CELEX: 62018CJ0312
Appeal
Agreements, decisions and concerted practices
Market for car battery recycling
Decision finding an infringement of Article 101 TFEU and imposing fines
Correcting decision adding the value of purchases of the addressees which were not included in the initial decision
Time limit for bringing an action
Point from which time starts to run
Delay
Inadmissibility

By their appeal, Eco-Bat Technologies Ltd, Berzelius Metall GmbH and Société traitements chimiques des métaux (STCM) (together, ‘Eco-Bat’ or ‘the appellants’)  seek to have set aside the order of the General Court of the European Union of 21 March 2018,
Eco-Bat Technologies and Others
v
Commission
(T‑361/17, not published, ‘the order under appeal’, EU:T:2018:173), by which the General Court dismissed as inadmissible their action seeking, first, annulment of Commission Decision C(2017) 900 final of 8 February 2017 relating to a proceeding under Article 101 TFEU (Case AT.40018 — Car battery recycling) (‘the initial decision’), as corrected by Commission Decision C(2017) 2223 final of 6 April 2017 (‘the amended decision’), and, secondly, a reduction of the amount of the fine imposed on Eco-Bat.

Background to the dispute
The background to the dispute, as set out in paragraphs 1 to 7 of the order under appeal, may be summarised as follows.
By the initial decision, notified to Eco-Bat on 10 February 2017, the European Commission found that Eco-Bat and three other undertakings had participated in an infringement of Article 101 TFEU in the sector for the purchase of scrap lead-acid car batteries used for the production of recycled lead and imposed a fine of EUR 32 712 000 on Eco-Bat.
In recital 2 of the amended decision, the Commission stated that it was necessary to correct the omission in the initial decision of the reference to the value of purchases taken into account in determining the basic amount of the fines to be imposed.
Article 1 of the amended decision provides, inter alia, for the addition, at the end of recital 319 of the initial decision, of a sentence indicating the value of purchases for each of the addressees of the initial decision.

The proceedings before the General Court and the order under appeal
On 21 April 2017, the appellants brought an action for annulment of the initial decision. That action was registered as Case T‑232/17.
By letter lodged at the Registry of the General Court on 6 June 2017, the appellants discontinued proceedings in Case T‑232/17.
By application lodged that day at the Court Registry, the appellants brought a fresh action against the initial decision, as corrected by the amended decision. That action was registered as Case T‑361/17.
By separate document, lodged at the Court Registry on 3 October 2017, the Commission raised a plea of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court. On 15 November 2017, the appellants submitted their observations on that plea of inadmissibility.
By the order under appeal, the General Court dismissed the action brought by the appellants as inadmissible. In that regard, it found that, as the initial decision was notified to the appellants on 10 February 2017, the time limit for bringing proceedings of two months, extended on account of distance by 10 days, had expired at midnight on 20 April 2017. The appellants’ application was lodged at the Court Registry on 6 June 2017 and was therefore out of time.

Forms of order sought by the parties before the Court of Justice
By their appeal, the appellants claim that the Court should:
–        set aside the order under appeal;
–        declare  the action registered as Case T‑361/17 admissible;
–        refer the case back to the General Court; 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
By letter of 15 February 2019, the appellants requested that the oral part of the procedure be opened. They claim that the holding of a hearing would allow the parties to discuss the recent case-law of the Courts of the European Union, would lead to a better understanding of the dispute and was necessary in order for them to secure their right to a fair trial. In addition, the novelty of the points of law raised in the present case justified the delivery of an Opinion by the Advocate General, in accordance with Article 82 of the Rules of Procedure of the Court of Justice.  The appellants also request the Court to order a measure of inquiry in order to ascertain the reasons why the Commission adopted the amended decision.
Under  Article 83 of the Court’s Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the opening or reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the Court, or where the case must be decided on the basis of an argument which has not been debated by the parties. In addition, the Court may, pursuant to Articles 63 and 64 of those rules, decide to prescribe a measure of inquiry.
In the present case, the Court considers, having heard the Advocate General, that it has all the information necessary to rule on the present appeal. Accordingly, there is no need to order that the oral part of the procedure be opened or to prescribe the measure of inquiry requested by the appellants.

