Opinion of the Advocate General — ECLI:EU:C:2024:105
Date: 2024-02-01
Language of the case: German
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Action for damages
Origin: Germany

summary of the content of the judgment of 15 July 2015 set out in paragraphs 95 and 100 of the judgment under appeal and which forms the basis for its analysis, is also accurate and consistent with the interpretation of the Court of Justice as set out in its order. (39) 51. It should be recalled that, in support of their appeal against the contested decision, which gave rise to the judgment of 15 July 2015, the applicants had raised nine pleas in law, of which only the sixth and ninth are relevant for the purposes of the present appeal. First, the sixth ground of appeal alleged, inter alia, infringement of the principle of proportionality, in that the Commission had not taken account of their inability to pay in the contested decision. Secondly, the ninth ground of appeal alleged incorrect assessment of their ability to pay in the letter of 14 February 2011, annulment of which was also sought by the applicants. 52. By judgment of 15 July 2015, the General Court, upholding those two pleas in law, annulled the contested decision, in so far as it imposed a fine on the applicants, and the letter of 14 February 2011, on the ground that the Commission had erred when assessing their ability to pay, within the meaning of point 35 of the 2006 Guidelines. More specifically, in its review of the legality of the contested decision, the General Court held, in paragraphs 285 to 332 of the judgment of 15 July 2015, that the Commission had made errors in appraising the applicants’ ability to pay, and that those errors were of such a kind, first, to entail the annulment of the contested decision in that it imposed a fine on the applicants, and also of the letter of 14 February 2011, and, secondly, to justify the General Court’s exercise of its unlimited jurisdiction. (40) 53. In the exercise of its unlimited jurisdiction, the General Court found, however, that the applicants were not justified in claiming that they should be granted a reduction of the fine on account of their inability to pay and, accordingly, set the fine at the same amount as that imposed on them in the contested decision. More specifically, in paragraphs 333 to 358 of the judgment of 15 July 2015, the General Court, itself applying the 2006 Guidelines, held, on the basis of the evidence adduced by the applicants concerning their financial situation, as it had evolved after the adoption of the contested decision, that the applicants were not justified in claiming that they should be granted a reduction of the fine on account of their inability to pay, for reasons similar to those envisaged in point 35 of those 2006 Guidelines, and that, accordingly, the applicants should be ordered to pay a fine of an amount identical to the amount of the fine imposed in the contested decision. (41) 54. In that regard, it seems to me important to point out that although the General Court merely upheld the pleas for annulment relating to the appraisal of the applicants’ ability to pay, all the pleas relating to the legality of the infringement and the amount of the fine imposed accordingly were rejected. In other words, the General Court had found no reason to regard as inappropriate the amount of the fines imposed on the applicants as set out in the first subparagraph of Article 2(8) of the contested decision, (42) on the basis of the first four pleas in law, the examination of which had not revealed any error of such a kind as to vitiate the contested decision with illegality. It was also for that reason that the General Court set a fine of an amount identical to the amount of the fine previously imposed on the applicants by the Commission in the contested decision. Furthermore, it is recalled that the application of point 35 of the 2006 Guidelines is the last factor taken into account in determining the amount of the fines imposed for a breach of the competition rules. (43) 55. As regards the operative part of the judgment of 15 July 2015, admittedly, the General Court, in paragraph 2 thereof, first annulled Article 2, first paragraph, point 8 of the contested decision, which imposed a fine on the applicants, and, secondly, in paragraphs 4 to 6 of that operative part, set the amounts of the fine, which corresponded to those of the contested decision. However, to