mechanism and the conditions of sale. As part of this second group of pleas, the appellants considered, in essence, that the Commission had wrongly attributed all the alleged practices to all of the undertakings without distinguishing the different periods of the infringement and the different forms of conduct. Thus, the Commission deprived the appellants of the right to usefully assert their arguments with respect to the unfounded objections that they participated in some of those practices, namely the compensation mechanism and the concerted fixing of conditions of sale.
The third group of pleas concerned several aspects of the calculation of the amount of the fine. In the third group of pleas, the appellants criticise, in essence, several aspects of the amount of the fine and the rules applied to that amount, alleging a breach of Article 23 of Regulation No 1/2003, a manifest error of assessment of the gravity of the impugned practices, a manifest error of assessment of the mitigating circumstances, a disproportionate decrease in the reduction for leniency and a manifest error of assessment of the ability to pay. Furthermore, the appellants maintained that the Commission had infringed the principles of equal treatment, the principle that penalties should be tailored to the individual and proportionality.
In support of their claims, made in the alternative, that the amount of the fine should be reduced, the appellants relied principally on two arguments. By the first of those arguments, they sought, in essence, a reduction in the ‘gravity rate’. By the second, they requested that, in addition to a reduction for their cooperation under the leniency notice, a supplementary reduction should be granted for their cooperation outside the framework of that notice, in the light of the fact that they do not dispute the facts from 16 September 1993 onwards.
In the judgment under appeal, the General Court dismissed the action in its entirety.
Forms of order sought by the parties before the Court of Justice
Timab and CFPR claim that the Court should:
—
set aside the judgment under appeal;
—
refer the case back to the General Court for the purpose of reducing the amount of the fine as appropriate;
—
as an incidental point, find that, by virtue of the unreasonable length of the judicial proceedings, the General Court infringed the right to a fair trial, and
—
order the Commission to pay the costs.
The Commission contends that the Court should:
—
dismiss the appeal; and
—
order the appellants to pay the costs.
The application to open the oral part of the procedure
Following the presentation of the Advocate General’s Opinion, the appellants, by a letter received by the Court on 1 September 2016, applied, pursuant to Article 83 of the Rules of Procedure of the Court, for the oral part of the procedure to be reopened.
In support of that application, the appellants claim, in essence, that the Court lacks sufficient information regarding, in the first place, the circumstances in which they withdrew from the settlement procedure and hence the relationship between that procedure and the standard administrative procedure and, in the second place, the scope of certain grounds of appeal. In that context, the appellants claim, in particular, that contrary to the observations of the Advocate General in points 51 and 52 of his Opinion, they have in no way been inspired by any intention to divert the settlement procedure for their own benefit and that, contrary to the arguments of the Advocate General in those submissions, the grounds of appeal include a distortion of the facts and of the evidence.
Furthermore, they consider that certain legal arguments relating to the calculation of the fine and, in particular, to the question relating to the reductions for cooperation have not been debated.
In that regard, it should be recalled that the Court may at any moment, having heard the Advocate General, order the reopening of the oral procedure under Article 83 of its Rules of Procedure if, inter alia, it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties or the parties concerned referred to in Article 23 of the Statute of the Court of Justice of the European Union (judgment of 9 July 2015, InnoLux v Commission,
C‑231/14 P
,
EU:C:2015:451
, paragraph
and the case-law cited).
In the present case, the Court considers, having heard the Advocate General, that it has sufficient information to give a ruling and that the present case does not need to be decided on the basis of arguments which have not been debated between the parties.
The application for the oral procedure to be reopened must therefore be dismissed.
The appeal
The first ground of appeal, alleging failure to have regard to the rules relating to the burden of proof and an infringement of the rights of the defence
Arguments of the parties
By their first ground of appeal, the appellants complain that the General Court disregarded the burden of proof and infringed the rights of the defence in so far as it held, in paragraphs 114 and 117 of the judgment under appeal, that they were required to prove, during the settlement procedure, that they had not participated in the cartel before 1993.
By finding, in paragraph 114 of the judgment under appeal, that ‘the Commission was entitled to believe that the appellants were involved in a single and continuous infringement from 1978 onwards’, whereas that concept is a legal classification which the appellants did not have to prove or disprove, in the context of the settlement procedure, the General Court did not meet the required standard of proof.
In that regard, they state that the standard of proof imposed on the Commission cannot vary according to whether it is in the context of the settlement procedure or the standard procedure. In so far as it validates the Commission’s reasoning based on a standard of proof that is lower than required, the judgment under appeal should be set aside.
According to the Commission, that first ground of appeal must be dismissed, principally, as inoperative or, in the alternative, as inadmissible and, in any event, as unfounded.
That ground of appeal is, first of all, ineffective, since the contested decision, the legality of which was upheld by the General Court, was taken in the context of the ordinary procedure following the withdrawal of Timab from the settlement. That first ground of appeal relates to the period from 1978 to 1993, which was not used against Timab. Thus, even if that ground of appeal was well founded, it would have no bearing on the outcome of the case, which concerns the fine imposed on Timab by the Commission following a standard administrative procedure for the period from 1993 to 2004.
The Commission then states that the General Court did not at any time consider that it was for the appellants to prove their non-participation in the cartel between 1978 and 1993 and that, in any event, the findings made by that Court in paragraphs 114 and 117 of the judgment under appeal constitute a sovereign assessment of the facts, which are not subject to review by the Court.
Finally, the Commission states that it is not disputed that it has the burden of proof in both the standard procedure and the settlement procedure. According to the Commission, since the appellants do not criticise an initial assessment made by the Commission in the light of the evidence before it, that institution would be justified in concluding that its analysis was accepted, a fortiori where that evidence emanates from the companies’ own statements in their leniency application and their responses to requests for information. It was in the light of those basic principles that the General Court considered that the Commission could legitimately believe that Timab had participated in the single and continuous infringement since 1978.
In that context, the Commission adds that the General Court also recalled that, following the arguments put forward by the appellants in their reply to the statement of objections, it had carried out a new assessment of the evidence in its possession and had come to the conclusion that that evidence did not serve to prove the appellants’ participation in the cartel before 1993. Accordingly, the General Court was right to find that the Commission had complied with the rules applicable to the standard of proof by taking into account, at each stage of the procedure, all the information at its disposal.