The appeal

Arguments of the parties
By their single ground of appeal, the appellants criticise the General Court for having erred in law by finding that the date to be taken into account for determining the starting point of the period for bringing an action for annulment was the date of notification of the initial decision and not that of notification of the amended decision, even though only the latter decision made the initial decision complete and correct. By doing so, the General Court infringed the appellants’ rights of defence.
In that regard, in paragraph 36 of the order under appeal, the General Court erred in law in finding that the failure to indicate the value of purchases in the initial decision did not prevent that decision being challenged by way of an action for annulment. The determining factor for finding an infringement of the rights of the defence is not the impossibility of challenging a Commission decision but uncertainty as to the basis for that decision.
In that context, the appellants criticise paragraph 35 of the order  under appeal,  arguing that, in the absence of any indication of the value of the purchases, the initial decision was not sufficiently clear, with the result that it fell to them to determine for themselves the precise basis of the penalty imposed. The General Court did not establish a sound basis for its finding, in that paragraph, that the appellants would have been able to understand the purchase value which was taken into account by the Commission in the initial decision.
The appellants also consider that the General Court misinterpreted the Commission’s duty to state reasons and the principle of sound administration.  In that regard, they argue that the absence of any indication of the value of the purchases in the initial decision constitutes a failure to state reasons and that the amended decision was crucial for the purpose of allowing the appellants to understand fully the reasoning behind the initial decision and the Court to exercise its powers of review of the legality of and justification for the fine imposed.
In support of their arguments, the appellants rely on the case which gave rise to the judgment of 9 December 2014,
SP
v
Commission
(T‑472/09 and T‑55/10, EU:T:2014:1040). They claim that, in that case, the Commission, which had made limited changes to its decision through an amending decision, had nevertheless informed the applicants in that case that the period for bringing proceedings started to run from the date of notification of that amending decision.
Furthermore, the appellants take the view that the General Court was wrong to  rely on the judgments cited in paragraph 34 of the order under appeal because, in the cases which gave rise to those judgments, it was a question of purely formal or clerical errors, which is not the case here.
The Commission contends that the appeal is inadmissible, in so far as, in order to challenge the factual assessments made by the General Court, the appellants rely in essence on the factual assumptions that, first, the amended decision was essential for the purpose of enabling them to fully understand the reasoning behind the initial decision and, secondly, that decision alone enabled them to know with certainty the precise value of purchases which the Commission took into account when calculating the fine imposed. In any event, according to the Commission, the appeal is unfounded.