consider that choice as indicative of a desire of the General Court to establish a new fine that is legally distinct from that fixed by the Commission would be overly formalistic and would, in my view, be inconsistent with the fundamental rule, derived from settled case-law, according to which the operative part of a judgment must be read in the light of the reasons which led to it and which constitute its essential basis. (44) Furthermore, there are many examples in which the General Court has annulled the operative part of a Commission decision relating to the fine, while subsequently fixing the new amount in the exercise of its unlimited jurisdiction. (45) As the Commission points out, in certain cases, such as in the judgment of 15 July 2015, the General Court first annuls the article of the Commission decision fixing the fine and then determines the fine again in the operative part of that judgment. (46) In other cases, the General Court merely varies the fine without annulling the relevant article of the Commission decision. (47) Although that lack of consistency in the General Court’s practice is unfortunate and may, from a purely formal point of view, constitute a source of confusion, in reality, since the unlimited jurisdiction, in accordance with the case-law resulting from the judgment in CIB, ‘relates to and is limited to the fine initially imposed by the Commission’, (48) it would not, in principle, have any impact in terms of legal consequences. (49) 56. In the light of the foregoing, I find that the premiss of the applicants’ arguments set out in the context of the first ground of appeal, according to which, by the judgment of 15 July 2015, the General Court imposed a new fine legally distinct from that imposed by the Commission in the contested decision, is not apparent from the grounds of that judgment and is fundamentally incorrect. 57. That finding is sufficient, in my view, to dismiss all of the applicants’ arguments as unfounded, without it being necessary to examine the various complaints of the first ground of appeal in greater detail. 58. However, if the Court of Justice finds it necessary to address the various arguments put forward by the applicants, in the alternative, and for the sake of completeness, I propose that they be dismissed on the basis of the following analysis. 2. The various complaints of the first ground of appeal 59. In the first place, the applicants claim that, in paragraph 98 of the judgment under appeal, the General Court made the incorrect finding that ‘the fine set by the EU Courts does not constitute a new fine which is legally distinct from that imposed by the Commission (see, to that effect, [judgment in CB], paragraphs 58 and 60)’. They claim that finding is incorrect because it does not provide an answer to the question of the variation and substitution effect of the judgment of 15 July 2015 with regard to the fine annulled by the contested decision. 60. In support of their argument, the applicants claim that the General Court was wrong to refer to paragraphs 58 and 60 of the judgment in CB, which differs from the judgment of 15 July 2015. Contrary to the judgment in CB, in the judgment of 15 July 2015 the General Court, on the one hand, ordered payment of the ‘court imposed fine’ on the basis of ‘new facts’ and, on the other hand, first annulled the fine imposed in its entirety from the outset (ex tunc reduction) before establishing the ‘court imposed fine’ and therefore did not choose to confirm or merely (retroactively) reduce the fine imposed under the Commission’s initial decision. 61. In my view, those arguments cannot succeed. 62. First, as stated in points 52 to 56 of this Opinion, in the judgment of 15 July 2015, the EU judicature did not impose a fine instead of the fine imposed by the Commission, which, moreover, it was not in a position to do, but merely ‘varied’ the fine initially fixed in the contested decision. In other words, the fine imposed by the Commission in the contested decision and the fine fixed in the judgment of 15 July 2015 following the review carried out by the General Court are identical in fact and in law. 63. Secondly, I would point out that, in paragraphs 58 to 60 of the judgment in CB, the General Court held that the unlimited jurisdiction conferred on the EU judicature in relation to the application of the competition rules ‘relates to and is limited to the fine initially imposed