Findings of the Court
It should be recalled that, according to consistent case-law, an alleged failure to have regard to the rules of evidence is a question of law which is admissible in an appeal (see, to that effect, judgments of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala,
C‑413/06 P
,
EU:C:2008:392
, paragraph
and the case-law cited, and of 30 May 2013, Quinn Barlo and Others v Commission,
C‑70/12 P
, not published,
EU:C:2013:351
, paragraph
and the case-law cited).
Accordingly, it is for the Court of Justice to ascertain whether the General Court, in its assessment of the facts and evidence, made an error of law by infringing general principles of law, such as the presumption of innocence and the applicable rules of evidence, such as those relating to the burden of proof (see, to that effect, judgments of 8 July 1999, Hüls v Commission,
C‑199/92 P
,
EU:C:1999:358
, paragraph
and the case-law cited, and of 30 May 2013, Quinn Barlo and Others v Commission,
C‑70/12 P
, not published,
EU:C:2013:351
, paragraph
and the case-law cited).
Therefore, contrary to what the Commission contends, that ground of appeal is admissible.
As to substance, it should be borne in mind that, as is apparent, inter alia, from paragraph 48 of the judgment under appeal, in the application before the General Court, the appellants invoked a manifest error of law and of the assessment of the facts by the Commission in so far as it initially considered that they had participated in a single and continuous infringement as from 1978. According to the appellants, in the light of the documents at its disposal, the Commission should have concluded that they had not participated in the overall cartel before 1993. That error of characterisation, it is claimed, resulted from an insufficient analysis of the file and thus demonstrates that the Commission failed to comply with its duty to examine with care and impartiality the cases submitted to it.
In reply to that complaint, the General Court analysed, at paragraphs 108 to 118 of the judgment under appeal, the question whether the Commission had initially examined the appellants’ file in sufficient detail, having regard to the alleged infringement or whether it had misinterpreted the information provided by them.
In that regard, after examining, in paragraphs 109 to 112 of the judgment under appeal, the appellants’ request for immunity under the leniency notice and their replies to the requests for information, and then finding, in paragraph 113 of the judgment under appeal, that it is common ground that, in their reply to the statement of objections, the appellants had indicated that Timab had not participated in a single and continuous infringement between 1978 and 1993, the General Court concluded, in paragraph 114 of the judgment under appeal, that, having regard to the documents at its disposal, ‘the Commission could legitimately believe that the applicants were involved in the single and continuous infringement from 1978 onwards’.
Even if it were well founded in considering that, by endorsing a mere belief of the Commission, the General Court placed on the appellants the burden, which was not theirs, to prove that they had not joined the cartel before 1993, that first ground of appeal would not make it possible to set aside the judgment under appeal, or even the contested decision.
As is recalled, in particular, in paragraph 1 of the judgment under appeal, the appellants were penalised for having participated in a single and continuous infringement from 1993 to 2004. The complaint put forward by the appellants before the General Court, as referred to in paragraph 61 of the present judgment, was intended to show that, in the light of the evidence at its disposal, the Commission should have concluded that they did not participate in the cartel before 1993. Thus, that complaint could not, in any event, have any bearing on the dispute in the main proceedings, since it relates to a period for which the appellants have not been penalised. Accordingly, the General Court should have dismissed that complaint as being ineffective.
It follows that the decision of the General Court, set out in paragraph 118 of the judgment under appeal and dismissing the complaint alleging that the Commission had erred in its investigation of the case, appears well founded, in accordance with paragraph 65 of the present judgment, on other legal grounds. It is therefore appropriate to replace those grounds of appeal.
Consequently, the first ground of appeal cannot be upheld.
The second ground of appeal, alleging infringement of the right not to incriminate oneself and the rights of the defence and failure to exercise the unlimited jurisdiction of the General Court
Arguments of the parties
The second ground of appeal, directed against paragraphs 94 and 190 of the judgment under appeal, is divided into three limbs.
By the first limb of the second ground of appeal, the appellants consider that the General Court infringed their rights of defence in that it infringed their right not to incriminate themselves.
In support of that first limb, the appellants point out, first of all, that the information communicated, both in the settlement procedure and in the application for leniency, cannot be characterised as ‘admissions’. They then state that acknowledgement of participation in an infringement cannot be mechanically deduced from an application for leniency, since the author can always contest the facts and their assessment by the Commission. Finally, according to the appellants, acknowledgement of liability in an infringement in the context of a settlement procedure only arises by way of a formal settlement proposal, which the appellants did not wish to make. Thus, by automatically treating as ‘admissions’ the statements formulated in their leniency application and in the context of the settlement procedure, the General Court infringed their rights of defence in so far as it infringed their right not to incriminate themselves.
By the second limb of the second ground of appeal, the appellants submit that the General Court failed to exercise its unlimited jurisdiction by not verifying whether the Commission was obliged to provide evidence to support its characterisation as ‘admissions’, whereas such a characterisation was not apparent at any time from the documents available to that institution. That classification had a considerable impact on the determination of the duration of their participation in the infringement and, consequently, on the assessment of the amount of the fine and the corresponding reductions.
In that regard, the appellants allege, first, that an analysis of the information communicated by them to the Commission and of the documents adduced before the Court by other undertakings made it possible to determine that their participation in meetings was only sporadic and that, on the other hand, the existence of those alleged ‘admissions’ was contradicted by a very large number of documents in the file.
By the third limb of the second ground of appeal, the appellants allege an infringement of the rights of the defence by the General Court.
In that third limb, the appellants state that the General Court relied on internal memoranda of the minutes of three bilateral meetings which took place between them and the Commission during 2009. In particular, the General Court relied on the second internal memorandum stating that they had made ‘admissions’ concerning their alleged participation in the infringement for the period from 1978 to 1992. One of those internal memoranda was communicated only after the written procedure had been closed and in breach of the principle of adversarial proceedings. It is settled case-law, it is claimed, that failure to communicate a document during the administrative procedure constitutes an infringement of the rights of the defence, since the Commission relied on that document to substantiate its complaint relating to the existence of an infringement and that that complaint could only be proved by reference to that document, as occurred in the present case. According to the appellants, even if the Commission could rely on those internal memoranda, the General Court, in so far as it did not verify compliance with the standard of proof, infringed the rights of the defence.
In their reply, the appellants add that the judgment under appeal must be censured since the General Court, in breach of its unlimited jurisdiction, was satisfied that the Commission could have held a ‘legitimate belief’ regarding the guilt of Timab, even though that guilt was based solely on allegedly uncontested ‘admissions’.
