Judgment — ECLI:EU:C:2017:45
Date: 2017-01-26
Language of the case: German
Court formation: First Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Appeal against penalty
Origin: Germany

summary of the pleas in law relied on constitute two essential elements which must be included in the application initiating proceedings, and that, under Article 48(2) of those rules of procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which have come to light in the course of the procedure (see, to that effect, judgments of 12 November 2009, SGL Carbon v Commission, C‑564/08 P, not published, EU:C:2009:703, paragraph 21, and of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 38). As the General Court found, however, the appellant disputed its awareness of the fact that the infringement covered three product sub-groups only in its reply before the General Court, and that argument did not amplify a complaint made in the application at first instance. Consequently, the General Court was fully entitled to reject it as being out of time, in paragraphs 53, 54, 114 and 171 of the judgment under appeal. 59 In those circumstances, the appellant cannot put that argument forward at the stage of the appeal before the Court of Justice. 60 In so far as, by the second part of its fifth ground of appeal, the appellant maintains that the General Court should have taken into account the fact that its activity was limited to only one of the three product sub-groups, suffice it to note that the General Court did in fact take that into account. Thus, in paragraph 154 of the judgment under appeal, the General Court stated that that fact had been taken into account by the Commission when calculating the value of sales on the basis of which the fine was calculated. 61 Accordingly, the second part of the fifth ground of appeal is, in part, inadmissible and, in part, unfounded. 62 Secondly, with regard to the complaint raised in the third part of this ground of appeal, according to which the General Court did not draw the appropriate conclusions from the appellant’s exclusively ‘follow-my-leader’ role when it set the fine to be imposed, it must be noted that that complaint is based on the premiss that the 1998 Guidelines, not those of 2006, were required to be applied in the present case. Since, in this case, the Commission applied the 2006 Guidelines, on which the General Court decided to draw in paragraph 246 of the judgment under appeal, and those guidelines do not provide for account to be taken of an exclusively passive or ‘follow-my-leader’ role in bringing about the infringement, that complaint must be rejected. 63 Thus, the General Court was fully entitled to consider, in paragraph 194 of the judgment under appeal, that the exclusively passive or ‘follow-my-leader’ role of an undertaking no longer constituted a mitigating circumstance according to those guidelines, and to find, in paragraph 197 of that judgment, that, in the light of the third indent of point 29 of the 2006 Guidelines, in order to be given the benefit of mitigating circumstances, the appellant would have been required to prove that it had refrained from applying the offending agreements, which, however, it had failed to do. 64 It follows from the foregoing that the third part of the fifth ground of appeal is unfounded. – The first part of the fifth ground of appeal 65 As regards, in the first place, the appellant’s arguments alleging that the General Court made errors of assessment in relation in particular to the geographic scope of the infringement when determining, in the exercise of its unlimited jurisdiction, the amount of the fine, it should be noted at the outset that the General Court alone has jurisdiction to examine how in each particular case the Commission assessed the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the General Court took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 101 TFEU and Article 23 of Regulation No 1/2003 and, secondly, to consider whether the General Court responded to a sufficient legal standard to all the arguments raised in support of the claim for cancellation or reduction of the fine (see, inter alia, judgments of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 128; of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 244; and of 5 December 2013, Solvay Solexis v Commission, C‑449/11 P, not published, EU:C:2013:802, paragraph 74). 66 On the other hand, it must be borne in mind that it is not for the Court of Justice, 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 (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 245, and of 11 July 2013, Gosselin Group v Commission, C‑429/11 P, not published, EU:C:2013:463, paragraph 87). 67 It should also be recalled that, according to the settled case-law of the Court, in setting the amount of fines, regard must be had to the duration of the infringement and to all the factors capable of affecting the assessment of the gravity of that infringement (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 240, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 98). 68 The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 242, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 100). 