by the Commission’ (paragraph 58), that that court ‘does not have power to impose a fine’, but may ‘solely […] rule on fines set by decisions of the Commission’ (paragraph 59) and that, accordingly, it is not competent to ‘replace the fine imposed by the Commission by a new, legally distinct fine’ (paragraph 60). Those general statements, which were made in 1995 by the Court of First Instance, although never endorsed by the Court, seem to me to be still valid today. (50) 64. Thirdly, as regards the argument that, in the judgment in CB, the General Court confirmed the part of the fine in question after re-evaluating the same facts as those underlying the contested decision, whereas, in the judgment of 15 July 2015, the General Court decided to confirm the same fine also on the basis of an examination of new facts, the distinction made by the applicants is legally irrelevant. As is clear from settled case-law, the Court exercising unlimited jurisdiction must, in principle and subject to examination of the evidence submitted to it by the parties, take account of the legal and factual situation that prevails on the date on which it makes its determination where it considers it proper to exercise its power to vary a decision. (51)A fortiori, this means that the Court exercising unlimited jurisdiction may take into account not only earlier elements which do not appear in the contested act, (52) but, where applicable and exceptionally, also matters arising subsequent to the adoption of the decision. As the Court held in paragraph 43 of the order of the Court of Justice, the EU Courts are entitled to take into account, in order to complete the exercise of their review as to legality, all the factual circumstances which they consider to be relevant, whether they be prior to or subsequent to the contested decision. (53)A fortiori, this applies where, as in the present case, the exercise of unlimited jurisdiction relates to the assessment of the ability to pay on the part of the undertaking concerned. As the Court has held, 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. (54) Furthermore, I would like to point out that assessing the inability to pay, within the meaning of point 35 of the 2006 Guidelines, involves analysing the ‘specific social and economic context’ at the time of imposing a fine in order to assess whether that fine ‘would irretrievably jeopardise the economic viability’ of the undertaking concerned. Such a control is therefore, by its nature and by its object, prospective and may require, exceptionally, taking into account elements subsequent to the decision imposing the fine. 65. In the second place, the applicants submit that the reasoning of the judgment under appeal is contradictory as regards the substitution effect of the judgment of 15 July 2015. More specifically, in paragraph 99 of the judgment under appeal, the General Court held that ‘where an EU Court substitutes its own assessment for that of the Commission and reduces the amount of a fine in the exercise of its unlimited jurisdiction, it replaces, in the Commission’s decision, the amount initially set in that decision with the amount resulting from its own assessment’. The applicants submit that, while that view might seem to be a correct starting point, the General Court should have reached the following findings: (i) in the judgment of 15 July 2015, the General Court entirely substituted its own assessment for that of the Commission; (ii) on the basis of that assessment, it reduced the amount of the annulled fine under its unlimited jurisdiction by way of annulment and explicit offsetting of the payments already made; and (iii) the General Court replaced the annulled fine with the court imposed fine thus amended. They argue that, instead of reaching those findings, the General Court considered, also in paragraph 99 of the judgment under appeal, that ‘the Commission’s decision is therefore deemed, on account of the substitution effect of a judgment by the EU judicature, to have always been the decision that results from the latter’s assessment (see, to that effect, [judgment in CB], paragraphs 60 to 65 and 85 to 87)’. 