Order — ECLI:EU:C:2011:203
Date: 2011-03-31
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Competition
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Sweden

summary fashion. All the arguments which the General Court rejected as inadmissible at paragraphs 83, 96, 100 and 103 of the judgment under appeal are based on matters of law and of fact that had come to light in the course of the procedure or on points summarily set out in the application. 54 EMC Development contends, moreover, that the lack of case-law on standardisation agreements meant that it had to develop its arguments using a ‘first basis’ approach. In addition, it was entitled to challenge, in its reply, the Commission’s arguments set out in its defence, which shifted the burden of proof to EMC Development. 55 In a second part of its second plea, EMC Development maintains that the General Court breached Article 48(2) of its Rules of Procedure in so far as it did not reject as inadmissible the Commission’s argument, in paragraph 49 of the rejoinder which it lodged before the General Court, that in order to determine whether the Standard restricted competition, it was necessary to analyse what the competition situation would have been if the Standard had not existed, which constitutes a fresh plea raised during the proceedings, not based on matters of law and of fact that came to light in the course of the procedure, and in so far as the General Court adopted that argument at paragraph 116 of the judgment under appeal. 56 The Commission contends that this plea is ineffective in part and clearly unfounded in part. Findings of the Court 57 It should be observed at the outset that when it decides whether a submission is to be classified as a new plea, within the meaning of the first paragraph of Article 48(2) of its Rules of Procedure, or a permissible amplification of a plea put forward at the appropriate time, the General Court does not proceed to an assessment of the facts, but determines their legal nature and establishes the legal consequences thereof. Such a legal characterisation of the facts is a point of law which may be raised on appeal (see, to that effect, Dansk Rørindustri and Others v Commission, paragraphs 77 to 90) 58 As for the first part of the second plea, it must be borne in mind, as already stated at paragraph 39 of the present order, that an appeal must state precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or plea concerned is inadmissible. 59 In fact, the arguments raised by EMC Development in this first part of the plea do not satisfy those requirements. The appellant merely states generally that the arguments which the General Court rejected as inadmissible at paragraphs 83, 96, 100 and 103 of the judgment under appeal are based on matters of fact and of law which came to light in the course of the procedure before the General Court or develop complaints set out summarily in the application, but fails to explain what those matters of fact and of law are or to state, for each of those arguments, precisely what pleas formulated in the application those arguments are supposed to amplify. 60 As the first part of this plea is therefore insufficiently detailed, it must be rejected as clearly inadmissible. 61 As regards the second part of the second plea, according to which the General Court ought to have declared inadmissible the Commission’s argument at paragraph 49 of its rejoinder before the General Court, it must be observed that examination of that pleading shows that that argument forms part of the Commission’s assertion that the preference for Portland cement on the cement market is not the result of the existence of the Standard. 62 Accordingly, that argument must be regarded as merely amplifying the argument put forward by the Commission in its defence before the General Court that the Standard has no binding effect and had therefore to be regarded as admissible (see, to that effect, Case C‑485/08 P Gualtieri v Commission, [2010] ECR I-0000, paragraph 37 and the case-law cited). 63 It follows that the General Court did not adjudicate on a new plea and therefore did not breach Article 48(2) of its Rules of Procedure. 64 The second part of the second plea is therefore clearly unfounded. 65 It follows from the foregoing that this plea must be rejected as clearly inadmissible in part and clearly unfounded in part. The third plea, alleging breach of the rules relating to the burden of proof Arguments of the parties 66 By the third plea, EMC Development takes issue with the General Court for having wrongly placed the burden of proof on it. 67 First, EMC Development takes issue with paragraph 97 of the judgment under appeal, where the General Court considered that it was for EMC Development to demonstrate that the Commission had made a manifest error of assessment in taking the view that the particulars which EMC Development had submitted to it did not demonstrate that the procedure for adoption of the Standard by CEN had not been transparent. In the appellant’s submission, the General Court thus required that it adduce ex post facto evidence which is extremely difficult to produce and evidence of a ‘double’ negative fact. In fact, the burden of proof should be borne by the Commission, since in the present case it controlled the evidence and it was necessary to prove a positive fact. 68 Second, EMC Development claims, relying in particular on paragraph 30 of Case C‑413/08 P Lafarge v Commission, [2010] ECR I-0000, that even if the burden of proof rests on one party, the evidence which it submits may be of such a kind as to require the other party to provide justification and may thus transfer the burden of proof to that other party. In EMC Development’s submission, since the Commission maintained that it had carefully considered evidence which it always had in its possession, full credit ought to have been given to EMC Development’s submissions and substantial weight ought to have been accorded to the evidence which it adduced. 