69 In the present case, so far as concerns the application by the General Court of the same multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ as those set by the Commission in the decision at issue (15%), even though the General Court found that the geographic scope of the infringement covered two, not six, Member States, it should be noted that, having identified, in paragraphs 156 to 168 of the judgment under appeal, the errors made by the Commission in its assessment of that geographic scope, the General Court, in the exercise of its unlimited jurisdiction (as is apparent, in particular, from paragraphs 242 and 244 to 251 of that judgment), assessed the conclusions to be drawn from the Commission’s errors as regards the setting of the amount of the fine imposed. 70 First of all, in paragraph 246 of the judgment under appeal, the General Court found that it was appropriate in the present case to draw on the 2006 Guidelines in recalculating the fine. 71 Next, the General Court considered, in paragraph 247 of that judgment, that the Commission’s errors of assessment, which lay in the fact that the Commission had set the ‘gravity of the infringement’ and the ‘additional amount’ multipliers at 15% on the basis that the geographic scope of the infringement covered the territories of six Member States, required only that it substitute its own assessment for the Commission’s in so far as setting those multipliers was concerned, in the light, in particular, of the geographic scope of the infringement, which had to be limited to the territories of two Member States. In the light of paragraphs 57 to 64 of the present judgment, the General Court was fully entitled, however, not to take into account for that purpose the appellant’s assertion that the infringement concerned only one of the three product sub-groups or the ‘follow-my-leader’ role of the appellant. 72 In order to calculate the fine, the General Court considered, in paragraph 248 of the judgment under appeal, that the Commission was fully entitled to find, in Article 1(2) and recitals 872 and 873 of the decision at issue, that the appellant had participated, from 6 March 1998 to 9 November 2004, in a single and continuous infringement consisting of a secret cartel to coordinate future price increases in the three product sub-groups at issue, in the territories of Germany and Austria. 73 Lastly, in paragraph 249 of the judgment under appeal, in view not only of the very nature of that infringement, but also its geographic scope — the territory of two Member States — and its long duration, the General Court found that the infringement was among the most harmful restrictions and considered that, having regard to point 23 of the 2006 Guidelines, for such an infringement, the proportion of the value of sales of 15% corresponded to a minimum. 74 Consequently, in paragraph 250 of the judgment under appeal, the General Court considered it appropriate, for the calculation of the basic amount of the fine imposed on the appellant, to set both the ‘gravity of the infringement’ multiplier and the ‘additional amount’ multiplier at 15%. 75 It follows from the foregoing that, contrary to what is claimed by the appellant, the General Court did take into account the fact that the geographic scope of the infringement covered only two Member States and not six. However, the General Court found that, despite the more limited geographic scope, a rate of 15% was appropriate in the light, inter alia, of the nature of the infringement. It should be pointed out in that respect that, having regard to point 23 of the 2006 Guidelines, on which the General Court decided to draw in this case, the 15% multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ were warranted in view of the very nature of the infringement at issue, since, as the General Court noted, it is among the most harmful restrictions of competition for the purpose of point 23 of the 2006 Guidelines and that rate is the lowest rate on the scale of penalties prescribed for such infringements under those guidelines (in that regard, see, to that effect, judgments of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraphs 124 and 125, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 125). Accordingly, the appellant is wrong to criticise the General Court for having failed to take into account the geographic scope of the infringement when determining the multipliers for the ‘gravity of the infringement’ and the ‘additional amount’, and for having set those multipliers at 15%. 76 That conclusion cannot be called into question on the ground that the rate is the same as that set for other undertakings whose participation in the infringement covered a larger geographic area than that established in the appellant’s case, which, according to the appellant, is contrary to the principle of equal treatment. 77 It will be recalled that that principle is a general principle of EU law enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. According to settled case-law, that principle requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 51). 78 Observance of that principle is binding, in particular, on the General Court not only in the exercise of its review of the legality of the Commission’s decision imposing fines but also in the exercise of its unlimited jurisdiction. When the amount of the fines imposed is determined, the exercise of such jurisdiction cannot result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 101(1) TFEU (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 77). 