Order — ECLI:EU:C:2016:575
Date: 2016-07-07
Language of the case: Dutch
Court formation: Sixth Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded
Origin: Netherlands

Appeal brought on 25 September 2015 by HIT Groep BV against the judgment of the General Court (Sixth Chamber) delivered on 15 July 2015 in Case T-436/10 HIT Groep v Commission (Case C-514/15 P) Language of the case: Dutch Parties Appellant: HIT Groep BV (represented by: G. van der Wal and L. Parret, advocaten) Other party to the proceedings: European Commission Form of order sought The appellant claims that the Court should: Declare the ground(s) of appeal put forward by the appellant to be well founded, set aside the judgment under appeal, declare the appellant’s action at first instance against the contested decision 1 to be well founded and annul the contested decision in so far as it is directed against the appellant, in particular Articles 1(9)(b), 2(9) and 4(22) thereof; in the alternative, set the fine imposed on the appellant in Article 2(9) at zero or reduce it equitably or, at least, set aside the judgment under appeal and refer the case back to the General Court for it to rule afresh in accordance with the judgment to be delivered by the Court of Justice in this case; Order the respondent to pay the costs incurred by the appellant at first instance and those incurred on appeal in the present proceedings, including the costs of the appellant’s legal assistance. Pleas in law and main arguments (a) In paragraphs 174 to 188 and 228 of the judgment under appeal the General Court, wrongly and contrary to law, or on the basis of insufficient or incomprehensible reasoning, and in breach of the second paragraph of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union 2 (‘the Charter’), the second subparagraph of Article 23(2) of Regulation No 1/2003, 3 Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’), Article 49 of the Charter and of general principles of law, in particular the principle of proportionality, ruled that the respondent, for the application of the fine ceiling applicable to the appellant by virtue of the second subparagraph of Article 23(2) of Regulation No 1/2003, could use the appellant’s 2003 business year as a basis and that the respondent did not infringe the principle of proportionality in using the 2003 business year as a basis, and dismissed the action of the (present) appellant and ordered the (present) appellant to pay the costs. (b) The General Court, wrongly and contrary to law and in breach of the second paragraph of Article 296 TFEU, Articles 41(2)(c) and 49(3) of the Charter and of general principles of law, in particular the principle of proportionality, failed to assess the proportionality of the fine imposed on the appellant by the respondent and (at least) the General Court’s assessment in that regard was not reasoned or was insufficiently reasoned (comprehensibly), and dismissed the action of the (present) appellant) and ordered the (present) appellant to pay the costs. Contrary to what the General Court held, it is (in this case) not permitted and contrary to law to derogate from the second subparagraph of Article 23(2) of Regulation No 1/2003. Such a derogation — whereby, instead of the previous business year (2009), the 2003 business year would have to apply for the application of that provision — is incompatible with that provision and its purpose. The second subparagraph of Article 23(2) of Regulation No 1/2003 is aimed at preventing a fine from being imposed in an amount that exceeds the financial capacity of the undertaking on the date on which it is held liable by the Commission for the infringement and on which the Commission imposes a monetary sanction on it. That provision safeguards the principle of proportionality, which is no longer safeguarded if the text of the provision is derogated from. Derogation from (the text of) that provision is (in this case) also incompatible with Article 7(1) ECHR and Article 49 of the Charter and with the principle of proportionality (principle of legality and of legal certainty). The judgments of the Court in which derogation from the express text of the second subparagraph of Article 23(2) of Regulation No 1/2003 has been permitted (Britannia Alloys, C-76/06 P, EU:C:2007:326 and 1.garantovaná, C-90/13 P, EU:C:2014:326) date from (long) after the facts for which the fine was imposed on the appellant in the present case. Retroactive application of that case-law is therefore contrary to Article 7(1) ECHR and Article 49 of the Charter. In the event that derogation from the second subparagraph of Article 23(2) of Regulation No 1/2003 were legally permissible in exceptional cases, it would require a comprehensive statement of reasons, which, contrary to Article 296 TFEU and Article 41(2)(c) of the Charter, is lacking or insufficient in the judgment under appeal. Safeguarding the principle of proportionality requires that (in any event), where there is a derogation from the second subparagraph of Article 23(2) of Regulation No 1/2003, the European Union Court (then) determines whether the fine is compatible with the intent of that provision and with the principle of proportionality, something which the General Court failed to do in the judgment under appeal (as did the Commission in the contested decision), or at least furnished inadequate reasoning for that purpose. ____________ 1 Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (case COMP/38344 — Prestressing Steel), amended by Commission Decision C(2010) 6676 final of 30 September 2010 and by Commission Decision C(2011) 2269 final of 4 April 2011. 2 OJ 2000 C 364, p. 1. 3 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1).