Opinion of the Advocate General — ECLI:EU:C:2014:272
Date: 2014-04-29
Language of the case: English
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - successful;Appeal against penalty
Origin: Luxembourg

summary of which was published in the Official Journal (OJ 2008 C 127, p. 9) (‘the contested decision’). I shall use the old numbering of the Treaty in this Opinion, since the contested decision was adopted under the EC Treaty. 4 – Case T‑304/94 Europa Carton v Commission EU:T:1998:89, paragraph 117; Case C‑248/98 P KNP BT v Commission EU:C:2000:625, paragraph 62, judgment on appeal against the judgment in Case T‑309/94 KNP BT v Commission EU:T:1998:91; Case T‑16/99 Lögstör Rör v Commission EU:T:2002:72, paragraph 360;and Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission EU:T:2005:220, paragraph 260. 5 – According to the Commission, in paragraph 33 of their appeal, the appellants do not take issue with the General Court’s findings of fact, but merely assert that the General Court applied an incorrect legal rule in reaching its decision that those findings were relevant. 6 – See, in particular, Case C‑73/95 P Viho v Commission EU:C:1996:405, paragraphs 16 and 17. 7 – KNP BT v Commission, EU:C:2000:625, paragraph 62. 8 – Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3) (‘the 1998 Guidelines’). 9 – A footnote to the 2006 Guidelines reads ‘Such will be the case for instance for horizontal price fixing arrangements on a given product, where the price of that product then serves as a basis for the price of lower or higher quality products’. 10 – See, for example, de Broca, H., ‘The Commission revises its Guidelines for setting fines in antitrust cases’, which appeared in the official publication by the Commission’s Directorate-General for Competition Competition Policy Newsletter, Number 3, Autumn 2006, p. 1, which explains that ‘by using a clearer reference to each undertaking’s “value of sales”, the 2006 Guidelines intend to reflect, even approximately and imperfectly, the economic importance of the infringement as a whole as well as the relative weight of each undertaking participating in the infringement. The 1998 Guidelines, based on a lump sum system, have often been critici[s]ed on that particular aspect, even though this criticism was largely misplaced. In fact, a number of tools corrected the obvious drawbacks of a pure lump sum system. For instance, the Commission fixed starting amounts below the 20 million euros threshold mentioned in the 1998 Guidelines for very serious infringements taking place on small markets; it also differentiated between undertakings on the basis of their respective size in the market concerned (the so-called “groupings”) ... If anything, the 1998 Guidelines rather reflected the insufficient level of fines imposed on “large” infringements or on large players, something which the 2006 Guidelines will probably correct.’ 11 – See, for example, the following commentary: Castillo de la Torre, F., ‘The 2006 Guidelines on Fines: Reflections on the Commission’s Practice’, in World Competition: Law and Economics Review, volume 33, number 3, September 2010, p. 359 (footnote 37): ‘In the press release relating to the Cement cartel (IP/94/1108), the Commission stated: “calculation [of fines] is normally based on the Community turnover in the product concerned”. In Cartonboard, the Commission explained the method used: “fines of a basic level of 9 or 7.5% of the turnover of each undertaking addressed by the decision on the Community cartonboard market in 1990 were imposed on the undertakings regarded as the ‘ringleaders’ of the cartel and on the other undertakings respectively” (Case T‑348/94, Enso Española v Commission [1998] ECR II‑1875, para. 247). See also, the calculation of the fine in Steel Beams, in Case T‑151/94, British Steel v Commission [1999] ECR II‑629, paras 598–605.’ 12 – See Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission EU:C:2005:408, paragraph 209 and the case-law cited, and paragraph 258. See also, inter alia, Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission EU:T:2008:415, paragraphs 176 and 177, Case T‑155/06 Tomra Systems and Others v Commission EU:T:2010:370, paragraph 317, and Case T‑362/06 Ballast Nedam Infra v Commission EU:T:2012:492, paragraph 122. 13 – See also the Opinion of Advocate General Mischo in this case, (EU:C:2000:258), which was followed by the Court of Justice. 14 – Case C‑389/10 P EU:C:2011:816, paragraph 126. 15 – Case T‑38/02 Groupe Danone v Commission EU:T:2005:367, paragraph 523. 