79 It follows from the case-law of the Court of Justice, however, that the taking into account, by virtue of the principle of equal treatment, of differences between the undertakings that have participated in a single cartel (in particular with regard to the geographic scope of their respective involvement) need not necessarily occur when the multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ are set but may occur at another stage in the setting of the fine, such as when the basic amount of the fine is adjusted in the light of mitigating and aggravating circumstances under points 28 and 29 of the 2006 Guidelines (see, to that effect, judgments of 11 July 2013, Gosselin Group v Commission, C‑429/11 P, not published, EU:C:2013:463, paragraphs 96 to 100, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraphs 104 and 105). 80 As the Commission has observed, such differences may also be reflected by means of the value of sales that is used in calculating the basic amount of the fine inasmuch as that value reflects, for each participating undertaking, the scale of its involvement in the infringement in question, in accordance with point 13 of the 2006 Guidelines, under which it is possible to take as a starting point for the calculation of the fines an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 76). 81 Consequently, since it is not disputed that the basic amount of the fine imposed on the appellant was determined by reference to the value of its sales, the General Court could, in paragraph 250 of the judgment under appeal, set the multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ at 15% of that value without infringing the principle of equal treatment. 82 As regards, in the second place, the argument that the General Court erred, in paragraph 249 of the judgment under appeal, in assessing the gravity of the infringement in the light of the duration of Aloys F. Dornbracht’s participation in the infringement, this must be rejected as ineffective, in view of the findings in paragraph 75 of the present judgment. 83 In any event, it cannot be inferred from the fact that the General Court mentioned in that paragraph, among other criteria such as the nature of the infringement at issue, the long duration of the infringement, that the General Court thus attributed excessive significance to the latter criterion. 84 As regards, in the third place, the complaint as to a failure to state reasons, it should be borne in mind that the obligation to state the reasons on which a judgment is based, to which the General Court is subject under Article 36 of the Statute of the Court of Justice of the European Union, which applies to the General Court by virtue of the first paragraph of Article 53 of the Statute, and Article 81 of the Rules of Procedure of the General Court, in the version in force at the date of the judgment under appeal, requires the General Court clearly and unequivocally to disclose its reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (see, in particular, judgments of 26 September 2013, Alliance One International v Commission, C‑679/11 P, not published, EU:C:2013:606, paragraph 98, and of 28 January 2016, Quimitécnica.com and de Mello v Commission, C‑415/14 P, not published, EU:C:2016:58, paragraph 56). 85 As this Court has already held, the General Court is bound to comply with that obligation when exercising its unlimited jurisdiction (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 77). 86 According to well established case-law, that obligation to state reasons does not, however, require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, to that effect, in particular, judgments of 2 April 2009, Bouygues and Bouygues Télécom v Commission, C‑431/07 P, EU:C:2009:223, paragraph 42, and of 22 May 2014, Armando Álvarez v Commission, C‑36/12 P, EU:C:2014:349, paragraph 31). 87 In the present case, it must be observed that, in response to the appellant’s arguments in favour of a reduction of the amount of the fine imposed, the General Court ruled, first, in paragraphs 245 to 251 of the judgment under appeal, on the conclusions to be drawn from the errors made by the Commission in relation to the amount of the fine, and, secondly, in paragraphs 252 to 259 of that judgment, on the additional arguments put forward by the appellant in support of a reduction of the fine, before going on to conclude in the exercise of its unlimited jurisdiction, in paragraph 260 of that judgment, that it was appropriate to set the fine at the same amount as that set by the Commission in the decision at issue. Contrary to what is maintained by the appellant, the General Court listed, in paragraph 249 of the judgment under appeal, the factors it took into account in order to determine the multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ and stated that, under point 23 of the 2006 Guidelines and in view of the scale from 0% to 30% provided for therein, the infringement at issue, which was among the most harmful, warranted a rate of 15%. 88 In so doing, the General Court set out the reasons that caused it to decide on that rate and, consequently, to set a fine in the amount specified in paragraph 251 of the judgment under appeal. 