Opinion of the Advocate General — ECLI:EU:C:2000:267
Date: 2000-05-18
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
Origin: United Kingdom

summary publication, and Case T-151/89 Société des Treillis et Panneaux Soudés v Commission [1995] ECR II-1191, summary publication) that this Court stressed for the first time that it is desirable for undertakings to be able to ascertain in detail the method used for calculating the fine imposed without having to bring court proceedings against the Commission's decision in order to do so. 206 It follows that, when it finds in a decision that there has been an infringement of the competition rules and imposes fines on the undertakings participating in it, the Commission must, if it systematically took into account certain basic factors in order to fix the amount of fines, set out those factors in the body of the decision in order to enable the addressees of the decision to verify that the level of the fine is correct and to assess whether there has been any discrimination. 207 In the specific circumstances set out in paragraph 205 above, and having regard to the fact that in the procedure before the Court the Commission showed itself to be willing to supply any relevant information relating to the method ofcalculating the fines, the absence of specific grounds in the Decision regarding the method of calculation of the fines should not, in the present case, be regarded as constituting an infringement of the duty to state reasons such as would justify annulment in whole or in part of the fines imposed. 208 This plea cannot therefore be upheld. 20. In conclusion, the Court of First Instance dismissed the application and ordered the appellant to pay the costs. The appeal 21. In its appeal the appellant seeks to have the contested judgment set aside and Article 1 of the Decision annulled in so far as it is concerned and, in the alternative, cancellation or at least reduction of the fine imposed on it. 22. In support of its appeal the appellant relies on two pleas alleging that the Court of First Instance was wrong, first, to reject its arguments that it should not have been the addressee of the Decision and, second, to confirm the fine imposed on it. The first plea 23. The first plea is in three parts alleging, first, that the Court of First Instance failed to state adequate reasons and that it erred in law in holding that there was no issue of succession in the particular circumstances; second, that it erred in law in concluding that the Commission was entitled to choose, as between entities belonging to different corporate groups, which entity should be the addressee of the Decision; and third, assuming the Commission was entitled to choose, that the Court of First Instance erred in law in holding that the Commission's choice from amongst different corporate groups, of the entity to be the addressee of the Decision, could not validly be called in question. 24. The appellant complains, in essence, that the Court of First Instance held that there was no issue of succession in the present case without determining whether Colthrop was an undertaking within the meaning of Article 85 at the time of the infringement and whether there had been functional and economic continuity between that undertaking and the entity owned by Colthrop Board Mill Ltd at the date of the Decision. According to the appellant, the legal person which is most closely identified with the undertaking involved in the infringement should be made liable for the infringement. The reference made by the Court of First Instance, in paragraph 63 of the contested judgment, to the judgment in Case T-6/89 Enichem Anic v Commission [1991] ECR II-1623 is irrelevant because the facts in that case cannot be compared to those in the present case. 25. According to paragraph 63 of the contested judgment, which refers to the judgment in Enichem Anic v Commission, cited above, 'an undertaking's infringement must be attributed to the legal person responsible for the operation of that undertaking when the infringement was committed. While that legal person exists, responsibility for the undertaking's infringement follows that legal person, even though the assets and personnel which contributed to the commission of the infringement have been transferred to third persons after the period of the infringement. 26. It was on those grounds that the Court of First Instance concluded, having found that Colthrop was the factory at which cartonboard was manufactured (paragraph 61) and that it was owned, throughout the period of the infringement, by the company which changed its name successively to Reed P&B, SCA Aylesford Ltd and SCA Holding (paragraph 62), that the Commission was 'entitled to address the Decision to the legal person which was responsible for the unlawful conduct found during the period of the infringement and which still existed when the Decision was adopted (paragraph 64 of the contested judgment). 27. The reasoning of the Court of First Instance, as set out above, cannot be called in question. It falls, in principle, to the legal or natural person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, at the date of the Decision finding the infringement, the operation of the undertaking was no longer its responsibility, for example where, as in the present case, the undertaking in question acquired a separate legal personality. 