On the basis of the arguments already raised in the context of the first ground of appeal, as set out in paragraph 54 of the present judgment, the Commission submits that the second ground of appeal is ineffective. In that regard, it states that the appellants assume that the disputed ‘admissions’ have ‘had a decisive influence on the amount of the fine’. However, that finding, it is contended, is erroneous in so far as those admissions relate to a period prior to that which was sanctioned.
In the alternative, the Commission contends that the second ground of appeal must be rejected in its three limbs as being in part inadmissible and in part unfounded.
With regard to the first limb of the second ground of appeal, the Commission contends that applications for leniency concern, by definition, undertakings which have participated in a cartel and which acknowledge this. Consequently, and without changing the position of the undertaking, which is possible at any time, the Commission is justified in considering that an application for leniency implies, on the part of the undertaking concerned, acknowledgment of its participation in the alleged infringement, whether that acknowledgment is characterised as an ‘admission’ or another term. Such a finding does not, it is contended, constitute an infringement of the right not to incriminate oneself, since the self-incriminatory statements are, in the present case, voluntary.
In that context, the Commission considers that the appellants’ argument, relied on in the context of that first limb, arises from confusion between the settlement procedure and that relating to an application for leniency. Indeed, the evidence on which it relied to consider that Timab had participated in the infringement before 1993 was not based on an alleged acknowledgment under the settlement, but was based on statements made within the framework of the application for leniency. It is on that basis that, in the absence of contradiction, the Commission conducted the discussions in order to reach a settlement. It was, therefore, without infringing the rights of the defence that the Commission, in the course of the settlement procedure, and then the General Court, in paragraph 94 of the judgment under appeal, were able to treat Timab’s statements in the period between 1978 and 1993 as ‘admissions’, in so far as those statements had not been the subject of any further clarification.
The Commission adds that, as soon as Timab changed position, it took account of the new evidence adduced, so that the ‘admissions’ received in respect of the application for leniency did not have any intangible value. Accordingly, it contends that the rights of the defence have been respected at all times and there can be no finding of an infringement of the right not to incriminate oneself.
As regards the second limb of the second ground of appeal, the Commission essentially submits that the considerations put forward by the appellants in support of the assertion that it should have concluded that Timab had not participated in the cartel continuously since 1978 constitute facts and are therefore beyond the jurisdiction of the Court. Moreover, according to the Commission, the General Court correctly examined the characterisation as ‘admissions’ and had drawn all the consequences thereof.
As regards the third limb of the second ground of appeal, the Commission states that the appellant’s argument concerning its internal notes, which allegedly served as a basis for the characterisation as ‘admissions’, is irrelevant. In the first place, those documents allegedly ‘not disclosed’ did not serve as a basis of the decision in so far as that decision does not refer precisely to the period which was the subject of the ‘admissions’ in question. In the second place, those ‘admissions’ did not arise from the settlement discussions, but from statements made in support of the application for leniency, a procedure which necessarily implies acknowledgment of participation in the infringement in respect of the facts in question.
Findings of the Court
Concerning the first limb of the second ground of appeal, it should be recalled, as the General Court did in paragraph 120 of the judgment under appeal, that, according to settled case-law, the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it but may not compel that undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove (see judgment of 14 July 2005, ThyssenKrupp v Commission,
C‑65/02 P and C‑73/02 P
,
EU:C:2005:454
, paragraph
and the case-law cited).
However, as the General Court has also held in the abovementioned paragraph 120 of the judgment under appeal, while the Commission cannot compel an undertaking to admit its participation in an infringement, it is not thereby prevented from taking account, when setting the amount of the fine, of the assistance given by that undertaking, of its own volition, in order to establish the existence of the infringement (see judgment of 14 July 2005 in ThyssenKrupp v Commission,
C‑65/02 P and C‑73/02 P
,
EU:C:2005:454
, paragraph
).
The Court has already had occasion to state that the Commission may, for the purpose of fixing the amount of a fine, take account of the assistance given to it by the undertaking concerned to establish the existence of the infringement with less difficulty and, in particular, of the fact that an undertaking admitted its participation in the infringement (see judgment of 14 July 2005, ThyssenKrupp v Commission,
C‑65/02 P and C‑73/02 P
,
EU:C:2005:454
, paragraph
and the case-law cited).
It follows that, in order to establish an infringement of the right not to give self-incriminating evidence, it is necessary for the undertaking concerned to be effectively compelled to provide information or evidence capable of proving the infringement (see, to that effect, judgment of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission,
C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P
,
EU:C:2002:582
, paragraph
).
In the present case, it is apparent from paragraphs 94 and 190 of the judgment under appeal that the statements made by the appellants in the leniency notice, in the context of the settlement procedure, are purely voluntary on their part. Furthermore, in paragraph 120 of the judgment under appeal, the General Court noted that it did not in any way follow from the file before it that the Commission had attempted to influence the appellants’ choices.
Consequently, the General Court did not fail to have regard to the appellant’s rights of defence. Consequently, the first limb of the second ground of appeal must be rejected as unfounded.
With regard to the second limb of the second ground of appeal, it must be borne in mind that, under the second paragraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is limited to points of law. The General Court, consequently, has exclusive jurisdiction to find and appraise the relevant facts and the evidence submitted to it. The assessment of those facts and that evidence does not therefore, save where it distorts those facts and evidence, constitute a point of law which is, as such, subject upon appeal to review by the Court (see, inter alia, order of 11 June 2015, Faci v Commission,
C‑291/14 P
, not published,
EU:C:2015:398
, paragraph
and the case-law cited, and, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission,
C‑603/13 P
,
EU:C:2016:38
, paragraph
and the case-law cited). Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, inter alia, order of 11 June 2015, Faci v Commission,
C‑291/14 P
, not published,
EU:C:2015:398
, paragraph
and the case-law cited).
In the present case, under the guise of an alleged failure by the General Court to exercise its unlimited jurisdiction, the appeal in reality asks the Court to re-examine the evidence in the case-file, communicated to the Commission by the appellants and the other members of the cartel during the administrative procedure, without pointing out any distortion of that evidence. Accordingly, that second limb of the second ground of appeal must be rejected as inadmissible.
With regard to the third limb of the second ground of appeal, the appellants claim, in essence, that by attributing, in paragraph 94 of the judgment under appeal, decisive probative value to the internal memoranda of the bilateral meetings held as part of the settlement procedure, in particular, the second of those memoranda, according to which the appellants made admissions concerning their participation in the infringement for the period from 1978 to 1992, and finding, in paragraph 114 of the judgment under appeal, that the Commission ‘was entitled to believe that the applicants were involved in a single and continuous infringement from 1978 onwards’, without verifying compliance with the standard of proof, the General Court infringed their rights of defence and failed to exercise its unlimited jurisdiction.
