Opinion of the Advocate General — ECLI:EU:C:2015:482
Date: 2015-07-16
Language of the case: English
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Appeal - successful;Appeal against penalty
Origin: Spain;Portugal

Summary — Judgment of the Court (Fifth Chamber), 21 January 2016 1. Appeal — Grounds — Error of law relied on not identified — Ground lacking precision — Inadmissibility (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 168(1)(d)) 2. Appeal — Grounds — Incorrect assessment of the facts and evidence — Review by the Court of the findings of fact — Possible only where the clear sense of the evidence has been distorted (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.) 3. Judicial proceedings — Duration of the proceedings before the General Court — Reasonable time — Dispute concerning whether there has been an infringement of the competition rules — Failure to act within a reasonable time — Consequences — Non-contractual liability pursued by means of an action for damages — Autonomous form of action by comparison with actions for annulment — Criteria for examining an infringement of the reasonable time principle (Arts 256(1) TFEU, 268 TFEU and 340, second para., TFEU; Charter of fundamental rights of the EU, Art. 47, second para.) 4. Actions for annulment — Review exercising powers of unlimited jurisdiction — Scope — Elements to be taken into consideration — Elements which predate and postdate the contested decision — Elements presented in the context of the administrative procedure or presented for the first time in the context of annulment proceedings — Included (Arts 101 TFEU, 102 TFEU, 261 TFEU and 263 TFEU) 5. Competition — Fines — Amount — Judicial review — Unlimited jurisdiction — Review of legality — Scope and limits — Unlimited jurisdiction strictly limited to the determination of the amount of the fine to be imposed (Arts 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Arts 23(2) and 31) 6. Actions for annulment — Judgment annulling a measure — Scope — Annulment in full of a Commission decision categorising a global cartel as a single and continuous infringement and imposing a fine notwithstanding the applicant undertaking having been found liable for only part of the anti-competitive conduct — Unlawful (Arts 101(1) TFEU and 264, first para., TFEU) 7. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction enjoyed by the Courts of the European Union — Scope — Determination of the amount of the fine to be imposed — Criteria for assessment — Gravity and duration of the infringement — Respect for the principles of principles of motivation, proportionality, that penalties must be specific to the offender and of equal treatment (Arts 101(1) TFEU and 261 TFEU; Council Regulation No 1/2003, Arts 23(3) and 31; Statute of the Court of Justice, Art. 61, first para.) 1. See the text of the decision. (see paras 43, 44) 2. See the text of the decision. (see para. 46) 3. A breach, by a Court of the European Union, of its obligation under the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union to adjudicate on the cases before it within a reasonable time must be an action for damages brought before the General Court, since such an action constitutes an effective remedy. It follows that a claim for compensation for the damage caused by the failure on the part of the General Court to adjudicate within a reasonable time may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself. However, where it is evident, without it being necessary for the parties to adduce evidence in that regard, that the General Court has breached, in a sufficiently serious manner, its duty to adjudicate within a reasonable period, the Court of Justice can find accordingly in the context of an appeal. Consequently, without prejudice to the obligation for the appellants to bring an action for damages before the General Court, it must be noted that an infringement of that principle in a situation in which the length of the proceedings before the General Court, namely almost five years and nine months, including, in particular, a period of four years and one month which elapsed without any procedural acts, between the end of the written procedure and the hearing, cannot be justified either by the nature or complexity of the case, or by the context thereof. That is in particular the case where it is apparent neither from the judgment under appeal nor from the evidence presented by the parties that that period of inactivity was objectively justified or that the appellants had contributed to it. (see paras 55-59) 4. The system of judicial review of Commission decisions relating to proceedings under Articles 101 TFEU and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of applicants, by the General Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission. In that regard, as the Court has stated on many occasions, the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings applying Articles 101 TFEU and 102 TFEU which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the appellants and taking into account all the elements submitted by the latter, whether those elements pre-date or post-date the contested decision, whether they were submitted previously in the context of the administrative procedure or, for the first time, in the context of the proceedings before the General Court, in so far as those elements are relevant to the review of the legality of the Commission decision. (see paras 71, 72) 5. The scope of unlimited jurisdiction is to be strictly confined, unlike the review of legality provided for in Article 263 TFEU, to determining the amount of the fine. The unlimited jurisdiction enjoyed by the Courts of the European Union on the basis of Article 31 of Regulation No 1/2003 concerns solely the assessment by those courts of the fine imposed by the Commission, to the exclusion of any alteration of the constituent elements of the infringement lawfully determined by the Commission in the decision under examination by the Courts of the European Union. Even where it holds, first, that the Commission has failed to establish that undertakings found to have participated in a cartel contrary to competition rules had participated in the compensation mechanism to correct deviations from the market-sharing and customer-sharing arrangements and in the monitoring system consisting in the monitoring of the implementation of the market-sharing and customer-sharing arrangements, through the exchange of information on sales volumes, and, secondly, that the Commission’s decision is not based on any ground other than the participation of those undertakings in those two aspects of the infringement, the General Court commits an error of law where, in the context of its unlimited jurisdiction, it finds that those undertakings were aware of the participation of the other members of the cartel in the compensation mechanism, but also that they could foresee the participation of those other members in the monitoring system, so that they could be held liable under Article 101 TFEU and that it is necessary for the General Court to take account of that fact when fixing the amount of the fine. (see paras 76-79) 6. The General Court’s finding that there is a lack of evidence of the full participation of certain undertakings in an infringement of competition rules is not capable, in accordance with the first paragraph of Article 264 TFEU, of leading to the annulment of the decision against them in its entirety, since those elements are ancillary components of the infringement in question. The fact that the Commission failed to adduce evidence of such participation on the part of those undertakings does not alter the substance of its decision, in so far as the single and continuous infringement established by the Commission consists essentially of two groups of principal infringements, namely market sharing and price coordination (see para. 86) 7. See the text of the decision. (see paras 87-90)