Judgment — ECLI:EU:C:2017:123
Date: 2017-02-16
Language of the case: German
Court formation: Fifth Chamber
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Appeal against penalty
Origin: Germany

Judgment of the Court (Fifth Chamber) of 16 February 2017 — Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission (Case C‑90/15 P) (1) (Appeal — Competition — Agreements, decisions and concerted practices — European market for paraffin wax and the German market for slack wax — Price-fixing and market-sharing — Evidence of the infringement — Unlimited jurisdiction — Distortion of evidence — Obligation to state reasons — Regulation (EC) No 1/2003 — Article 23(2) — Calculation of the amount of the fine — Principle of legality — The 2006 Guidelines on the method of setting fines — Principle of proportionality) 1. 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 — Decision based on evidence sufficient to demonstrate the existence of the infringement — Evidential obligations of undertakings disputing the reality of the infringement (Art. 81 EC) (see paras 17, 19-21) 2. EU law — Principles — Fundamental rights — Presumption of innocence — Procedures in competition matters — Applicability (Charter of Fundamental Rights of the European Union, Art. 48(1)) (see para. 18) 3. EU law — Principles — Right to effective judicial protection — Judicial review of decisions adopted by the Commission in competition matters — Review of legality and unlimited jurisdiction, in law and in fact — No infringement (Art. 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Art. 31) (see paras 24, 27) 4. Competition — Administrative procedure — Commission decision finding an infringement — Judicial review — Adversarial nature of the procedure carried out before the EU Courts — Obligations of the undertaking challenging the Commission’s decision (Art. 81(1) EC) (see paras 25, 26) 5. Competition — Agreements, decisions and concerted practices — Concerted practice — Definition (Art. 81(1) EC) (see para. 38) 6. 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. 81 EC) (see paras 39-41) 7. 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) TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 47, 48) 8. Appeal — Grounds — Lack of specific criticism of a point of the General Court’s reasoning and of legal arguments in support of the appeal — Inadmissibility (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d) and 169(2)) (see paras 49, 51) 9. Acts of the institutions — Obligation to state reasons — Purpose — Scope (Art. 253 EC) (see para. 62) 10. Competition — Fines — Amount — Determination — Discretion granted to the Commission by Article 23(2) of Regulation No 1/2003 — Infringement of the principle that penalties must have a sound legal basis — No such infringement (Council Regulation No 1/2003, Art. 23(2) and (3); Commission Communication 2006/C 210/02) (see paras 78-81) 11. EU law — Principles — Non-retroactivity of penal provisions — Scope –Fines imposed for an infringement of the competition rules — Included — Whether breach by applying guidelines for the calculation of fines to an infringement prior to their introduction — Foreseeability of changes introduced by the Guidelines — No infringement (Council Regulation No1/2003, Art. 23(2); Commission Communication 2006/C 210/02) (see para. 84) 12. Appeal — Jurisdiction of the Court — 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) (see para. 90) Operative part The Court: 1. Dismisses the appeal; 2. Orders Hansen & Rosenthal KG and H&R Wax Company Vertrieb GmbH to pay the costs. 1 OJ C 146, 4.5.2015.