66. In that regard, it must be stated that although the General Court, by way of the judgment of 15 July 2015, initially annulled the contested cartel decision, in so far as it set the amount of the fine imposed on the applicants and, subsequently, fixed the amount of the fine at the same level, in the exercise of its unlimited jurisdiction, for the reasons set out in points 53 and 54 of this Opinion, and as the Court of Justice held in paragraphs 38 and 40 of its order, to which paragraph 101 of the judgment under appeal refers, there was no radical variation or ‘novation’ of the fine on that occasion. 67. In the third place, the applicants maintain that the amendment of the fine prevents it from being due retroactively from 4 January 2011. They therefore dispute the General Court’s statement, set out in paragraph 102 of the judgment under appeal, that ‘…, in the present case, the Commission was entitled to take the view that, since the fine set by the General Court was not a new fine, it had been due since 4 January 2011’. In their view, the complete cancellation and disappearance of the fine would have prevented it from being due retroactively, since the deferral of the payment of the court imposed fine is unequivocally evident from paragraphs 302 and 356 of the judgment of 15 July 2015. During the period between the Commission decision and the delivery of the judgment of 15 July 2015, they submit that the Commission had no corresponding claim. 68. By that argument, the applicants merely construct a line of argument which, however, also proves to be ineffective because it is based on a misinterpretation of the judgment of 15 July 2015. Accordingly, the applicants are wrong in submitting that, in the present case, the substitution effect of the fine set by the General Court in the contested judgment had an ex nunc effect and that the General Court thus exceeded its unlimited jurisdiction in relation to penalties. In that regard, it is sufficient to note that, in its order, the Court of Justice held that the fine imposed by the General Court was not a new fine. (55) Moreover, as has been pointed out in points 53 and 54 of this Opinion, the General Court did not find the amount of the fine imposed on the applicants as set out in Article 2(8) of the contested decision to be inappropriate, on the basis of the first four pleas in law, the examination of which had not revealed any error of such a kind as to vitiate the contested decision with illegality, which justified the imposition of a fine identical to that of the fine which the Commission had previously imposed on the applicants in the contested decision. 69. In the fourth place, the applicants claim that the General Court erred in its interpretation of the judgment in Trioplast (paragraphs 15 and 56 to 62) when it refers to this judgment, in paragraph 105 of the judgment under appeal, to support the finding, that: ‘… a substitution effect similar to that referred to in paragraph 99 above has already been recognised where there is a decision in which the Court had first annulled the limit up to which a parent company had been held jointly and severally liable for payment of a fine imposed by the Commission and then sets that amount again in the exercise of its unlimited jurisdiction’. They assert that that case-law is not relevant and shows that no precedent, through which the retroactive start date for the rate of interest has already been definitively clarified in the event of a combination of an annulment and a decision imposing a penalty, has been recognised by the EU Courts. 70. However, like the Commission, and in the light of the case-law cited in point 55 of this Opinion, I find that the judgment in Trioplast is relevant as regards the start date for the interest rate. In that judgment, the General Court first annulled in the operative part of the judgment the amount of the fine for which a parent company was held jointly and severally liable, in the same way as it did in the present case, before setting it once more in the exercise of its unlimited jurisdiction. The fine originally imposed by the Commission was thus clearly replaced ex tunc. Since the circumstances of the Trioplast case are therefore entirely comparable to those of the present case, the fourth complaint can also be dismissed. 