Thus, by that third limb of the second ground of appeal, the appellants rely, as they did in the first ground of appeal, on a failure to observe the rules regarding the burden of proof and an infringement of the rights of the defence.
Even if it were well founded in considering that, by attributing decisive significance to the internal memoranda of the minutes of the three bilateral meetings which took place in the context of the settlement procedure and by endorsing a mere belief of the Commission relating to the appellants’ participation in the infringement since 1978, the General Court did not verify the standard of proof required and thus failed to have regard to the rights of the defence, that third limb of the second ground of appeal cannot succeed.
As noted in paragraph 65 of the present judgment, the appellants were penalised for having participated in a single and continuous infringement from 1993 to 2004. The complaint put forward by the appellants before the General Court, as referred to in paragraph 61 of the present judgment, was intended to show that, in the light of the evidence at its disposal, the Commission should have concluded that they did not participate in the cartel before 1993. Thus, that complaint could not, in any event, succeed since it relates to a period for which the appellants have not been penalised. Accordingly, the General Court should have dismissed that complaint as being ineffective.
As was found in paragraph 66 of this judgment, it follows that the decision of the General Court, in paragraph 118 of the judgment under appeal, to reject the complaint alleging that the Commission had erred in its investigation of the case, appears well founded on other legal grounds. It is therefore appropriate to substitute those grounds of appeal.
Consequently, that third limb of the third ground of appeal must be rejected as unfounded.
The third ground of appeal and the second part of the first and second limbs of the fourth ground of appeal, alleging that the General Court failed to exercise its unlimited jurisdiction and vitiated its judgment with contradictory reasoning
Failure by the General Court to exercise its unlimited jurisdiction
– Arguments of the parties
By the third ground of appeal and the second part of the first and second limbs of the fourth ground of appeal, which refer mainly to paragraphs 78 and 90 to 96 of the judgment under appeal and which should be examined together, the appellants claim, in essence, that, by upholding the contested decision and by thus failing to carry out a sufficient investigation of all the elements of the fine imposed on them by the contested decision, the General Court misconstrued the scope of its unlimited jurisdiction and, in that context, vitiated its judgment with contradictory reasoning.
In the third ground of appeal, the appellants state, more specifically, that the General Court failed to appropriately exercise its unlimited jurisdiction in so far as it considered that alleged ‘new elements’ which enabled the Commission to impose a considerably higher fine for an infringement of a very significantly reduced duration consisted of the withdrawal of their alleged ‘admissions’ after their withdrawal from the settlement procedure, without having verified the materiality of those ‘new elements’. According to the appellants, no new facts were added to the case file after that withdrawal. The only new element, if any, it is claimed, was a closer examination of the facts by the Commission, which led it to acknowledge that the appellants had not participated in the infringement at issue since 1978, whereas it should have arrived at this finding as early as the settlement stage.
The Commission contends, primarily, that this ground must be rejected as ineffective on the ground that it is based on an irrelevant comparison between the situation existing during the settlement procedure and that which followed the adoption of the contested decision, whereas, as the General Court correctly pointed out, once the settlement had been abandoned, the decision reached following the standard procedure should have been assessed solely on its own merits. It adds that the appellants misrepresent the position of the General Court in their statements regarding the judgment under appeal. According to that institution, the new element referred to by the General Court in paragraph 90 of the judgment under appeal is not the new analysis of the situation which it carried out on its own initiative, but the different light shed by Timab, for the first time in reply to the statement of objections, the specific purpose of the latter being to give undertakings the opportunity to state their views in order to ensure compliance with the adversarial principle in the ordinary procedure.
In the alternative, the Commission raises the inadmissibility of the ground in question, on the ground that the General Court examined the legality of the contested decision by examining all the factors taken into account in calculating the fine, which falls within its unlimited jurisdiction and an assessment of facts which cannot be the subject of an appeal.
In the second part of the first limb of the fourth ground of appeal, the appellants claim that the General Court also failed to exercise its unlimited jurisdiction by failing to set aside any errors, contradictions or inconsistencies allegedly present in the Commission’s assessment of the infringement. They criticise the General Court for having thereby wrongly validated the withdrawal of almost all the fine reductions granted under the leniency programme or those which could be granted on the basis of point 29 of the 2006 Guidelines.
The Commission considers that the complaints made by the appellants must be rejected, on the ground that the General Court carried out an in-depth review of the calculation of the fine made by the Commission and, in particular, of the reductions granted in respect of their cooperation. Moreover, the alleged contradictions or inconsistencies raised in this context are, it is alleged, unfounded.
In support of the second part of the second limb of the fourth ground of appeal, the appellants state that the Commission should have indicated, at the settlement stage, what it classified as ‘new evidence’, namely the impossibility of establishing a single and continuous infringement from 1978. Thus, by failing to take account of the errors made by the Commission in its assessment of the infringement at the settlement procedure stage, and thus endorsing the withdrawal of almost all the fine reductions, the General Court, it is claimed, failed to exercise its unlimited jurisdiction.
– Findings of the Court
It is settled case-law that, with regard to judicial review of decisions whereby the Commission imposes a fine or periodic penalty payment for infringement of the competition rules, in addition to the review of legality provided for in Article 263 TFEU, the European Union judicature has the unlimited jurisdiction which it is afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU, and which empowers it to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (see, inter alia, judgment of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission,
C‑617/13 P
,
EU:C:2016:416
, paragraph
and the case-law cited).
It should also be noted that it is not for the Court, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of EU law (see, inter alia, judgment of 9 June 2016 in Repsol Lubricantes y Especialidades and Others v Commission,
C‑617/13 P
,
EU:C:2016:416
, paragraph
and the case-law cited).
It is only inasmuch as the Court considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, that it would have to find that the General Court erred in law, on account of the inappropriateness of the amount of a fine (see, inter alia, judgment of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission,
C‑617/13 P
,
EU:C:2016:416
, paragraph
and the case-law cited).
In the present case, as the Advocate General pointed out in point 23 of his Opinion, the question before the General Court was not so much whether it was justified in imposing a higher fine for an infringement of a shorter duration, as the appellants argue, in essence, but whether the Commission had properly stated its reasons for the calculation of the fine imposed by the contested decision and had taken into account, for that purpose, all the elements in its possession when it made its decision.