16 – See in this context, for example, the commentary in ‘The 2006 Guidelines on Fines: Reflections on the Commission’s Practice’, cited above, according to which the ‘Car glass’ decision ‘does not deviate from the 2006 Guidelines, but rather applies the concept of sales indirectly or directly related to the infringement to the case at hand’. Indeed, ‘much depends on whether the concept of sales “relating” to the infringement is narrowly or broadly construed’ (Kerse, C.S., and Khan, N., EU Antitrust Procedure, Sixth Edition, Sweet & Maxwell, London, 2012, p. 417). Furthermore, in so far as the 2006 Guidelines and the concept of ‘value of sales’ are concerned, ‘[t]he adoption of this new calculation method has somewhat reduced the margin of discretion of the Commission which, in every case, has to take a reasoned position on the sales included in the calculation of the fines. The identification of the goods and services to which the infringement indirectly or directly relates when setting the fine is expected to be a bone of contention in many cases. In several decisions already adopted under the [2006] Fining Guidelines, the determination of the value of the undertaking’s sales of goods or services related to the infringement was highly debated … [It follows from the Commission’s practice] that, in order to determine the basic amount of the fine in cartel cases, the Commission need not provide proof of each occasion on which individual sales were affected by the cartel activities’ (Van Bael & Bellis (ed.), Competition Law of the European Community, Fifth Edition, Kluwer Law International, 2010, p. 1100). 17 – It cites Decisions C(2009) 7601 final of 7 October 2009 in Case COMP/39.129, Power Transformers, and Decision C(2011) 7436 final of 19 October 2011 in Case COMP/39.605, CRT Glass. 18 – In light of the case-law cited below (in points 62 to 64 of this Opinion), that omission is, in itself, censurable. 19 – See also, in this connection, point 70 of this Opinion. 20 – See the case-law cited below (points 62 to 64 of this Opinion). 21 – Commission Decision C(2008) 926 final of 11 March 2008 (Case COMP/38.543 — International Removal Services), recitals 532 and 533. 22The EU Competition Law Fining System: A Reassessment, (TILEC Discussion Paper, 2011-052) Tilburg: TILEC. 23 – Joined Cases T‑204/08 and T‑212/08 Team Relocations and Others v Commission EU:T:2011:286, paragraphs 60 to 68. 24 – Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission EU:C:1983:158, paragraph 121. 25 – Case T‑151/94 British Steel v Commission EU:T:1999:52, paragraph 643, and Case T‑50/03 Saint-Gobain Gyproc Belgium v Commission EU:T:2008:252, paragraph 84. The General Court also dismissed the ‘alternative argument’ put forward by Team Relocations that the relevant value of sales should not include the turnover on moves of private individuals, that is, those not by paid for by a third party, since the infringing practices had not been applied to such removals. 26 – Case C‑444/11 P Team Relocations and Others v Commission EU:C:2013:464. 27 – The full wording of paragraph 76 is as follows: ‘It follows that point 13 of the 2006 Guidelines pursues the objective of adopting as the starting point for the calculation of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it. Consequently, while the concept of the value of sales referred to in point 13 of those guidelines admittedly cannot extend to encompassing sales made by the undertaking in question which do not fall within the scope of the alleged cartel, it would however be contrary to the goal pursued by that provision if that concept were understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel.’ 28 – See also paragraphs 85 to 87 of the judgment of the Court of Justice. 29 – Commission Decision of 3 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case C.38.359 − Electrical and mechanical carbon and graphite products) (OJ 2004 L 125, p. 45). 30 – Commission Decision C(2010) 8761 final in Case COMP/39.309; recital 382: ‘Though both Direct EEA Sales and Direct EEA Sales Through Transformed Products lead to the inclusion of — respectively — sales to related companies and intra-group sales for some of the parties, focusing on the first EEA sale of the product concerned by the infringement — whether transformed or not — to a company that is not part of the supplier undertaking ensures that no discrimination is made between vertically integrated companies and non-vertically integrated companies’; recital 383: ’As concerns Direct EEA Sales Through Transformed Products, the consumer harm inflicted by the cartel arrangements is clearly represented by the value of panels delivered within the transformed products to the final consumer in the EEA’; and, lastly, recital 394: ‘in general, as explained in recital 238 with reference to the Cartonboard case, it can be reasonably assumed that an implemented cartel had effects on direct sales through transformed products’. That recital (238) reads: ‘As confirmed by the General Court in [Europa Carton v Commission], even if the higher price resulting from a cartel is not always or not in its entirety passed on to intra-group customers, the