Opinion of the Advocate General — ECLI:EU:C:2007:34
Date: 2007-01-18
Language of the case: German
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 against penalty
Origin: Germany

Summary of the Judgment 1. Competition – Fines – Community sanctions and sanctions imposed in a non-Member State for breach of national competition law (Art. 3(1)(g) EC; Council Regulation No 17, Art. 15) 2. Appeals – Pleas in law – Mistaken assessment of the facts – Inadmissibility – Review by the Court of Justice of the assessment of the 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.) 3. Competition – Administrative procedure – Statement of objections – Necessary content – Observance of the rights of the defence (Council Regulation No 17, Art. 19(1)) 4. Competition – Administrative procedure – Observance of the rights of the defence 5. Competition – Fines – Amount – Determination – Criteria (Council Regulation No 17; Commission Notice 96/C 207/04) 6. Appeals – Jurisdiction of the Court (Council Regulation No 17, Art. 15) 7. Competition – Fines – Amount – Determination – Criteria – Financial situation of the undertaking concerned (Council Regulation No 17, Art. 15) 8. Competition – Fines – Discretion of the Commission (Council Regulation No 17, Art. 15(2)) 1. In the case of a cartel operating in an international context which is characterised, in particular, by the action of legal systems of non-member States on their respective territories, the exercise of powers by the authorities of those non-member States responsible for protecting free competition under their territorial jurisdiction meets requirements specific to those States. The elements forming the basis of other States’ legal systems in the sphere of competition not only include specific aims and objectives but also result in the adoption of specific substantive rules and a wide variety of legal consequences, whether administrative, criminal or civil, when the authorities of those States have established that there have been infringements of the applicable competition rules. It follows that, when the Commission imposes sanctions on the unlawful conduct of an undertaking, even conduct originating in an international cartel, it seeks to safeguard the free competition within the common market which constitutes a fundamental objective of the Community under Article 3(1)(g) EC. On account of the specific nature of the legal interests protected at Community level, the Commission’s assessments pursuant to its relevant powers may diverge considerably from those by authorities of non-member States. Accordingly, the principle non bis in idem laid down in Article 4 of Protocol No 7 to the European Convention on Human Rights does not apply to situations in which the legal systems and competition authorities of non-member States intervene within their own jurisdiction. (see paras 24-30) 2. 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. It follows that, save where the clear sense of the evidence has been distorted, the appraisal of the evidence submitted to the Court of First Instance does not constitute a point of law which is subject as such to review by the Court of Justice. It follows that a plea, raised in the context of an appeal, which seeks to have the Court of Justice review the substance of the finding by the Court of First Instance, after a detailed examination of the factual circumstances and according to which an undertaking acted as the ringleader of the cartel, a role which constituted an aggravating circumstance, is inadmissible. (see paras 41-42, 48) 3. Provided that the Commission sets out in the statement of objections the main elements of fact and of law capable of leading to the imposition of a fine, such as the gravity and the duration of the alleged infringement and also the circumstance that the infringement was committed deliberately or negligently, the Commission satisfies its obligation to observe the undertakings’ right to be heard. The rights of the defence are observed because the undertaking concerned was given the opportunity to comment on the duration, the gravity and the nature of the infringement. The Commission is not required to explain in the statement of objections the way in which it might make use of each of those elements in determining the amount of the fine. Since the statement of objections indicates that the undertaking concerned has played the role of leader and instigator of the infringement, it is made aware that that fact may be taken into account when the fine is set. The fact that in the decision imposing a penalty the undertaking concerned is considered to be the sole ringleader of the cartel does not alter, vis-à-vis the Commission, that undertaking’s position to the point of breaching the rights of the defence, since it is inherent in the nature of the statement of objections that it is provisional and subject to amendments to be made by the Commission in its subsequent assessment on the basis of the observations submitted to it by the parties and other findings of fact. (see paras 56-58, 60, 62) 4. Observance of the rights of the defence requires, in particular, that the undertaking under investigation is put in a position during the administrative procedure to put forward its point of view on the reality and the relevance of the alleged facts and also on the documents used by the Commission. The language knowledge of a member of the team responsible for investigating a cartel cannot in itself be decisive for the purpose of determining whether there was any breach of the rights of the defence by the Commission. (see paras 71, 73) 5. The Commission has a wide discretion as regards the method of calculating fines and it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. The cooperation which an undertaking provides to the Commission may justify a reduction in the fine under the Notice on the non-imposition or reduction of fines in cartel cases only if it actually allows the Commission to achieve its task of establishing the existence of an infringement and putting an end to it. The Commission enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings. (see paras 81, 83, 88) 6. It is not open to the Court of Justice, when ruling on points of law in an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law. A plea seeking to dispute the proportionality of the fine imposed must be declared inadmissible, since it attempts to secure a reconsideration of findings of fact for which the Court of Justice does not have jurisdiction in an appeal. (see paras 98-99) 7. The Commission is not required, when determining the amount of the fine, to take into account the financial situation of an undertaking, since recognition of such an obligation would be tantamount to giving unjustified competitive advantages to undertakings least well adapted to the market conditions. (see para. 100) 8. The Commission’s powers under Article 15(2) of Regulation No 17 include the power to set the date by which the fines are payable and on which interest begins to accrue, and also the rate of that interest and the detailed arrangements for implementing its decision. Accordingly, the Commission is entitled to adopt a point of reference higher than the applicable market rate offered to the average borrower, to an extent necessary to discourage dilatory behaviour in relation to payment of the fine. (see paras 109-111)