In that regard, it must be pointed out that, although the General Court, in paragraphs 75 to 107 of the judgment under appeal, did ensure that all the arguments by which the appellants had criticised the Commission for having applied, to an undertaking which had withdrawn from the settlement procedure, a fine higher than the maximum in the range envisaged during the settlement discussions, and for a considerably reduced period of infringement, such an analysis is subject to compliance with the principles of sound administration of justice and transparency. The General Court cannot therefore be criticised for having carried out such a comprehensive examination in the context of a dispute which, for the first time, led it to rule on a situation in which an undertaking, after engaging in a settlement procedure, had finally withdrawn from it.
That being so, in the present case it is important to note that the General Court fully exercised its unlimited jurisdiction by carrying out an in-depth review both of the legality of the contested decision and of whether the amount of the fine set out in that decision was appropriate.
Thus, as the Advocate General stated in point 24 of his Opinion, the General Court duly verified the merits of the Commission’s analysis having regard to all the circumstances present when the contested decision was adopted and, in particular, in paragraphs 90 to 107 of the judgment under appeal, in view of the extent of the cooperation of the appellants after their withdrawal from the settlement procedure, and hence during the ordinary procedure.
In paragraphs 142 to 220 of the judgment under appeal, the General Court also systematically examined the factors adopted by the Commission to calculate the amount of the fine imposed in the contested decision. In particular, it carried out a detailed examination of the way in which the Commission took account of the factors allowing it to grant reductions of that fine or otherwise, under the leniency notice, in paragraphs 170 to 195 of that judgment, or in respect of cooperation, in accordance with point 29 of the 2006 Guidelines, in paragraphs 95, 188 and 189 of that judgment.
Moreover, as the Advocate General also pointed out in point 26 of his Opinion, it must be held that the appellants have failed to demonstrate how the amount of the fine imposed on them is excessive, to the extent of being disproportionate, within the meaning of the case-law referred to in paragraphs 105and 106 of the present judgment.
It follows from the foregoing that the General Court did not misconstrue the scope of its unlimited jurisdiction. Consequently, the third ground of appeal, the second part of the first and second limbs of the fourth ground of appeal, in so far as they refer to failure to exercise the unlimited jurisdiction of the General Court, must be dismissed as unfounded.
The contradictory reasoning alleged by the appellants
– Arguments of the parties
In the context of both the third ground of appeal and the second part of the first limb of the fourth ground of appeal, the appellants maintain, in essence, that the General Court’s judgment is vitiated by various contradictions of reasoning, which resulted in an infringement of their fundamental rights, namely that of being able to discuss freely with the Commission in the settlement procedure and to freely leave that procedure, and that of defending oneself in ordinary proceedings without being bound by an allegedly previously adopted ‘position’.
In the first place, the appellants complain that the General Court considered that their withdrawal from the settlement procedure led to a situation of ‘tabula rasa’, erasing what had gone on before and yet, at the same time, found that they had ‘altered their position’ in the reply which they had given to the statement of objections in the course of the standard procedure. Thus, the General Court should not have accepted the Commission’s argument that a ‘new element’ had appeared at the stage of that reply and justified a review of the amount of the fine.
Secondly, the appellants submit that the judgment under appeal is vitiated by contradictory reasoning in so far as the General Court held, on the one hand, in paragraph 96 of the judgment under appeal, that the Commission was not bound by the range of fines communicated during the discussions held in the context of the settlement procedure, which it is claimed, have therefore become irrelevant after their withdrawal from that procedure, whereas, on the other hand, the General Court referred, in paragraph 91 of the judgment under appeal, to a simple ‘adjustment of the method of calculation of the fine’ on the basis of that same range.
Finally, the General Court could not, on the one hand, confirm that, under the settlements notice, the Commission does not negotiate the question of the existence of the infringement and, on the other, attribute to the informal discussions the value of negotiations characterised by the appellants’ alleged admission of their participation in the infringement before 1993.
According to the Commission, the contradictions in the reasons given are, inter alia, a distortion of the General Court’s arguments or a misreading of the documents produced during the proceedings before that Court and cannot, therefore, be upheld.
– Findings of the Court
As regards the first two alleged contradictions in the reasons given, which concern, in essence, the link between the settlement procedure and the standard procedure in the particular situation of the present case, in which the appellants decided to interrupt the settlement discussions, it must be held that the General Court was right to dissociate, in paragraphs 90 to 96 and paragraphs 104 and 105 of the judgment under appeal, the course of that settlement procedure which, in the present case, has not been completed, and that of the standard procedure, which resulted in the contested decision.
In that regard, it should be borne in mind that, under paragraph 19 of the settlements notice, if the undertakings concerned do not submit a settlement proposal, the procedure leading to the final decision in their regard will follow the general provisions, in particular Articles 10(2), 12(1) and 15(1) of Regulation (EC) No 773/2004, instead of those regulating the settlement procedure
Moreover, as the Advocate General pointed out in point 25 of his Opinion, it was precisely that change in procedural circumstances that enabled the appellants to have full access to the case-file, to receive a full statement of objections, to reply to that statement of objections and to have the benefit of a hearing, at which stage they were able to reply and formally dispute, for the first time, their involvement in the alleged infringement during the period prior to 1993. Consequently, the appellants were in no way legally harmed by that approach, in which the elements, described as ‘new’, which then existed were taken into account.
As regards, more specifically, the second alleged contradiction in the reasons alleged by the appellants, according to which the General Court considered that the Commission was not bound by the range of fines indicated during discussions as part of the settlement procedure, whereas it also referred to a simple ‘adjustment of the method of calculation of the fine’ from that range, the appellants misrepresent the statements of the General Court by wrongly taking the words ‘adjustment of the method of calculation of the fine’, in paragraph 91 of the judgment under appeal, out of context.
As the Advocate General pointed out in point 37 of his Opinion, on a reading of paragraph 91 as a whole, and those paragraphs surrounding it in the judgment under appeal, it is clear that the General Court found that, having taken the alteration in the appellants’ position regarding the duration of their participation in the infringement into account, the Commission proceeded to ‘review’ the fine which it had fixed on the basis of the rules contained in the leniency notice and the 2006 Guidelines, albeit following the same methodology it had used for the range of fines which it had indicated to the appellants.
In the light of the foregoing, the first two arguments relating to contradictory reasoning must be rejected as unfounded.