competitive advantage deriving from this positive discrimination does foreseeably influence competition on the market … Intra-group sales of LCD panels — in as far as they ended up into transformed products sold in the EEA — are therefore to be taken into account, just like intra-cartel sales in the EEA.’ 31 – It should be noted in this connection that, in Commission Decision C(2008) 3043 of 25 June 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (COMP/39.180 — Aluminium fluoride) (which gave rise to the judgment in Case T‑406/08 ICF v Commission EU:T:2013:322, and then to Case C‑467/13 P, currently pending), the Commission took the view that the question whether captive sales had been taken into account in calculating the value of sales and the final amount of the fine was irrelevant. 32 – Case T‑128/11 LG Display and LG Display Taiwan v Commission EU:T:2014:88, paragraph 60 et seq. See also Case T‑91/11 InnoLux v Commission EU:T:2014:92. 33 – See, to that effect, Case T‑211/08 Putters International v Commission EU:T:2011:289, paragraph 58. 34 – Case C‑8/08 T-Mobile Netherlands and Others EU:C:2009:343, paragraph 38, and C‑501/06 P, Joined Cases C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others v Commission and Others EU:C:2009:610, paragraph 63. 35 – Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article [81 EC] and Article 53 of the EEA Agreement (Case COMP/39.092 — Bathroom fittings and fixtures). 36 – See also, on this issue, Kerse, C.S., and Khan, N., pp. 412 to 419. 37 – Villeroy & Boch Austria and Others v Commission, EU:T:2013:455, paragraph 335 et seq. For example, paragraph 342: ‘it must be observed that they have failed to establish that the linking of wholesale sale prices to the said lists of gross prices did not influence the fixing of the other price lists. As the Commission observed in its written submissions, without the applicants putting forward any contrary argument or counter-evidence, the lists of gross prices applied to wholesale sales which were the subject of coordination were likely to serve as a guide to manufacturers of bathroom fittings and fixtures when selling to wholesalers products of theirs not destined for the three-stage distribution cycle’. See also Joined Cases T‑379/10 and T‑381/10 Keramag Keramische Werke and Others v Commission EU:T:2013:457, Case T‑368/10 Rubinetteria Cisal v Commission EU:T:2013:460 (‘Bathroom fittings and fixtures’) and Case T‑146/09 Parker ITR and Others v Commission EU:T:2013:258 (‘Marine hoses’). 38 – KME Germany and Others v Commission EU:T:2009:142, paragraphs 89 to 91. 39 – KME Germany and Others v Commission EU:C:2011:810. 40 – The London Metal Exchange. 41 – The General Court referred here to its judgment in Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission EU:T:2000:77, paragraphs 5030 and 5031. 42 – Commission Decision C(2008) 6815 final of 12 November 2008, a summary of which is published in the Official Journal (OJ 2009 C 173, p. 13). 43 – Recital 663: ‘the fact that specific evidence is not available for each and every discussion that took place on the respective car accounts within the overall arrangements does not limit the determination of the relevant value of sales to only those accounts for which such specific evidence is available’. 44 – See Dansk Rørindustri and Others v Commission, EU:C:2005:408, paragraph 209 and the case-law cited. See also Case T‑132/07 Fuji Electric v Commission EU:T:2011:344, paragraph 235, and, with regard to the 2006 Guidelines, Case T‑83/08 Denki Kagaku Kogyo and Denka Chemicals v Commission EU:T:2012:48, paragraph 107. 45 – Ibid., paragraphs 210 and 211 respectively. 46 – Case T‑26/02 Daiichi Pharmaceutical v Commission EU:T:2006:75, paragraph 49. 47 – See, for example, Case T‑150/89 Martinelli v Commission EU:T:1995:70, paragraph 59. 48 – See, by analogy, Case T‑7/89 Hercules Chemicals v Commission EU:T:1991:75, paragraph 53, confirmed on appeal in Case C‑51/92 P Hercules Chemicals v Commission EU:C:1999:357. 49 – See Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission EU:T:2004:221, paragraph 537. 50 – Oddly, during the administrative procedure, the question of how captive/internal sales should be dealt with was not raised, either in the statement of objections or at the hearing, as if the assumption at that time was that internal sales were to be included. I would also observe that, of the 541 recitals of the contested decision, not one of them gives any justification for the exclusion of internal sales, which appeared as a given in the calculation when the fine was determined. It may also be noted that: (i) according to Guardian, the Commission decided at the very last minute to change its opinion about captive sales, and (ii) according to a legal article published by an Agent of the Commission (‘The 2006 Guidelines on Fines: Reflections on the Commission’s Practice’, cited above, p. 369 and footnote 56): ‘There is no consolidated practice as regards “captive sales”, and it would appear that the Commission will assess the specific circumstances of the case in order to decide whether to take them into account or not … [The captive sales] were finally excluded in Flat Glass’ (my emphasis). 