28. In the present case, the Court of First Instance found that the legal person which directed the operation of Colthrop throughout the infringement still existed when the Decision was adopted, that only its name had changed on several occasions, and that that legal person was in fact the appellant. Such a finding of fact cannot be called in question in appeal proceedings. 29. It follows that the Court of First Instance did not err in finding that there was no issue of succession in the present case, such an issue presupposing, specifically, the attribution to one person of responsibility for the anti-competitive conduct of another person, which is not the case here. Nor did it err in law in holding that the appellant had to be the addressee of the Decision because it had directed Colthrop during the period of the infringement, albeit under a different name. 30. Moreover, as the Court of First Instance found in paragraph 66 of the contested judgment, a finding which lay within its exclusive competence, that conclusion is corroborated by the fact that Reed P&B, the appellant under its former name, was included in the list of members of the PG Paperboard, the body within which the cartel was organised. 31. In those circumstances, there is no need to examine the two other complaints submitted by the appellant concerning, more specifically, paragraph 65 of the contested judgment,because, even if they were well founded, they are not such as to call in question the Court of First Instance's conclusion that the anti-competitive actions of Colthrop had to be attributed to the appellant. 32. The first plea must therefore be rejected. The second plea 33. The second plea is also in three parts. First, the Court of First Instance is alleged to have erred in law in holding that the position adopted by the appellant during the administrative procedure did not warrant a reduction of the fine. Second, it is alleged to have erred in law in holding that the Decision did not contain a defective statement of reasons which justified the annulment or reduction of the fine. Third, it is alleged to have erred in law in not taking into consideration, when reviewing the level of the fine, the fact that the Commission chose to address the Decision to the appellant rather than to other legal entities belonging to other groups of companies. The first part of the second plea 34. In the first part of its second plea the appellant complains that the Court of First Instance held, in paragraph 156 of the contested judgment, that the position which it adopted during the administrative procedure could not be treated in the same way as that of undertakings which had not contested the facts on which the Commission had based its objections and which had had their fines reduced on that ground. It claims that the position which it adopted, namely of not commenting on the existence of the facts constituting the infringement alleged against it, was warranted by the fact that it had no information from which it could assess whether the Commission's allegations were true. By acting in this way, it nevertheless furthered the Commission's task. 35. Contrary to the Commission's submissions, this complaint is not inadmissible. Far from questioning mere findings of fact by the Court of First Instance, it disputes the legal assessment that, when considering the question of reduction of the fine, the position of an undertaking which does not contest the facts alleged against it is not to be treated in the same way as that of an undertaking which simply refrains from commenting on the reality of those facts. 36. The Court of First Instance correctly held in that regard, in paragraph 156 of the contested judgment, that a reduction in the fine on grounds of cooperation during the administrative procedure is justified only if the conduct of the undertaking in question enabled the Commission to establish the existence of an infringement more easily and, where relevant, to bring it to an end. 37. It must be held, with the Court of First Instance, that an undertaking which, as appears from paragraph 158 of the contested judgment, merely states during the administrativeprocedure, as did the appellant, that it is not expressing any view on the Commission's factual allegations, and thus does not acknowledge the correctness of those allegations, does not in fact further the Commission's task. Where the undertaking involved does not expressly acknowledge the facts, the Commission will have to prove those facts and the undertaking is free to put forward, at the appropriate time and in particular in the procedure before the Court, any plea in its defence which it deems appropriate. 38. The first part of the second plea must therefore be rejected. The second part of the second plea 39. In the second part of the second plea, the appellant complains that the Court of First Instance erred in law in that it did not find that the Decision contained an inadequate statement of reasons and did not annul it on that ground, despite having found in paragraph 201 of the contested judgment that the Commission had failed to set out in the Decision the factors which it had systematically taken into account in order to set the amount of the fines. 