Opinion of the Advocate General — ECLI:EU:C:2005:776
Date: 2005-12-15
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 - inadmissible;Appeal - successful;Appeal against penalty - successful
Origin: United Kingdom

Summary of the Judgment 1. Competition – Administrative procedure – Obligations of the Commission (Council Regulation No 17) 2. Competition – Agreements, decisions and concerted practices – Notification 3. Community law – Principles – Presumption of innocence 4. Appeals – Grounds – Incorrect assessment of the facts – Inadmissible – Review by the Court of the assessment of evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225(1) EC; Statute of the Court of Justice, Art. 58, first para.) 5. Appeals – Grounds – Plea put forward for the first time in an appeal – Inadmissible 6. Appeals – Grounds – Grounds of a judgment vitiated by an infringement of Community law – Operative part well founded on other legal grounds – Rejection 7. Acts of the institutions – Guidelines on the method of setting fines imposed for breach of the competition rules (Council Regulation No 17, Art. 15; Commission Notice 98/C 9/03) 1. Infringement of the principle that the Commission must act within a reasonable time when taking a decision in competition matters can lead to that decision being found unlawful only in so far as it also constitutes an infringement of the rights of defence of the undertaking concerned. (see paras 64, 72) 2. Use of the form A/B is mandatory for notifications of agreements on competition matters and is an essential prior condition for the validity of the notification. (see paras 86, 135) 3. The principle of the presumption of innocence is part of the Community legal order and applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. In that respect, the fact of the Commission’s sending a statement of objections cannot possibly be considered to establish a presumption of the culpability of the undertaking concerned. Otherwise, the opening of any proceedings in this area would potentially be liable to infringe the principle of the presumption of innocence. (see paras 90, 99) 4. It is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them. Further, the Court of Justice has no jurisdiction to find the facts or, as a rule, 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 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. That appraisal does not therefore constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice. Such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. (see paras 106-108) 5. To allow a party to put forward for the first time before the Court of Justice a plea in law and arguments which it has not raised before the Court of First Instance would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal, the jurisdiction of the Court of Justice is thus confined to review of the findings of law on the pleas argued before the Court of First Instance. (see para. 114) 6. If the grounds of a judgment of the Court of First Instance reveal an infringement of Community law but its operative part appears well founded on other legal grounds the appeal must be dismissed. (see para. 186) 7. Although the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment. In adopting such rules of conduct and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations. Further, the Guidelines determine, generally and abstractly, the method which the Commission has bound itself to use in assessing the fines imposed under Article 15 of Regulation No 17. Those Guidelines, for the drafting of which the Commission used inter alia criteria defined in the case-law of the Court of Justice, consequently ensure legal certainty on the part of undertakings. (see paras 207-209)