89 In those circumstances, the appellant’s argument concerning an alleged failure to state reasons in the judgment under appeal must be rejected. 90 Accordingly, since none of the arguments raised in support of the first part of the fifth ground of appeal has been upheld, it must be held that that part is unfounded. 91 It follows from all the foregoing considerations that the fifth ground of appeal must be rejected as, in part, inadmissible and, in part, unfounded. The sixth ground of appeal, alleging that the duration of the proceedings before the General Court was excessive Arguments of the parties 92 By its sixth ground of appeal, the appellant claims that the General Court infringed its obligation to adjudicate on the cases before it within a reasonable time. It observes that the proceedings before the General Court commenced on 8 September 2010 and ended more than three years later, namely on 16 September 2013, the date on which the judgment under appeal was delivered. That period is, it claims, in the light of the relevant case-law and having regard to the particular circumstances of that case, particularly long and excessive. 93 The Commission contends that, even on the assumption that the duration of the proceedings was not reasonable, that ground cannot be upheld. Findings of the Court 94 In so far as the appellant, by its sixth ground of appeal, asks the Court, in the first place, to set aside the judgment under appeal on account of the excessive duration of the proceedings before the General Court, it should be noted that, in the absence of any evidence that the excessive duration of those proceedings had an effect on the outcome of the dispute, failure on the part of the General Court to adjudicate within a reasonable time cannot lead to the judgment under appeal being set aside. Indeed, where failure to adjudicate within a reasonable time has no effect on the outcome of the dispute, the setting aside of the judgment under appeal would not provide a remedy for any infringement by the General Court of the principle of effective judicial protection (judgments of 26 November 2013, Gascogne Sack Deutschland v Commission, C‑40/12 P, EU:C:2013:768, paragraphs 81 and 82; of 26 November 2013, Kendrion v Commission, C‑50/12 P, EU:C:2013:771, paragraphs 82 and 83; and of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 64). 95 In the present case, the appellant has not provided any evidence to this Court from which it may be inferred that the excessive duration of the proceedings before the General Court could have had an effect on the outcome of the dispute before it. 96 It follows that the sixth ground of appeal cannot lead to the judgment under appeal being set aside in its entirety. 97 In so far as, by its sixth ground of appeal, the appellant seeks, in the second place and in the alternative, a reduction of the fine imposed on it, it should be noted 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 of Fundamental Rights of the European Union 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. Accordingly, a claim for compensation for the damage caused by the failure on the part of the General Court to adjudicate within a reasonable time 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 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 66; of 9 October 2014, ICF v Commission, C‑467/13 P, not published, EU:C:2014:2274, paragraph 57; and of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 55). 98 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 whose duration is criticised (see, to that effect, judgments of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 67; of 9 October 2014, ICF v Commission, C‑467/13 P, not published, EU:C:2014:2274, paragraph 58; and of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 56). 99 Nonetheless, where it is evident, without it being necessary for the parties to adduce additional evidence in that regard, that the General Court has breached, in a sufficiently serious manner, its duty to adjudicate within a reasonable period, the Court of Justice can find accordingly (see, to that effect, judgments of 9 October 2014, ICF v Commission, C‑467/13 P, not published, EU:C:2014:2274, paragraph 59; and of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 57). 100 However, in the present case, having regard in particular to the nature and the degree of complexity of the case and the number of actions brought against the decision at issue, it does not appear that the duration of the proceedings before the General Court — approximately three years — was manifestly unreasonable. 101 It follows from the foregoing considerations that the sixth ground of appeal must be rejected. 102 Since none of the grounds of appeal raised by the appellant has been upheld, the appeal must be dismissed in its entirety. Costs 103 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. 104 Under Article 138(1) of those rules, which applies to the procedure on appeal 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 the appellant has been unsuccessful and the Commission has applied for costs against it, the appellant must be ordered to pay the costs relating to the present appeal. On those grounds, the Court (First Chamber) hereby: 1. Dismisses the appeal; 2. Orders Aloys F. Dornbracht GmbH & Co. KG to pay the costs. [Signatures] ** Language of the case: German