As regards the third contradiction in reasoning alleged by the appellants, according to which the General Court could not, on the one hand, confirm that, under the settlements notice, the Commission does not negotiate the question of the existence of the infringement and, on the other, attributes to the informal discussions the value of negotiations characterised by the appellants’ alleged admission of their participation in the infringement before 1993, it must be borne in mind that, in accordance with Article 169(2) of the Rules of Procedure of the Court of Justice, the pleas in law and legal arguments relied on must identify precisely those points in the grounds of the decision of the General Court which are contested.
That alleged contradictory reasoning, relied on by the appellants for the first time in the reply and attached by those appellants to the third ground of appeal, does not relate to the points in the grounds of the judgment under appeal. Therefore, that argument cannot be accepted.
It follows from the foregoing that the third ground of appeal and the second part of the first limb of the fourth ground of appeal, alleging that the judgment is vitiated by contradictory reasoning, must be rejected as being in part inadmissible and in part unfounded.
The first part of the first and second limbs of the fourth ground of appeal, alleging that the General Court infringed the principles of the protection of legitimate expectations and equal treatment and committed an error of law in its assessment of the effect of the withdrawal from the settlement procedure
The first part of the first limb of the fourth ground of appeal, alleging that the General Court infringed the principles of legitimate expectations and equal treatment
– Arguments of the parties
As regards, first, the argument alleging infringement of the principle of legitimate expectations, the appellants point out that, contrary to what the General Court maintains, they could not reasonably have anticipated that, by deciding to withdraw from the settlement procedure, the reductions for cooperation granted to them would go from 52% in the framework of the settlement procedure, to 5% in the contested decision. In their view, the Commission made a ‘reversal’ with the ‘paradoxical’ effect of increasing the amount of the fine considerably while, at the same time, the duration of the infringement had been significantly reduced.
The appellants claim that such a decision was not justified since (i) the same standard of proof and the same rules for calculating the fine applied both to the standard procedure and to the settlement procedure, (ii) no new evidence was added to the case file as a result of their withdrawal from the settlement procedure and, (iii) the effects of the leniency proceedings continued in spite of that withdrawal. Thus, in those circumstances, they would not have been able to make an ‘informed’ decision on whether or not to settle.
The Commission claims that the appellants’ allegations are ineffective since they are based on a comparison between the indications which they gave during the settlement procedure and the decision taken following the standard procedure. Thus, according to that institution, the appellants seek to confuse their withdrawal from the settlement procedure and the defence which they developed in reply to the statement of objections.
In that regard, the Commission contends that the event giving rise to the new amount of the fine adopted in the contested decision lies not in the appellants’ decision to withdraw from the settlement procedure, but only in the defence which they developed in their reply to that statement of objections, a defence which henceforth consisted of denying their participation in the cartel before 1993. Moreover, according to the Commission, the revision of that fine could have been anticipated by the appellants, since the amount imposed resulted from a strict application of the relevant calculation rules in the light of the factors which existed on the date when that decision was taken. If the interested parties misjudged the consequences of their positions, they could only attribute the error to themselves, and not to any lack of information.
The appellants consider, in the second place, that the General Court infringed the principle of equal treatment. Having been unable to withdraw from the settlement procedure in full knowledge of the facts and confronted with a result that was at least ‘paradoxical’, they were, it is claimed, treated less favourably than the other parties who, in a position to anticipate the amount of the fine that would be imposed on them, agreed to enter into a settlement proposal.
The Commission considers that it is clear from the information provided in the contested decision, summarised in paragraphs 17 to 26 of the judgment under appeal, that there has been no discrimination between the appellants and the other parties to the cartel, since the same criteria were applied in fixing all the fines and the only difference was the 10% reduction granted to the undertakings that had settled.
– Findings of the Court
As regards, in the first place, the argument according to which the General Court infringed the principle of the protection of legitimate expectations, it should be noted that, according to settled case-law, the principle of the protection of legitimate expectations is among the fundamental principles of EU law and any economic operator whom an institution has, by giving him precise insurances, caused to entertain justified expectations may rely on that principle (judgment of 24 October 2013, Kone and Others v Commission,
C‑510/11 P
, not published,
EU:C:2013:696
, paragraph
and the case-law cited).
Furthermore, the Court has already had occasion to explain that the Commission cannot, in the procedural stage preceding the adoption of the final decision, give any precise assurance as to any reduction of, or immunity from, fines and that the participants in the cartel cannot therefore entertain a legitimate expectation in that regard (see judgment of 24 October 2013, Kone and Others v Commission,
C‑510/11 P
, not published,
EU:C:2013:696
, paragraph
and the case-law cited).
It should also be borne in mind, first, as is apparent from paragraph 73 of the judgment under appeal, that the settlement procedure is an alternative administrative procedure distinct from the standard procedure and which has certain special features such as, inter alia, notification of a likely range of fines. Secondly, as the General Court points out in paragraph 104 of the judgment under appeal, if the undertaking does not put forward a proposal for a settlement, the procedure leading to the final decision is governed by the general provisions of Regulation No 773/2004, instead of those governing the settlement procedure. Thirdly, as the General Court points out in paragraph 96 of the judgment under appeal, as regards that standard procedure, in which liabilities have yet to be determined, the Commission is only bound by the statement of objections, which does not set a range of fines, and is required to take into consideration the new information brought to its attention during that procedure.
In the present case, as the General Court states, inter alia in paragraphs 90 and 124 of the judgment under appeal, the appellants withdrew from the settlement procedure and it was only after that withdrawal that they put forward, in the context of the standard procedure, evidence of reduction of the duration of their participation in the alleged infringement.
Consequently, as the Advocate General pointed out in point 48 of his Opinion, the appellants could not rely on any legitimate expectation that the estimates transmitted to them by the Commission during the settlement procedure, in the form of likely ranges of fines fixed in the light of the factors taken into consideration at that stage of the procedure, namely for a period of participation in the infringement from 1978 to 2004, would be maintained.
Moreover, it must be held that, when the appellants withdrew from the settlement procedure, they were in possession of all the information they required to foresee that disputing their involvement in the infringement during the period prior to 1993 would necessarily have an effect on the reductions they might be granted both in the context of the leniency notice and under point 29 of the 2006 Guidelines. Such a conclusion follows unequivocally from paragraphs 90 to 95 and 122 of the judgment under appeal. Accordingly, the General Court cannot be accused of any breach of the principle of the protection of legitimate expectations.
