Opinion of the Advocate General — ECLI:EU:C:2005:363
Date: 2005-06-07
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal against penalty
Origin: United Kingdom

Summary of the Judgment 1. Competition – Fines – Amount – Determination (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) 2. Appeals – Jurisdiction of the Court (Art. 81 EC; Statute of the Court of Justice, Art. 58; Council Regulation No 17, Art. 15) 3. Competition – Fines – Amount (Council Regulation No 17, Art. 15) 4. Appeals – Pleas in law – Inadequate statement of reasons – Use by the Court of First Instance of implicit reasoning – Lawfulness – Conditions (Art. 225 EC; Statute of the Court of Justice, Art. 36 and 53, al. 1) 5. Acts of the institutions – Guidelines on the method of setting fines imposed in respect of breaches of the competition rules (Commission Notice 98/C 9/03) 6. Competition – Fines – Amount – Exercise by the Court of First Instance of its unlimited jurisdiction (Art. 229 EC; Council Regulation No 17, Art. 17; Commission Notice 98/C 9/03) 7. Competition – Fines – Amount – Determination – Criteria (Council Regulation No 17, Art. 15(2)) 1. The 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 form part of the legal framework that determines the amount of fines, so that their application to infringements committed before they were adopted could run counter to the principle of non-retroactivity. A change in an enforcement policy, such as the Commission’s general competition policy in the matter of fines, especially where it comes about as a result of the adoption of rules of conduct such as the Guidelines, may have an impact from the aspect of the principle of non-retroactivity. However, the proper application of the Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy. It follows that undertakings involved in an administrative procedure in which fines may be imposed cannot acquire a legitimate expectation in the fact that the Commission will not exceed the level of fines previously imposed or in a method of calculating the fines. Consequently, undertakings must take account of the possibility that the Commission may decide at any time to raise the level of the fines by reference to that applied in the past. That is true not only where the Commission raises the level of the amount of fines in imposing fines in individual decisions but also if that increase takes effect by the application, in particular cases, of rules of conduct of general application, such as the Guidelines. It follows that the Guidelines and, in particular, the new method of calculating fines contained therein, on the assumption that this new method had the effect of increasing the level of the fines imposed, were reasonably foreseeable for undertakings at the time prior to their introduction, when they committed the infringements of the Community competition rules. (see paras 19-25) 2. In the context of an 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 consider whether the Court of First Instance responded to a sufficient legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced. However, it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed for infringements of Community law. (see paras 47, 105) 3. Even if the sanction imposed by the authorities of a non-member country in respect of an infringement of its competition rules were a factor to be taken into account in assessing the facts of the case in setting the amount of the fine which the Commission proposes to impose for breach of the Community competition rules, the plea alleging that the Commission failed to take account of such fines can only succeed if the grounds established by the authorities of that non-member country and those established by the Commission against the undertaking were identical. (see paras 52, 69) 4. The duty on the Court of First Instance under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice to state reasons for its judgments does not require the Court of First Instance to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the measures in question were taken and provides the Court of Justice with sufficient material for it to exercise its power of judicial review. (see para. 60) 5. Whilst rules of conduct designed to produce external effects, such as the 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, which concern traders, may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment. (see para. 91) 6. Where the Court of First Instance has held that the Commission has infringed the 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 by reason of a failure to take account of a factor which required to be taken into consideration under them and disposed of the case under its unlimited jurisdiction, the principles of equality and legal certainty require that it determine, first of all, whether, in taking account of that factor, the fine nevertheless remains within the framework established by those Guidelines. The principle of proportionality applies only after such an assessment. (see para. 93) 7. It is permissible, for the purpose of fixing the fine for breach of the competition rules, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. It is important not to confer on one or the other of those figures an importance disproportionate in relation to the other factors and, consequently, that the fixing of an appropriate fine cannot be the result of a simple calculation based on the total turnover. That is particularly the case where the goods concerned account for only a small part of that figure. By contrast, Community law contains no general principle that the penalty be proportionate to the undertaking’s size on the product market in respect of which the infringement was committed. Accordingly, differentiation in the starting amounts of the fine on the basis of criteria other than the turnover arising from the sale of the goods in question is permitted. (see paras 34, 100-101)