71. In the fifth place, the applicants claim that the General Court incorrectly assessed the applicants’ new ability to pay, established in 2015, and its consequences for the amount of the ‘court imposed fine’. More specifically, in paragraph 107 of the judgment under appeal, the General Court confirms that ‘in its review of the lawfulness of the decision, the Court merely held that the Commission had made errors when assessing the applicants’ ability to pay, but did not hold that no fine could be imposed on them in 2010 and 2011.’, while adding, in paragraph 109 of the judgment under appeal, that ‘… the existence of some ability to pay on the part of the applicants in 2010 and 2011 was established by the Court in the judgment of 15 July 2015, contrary to the applicant’s submissions’. The applicants claim that there is nothing to indicate that, in the judgment of 15 July 2015, the General Court decided, because of some ability to pay, to maintain its initial decision on the fine and thus to confirm the inappropriate amount of the annulled fine. 72. However, contrary to the appellants’ submissions, I note that, in paragraphs 108 and 109 of the judgment under appeal, the General Court simply explains, in response to one of the arguments put forward by the applicants and referring to paragraph 346 of the judgment of 15 July 2015, that in that judgment it had found that, on the basis of the provisional payment plan set out in the interim order, the applicants had already been able to pay a sum of more than EUR 15 000 000 since 2011, which made it possible to establish the existence of ‘some ability to pay’ on the part of the applicants in 2010 and 2011. 73. In the sixth place, the applicants criticise the explanation given by the General Court in paragraph 125 of the judgment under appeal, according to which ‘the order that the Commission pay half of the costs incurred by the applicants … can be explained by the annulment of Article 2, first paragraph, point 8 of the contested decision’. The applicants submit that the adopted operative part as to the costs ‘emphasises the materially favourable decision of the General Court as regards the fine substantially amended in [their] favour by the judgment of 15 July 2015’. 74. It must be noted that that argument is based on the incorrect premiss of a link between an alleged variation of the fine initially annulled and the taxation of costs, and must therefore be rejected as ineffective. 75. In the seventh and last place, the applicants challenge the finding in paragraph 127 of the judgment under appeal that ‘the obligation to pay default interest from the outset does not constitute a penalty in addition to the fine initially imposed by the Commission, which would have a dissuasive effect on the exercise of the right to bring an action’. 76. In that regard, it should be borne in mind, first, that the obligation to pay default interest in the event of non-payment of a fine within the time limit is a direct consequence of the enforceability of Commission acts imposing a pecuniary obligation, as defined in Article 299 TFEU. Enforcement of those acts may be suspended only by a decision of the Court of Justice. The obligation to pay default interest is thus intended to ensure the effectiveness of fines imposed by the Commission in the field of competition law and to encourage those to whom they are addressed to pay them within the time limits prescribed. The obligation to pay default interest from the outset does not therefore constitute a penalty in addition to the fine initially imposed by the Commission. 77. Secondly, by its judgment of 15 July 2015, the General Court neither annulled the provisions on default interest contained in the cartel decision nor set a new deadline for payment or a new rate of default interest. On the contrary, in its order of 17 May 2018, in Westfälische Drahtindustrie and Others v Commission, (56) the General Court expressly confirmed that the judgment of 15 July 2015 had no bearing on the issue of default interest. The applicants cannot therefore validly claim that no default interest was due from the time of adoption of the Commission decision. VI. Summary 78. In the light of the foregoing considerations, and in so far as this Opinion focuses solely on the first ground of appeal, I propose that the Court reject that plea as unfounded. 1 Original language: French. 2 Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1). 3 OJ 2006 C 210, p. 2, the ‘2006 Guidelines’. 4 See paragraph 7 of the summary of the PS decision, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52011XC1119(01). 5 The consolidated version of the Commission Decision [C(2010) 4387 final] (available only in English) is available at: https://ec.europa.eu/competition/antitrust/cases/dec_docs/38344/38344_5856_3.pdf. 6 Commission Regulation of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1). 