40. The appellant adds that such information should, in accordance with settled case-law referred to by the Court of First Instance in paragraph 204 of the contested judgment, have been set out in the actual body of the Decision and that the explanations given subsequently by the Commission to the press or during the proceedings before the Court of First Instance cannot be taken into account. Indeed, the Court of First Instance found specifically in that regard, again in paragraph 204, that the Commission had accepted at the hearing that nothing had prevented it from indicating those matters in the Decision. In those circumstances, the Court of First Instance could not take account of the fact that 'the Commission had showed itself to be willing to supply any relevant information relating to the method of calculating the fines (paragraph 207 of the contested judgment). 41. The appellant also complains that the Court of First Instance limited the temporal scope of the interpretation, in regard to the fixing of fines, which it gave as to the requirements of Article 190 of the EC Treaty (now Article 253 EC) in its judgments in Tréfilunion v Commission, Société Métallurgique de Normandie v Commission and Société des Treillis et Panneaux Soudés v Commission, cited above (hereinafter 'the Welded Steel Mesh judgments), referred to in paragraph 205 of the contested judgment, despite the fact that the Court of Justice has always held that the interpretation which it gives to a rule of Community law clarifies and defines the meaning and scope of that rule as it must be or ought to have been understood and applied from the time of its entry into force, save where it is provided to the contrary in the judgment giving that interpretation. 42. According to the Commission, the Court of First Instance held in paragraph 202 of the contested judgment that points 169 to 172 of the Decision contained 'a relevant and sufficient statement of the criteria taken into account in order to determine the gravityand the duration of the infringement committed by each of the undertakings in question. 43. Paragraphs 203 to 207 of the contested judgment are, according to the Commission, superfluous in that they refer to the consequences of the Welded Steel Mesh judgments. The Commission contends, moreover, that the appellant's reading of those judgments is incorrect. In those judgments the Court of First Instance found, as it did in the contested judgment, that the statement of reasons for the Commission's decision was adequate, while expressing the wish that there should be greater transparency as to the method of calculation adopted. At most, the position adopted by the Court of First Instance reflects the principle of good administrative practice, in the sense that addressees of decisions should not be forced to bring proceedings before the Court of First Instance in order to ascertain all the details of the method of calculation used by the Commission. However, such considerations could not in themselves constitute a ground of annulment of the Decision. 44. Last, the Commission states that the implications to that effect of the Welded Steel Mesh judgments have recently been confirmed by the Court of First Instance. According to that Court, the information which it is desirable that the Commission should communicate to the addressee of a Decision must not be regarded as an additional statement of reasons, but solely as the translation into figures of the criteria set out in the Decision in so far as they are themselves capable of being quantified (see, in particular, Case T-151/94 British Steel v Commission [1999] ECR II-629, paragraphs 627 and 628; Joined Cases T-305/94 to 307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II-931, paragraphs 1180 to 1184). 45. It is necessary, first, to set out the various stages in the reasoning adopted by the Court of First Instance in response to the plea alleging infringement of the duty to state reasons in regard to the calculation of the fines. 46. The Court of First Instance first of all referred, in paragraph 195 of the contested judgment, to the settled case-law to the effect that the purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged, the scope of that obligation being dependent on the nature of the act in question and on the context in which it was adopted (see, in particular, besides the case-law cited by the Court of First Instance, Case C-22/94 Irish Farmers Association and Others v Ministry for Agriculture, Food and Forestry, Ireland, and the Attorney General [1997] ECR I-1809, paragraph 39). 47. The Court of First Instance then explained in paragraph 196 of the contested judgment that as regards a decision which, as in this case, imposes fines on several undertakings for infringement of the Community competition rules, the scope of the obligation to state reasons must be assessed in the light of the fact that the gravity of theinfringements depends on numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines; moreover, no binding or exhaustive list of criteria to be applied has been drawn up (order in SPO and Others v Commission, cited above, paragraph 54). 48. In that regard, the Court of First Instance held in paragraph 202 of the contested judgment that: 'points 169 to 172 of the Decision, interpreted in the light of the detailed statement in the Decision of the allegations of fact against each of its addressees, contain a relevant and sufficient statement of the criteria taken into account in order to determine the gravity and duration of the infringement committed by each of the undertakings in question. 