69 Third, EMC Development maintains that, in so far as agreements between undertakings infringe Article 81(1) EC where they are intended to organise artificially the operation of the market and where such organisation is also the raison d’être of any standard, there is a presumption that standards infringe that provision. It was for the Commission to rebut that presumption in the present case and not for EMC Development to prove, as regards the non-discriminatory nature of the procedure for the adoption of the Standard, that Cembureau’s activities had exceeded the limits of normal lobbying. At paragraph 89 of the judgment under appeal the General Court thus reversed the burden of proof and unlawfully ‘elevated’ the requirement placed on EMC Development in relation to proof. EMC Development relies, in that regard, in particular, on paragraph 142 of Dansk Rørindustri and Others v Commission, where this Court held, in substance, first, that it was sufficient for the Commission to show that the undertaking concerned had participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove that that undertaking had participated in the cartel and, second, that it was for that undertaking to submit indicia capable of proving that its participation in those meetings was without any anti-competitive intention. 70 Fourth, EMC Development, referring to paragraph 22 of Lafarge v Commission, takes issue with the General Court for not having given sufficient weight to its assertions resulting from certain details which it reconstituted by deduction, although this Court has held that it is usual for anti-competitive practices and agreements to take place in secret and for the associated documentation to be reduced to a minimum and that it is therefore often necessary to reconstitute certain details by deduction. 71 The Commission disputes the admissibility and/or the merits of the arguments put forward in the context of this plea. Findings of the Court 72 It should be observed at the outset that the General Court did not err in law in identifying, at paragraphs 56 to 59 of the judgment under appeal, the rights of the complainant and the obligations of the Commission where a complaint alleging infringement of Article 81 EC is rejected. 73 According to consistent case-law, Article 3 of Regulation No 17, the terms of which were essentially reproduced in Article 7 of Regulation No 1/2003, does not give a complainant the right to insist that the Commission take a final decision as to the existence or non-existence of the alleged infringement and does not oblige the Commission to continue the proceedings, whatever the circumstances, right up to the stage of a final decision (Case 125/78 GEMA v Commission [1979] ECR 3173, paragraph 18; Case C‑119/97 P Ufex and Others v Commission [1999] ECR I-1341, paragraph 87; and also Case C‑449/98 P IECC v Commission [2001] ECR I‑3875, paragraph 35). 74 On the other hand, the Commission is required to consider attentively all the matters of fact and of law which the complainant brings to its attention (Case 210/81 Schmidt v Commission [1983] ECR 3045, paragraph 19; Case 298/83 CICCE v Commission [1985] ECR 1105, paragraph 18; Joined Cases 142/84 and 156/84 British American Tobacco and Reynolds Industries v Commission [1987] ECR 4487, paragraph 20; Ufex and Others v Commission, paragraph 86; and IECC v Commission, paragraph 45). 75 Complainants are entitled to have the fate of their complaint settled by a decision of the Commission against which an action may be brought (Case C-282/95 P Guérin Automobiles v Commission [1997] ECR I-1503, paragraph 36, and IECC v Commission, paragraph 35). In that regard, the Commission is under an obligation to state reasons if it declines to continue with the examination of a complaint. Since the reasons stated must be sufficiently precise and detailed to enable the General Court effectively to review the Commission’s use of its discretion to define priorities, the Commission must set out the facts justifying the decision and the legal considerations on the basis of which it was adopted (Ufex and Others v Commission, paragraphs 90 and 91). 76 Furthermore, among the procedural rights enjoyed by a complainant is the right, provided for in Article 6 of Regulation No 2842/98, the terms of which have been substantially reproduced in Article 7(1) of Regulation No 773/2004, to be informed of the grounds on which the Commission proposes to reject the complaint and to make known its views before a decision to that effect is adopted by the Commission. 77 It follows from the foregoing that the General Court was correct to consider, at paragraph 59 of the judgment under appeal, that the Commission is not required to prove that it has adopted measures of investigation following a complaint. 78 As regards, in the first place, the argument whereby EMC Development criticises paragraph 97 of the judgment under appeal, it must be observed that that argument is directed against a ground included in that judgment purely for the sake of completeness. In fact, complaints directed against grounds included in a judgment of the General Court purely for the sake of completeness must be rejected outright, since they cannot lead to the judgment being set aside (see, to that effect, in particular, Case C‑164/01 P van den Berg v Council and Commission [2004] ECR I‑10225, paragraph 60, and also Dansk Rørindustri and Others v Commission, paragraph 148). 79 In any event, that argument is manifestly unfounded, since, as is clear from paragraphs 72 to 77 of the present order, the General Court did not err in law in considering that the Commission was required solely to consider attentively all the matters of fact and of law which EMC Development had brought to its attention and that it was for EMC Development to demonstrate that the Commission had failed to fulfil that obligation. Nor did the General Court require EMC Development to adduce evidence of a negative fact, as it could simply have demonstrated that the procedure for the adoption of the Standard was lacking in elements ensuring its transparency. 