Judgment — ECLI:EU:C:2017:51
Date: 2017-01-26
Language of the case: Spanish
Court formation: First Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - successful;Appeal against penalty
Origin: Austria

Summary — Judgment of the Court (First Chamber), 26 January 2017 1. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Turnover to be taken into consideration — Undertaking acquired by another undertaking which constituted a distinct economic entity at the time of the infringement — Account taken of the individual turnover of each of those economic entities (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2)) 2. Appeal — Jurisdiction of the Court — Whether it may review, on grounds of fairness, the assessment by the General Court in regard to the amount of the fines imposed on undertakings which have infringed the competition rules of the Treaty — Not included (Arts 256 TFEU and 261 TFEU; Statute of the Court of Justice, Art. 58, first para.; Council Regulation No 1/2003, Art. 31) 3. Competition — Fines — Amount — Determination — Determination of the basic amount — Gravity of the infringement –– ‘Entry fee’ — Factors to be taken into consideration — Observance of the principle of proportionality (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 21, 23 and 25) 4. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Information needed for an assessment (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, points 19 to 23 and 25) 5. Competition — Fines — Amount — Determination — Judicial review — Unlimited jurisdiction of the EU judicature — Scope — Limit — Observance of the principle of equal treatment –– Taking into account of differences between, and of the particular circumstances of, the undertakings concerned (Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Arts 20 and 21; Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, points 13, 19 to 22, 25, 28 and 29) 6. Appeal — Grounds –– Grounds of a judgment vitiated by an infringement of EU law — Operative part well founded for other legal reasons — Rejection (Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.) 7. Appeal — Grounds — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.) 1. Where an undertaking regarded by the Commission as responsible for an infringement of Article 101 TFEU is acquired by another undertaking within which it retains, as a subsidiary, the status of a distinct economic entity, the Commission must take account of the specific turnover of each of those economic entities for the period prior to the acquisition in order to apply to them, where necessary, the ceiling of 10% of the total turnover in the preceding business year, which is set in the second subparagraph of Article 23(2) of Regulation No 1/2003. In that regard, the objective sought by the establishment, in Article 23(2), of a ceiling of 10% of the turnover of each undertaking participating in an infringement is, inter alia, to ensure that the imposition of a fine higher in amount than that ceiling should not exceed the capacity of an undertaking to make payment at the time when it is identified as responsible for the infringement and a financial penalty is imposed on it by the Commission. That finding is confirmed by the second subparagraph of Article 23(2) of Regulation No 1/2003 which requires, as regards the 10% ceiling, that it should be calculated on the basis of the turnover in the business year preceding the Commission decision imposing a penalty for an infringement. Such a requirement is fully respected where that ceiling is determined solely on the basis of the turnover of the subsidiary, in respect of the fine which is imposed exclusively on it, in relation to the period prior to its acquisition by the parent company. Accordingly, inasmuch as a parent company cannot be held responsible for an infringement committed by its subsidiary prior to the acquisition of that subsidiary, the Commission must take account, for the purpose of calculating the 10% ceiling, of the subsidiary’s own turnover in the business year preceding the year in which the decision penalising the infringement was adopted. Consequently, where a distinction is drawn between an initial period, in respect of which the subsidiary is held to be solely responsible for the infringement, and a second period, in respect of which the parent company is held jointly and severally liable with its subsidiary for the infringement, the Commission is required, under Article 23(2) of Regulation No 1/2003, to determine whether the part of the fine, for whose payment the parent company is not held to be jointly and severally liable, is below the ceiling of 10% of the subsidiary’s own turnover. (see paras 44, 46-50) 2. See the text of the decision. (see para. 59) 3. In setting the amount of fines imposed for infringement of the competition rules, 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. 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 the cartel, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union. The fact that an undertaking did not belong to the ‘hard core’ of the cartel because, amongst other things, it had not played a part in creating and maintaining the cartel does not, in any event, show that the General Court should have held that multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ at a rate of 15% are not appropriate or are too high, where such a rate was warranted by reason of the very nature of the infringement at issue, namely the implementation of coordinated price increases. Such an infringement is among the most harmful restrictions of competition for the purposes of points 23 and 25 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 and 15% is the lowest rate on the scale of penalties prescribed for such infringements under those guidelines. Accordingly, the General Court is fully entitled to hold that the Commission has not infringed the principle of proportionality in setting the multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ at 15%, even though the geographic scope of the undertaking’s participation in the infringement at issue is limited. (see paras 60, 61, 64-66) 4. Although, in order to assess the gravity of an infringement of Article 101 TFEU and subsequently set the fine to be imposed, account may be taken, inter alia, of the geographic extent of an infringement, the fact that the geographic scope of one infringement is more extensive than that of another does not, on its own, necessarily mean that the first infringement, considered as a whole, and in particular in the light of its nature, must be classified as more serious than the second and as therefore justifying the setting of higher multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ than those used in the calculation of the fine for the second infringement. (see para. 68) 5. Observance of the principle of equal treatment is binding 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. 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) for the purpose of assessing the gravity of an infringement 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 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003. 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 paras 70-72) 6. See the text of the decision. (see paras 74, 75) 7. See the text of the decision. (see para. 81)