Findings of the Court
As regards the plea of inadmissibility raised by the Commission, it is clear from the appeal that the appellants contend, in essence, that it is not sufficient, for the purpose of securing their rights of defence, that the value of Eco-Bat’s purchases could have been ascertained by reading the initial decision, as the General Court found in the light of the considerations set out in paragraph 35 of the order under appeal, and that in fact they should have had certainty in respect of that value, which would have required its express inclusion in the initial decision.
By those arguments, seeking, in essence, a finding that the General Court infringed their rights of defence, the appellants claim that that court erred in law. Therefore, and notwithstanding the possible inadmissibility of certain arguments advanced by the appellants in support of their plea, the plea of inadmissibility cannot be upheld.
As regards the substance, it is without erring in law that, after recalling that, under the sixth paragraph of Article 263 and the third subparagraph of Article 297(2) TFEU, the date to be taken into account for determining the starting point of the period prescribed for bringing annulment proceedings is the date of notification of the act in question where it specifies the person to whom it is addressed, the General Court, in paragraph 33 of the order under appeal, considered, referring to paragraph 47 of the judgment of 17 May 2017,
Portugal
v
Commission
(C‑337/16 P, EU:C:2017:381), that a decision is properly notified if it is communicated to the person to whom it is addressed and the latter is put in a position to become acquainted with it.
With regard to the latter condition, the Court considers that it is fulfilled when the person to whom a decision is addressed was in a position to become acquainted with the content of that decision and the grounds on which it is based (see, to that effect, judgment of 17 May 2017,
Portugal
v
Commission
, C‑337/16 P, EU:C:2017:381, paragraph 48).
It follows that an error or omission which, even if it is not purely formal in nature, does not prevent the addressee of the decision notified from becoming acquainted with the content and grounds of that decision, does not affect the period for bringing proceedings laid down in the sixth paragraph of Article 263 TFEU.
The General Court did not therefore err in law when it held, in paragraph 34 of the order under appeal, that an omission which does not affect the understanding of the reasons for the decision in question cannot prevent the application of the periods laid down by  Article 263 TFEU.
As regards, in the present case, the failure to state the value of Eco-Bat’s purchases in the initial decision, the General Court, in paragraphs 35 and 36 of the order under appeal, found, on the basis of factual evidence, that that value could be understood by reading the text of the initial decision and that, consequently, the failure to state that value in that decision did not prevent an understanding of the grounds for that decision or make it impossible for that decision to be challenged by way of an action for annulment.
Those findings, which form part of an assessment of a factual nature, cannot be called into question by the appellants’ argument that the General Court did not, in the order under appeal, set out a sound basis for its finding that the appellants would have been able to understand the purchase value which was taken into account by the Commission in the initial decision.
In that regard, it should be noted that, under the second subparagraph 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 lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 26 September 2018,
Philips and Philips France
v
Commission
, C‑98/17 P, not published, EU:C:2018:774, paragraph 40 and the case-law cited).
Since the appellants have not established or even alleged such distortion, the argument by which they claim that there is no solid basis for the General Court’s conclusion that they would have been able to understand the purchase value taken into account in the initial decision must therefore be rejected as inadmissible.
As regards the appellants’ argument that the failure to indicate the value of Eco-Bat’s purchases  in the initial decision constitutes a failure to state reasons, it must be held that, even if that were correct, it has no bearing on the issue. It follows from a combined reading of the second and sixth paragraphs of Article 263 TFEU that the period laid down in the sixth paragraph applies to an action against an EU act for infringement of essential procedural requirements.
As for the appellants’ argument based on the case which gave rise to the judgment of 9 December 2014,
SP
v
Commission
(T‑472/09 and T‑55/10, EU:T:2014:1040), it is sufficient to observe that they confine themselves, in essence, to repeating an argument already put forward before the General Court, without indicating what error of law that court made in its response to that argument in paragraph 37 of the order under appeal.
Pursuant to Article 169(2) of the Court’s  Rules of Procedure, the pleas in law and legal arguments relied on in an  appeal must identify precisely those points in the grounds of the General Court’s decision which are contested. That requirement is not satisfied by an appeal which, without even specifically identifying the error of law allegedly vitiating the judgment which is the subject of that appeal, confines itself to reproducing the pleas in law and arguments previously submitted to the General Court (judgment of 18 June 2015,
Ipatau
v
Council
, C‑535/14 P, EU:C:2015:407, paragraphs 56 and 57 and the case-law cited).
It follows that that argument must also be rejected as inadmissible.
Having regard to the foregoing considerations, the single ground of appeal must be dismissed as partly inadmissible and partly unfounded.
The appeal must therefore be dismissed.

Costs
Under Article 138(1) of the  Court’s Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Since the Commission has applied for costs and the appellants have been unsuccessful as regards their single ground of appeal, the appellants must be ordered to bear their own costs and to pay the Commission’s costs.
On those grounds, the Court (Eighth Chamber) hereby:
1.
Dismisses the appeal;
2.
Orders Eco-Bat Technologies Ltd, Berzelius Metall GmbH and Société de traitements chimiques des métaux (STCM) to pay the costs.
Biltgen
Malenovský
Fernlund
Delivered in open court in Luxembourg on  21 March 2019.
A. Calot Escobar

F. Biltgen
Registrar

President of the Eighth Chamber
*
Language of the case: English.