7 The operative part of the judgment of 15 July 2015 is worded as follows: ‘1. … there is no longer any need to adjudicate in the present action in respect of the reduction of the fine granted to [WDI] and [WDV] in Commission Decision … of 30 September 2010; 2. Annuls [point 8 of the first paragraph of] Article 2 … of [the contested] decision …; 3. Annuls the letter of 14 February 2011 …; 4. Orders [WDI], [WDV] and Pampus … to pay a fine of EUR 15 485 000, for which they are jointly and severally liable; 5. Orders [WDI] and [WDV] to pay a fine of EUR 23 370 000, for which they are jointly and severally liable; 6. Orders [WDI] to pay a fine of EUR 7 695 000; 7. Dismisses the action as to the remainder; 8. Orders [WDI], [WDV] and Pampus … to bear one half of their own costs, including those relating to the interlocutory proceedings, and orders the Commission to bear its own costs and to pay one half of the costs incurred by [WDI], [WDV] and Pampus …, including those relating to the interlocutory proceedings.’ 8 Judgment under appeal, paragraphs 67 to 131. 9 Judgment under appeal, paragraph 75. 10 Judgment under appeal, paragraph 64. 11 Judgment under appeal, paragraph 96. 12 Judgment under appeal, paragraphs 96 and 97. 13 Judgment under appeal, paragraph 98, which refers, ‘to that effect’, to the judgment in CB, paragraphs 58 and 60. 14 Judgment under appeal, paragraph 99, which refers, ‘to that effect’, to the judgment in CB, paragraphs 60 to 65 and 85 to 87. 15 Judgment under appeal, paragraph 101, which refers to the order of the Court of Justice, paragraphs 38 and 40. 16 Judgment under appeal, paragraph 102. 17 Judgment under appeal, paragraph 116. 18 Judgment under appeal, paragraph 124. 19 Judgment under appeal, paragraph 127, which refers, ‘to that effect’, to the judgment in CB, paragraphs 86 and 87. 20 Judgment under appeal, paragraphs 135 and 141. 21 See point 27 of this Opinion. More specifically, the applicants claim that the Court should: annul the contested act; consequently, declare that the Commission must apply the payments made by WDI to the Commission during the period from 29 June 2011 to 16 June 2015 in the amount of EUR 16 400 000, plus compensatory interest totalling EUR 1 420 610, that is to say, a total of EUR 17 820 610, to the fine imposed independently by the General Court in the judgment of 15 July 2015, with effect from 15 July 2015, and that that fine was settled in its entirety by the payment of 17 October 2019 in the amount of EUR 18 149 636.24; order the Commission to pay WDI an amount of EUR 1 633 085.17, plus compensatory interest accrued from 17 October 2019 until full repayment of the corresponding amount due; in the alternative, annul the judgment under appeal and order the Commission to pay compensation to the (three) applicants in the amount of EUR 12 236 931.69 in settlement of the amount claimed from WDI by the Commission letter of 2 March 2020, in the amount of EUR 12 236 931.36, and to pay to WDI the amount of the overpayment being EUR 1 633 085.17 plus compensatory interest accrued from 17 October 2019 until full repayment of the amount due; in the alternative to the heads of claim appearing in indents 1 to 5, refer the case back to the General Court for a ruling; and, in any event, order the Commission to pay the costs incurred in the proceedings at first instance and on appeal. 22 The Courts of the European Union were initially recognised as having unlimited jurisdiction in competition matters by Article 17 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ 1962, 13, p. 204). For a complete list of regulations granting unlimited jurisdiction to the Court of Justice, see Lenaerts, K., Gutman, K., Nowak, J.T., EU Procedural Law, 2nd edition, Oxford, 2023, p. 633, more specifically, footnote 2. 23 See judgment of 25 July 2018, Orange Polska v Commission (C‑123/16 P, the ‘judgment in Orange Polska’, EU:C:2018:590, paragraph 104 and the case-law cited) and my Opinion in case Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2022:537, points 148 to 162). 24 See, however, Article 36 of the ECSC Treaty. For a historical overview of Article 31 of Regulation No 1/2003, see Muguet-Poullennec, G., Berghe, P., Article 31 – Review by the Court of Justice – Commentary, dans Regulation 1/2003 and EU Antitrust Enforcement – A Systematic Guide, Wolters Kluwer, 2023, p. 679. 