51 – See, for example, Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others EU:C:2010:512, paragraphs 54 and 55 and the case-law cited. 52 – See KNP BT v Commission, EU:C:2000:625, point 62. 53 – Ibid. 54 – See ‘Pilkington and the Flat Glass Industry 2006’, p. 5, cited in footnote 36 of the contested decision. 55 – In the statement of objections, it is indicated that Guardian’s market share stood at between 10% and 20% (15.7% being the actual share, taking as a basis an overall market size of EUR 1.7 billion). That share, however, rose to nearly 25% in the contested decision, as a result of the exclusion of the internal sales of the three other cartel members. 56 – Article 23(3) merely provides that, ‘[i]n fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement’, the amount of the fine obviously being subject to the limit of 10% of the total turnover of the undertaking participating in the infringement in the preceding business year (Article 23(2) of the regulation). (See, in this connection, my Opinion in Case C‑408/12 P YKK and Others v Commission (currently pending), delivered on 12 February 2014.) 57 – Having said that, according to the 2006 Guidelines, the Commission may derogate from the rules laid down therein provided that it adequately states its reasons for doing so. 58 – It is worth noting that, if captive sales had been included in the value of sales taken into account, the total amount of the fines would have risen to approximately EUR 759.9 million, including a particularly large fine of approximately EUR 335.4 million for Saint-Gobain. The Commission’s reply to the questions put to it by the General Court suggests that, on the date when the contested decision was adopted, an increase in the total amount of the fines imposed on the other participants would have been ‘disproportionate’, in particular given that the infringement was of limited duration. In this connection, it is interesting to note that another fine of EUR 896 million in connection with the ‘Carglass’ cartel was imposed on Saint-Gobain in 2008, in the Carglass case. By decision of 28 February 2013, the Commission reduced Saint-Gobain’s fine to EUR 880 million and Pilkington’s fine to EUR 357 million following an error in the calculation. See also Joined Cases T‑56/09 and T‑73/09 Saint-Gobain Glass France and Others v Commission EU:T:2014:160. 59 – EU:T:2004:221, paragraphs 566 to 579. 60 – See, for example, Case C‑242/90 P Commission v Albani and Others EU:C:1993:284, paragraphs 13 to 17. 61 – JFE Engineering v Commission, EU:T:2004:221 (see point 86 et seq. of this Opinion). 62 – See Joined Cases T‑285/02 and T‑395/02 Vega Rodríguez v Commission EU:T:2004:324, paragraph 24. 63 – In its letter of 6 January 2012, the General Court also noted that ‘[i]n principle, no further extension of this time-limit will be granted’. 64 – Under Article 11(3) of the instructions to the Registrar of the General Court, applications for extensions of time-limits must be duly reasoned and be submitted in good time. 65 – Moreover, under Article 11(2) of the instructions (on which the Commission seeks to rely), ‘documents received at the Registry after the period prescribed for their lodgement has expired may be accepted only with the authorisation of the President’ (my emphasis). 66 – I agree with Guardian that the principle of the equality of arms and the principle audi alteram partem require the hearing to be restricted, in principle, to information in the case-file which has been the subject of written debate. The mere fact that a party may make submissions at the hearing in relation to documents submitted out of time does not mean that the rights of the defence have been observed (see Case T‑321/05 AstraZeneca v Commission EU:T:2010:266, paragraph 27). 67 – See paragraph 100 of the judgement under appeal. 68 – Case C‑40/12 P Gascogne Sack Deutschland v Commission EU:C:2013:768; Case C‑50/12 P Kendrion v Commission EU:C:2013:771, and Case C‑58/12 P Groupe Gascogne v Commission EU:C:2013:770 (‘Gascogne and Others’). 69 – See, inter alia, Case C‑385/07 P Der Grüne Punkt — Duales System Deutschland v Commission EU:C:2009:456, paragraph 179 and the case-law cited (‘Der Grüne Punkt’). The Court has found on several occasions that the right to a fair trial, which derives from, inter alia, Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’), constitutes a fundamental right that the European Union observes as a general principle under Article 6(2) EU (see, inter alia, Case C‑289/11 P Legris Industries v Commission EU:C:2012:270, paragraph 36). 