49. However, in paragraphs 203 to 207 of the contested judgment the Court of First Instance qualified, somewhat ambiguously, that statement in paragraph 202. 50. It is clear from paragraphs 203 and 204 of the contested judgment that the Decision does not indicate the precise figures systematically taken into account by the Commission in fixing the amount of the fines, which it could, however, have disclosed and which would have enabled the undertakings better to assess whether the Commission had erred when fixing the amount of each individual fine and whether that amount was justified by reference to the general criteria applied. The Court added, in paragraph 205, that according to the Welded Steel Mesh judgments it is desirable for undertakings to be able to ascertain in detail the method used for calculating the fine imposed without having to bring court proceedings against the Commission's decision in order to do so. 51. It concluded, in paragraph 207 of the contested judgment, that there had been an 'absence of specific grounds in the Decision regarding the method of calculation of the fines, which was justified in the specific circumstances of the case, namely the disclosure of the method of calculating the fines during the proceedings before the Court of First Instance and the novelty of the interpretation of Article 190 of the Treaty given in the Welded Steel Mesh judgments. 52. Before examining, in the light of the arguments submitted by the appellant, the correctness of the findings by the Court of First Instance regarding the consequences which disclosure of calculations during the proceedings before it and the novelty of the Welded Steel Mesh judgments may have in regard to fulfilment of the obligation to state reasons, it is necessary to determine whether fulfilment of the duty to state reasons laid down in Article 190 of the Treaty required the Commission to set out in the Decision, not only the factors which enabled it to determine the gravity and duration of the infringement, but also a more detailed explanation of the method of calculating the fines. 53. The Court of First Instance has jurisdiction in two respects over actions contesting Commission decisions imposing fines on undertakings for infringement of the competition rules. 54. First, under Article 173 of the EC Treaty (now, after amendment, Article 230 EC) it has the task of reviewing the legality of those decisions. In that context, it must in particular review compliance with the duty to state reasons laid down in Article 190 of the Treaty, infringement of which renders a decision liable to annulment. 55. Second, the Court of First Instance has power to assess, in the context of the unlimited jurisdiction accorded to it by Article 172 of the EC Treaty (now Article 229 EC) and Article 17 of Regulation No 17, the appropriateness of the amounts of fines. That assessment may justify the production and taking into account of additional information which is not as such required, by virtue of the duty to state reasons under Article 190 of the Treaty, to be set out in the decision. 56. As regards review of compliance with the duty to state reasons, the second subparagraph of Article 15(2) of Regulation No 17 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. 57. In those circumstances, in the light of the case-law referred to in paragraphs 195 and 196 of the contested judgment, the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration. If those factors are not stated, the decision is vitiated by failure to state adequate reasons. 58. The Court of First Instance correctly held in paragraph 202 of the contested judgment that the Commission had satisfied that requirement. It must be observed, as the Court of First Instance observed, that points 167 to 172 of the Decision set out the criteria used by the Commission in order to calculate the fines. First, point 167 concerns in particular the duration of the infringement. It also sets out, as does point 168, the considerations on which the Commission relied in assessing the gravity of the infringement and the general level of the fines. Point 169 contains the factors taken into account by the Commission in determining the amount to be imposed on each undertaking. Point 170 identifies the undertakings which were to be regarded as 'ringleaders of the cartel, and which should accordingly bear special responsibility in comparison with the other undertakings. Lastly, points 171 and 172 of the Decision set out the effect on the amount of the fines of the cooperation by various manufacturers with the Commission during its investigations in order to establish the facts or when they replied to the statement of objections. 59. The fact that more specific information, such as the turnover achieved by the undertakings or the rates of reduction applied by the Commission, were communicated subsequently, at a press conference or during the proceedings before the Court of First Instance, is not such as to call in question the finding in paragraph 202 of the contestedjudgment. Where the author of a contested decision provides explanations to supplement a statement of reasons which is already adequate in itself, that does not go to the question whether the duty to state reasons has been complied with, though it may serve a useful purpose in relation to review by the Community court of the adequacy of the grounds of the decision, since it enables the institution to explain the reasons underlying its decision. 