Order — ECLI:EU:C:2016:541
Date: 2016-07-07
Language of the case: German
Court formation: Sixth Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Germany

Summary — Order of the Court (Sixth Chamber), 7 July 2016 1. Competition — Fines — Amount — Judicial review — Unlimited jurisdiction — Scope — Obligation to reduce the amount of the fine for an inability to pay — Absence — Elements to be taken into consideration — Facts prior and subsequent to the decision imposing the fine (Arts 101 TFEU, 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Arts 23(2) and 31; Commission Communication 2006/C 210/02, point 35) 2. EU law — Principles — Right to effective judicial protection — Judicial review of decisions adopted by the Commission in competition matters — Review of legality and unlimited jurisdiction, in law and in fact — No infringement (Art. 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Art. 31) 3. Appeal — Grounds — Mistaken assessment of the facts — Inadmissibility — 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), first para., TFEU; Statute of the Court of Justice, Art. 58, first para.) 4. Competition — Fines — Amount — Determination — Whether the Commission is obliged to abide by its previous decision-making practice — No such obligation (Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, Art. 2(2)) 5. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope — Limits — Observance of general principles of law (Arts 261 TFEU and 263 TFEU; Charter of Fundamental Rights of the European Union, Arts 20 and 21; Council Regulation No 1/2003, Art. 31) 1. In the event that the General Court’s exercise of its review of the legality of a decision that found an infringement of Article 101(1) TFEU and imposed a fine for that infringement, leading to the annulment of that decision in so far as a fine was imposed, that circumstance does not in any way mean that the General Court has, for that reason, no power to exercise its unlimited jurisdiction. The General Court remains fully seised of the matter of the assessment of the amount of the fine since the undertakings affected by the fine claim in their appeal for a reduction of that amount, in particular because of their inability to pay within the meaning of point 35 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003. Exercising its unlimited jurisdiction, the General Court therefore only has the power to sanction the undertakings and, therefore, is empowered, on the basis of the evidence submitted by the parties and in compliance with the principle audi alteram partem, to vary the amount of the fine that had been imposed on them by the contested decision. By regularly substituting its assessment for that of the Commission as regards the exercise of the power to sanction, the fact that the General Court ultimately considers it appropriate to maintain the same amount of fine as that which has been fixed in the Commission’s decision does not affect the propriety of that exercise of power. In that context, the EU Courts are entitled to take into account all the factual circumstances which they consider to be relevant, whether they be prior to or subsequent to the contested decision. (see paras 30-34, 38-40, 43) 2. Compliance with the principle of effective judicial protection, which is a general principle of EU law now expressed in Article 47 of the Charter of Fundamental Rights of the European Union, requires that the EU Courts may, in the exercise of their unlimited jurisdiction with regard to the penalties imposed in the field of competition law by the Commission, consider all the questions of fact and law that are relevant to the case before them. This applies a fortiori where the exercise of unlimited jurisdiction relates to the assessment of the ability to pay on the part of the undertaking concerned. If the EU Courts were unable to assess that capacity by taking into account the prevailing factual situation at the time at which they give their ruling, they could be required to refuse or to grant a reduction or a cancellation of a fine owed or not owed, in such a way as to cause a disadvantage or provide an unfair competitive advantage for that undertaking. An undertaking’s ability to pay can be relevant only in a specific social context, namely the consequences which payment of the fine could have, in particular, by leading to an increase in unemployment or a deterioration in the economic sectors upstream and downstream of the undertaking concerned. (see paras 44-46) 3. See the text of the decision. (see para. 55) 4. See the text of the decision. (see para. 56) 5. The General Court is required to observe the principle of equal treatment not only in the context of the exercise of its review of the legality of the Commission’s decision imposing fines for infringement of competition law but also in the exercise of its unlimited jurisdiction. The exercise of such jurisdiction cannot result, when the amount of the fines to be imposed is determined, in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 101(1) TFEU. The taking into account of facts subsequent to the contested decision in order to assess the ability to pay of the undertakings to which it is addressed in the context of the exercise of the General Court’s unlimited jurisdiction does not give rise to any discrimination in comparison with the undertakings which do not bring proceedings to challenge the Commission’s assessment of their ability to pay. (see paras 64, 66)