As regards, in the second place, the argument according to which the General Court infringed the principle of equal treatment, it should be noted that, according to settled case-law, it is apparent from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment under appeal and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (see judgments of 30 May 2013, Quinn Barlo and Others v Commission,
C‑70/12 P
, not published,
EU:C:2013:351
, paragraphs
and
and the case-law cited, and of 21 January 2016, Galp Energía España and Others v Commission,
C‑603/13 P
,
EU:C:2016:38
, paragraph
and the case-law cited).
Accordingly, a ground of appeal supported by an argument that is not sufficiently precise and substantiated to enable the Court to exercise its powers of judicial review does not satisfy those conditions and must be declared inadmissible (judgment of 21 January 2016, Galp Energía España and Others v Commission,
C‑603/13 P
,
EU:C:2016:38
, paragraph
and the case-law cited).
The argument alleging infringement of the principle of equal treatment is based on a general assertion without any legal argumentation to support it. It must, therefore, be rejected as inadmissible.
It follows from all the foregoing that the first part of the first limb of the fourth ground of appeal, alleging that the General Court infringed the principles of the protection of legitimate expectations and equal treatment must be rejected as being in part inadmissible and in part unfounded.
The first part of the second limb of the fourth ground of appeal, alleging an error of law in assessing the effect of withdrawal from the settlement procedure
– Arguments of the parties
The appellants claim, in essence, that it was on the basis of an error of law that the General Court considered that they had been informed by the Commission of the impact of their withdrawal from the settlement procedure which, they allege, would support the assertion that they were not able to exercise their right to choose whether or not to settle ‘in full knowledge of the facts’, as the settlements notice requires. In their view, the General Court erred in law, in paragraph 125 of the judgment under appeal, in the way it conveyed the content of the exchanges which took place at the hearing on 24 February 2010. At that hearing, the Commission stated that it would take account, not in the context of Timab’s ‘cooperation’, as set out in the judgment under appeal in that paragraph, but in the context of ‘leniency’, the fact that the appellants had not joined the cartel before 1993. According to the appellants, while the concept of ‘cooperation’ covers the periods covered by both the leniency notice and those not covered by that notice, the concept of ‘leniency’ refers, in the present case, only to the reduction of 17% of the fine imposed. Thus, the Commission never explicitly mentioned, in the course of the standard procedure, the elimination of the reduction of 35% in the fine for cooperation outside the scope of the leniency notice.
The Commission considers that this argument is ineffective. According to the Commission, it stems from a confusion perpetuated by the appellants between their withdrawal from the settlement and their change in position in the reply to the statement of objections. In view of the new defence adopted by the appellants in that reply, which contradicted the positions they had taken in the context of their application for leniency, the Commission drew their attention to the possible consequences of that new defence.
– Findings of the Court
As the Commission states in its defence, the complaint relating to an error of law in assessing the effect of the appellant’s withdrawal from the settlement procedure stems from a confusion between, on the one hand, the effects of the withdrawal from the settlement decided by the appellants and, on the other, the possible consequences of the change of position concerning the length of their participation in the infringement which the latter adopted in their reply of 2 February 2010 to the statement of objections. In paragraph 125 of the judgment under appeal, the General Court, as the Advocate General pointed out in point 60 of his Opinion, simply refers to the Commission’s warning to the appellants, in the course of the standard proceedings, regarding that change in position, and not as a consequence of their withdrawal from the settlement procedure, as they allege.
It must therefore be held that that complaint, which is based on a false premiss, cannot succeed. Consequently, the first part of the second limb of the fourth ground of appeal must be rejected.
The fifth ground of appeal, alleging that the General Court failed to exercise its unlimited jurisdiction and infringed the principles of equal treatment and the principle that penalties should be tailored to the individual.
Arguments of the parties
By the fifth ground of appeal, the appellants complain that the General Court, in paragraphs 137, 140 and 168 of the judgment under appeal, failed to exercise its power of unlimited jurisdiction and infringed the principles of equal treatment and the principle that penalties should be tailored to the individual.
In that regard, the appellants claim that, by accepting the failure to take into account, in assessing the gravity of the infringement, the lack of evidence of Timab’s participation in the practices relating to the conditions of sale and the compensation mechanisms, the General Court failed to exercise its power of unlimited jurisdiction. Since that Court had doubts as to the reality of the appellants’ participation in those two practices for the period from 1993 to 2004, it should have taken that into account, in accordance with the principle
in dubio pro reo
(when in doubt, for the defence). Since it failed to do so, the General Court vitiated its judgment by breach of the principles of equal treatment and that penalties should be tailored to the individual.
In their reply, the appellants add that the General Court also refused to take into account, in breach of the principles of equal treatment and individualisation of the penalty, in its assessment of the gravity of the infringement, other factors such as the pressure on prices resulting from competition from similar products, the absence of effect of the practices complained of, and the duration and intensity of each practice.
Furthermore, the General Court infringed those same principles by failing to carry out an in-depth review either of the gravity rate applied when setting the basic amount of the fine or of the Commission’s refusal to grant mitigating circumstances to Timab. Thus, the General Court merely adopted the contested decision without making its own assessment.
According to the Commission, the fifth ground of appeal is inadmissible, since it seeks no more than re-examination of the application submitted to the General Court. In any event, it submits, that ground of appeal is without foundation.
Findings of the Court
It should be recalled, first, that the General Court has exclusive jurisdiction to find and appraise the relevant facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, inter alia, judgments of 30 May 2013, Quinn Barlo and Others v Commission,
C‑70/12 P
, not published,
EU:C:2013:351
, paragraph
and the case-law cited, and of 16 June 2016, Evonik Degussa and AlzChem v Commission,
C‑155/14 P
,
EU:C:2016:446
, paragraph
and the case-law cited). Moreover, such a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and evidence (judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission,
C‑155/14 P
,
EU:C:2016:446
, paragraph
and the case-law cited).
Secondly, it should be noted that an appeal is inadmissible in so far as it merely repeats the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by it. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake on appeal (judgment of 30 May 2013, Quinn Barlo and Others v Commission,
C‑70/12 P
, not published,
EU:C:2013:351
, paragraph
and the case-law cited).
By contrast, provided that the appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, that appeal would be deprived of part of its purpose (judgment of 30 May 2013, Quinn Barlo and Others v Commission,
C‑70/12 P
, not published,
EU:C:2013:351
, paragraph
and the case-law cited).