25 See judgment in Orange Polska (paragraph 105 and the case-law cited). 26 See judgment in Orange Polska (paragraph 106 and the case-law cited). 27 See judgment of 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38, paragraphs 75 to 77 and the case-law cited). 28 See order of the Court of Justice, paragraph 34. 29 See order of the Court of Justice, paragraph 34. 30 See, to that effect, judgments of 17 December 2015, Orange Polska v Commission (T‑486/11, EU:T:2015:1002, paragraphs 65 and 67 and the case-law cited) and of 25 January 2023, GEA Group v Commission (T‑640/16 RENV, EU:T:2023:18, paragraph 263). 31 See judgments of 26 September 2018, Infineon Technologies v Commission (C‑99/17 P, EU:C:2018:773, paragraph 195 and the case-law cited), and of 16 July 2020, Nexans France and Nexans v Commission (C‑606/18 P, EU:C:2020:571, paragraphs 96 and 97 and the case-law cited). 32 See, to that effect, judgments of 8 December 2011, Chalkor v Commission (C‑386/10 P, EU:C:2011:815, paragraphs 66 and 67), and of 6 November 2012, Otis and Others (C‑199/11, EU:C:2012:684, paragraph 63). 33 See, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38, paragraph 90). 34 Judgment of 18 March 2021, Pometon v Commission (C‑440/19 P, EU:C:2021:214, paragraph 138). 35 Judgment of 26 January 2017, Duravit and Others v Commission (C‑609/13 P, EU:C:2017:46, paragraph 32 and the case-law cited). 36 Judgment of 26 January 2017, Duravit and Others v Commission (C‑609/13 P, EU:C:2017:46, paragraphs 33 and 36 and the case-law cited). 37 See, for example, judgment of 29 September 2021, Tokin v Commission (T‑343/18, EU:T:2021:636, paragraph 181). 38 Judgment under appeal, paragraphs 96 and 97. 39 Order of the Court of Justice, paragraphs 17, 35 and 36. 40 Judgment of 15 July 2015, paragraph 332. 41 Judgment of 15 July 2015, paragraphs 357 and 358. 42 Judgment of 15 July 2015, paragraph 334. 43 Judgment of 15 July 2015, paragraph 297. 44 See judgment in CB (paragraph 62 and the case-law cited). 45 See, in particular, judgment of 12 May 2016, Trioplast Industrier v Commission (T‑669/14, ‘the judgment in Trioplast’, EU:T:2016:285, paragraphs 15 and 56 to 62). 46 See, for example, judgments of 15 September 2005, DaimlerChrysler v Commission (T‑325/01, EU:T:2005:322), and of 13 December 2018, Slovak Telekom v Commission (T‑851/14, EU:T:2018:929). 47 See, for example, judgments of 10 March 1992, ICI v Commission (T‑13/89, EU:T:1992:35); of 15 July 2015, Akzo Nobel and Others v Commission (T‑47/10, EU:T:2015:506); of 9 September 2015, Panasonic and MT Picture Display v Commission (T‑82/13, EU:T:2015:612); and of 18 November 2020, Lietuvos geležinkeliai v Commission (T‑814/17, EU:T:2020:545). 48 See judgment in CB, paragraph 58. 49 See, for example, the operative part of the judgment of 14 March 2013, Fresh Del Monte Produce v Commission (T‑587/08, EU:T:2013:129). 50 See points 40 and 41 of this Opinion. 51 Judgment of 15 July 2015 (paragraph 302 and the case-law of the Court of Justice cited). 52 Judgments of 29 April 2004, Tokai Carbon and Others v Commission (T‑236/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01, EU:T:2004:118, paragraph 165), and of 5 October 2011, Romana Tabacchi v Commission (T‑11/06, EU:T:2011:560, paragraphs 280 to 284). 53 See, to that effect, judgments of 6 March 1974, Istituto Chemioterapico Italiano and Commercial Solvents v Commission (6/73 and 7/73, EU:C:1974:18, paragraphs 51 and 52); of 22 January 2013, Commission v Tomkins (C‑286/11 P, EU:C:2013:29, paragraph 49); of 26 September 2013, Alliance One International v Commission (C‑679/11 P, EU:C:2013:606, paragraph 107); and of 17 September 2015, Total v Commission (C‑597/13 P, EU:C:2015:613, paragraph 41). 54 Order of the Court of Justice, paragraphs 44 and 45. Furthermore, as the General Court pointed out in its judgment of 15 July 2015, in order to ensure that the appraisal of an undertaking’s ability to pay in the light of the amount of the fine to be imposed on it is effective, the General Court, when it intends to exercise its unlimited jurisdiction, should assess the situation prevailing on the date on which it adopts its decision, in the light of the documents which the parties may submit to it, subject to the conditions of admissibility provided for in Article 84 of the Rules of Procedure of the General Court of 4 March 2015 (OJ L 105, p. 1). 55 Order of the Court of Justice, paragraphs 39 and 40. 56 T‑393/10 INTP, EU:T:2018:293.