Judgment — ECLI:EU:C:2017:54
Date: 2017-01-26
Language of the case: German
Court formation: First Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Appeal against penalty
Origin: Austria

Summary — Judgment of the Court (First Chamber), 26 January 2017 1. Appeal — Grounds — Mere repetition of the pleas and arguments put forward before the General Court — Error of law relied on not identified — Inadmissibility (Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 169(2)) 2. Appeal — Grounds — Inadequate statement of reasons — Reliance by the General Court on implied reasoning — Lawfulness — Conditions (Art. 256 TFEU; Statute of the Court of Justice, Arts 36 and 53, first para.) 3. Appeal — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility (Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 170(1)) 4. Competition — Administrative procedure — Commission decision finding an infringement — Burden of proving the infringement and its duration on the Commission — Extent of the burden of proof — Proof adduced by a number of indicia and coincidences pointing to the existence and duration of continuous anti-competitive practices — Lawfulness (Art. 101(1) TFEU) 5. Appeal — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.) 6. Competition — Administrative procedure — Commission decision finding an infringement — Means of proof — Documentary evidence — Assessment of the probative value of a document — Criteria –– Statements of other companies participating in the cartel Art. 101(1) TFEU; Commission Notice 2002/C 45/03) 7. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability to an undertaking for the infringement as a whole — Conditions — Unlawful practices and conduct forming part of an overall plan — Assessment — Requirement that the participating undertakings be competitors — No such requirement –– Requirement for a link of complementarity between the practices complained of — No such requirement (Art. 101(1) TFEU) 8. Competition — Fines — Amount — Determination — Judicial review — Unlimited jurisdiction of the EU judicature — Scope — Obligation of the competent Court to review of its own motion the decision imposing a fine –– No such obligation — Infringement of the right to effective judicial protection — No such infringement (Arts 261 TFEU and 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Art. 31) 9. Appeal — Jurisdiction of the Court of Justice — Review of the assessment carried out by the Commission of the gravity of the infringement for the purpose of setting the fine — Not included — Review limited to ascertaining whether the General Court took into account all the factors essential to the assessment of the gravity of the infringement and all the arguments raised against the fine imposed (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Council Regulation No 1/2003, Art. 23(3)) 10. Appeal — Jurisdiction of the Court of Justice — Whether it may review, on grounds of fairness, the assessment by the General Court in regard to the amount of the fines imposed on undertakings which have infringed the competition rules of the Treaty — Not included — Challenge to that assessment on grounds alleging breach of the principle of proportionality — Lawfulness (Arts 256 TFEU and 261 TFEU; Statute of the Court of Justice, Art. 58, first para.; Council Regulation No 1/2003, Art. 31) 11. Competition — Fines — Determination — Failure to observe the principle that administrative and judicial proceedings must be concluded within a reasonable time — Breach not justifying, on its own, a reduction of the fine (Arts 101 TFEU and 102 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(1); Council Regulation No 1/2003) 1. See the text of the decision. (see para. 40) 2. See the text of the decision. (see paras 42, 53) 3. See the text of the decision. (see para. 45) 4. In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, considered together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules. Thus, as regards, in particular, an infringement extending over a number of years, the fact that direct evidence of a company’s participation in that infringement during a specified period has not been produced does not preclude that participation from being regarded as established also during that period, provided that that finding is based on objective and consistent indicia; the lack of any public distancing on the part of that company may be taken into account in that regard. (see para. 47) 5. See the text of the decision. (see paras 49, 51, 54) 6. The Commission establishes to the requisite legal standard the participation of an undertaking in an infringement of Article 101(1) TFEU when it relies not simply on the leniency application of one of the companies taking part in the cartel but on a handwritten account of an unlawful meeting that was drawn up by a representative of that company on the actual day of the meeting, which does not date from the time when that company made an application under the Notice on immunity from fines and reduction of fines in cartel cases but is contemporaneous with the facts. Such evidence does not require there to be other corroborating evidence. (see para. 50) 7. An undertaking which has participated in a single and complex infringement of the competition rules by its own conduct, which fell within the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may be responsible also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk. Moreover, for the purpose of characterising various instances of conduct as a single and continuous infringement, it is not necessary to ascertain whether they present a link of complementarity, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of a global plan having a single objective. In addition, the text of Article 101(1) TFEU refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the internal market, irrespective of the market on which the parties operate, and only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question. (see paras 61, 63, 64) 8. As regards the judicial review of Commission decisions imposing a fine for infringement of the competition rules, the review of legality provided for in Article 263 TFEU is supplemented by the unlimited jurisdiction conferred on the EU judicature by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the competent Court, in addition to carrying out a mere review of legality with regard to the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed. In order to satisfy the requirements of Article 47 of the Charter of Fundamental Rights when conducting a review in the exercise of its unlimited jurisdiction with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement. However, the exercise of unlimited jurisdiction is not equivalent to an own-motion review, and proceedings are inter partes. It is, in principle, for the applicant to raise pleas in law against the contested decision and to adduce evidence in support of those pleas. That absence of an own-motion review of the whole of the contested decision does not contravene the principle of effective judicial protection. Compliance with that principle does not require that the General Court — which is indeed obliged to respond to the pleas in law raised and to carry out a review of both the law and the facts — should be obliged to undertake of its own motion a new and comprehensive investigation of the file. (see paras 80-84) 9. See the text of the decision. (see paras 85, 89-91) 10. See the text of the decision. (see paras 86, 94) 11. In the area of competition, a breach –– on account of the length of the administrative procedure –– of the right to observance of the principle that the procedure must be concluded within a reasonable time cannot, by itself, lead to a reduction of the fine which has been imposed on an undertaking in respect of the infringement at issue. (see para. 92)