Opinion of the Advocate General — ECLI:EU:C:2005:751
Date: 2005-12-08
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Exclusive agreements
Procedure: Action for annulment - unfounded;Appeal - unfounded;Appeal - inadmissible;Appeal - successful;Appeal against penalty
Origin: Netherlands

Summary of the Judgment 1. Competition – Administrative procedure – Obligations of the Commission (Council Regulation No 17) 2. Appeals – Grounds – Incorrect assessment of the facts – Inadmissible – Review by the Court of the assessment of evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225 EC; Statute of the Court of Justice, Art. 58, first para.) 3. Appeals – Pleas in law – Insufficient or contradictory grounds 4. Competition – Agreements, decisions and concerted practices – Not allowed – Infringements – Proof (Art. 81(1) EC) 5. Competition – Agreements, decisions and concerted practices – Not allowed – Infringements – Agreements and concerted practices capable of being treated as constituting a single infringement (Art. 81(1) EC) 6. Appeals – Jurisdiction of the Court (Art. 81 EC; Council Regulation No 17, Art. 15) 1. Compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of Community law whose observance the Community judicature ensures. However, a finding that the duration of the procedure, which could not be attributed to the undertakings concerned, was excessive can lead to annulment, for breach of that principle, of a decision finding an infringement only where that duration, by adversely affecting the undertakings’ rights of defence, was capable of having an influence on the outcome of the procedure. In its analysis, the Community judicature must take into consideration the entire procedure, from the beginning of the Commission’s investigations to the adoption of the final decision. It is essential to prevent the rights of the defence from being irremediably compromised on account of the excessive duration of the investigation phase preceding the issue of the statement of objections and to ensure that the duration of that phase does not impede the establishment of evidence designed to refute the existence of conduct susceptible of rendering the undertakings concerned liable. For that reason, examination of any interference with the exercise of the rights of the defence must not be confined to the second phase of that procedure, but must also cover the phase preceding the issue of the statement of objections and, in particular, determine whether the excessive duration of the procedure might affect the ability of the undertakings concerned to protected themselves in future. (see paras 35, 42-43, 49-51) 2. It is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first, to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and to review the legal conclusions it has drawn from them. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance has accepted 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 Court of First Instance 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 paras 69-70) 3. The question whether the grounds of a judgment of the Court of First Instance are contradictory or insufficient is a question of law which is amenable, as such, to judicial review on appeal. In that regard, the obligation to state reasons does not require the Court of First Instance to provide an account that follows exhaustively and point by point all the reasoning articulated by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know the reasons supporting the decision and provides the Court of Justice with sufficient material for it to exercise its power of review. (see paras 71-72) 4. In most cases the existence of an anti-competitive practice or agreement must be inferred from a number of indicia and coincidences which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules. Such indicia and coincidences provide information not just about the mere existence of anti-competitive practices or agreements, but also about the duration of continuous anti-competitive practices or the period of application of an agreement concluded in breach of the competition rules. The Court of First Instance may therefore, without making an error of law, base its appraisal of the existence and duration of an anti-competitive practice or agreement on an overall evaluation of all such relevant evidence and indicia. The question as to what probative value the Court of First Instance attributed to each item of evidence and each indicium adduced by the Commission, however, is a question of assessment of fact which, as such, is not amenable to review by the Court of Justice on appeal. The fact that evidence of the existence of a continuous infringement was not produced for certain specific periods does not preclude the infringement from being regarded as established during a longer overall period than those periods provided that such a finding is supported by objective and consistent indicia. In the context of such an infringement extending over a number of years, the fact that the agreement is shown to have applied during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the agreement, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement. (see paras 94-96, 98, 135) 5. An infringement of Article 81(1) EC may be the consequence not only of an isolated act but also of a series of acts or indeed of continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of acts or of that continuous conduct might also constitute in themselves, and taken in isolation, an infringement of that provision. Where the various actions form part of an ‘overall plan’, owing to their identical object, which distorts competition within the common market, the Commission is entitled to impute liability for those actions according to participation in the infringement considered as a whole. In that regard, there is no need to take into account the actual effects of such actions once it appears that, whether they consist in agreements or concerted practices, they have the object of preventing, restricting or distorting competition within the common market. It follows from the very wording of Article 81(1) EC that, as in the case of agreements between undertakings and decisions of associations of undertakings, concerted practices are prohibited, independently of any effect, where they have an anti-competitive object. Furthermore, although the very concept of a concerted practice presupposes conduct by the participating undertakings on the market, it does not necessarily mean that that conduct should produce the specific effect of restricting, preventing or distorting competition. (see paras 110, 125, 136-139, 160-161, 179) 6. The Court of First Instance alone has jurisdiction to examine how in each particular case the Commission appraised the gravity of unlawful conduct by reference to the Treaty competition rules. On appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 81 EC and Article 15 of Regulation No 17 and, second, to ascertain whether the Court of First Instance responded to the requisite legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced. (see para. 217)