80 As regards, in the second place, EMC Development’s argument that if the burden of proof is borne by one party, the evidence which it adduces may be of such a kind as to require the other party to present justification and the burden of proof may thus be transferred to that other party, it is sufficient to observe that, in any event, that argument is clearly inadmissible by virtue of the case-law cited, in particular, at paragraph 39 of the present order, since EMC Development has merely cited the case-law deriving, in particular, from paragraph 30 of Lafarge v Commission, without specifying what arguments required the Commission to present justification. 81 In the third place, the arguments whereby EMC Development criticises paragraph 89 of the judgment under appeal cannot succeed either. Contrary to EMC Development’s contention, no rule of European Union law establishes a presumption that harmonised standards are generally incompatible with the competition rules. EMC Development’s argument alleging the existence of such a presumption is therefore clearly unfounded. 82 In addition, EMC Development merely cites the case-law referred to at paragraph 142 of Dansk Rørindustri and Others v Commission, without specifying how, in its submission, that case-law would be relevant to the facts of the present case and thus without specifying how that case-law would affect the requirement that EMC Development must adduce evidence that the Commission failed to fulfil its obligation to consider attentively all the matters of fact and of law which were brought to its attention. The argument which EMC Development derives from that case-law therefore does not satisfy the requirements referred to at paragraph 39 of the present order and must be rejected as clearly inadmissible. 83 As regards, in the fourth place, EMC Development’s argument that the General Court ought to have given more weight to its assertions resulting from details which it had reconstituted by deduction, it must be observed that EMC Development does not identify precisely the elements of the judgment under appeal which it criticises, nor does it mention which details it reconstituted by deduction. In addition, that argument, too, fails to satisfy the requirements referred to at paragraph 39 of the present order and must also be rejected as clearly inadmissible. 84 In the light of the foregoing, the third plea must be rejected as clearly unfounded in part and clearly inadmissible in part. The fourth plea, alleging distortion of evidence adduced before the General Court Arguments of the parties 85 By its fourth plea, EMC Development takes issue with the General Court for having distorted evidence which it adduced, in finding, in substance, at paragraphs 82, 84, 85, 91, 97, 99, 100, 102 and 103 of the judgment under appeal, that that evidence did not prove its allegations that the procedure for the adoption of the Standard was discriminatory and lacking in transparency and openness. 86 The Commission contends that this plea is inadmissible. Findings of the Court 87 It is sufficient to state that EMC Development puts forward no argument to support its assertion that the General Court distorted any evidence. 88 The fourth plea must therefore be rejected as clearly inadmissible, in application of the case-law referred to at paragraph 39 of the present order. The fifth plea, alleging infringement of Article 81(1) EC Arguments of the parties 89 By its fifth plea, EMC Development takes issue with the General Court for having infringed Article 81(1) EC by failing to apply the case-law of this Court, in particular that resulting from paragraph 55 of Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others v Commission [2009] ECR I‑9291, where it was held, first, that the anti-competitive object and effect of an agreement are not cumulative but alternative conditions for assessing whether such an agreement is anti-competitive and, second, that the alternative nature of that condition, indicated by the conjunction ‘or’, leads first to the need to consider the precise purpose of the agreement. It follows from that case-law that the Commission ought to have considered first of all the object of the Standard instead of confining itself to the examination provided for in the Guidelines and to the effect of the Standard. EMC Development maintains that, in order to assess the anti-competitive nature of an agreement, it is necessary, in accordance with paragraph 58 of GlaxoSmithKline Services and Others v Commission, to have regard to the content of its provisions. 90 The Commission contends that this plea is inadmissible. Findings of the Court 91 It should be observed that this plea, in that it relies on the argument that the Commission ought, when examining EMC Development’s complaint, to have carried out an analysis other than that provided for in the Guidelines, amounts in reality to challenging the validity of the Guidelines by reference to Article 81(1) EC. 92 In that regard, it has consistently been held that a plea raised for the first time in an appeal before this Court must be rejected as inadmissible. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal the Court’s jurisdiction is therefore confined to review of the assessment made by the General Court of the pleas argued before it (see, in particular, Dansk Rørindustri and Others v Commission, paragraph 165). 93 In fact the question of the validity of the Guidelines by reference to Article 81(1) EC was not discussed before the General Court. As that Court correctly stated at paragraphs 64 and 65 of the judgment under appeal, EMC Development, first, agreed that the Guidelines were applicable in the present case and, second, put forward no argument seeking to call in question the criteria set out in the Guidelines. 94 The fifth plea therefore amounts to bringing before this Court a case of wider ambit than that which came before the General Court and must therefore be rejected as clearly inadmissible. The sixth plea, directed against the General Court’s assessment of the alleged binding nature of the Standard Arguments of the parties 95 By its sixth plea, EMC Development criticises the General Court’s findings relating to the non-binding effect of the Standard. 