60. Admittedly, the Commission cannot by a mechanical recourse to arithmetical formulae alone, divest itself of its own power of assessment. However, it may in its decision give reasons going beyond the requirements set out in paragraph 57 of this judgment, in particular by indicating the figures which, especially in regard to the desired deterrent effect, influenced the exercise of its discretion when setting the fines imposed on a number of undertakings which participated, in different degrees, in the infringement. 61. It may indeed be desirable for the Commission to make use of that possibility in order to enable undertakings to acquire a detailed knowledge of the method of calculating the fine imposed on them. More generally, such a course of action may serve to render the administrative act more transparent and facilitate the exercise by the Court of First Instance of its unlimited jurisdiction, which enables it to review not only the legality of the contested decision but also the appropriateness of the fine imposed. However, as the Commission has submitted, the availability of that possibility is not such as to alter the scope of the requirements resulting from the duty to state reasons. 62. Consequently, the Court of First Instance could not, consistently with Article 190 of the Treaty, find, as it did in paragraph 206 of the contested judgment, that 'the Commission must, if it systematically took into account certain basic factors in order to fix the amount of fines, set out those factors in the body of the decision. Nor, without contradicting itself in the grounds of its judgment, could it, after finding in paragraph 202 of the contested judgment that the Decision contained 'a relevant and sufficient statement of the criteria taken into account in order to determine the gravity and duration of the infringement committed by each of the undertakings in question, then refer, as it did in paragraph 207 of the contested judgment, to 'the absence of specific grounds in the Decision regarding the method of calculation of the fines. 63. However, the error of law so committed by the Court of First Instance is not such as to cause the contested judgment to be set aside, since, having regard to the considerations set out above, the Court of First Instance validly rejected, notwithstanding paragraphs 203 to 207 of the contested judgment, the plea of infringement of the duty to state reasons in regard to calculation of the fines. 64. As there was no obligation on the Commission, as part of its duty to state reasons, to indicate in the Decision the figures relating to the method of calculating the fines, there is no need to examine the various objections raised by the applicant which are based on that erroneous premiss. 65. The second part of the second plea must therefore be rejected. The third part of the second plea 66. In the third part of the second plea the appellant complains that the Court of First Instance, when reviewing the level of the fine, did not take account of the fact that the Commission had made a choice between the legal entities belonging to various groups of companies, even assuming, which the appellant disputes, that the Commission was entitled to make such a choice. 67. The appellant states that by selecting it as addressee of the Decision rather than another legal entity the Commission chose to attribute the infringement wholly to it. That fact should, in accordance with principles of fairness and proportionality, have been taken into account when it assessed the gravity and duration of the infringement as well as the level of the fine. The fine should have been fixed, at the very most, by reference to the period of the infringement corresponding to the period during which Colthrop was owned by the appellant. 68. It follows from paragraphs 25 to 31 of this judgment that Colthrop's anti-competitive acts could properly be attributed to the appellant because it directed, albeit under a different name, the operation of Colthrop throughout the period of the infringement. As a result, there can be no question of apportioning responsibility for the infringement between several companies and the appellant's argument is therefore irrelevant. 69. The third part of the second plea must therefore be rejected. 70. It follows that the appeal must be rejected in its entirety. Costs 71. Under Article 69(2) of the Rules of Procedure, which applies to appeals by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs, if they have been asked for in the successful party's pleadings. Since the Commission has asked for costs to be awarded against the appellant and the latter has been unsuccessful in all its pleas, the appellant must be ordered to pay the costs. On those grounds, THE COURT (Fifth Chamber) hereby: 1. Dismisses the appeal; 2. Orders SCA Holding Ltd to pay the costs. La Pergola Wathelet Edward Jann Sevón Delivered in open court in Luxembourg on 16 November 2000. R. Grass A. La Pergola Registrar President of the Fifth Chamber 1: Language of the case: English.