70 – See, inter alia, Der Grüne Punkt, EU:C:2009:456, paragraph 178 and the case-law cited. See, for example, European Court of Human Rights, Erkner and Hofauer v. Austria, 23 April 1987, § 66, Series A no. 117. 71 – See European Court of Human Rights, H. v. France, 24 October 1989, § 58, Series A no. 162-A. 72 ? Case C‑185/95 P, EU:C:1998:37. 73 – Case C‑109/10 P, EU:C:2011:256, points 325 to 332, and Case C‑110/10 P, EU:C:2011:257, points 166 to 173. 74 – EU:C:1998:608. 75 – As regards what may be considered to be a ‘reasonable’ period (in relation to Article 6 ECHR and the case-law of the European Court of Human Rights), see, in particular, the Opinion of Advocate General Widdershoven of the Raad van State (Netherlands) of 23 October 2013, available at the following address: http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RVS:2013:1586. 76 – The replacement of the President of the Chamber, Mr Moavero Milanesi, by Judge Kanninen, which took effect on 25 November 2011, does not constitute a relevant circumstance, given, first, that it occurred more than three years and four months after the close of the written procedure and, secondly, as Advocate General Kokott observed in Solvay v Commission (EU:C:2011:256, point 343), ‘[i]t goes without saying that issues relating to the internal organisation of the General Court, for example those connected with the regular partial replacement of judges or with judges being prevented from attending, must not operate to the detriment of the persons concerned’. See, to the same effect, the Opinion in Solvay v Commission (EU:C:2011:257, point 184). 77 – Guardian maintains, in substance, that the delay of three years and five months between the close of the written procedure and the decision to open the oral procedure is difficult to reconcile with the absence of any particular effort on the General Court’s part to examine the facts and evidence, manifested by the absence of any written questions relating to the facts in issue. I would add that that delay also appears to be at odds with the way in which the General Court addressed the question of the captive sales, which was the subject of the first plea in law raised by Guardian, in that it failed to analyse, or even to mention, the case-law of the Court of Justice on that issue (KNP BT v Commission, EU:C:2000:625) from which it departed in the judgment under appeal — despite the fact that Guardian had referred to it. 78 – According to Guardian, its arguments rested on notes relating to ‘three contacts with competitors and two statements by undertakings, and two or three meetings’. 79 – In the present case, the General Court had to examine only a limited number of annexes, mainly containing notes relating to three contacts between competitors (17 pages in total), along with brief extracts of two statements by undertakings. All those documents were drafted in the language of the case (namely, English, a language almost everyone understands, by contrast with Slovak or Maltese, to give just a few examples). 80 – Consequently, it was not necessary for the General Court to consider issues of ‘connexity’ likely to arise in parallel proceedings, which can also have an effect on the length of the proceedings (see, for example Case T‑214/06 ICI v Commission EU:T:2012:275, paragraph 314). 81 – EU:C:1998:608, paragraphs 35 and 47. 82 – See the Opinion of Advocate General Kokott in Solvay v Commission EU:C:2011:256, point 340. See, to the same effect, the Opinion in Solvay v Commission, EU:C:2011:257, point 181. 83 – To this same end, Guardian even made a formal application to the President of the General Court for the case to be given priority. 84 – Case C‑352/98 P Bergaderm and Goupil v Commission EU:C:2000:361, paragraph 42. 85 – Guardian refers to damage resulting (a) from its loss of revenue attributable to the provisional payment of EUR 111 million of the fine and (b) the cost of constituting a bank guarantee as to the remainder of the fine (EUR 30 000 per month). It asks the Court to make a substantial reduction of the fine in order to compensate the breach of the reasonable time principle, which Guardian estimates at 25% of the fine before any reduction ordered as a result of the first plea in law. 86 – See the Opinion in Case C‑58/12 P Groupe Gascogne v Commission EU:C:2013:360, point 148. I share Advocate General Sharpston’s view, expressed in point 149 of that Opinion, that ‘the event giving rise’ to the non-contractual liability of the Union for the purposes of Article 46 of the Statute must be the finding by the Court of Justice that there was undue delay before the General Court and that it follows that the five-year limitation period within which a claim in damages must be brought begins to run from the date of the judgment of the Court of Justice.