96 First, in EMC Development’s submission, whether products can obtain the ‘CE’ mark by means other than compliance with the Standard is irrelevant for the purpose of determining that effect. The significant aspect in that regard is the de facto binding nature of the Standard. 97 Second, EMC Development claims that, in so far as an agreement between undertakings falls within the scope of Article 81(1) EC if it was capable of having a direct effect on trade, the binding effect of the Standard is presumed. The General Court therefore acted unlawfully in applying, at paragraph 116 of the judgment under appeal, the test relating to whether or not the market was altered owing to the adoption of the Standard. 98 EMC Development further maintains that the General Court failed to assess the Guidelines in their context. In its submission, it follows from paragraph 95 of GlaxoSmithKline Services and Others v Commission that a prospective analysis is necessary in order to appraise the effects of an agreement on innovation. It follows that the General Court could not rely on a retroactive examination, such as the test mentioned above. 99 Third, EMC Development maintains that the Standard goes further than a simple common policy of the operators active on the cement market, since, in its submission, the Standard results in collective dominance. EMC Development claims that that market presents the appropriate characteristics for that purpose and cites this Court’s case-law on cartels on the cement market. 100 Fourth, EMC Development disputes the General Court’s finding, at paragraphs 122 and 123 of the judgment under appeal, that it failed to explain in what respect the guide to the selection of concretes published by a commercial association in the United Kingdom and the document drawn up in 2000 for the Commission’s Directorate-General ‘Enterprise’, on which it relied, showed that the Standard was de facto binding. Furthermore, the General Court raised that criticism of its own motion, without making any mention of its misgivings at the hearing. 101 The Commission contends that these arguments are inadmissible and/or unfounded. Findings of the Court 102 It should be observed, in the first place, that where an appeal merely repeats or reproduces verbatim the pleas in law and arguments submitted to the General Court, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, referred to at paragraph 39 of the present order. Such an appeal amounts to an application for mere reconsideration of the application submitted to the General Court, which falls outside the jurisdiction of the Court of Justice (see, in particular, Case C‑131/03 P Reynolds Tobacco and Others v Commission [2006] ECR I‑7795, paragraphs 49 and 50). 103 That applies to the present appeal, so far as concerns EMC Development’s argument alleging that the Standard has de facto binding effect, whereby it merely repeats the assertions developed in its written submissions to the General Court. 104 That argument must therefore be rejected as clearly inadmissible. 105 As regards, in the second place, the arguments whereby EMC Development criticises paragraph 116 of the judgment under appeal, it must be observed, first, that no rule of European Union law provides that a harmonised standard is presumed to have binding effect when it is capable of exercising a direct influence on trade. The argument set out at paragraph 97 of the present order is therefore clearly unfounded. 106 Second, EMC Development fails to specify the reasons why the case-law on the application of Article 81(3) EC resulting from paragraph 95 of GlaxoSmithKline Services and Others v Commission is relevant in the present case. The argument mentioned at paragraph 98 of the present order is therefore clearly inadmissible, in accordance with the case-law referred to at paragraph 39 of the present order. 107 In the third place, EMC Development’s argument alleging the existence of a collective dominant position was submitted for the first time in the appeal and must in any event be rejected as clearly inadmissible, in application of the case-law referred to at paragraph 92 of the present order. 108 In the fourth place, it must be borne in mind that the General Court has exclusive jurisdiction to find the facts, except in a case where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to evaluate the evidence adduced. The establishment of those facts and the evaluation of that evidence do not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject as such to review by the Court of Justice on appeal (see in particular, to that effect, Case C‑449/99 P EIB v Hautem [2001] ECR I‑6733, paragraph 44, and also Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I-8725, paragraphs 69 and 70). 109 The argument that EMC Development directs against paragraphs 122 and 123 of the judgment under appeal, in so far is it amounts to challenging an assessment of evidence by the General Court, without any allegation of distortion of that evidence, must be rejected as clearly inadmissible. 110 In those circumstances, the sixth plea must be rejected as clearly inadmissible in part and clearly unfounded in part. 111 It follows from all of the foregoing that none of the pleas put forward by EMC Development in support of its appeal can be upheld and that, accordingly, the appeal must be rejected as clearly inadmissible in part and clearly unfounded in part. Costs 112 Under Article 69(2) of the Rules of Procedure, which applies to the appeal procedure by virtue of Article 118 of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and EMC Development has been unsuccessful, EMC Development must be ordered to pay the costs. On those grounds, the Court (Fifth Chamber) hereby orders: 1. The appeal is dismissed. 2. EMC Development AB shall pay the costs. [Signatures] * Language of the case: English.