With regard to the fifth ground of appeal, although the latter is characterised by the appellants as a ‘ground of appeal relating to a question of law’, namely the failure of the General Court to observe the principles of equal treatment and that penalties should be tailored to the individual as well as its power of unlimited jurisdiction, it must be held that that fifth ground of appeal ultimately amounts to calling into question the General Court’s assessment of the facts and evidence produced before it at first instance as part of the second and third pleas in law.
Far from claiming distortion of the facts or evidence, the appellants merely maintain that the General Court erred in not taking account, in assessing the gravity of the infringement, various elements, namely the absence of evidence of their participation in the practices relating to the conditions of sale and the compensation mechanisms. Thus, the appellants merely reproduce arguments to show that a lower rate should have been applied in respect of the gravity of the infringement, which have nevertheless already been submitted to the General Court and rejected by it. The fifth ground of appeal, therefore, in so far as it concerns failure by the General Court to observe the principles of equal treatment and that penalties should be tailored to the individual as well as its power of unlimited jurisdiction, is inadmissible.
As regards, more particularly, the argument put forward by the appellants that the General Court did not carry out an in-depth review of the gravity rate applied when setting the basic amount of the fine, or of the refusal to grant mitigating circumstances in respect of Timab’s competitive behaviour, it suffices to note that, in paragraphs 149 to 164 of the judgment under appeal, the General Court gave a detailed account of the factors which it took into account in assessing the gravity of the infringement. In the same way, it is clear from paragraphs 165 to 168 of the judgment under appeal that the General Court carefully considered the question of mitigating circumstances. Accordingly, that argument must be held to be unfounded. The mere fact that the General Court confirmed, in that regard, in the exercise of its unlimited jurisdiction, a number of factors from the assessment made by the Commission in the contested decision cannot call that conclusion into question (see, judgment of 8 May 2013, Eni v Commission,
C‑508/11 P
,
EU:C:2013:289
, paragraph
and the case-law cited).
In the light of the foregoing, the fifth ground of appeal must be rejected as being in part inadmissible and in part unfounded.
On the incidental submissions, alleging infringement of the right to a fair trial given the unreasonable length of the proceedings
Arguments of the parties
By their incidental submissions, the appellants submit that the General Court infringed the right to a fair trial, as provided for in Article 47(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), interpreted in the light of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as it failed to adjudicate within a reasonable time.
In that regard, they state that the judgment under appeal was delivered four years and eight and a half months after the originating application was lodged, on 1 October 2010, that the opening of the oral procedure by the General Court did not take place until 14 May 2014 and that eleven months elapsed between the closure of that oral procedure, that is, after the hearing of 11 July 2014, and the delivery of the judgment.
According to the appellants, the complexity of the case did not justify such a lengthy procedure, since they were the only applicants in that case and their conduct was not dilatory.
The Commission states, in essence, that, having regard, inter alia, to the judgment of 26 November 2013, Gascogne Sack Deutschland v Commission (
C‑40/12 P
,
EU:C:2013:768
), only a claim for damages brought against the European Union pursuant to Article 268 TFEU and the second paragraph of Article 340 TFEU, may be considered by an undertaking calling into question an allegedly excessive length of the proceedings.
Since the appellants have not made such an application for damages, the incidental submissions are, first and foremost, inadmissible.
Findings of the Court
It should be recalled that the sanction for a breach, by a Court of the European Union, of its obligation under the second paragraph of Article 47 of the Charter to adjudicate on the cases before it within a reasonable time must be an action for damages brought before the General Court, since such an action constitutes an effective remedy. It follows that a claim for compensation in respect of the damage caused by the General Court’s failure to adjudicate within a reasonable period may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself (judgments of 30 April 2014, FLSmidth v Commission,
C‑238/12 P
,
EU:C:2014:284
, paragraph
and the case-law cited; of 21 January 2016, Galp Energía España and Others v Commission,
C‑603/13 P
,
EU:C:2016:38
, paragraph
and the case-law cited; and of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission,
C‑617/13 P
,
EU:C:2016:416
, paragraph
and the case-law cited).
Where a claim for damages is brought before the General Court, which has jurisdiction under Article 256(1) TFEU, it must determine such a claim sitting in a different composition from that which heard the dispute giving rise to the procedure the duration of which is criticised (judgments of 21 January 2016, Galp Energía España and Others v Commission,
C‑603/13 P
,
EU:C:2016:38
, paragraph
and the case-law cited, and of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission,
C‑617/13 P
,
EU:C:2016:416
, paragraph
and the case-law cited).
That said, where it is clear, without any need for the parties to adduce additional evidence in that regard, that the General Court infringed, in a sufficiently serious manner, its obligation to adjudicate on the case within a reasonable time, the Court of Justice may note that fact (judgments of 21 January 2016, Galp Energía España and Others v Commission,
C‑603/13 P
,
EU:C:2016:38
, paragraph
and the case-law cited, and of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission,
C‑617/13 P
,
EU:C:2016:416
, paragraph
and the case-law cited). Consequently, the Court may, in the context of the appeal, find that there has been a breach of the right to a fair trial, as guaranteed by the second paragraph of Article 47 of the Charter, given the unreasonable length of the proceedings before the General Court.
As regards the criteria for assessing whether the General Court has observed the reasonable time principle, it must be borne in mind that the reasonableness of the period for delivering judgment is to be appraised in the light of the circumstances specific to each case, such as the complexity of the case and the conduct of the parties (judgment of 26 November 2013, Groupe Gascogne v Commission,
C‑58/12 P
,
EU:C:2013:770
, paragraph
and the case-law cited).
The Court has held in that regard that the list of relevant criteria is not exhaustive and that the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of the case or the dilatory conduct of the appellant may be deemed to justify a duration which is prima facie too long (judgment of 26 November 2013, Groupe Gascogne v Commission,
C‑58/12 P
,
EU:C:2013:770
, paragraph
and the case-law cited).
In the present case, and in the absence of any additional evidence submitted by the parties, the Court considers that it is not clear that the General Court breached sufficiently its obligation to adjudicate on the case within a reasonable time.
In the light of the foregoing, the incidental submissions of the appeal must be dismissed.
Since none of the grounds of appeal raised by the appellants in support of their appeal can be upheld, the appeal must be dismissed in its entirety.
Costs
Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Timab and CFPR have been unsuccessful and the Commission has applied for costs against those companies, they must be ordered to pay the costs of the present appeal.

On those grounds, the Court hereby:

1.
Dismisses the appeal;

2.
Orders Timab Industries and Cie financière et de participations Roullier (CFPR) to pay the costs.

[Signatures]
(
*1
)	Language of the case: French.