Opinion of the Advocate General — ECLI:EU:C:2006:546
Date: 2006-09-12
Language of the case: English
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;Appeal against penalty

Summary of the Judgment 1. Appeals – Grounds – Mistaken assessment of the facts – Inadmissibility – Review by the Court of the assessment of the evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225 EC; Statute of the Court of Justice, Art. 51) 2. Competition – Administrative procedure – Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement (Art. 81(1) EC) 3. Competition – Agreements, decisions and concerted practices – Proof (Art. 81(1) EC) 4. Appeals – Grounds – Reasoning inadequate or contradictory – Admissibility 5. Competition – Agreements, decisions and concerted practices – Proof 6. Appeals – Grounds – Plea against a ground of the judgment not necessary to support the operative part – Invalid plea in law 7. Procedure – Duration of the proceedings before the Court of First Instance – Reasonable time – Criteria for assessment 1. On an appeal, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it. Save where the evidence adduced before the Court of First Instance has been distorted, the appraisal therefore does not constitute a point of law which is subject to review by the Court of Justice. The jurisdiction of the Court of Justice to review the findings of fact by the Court of First Instance therefore extends, inter alia, to the substantive inaccuracy of those findings as apparent from the documents in the file, the distortion of the evidence, the legal characterisation of that evidence and the question whether the rules relating to the burden of proof and the taking of evidence have been observed. In that regard, the question whether the Court of First Instance applied the correct legal standard when examining the evidence is a question of law. That does not apply, however, to the assessment by the Court of First Instance that the evidence was not ambiguous but, on the contrary, was precise and consistent and thus founded the conviction that the infringement had been committed. Similarly, the finding by the Court of First Instance that statements must be regarded as a precise element of proof cannot, in principle, be brought into question before the Court of Justice either. (see paras 38-40, 56, 64-65, 100-101) 2. Where the Commission has succeeded in gathering documentary evidence in support of the alleged infringement, and where that evidence appears to be sufficient to demonstrate the existence of an agreement of an anti-competitive nature, there is no need to examine the question whether the undertaking concerned had a commercial interest in that agreement. As regards, in particular, agreements of an anti-competitive nature reached at meetings of competing undertakings, an infringement of Article 81(1) EC is constituted when those meetings have as their object the restriction, prevention or distortion of competition and are thus intended to organise artificially the operation of the market. In such a case, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded in order to prove that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward indicia to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. The reason underlying that rule is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking has given the other participants to believe that it subscribed to what was decided there and would comply with it. (see paras 46-48, 58, 74) 3. It is normal for the activities which anti-competitive practices and agreements entail to take place in a clandestine fashion, for meetings to be held in secret, and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules. Whilst it is true that the benefit of any doubt that exists must be given to the undertaking accused of the infringement, there is nothing to preclude a finding of infringement when the infringement is established. (see paras 51-52) 4. The question whether the grounds of a judgment of the Court of First Instance are contradictory or inadequate is a question of law which is amenable, as such, to judicial review on appeal. (see para. 77) 5. A statement made by a person acting in the capacity of a representative of a company and admitting the existence of an infringement by that company entails considerable legal and economic risks, which makes it extremely unlikely that such a statement will be made unless the person making it had information provided by employees of the company who themselves have direct knowledge of the facts complained of. In those circumstances, the fact that the representative of the company did not himself have direct knowledge of the facts does not affect the probative value which the Court of First Instance was able to attribute to such a statement. (see para. 103) 6. On an appeal, complaints directed against grounds of a judgment of the Court of First Instance which are included purely for the sake of completeness must be rejected at the outset, since they cannot lead to its being set aside. (see para. 106) 7. The general principle of Community law that everyone is entitled to a fair hearing, which is inspired by Article 6(1) of the European Convention on Human Rights, and in particular the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law. The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities. In that regard, that list of criteria is not exhaustive and assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of a case characterised by the bringing of many actions, in different languages of procedure, having to be examined in parallel and necessarily requiring detailed examination may be deemed to justify a duration which is prima facie too long. (see paras 115-117, 121)