Opinion of the Advocate General — ECLI:EU:C:2015:350
Date: 2015-05-21
Language of the case: German
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Appeal against penalty

Summary — Judgment of the Court (Second Chamber), 22 October 2015 1. Agreements, decisions and concerted practices — Imputation to an undertaking — Commission decision finding that a consultancy firm which was not active on the relevant market but contributed actively and intentionally to the cartel shared liability — Lawfulness — Conditions (Art. 81(1) EC) 2. EU law — General principles of law — Principle that penalties must be defined by law — Scope (Charter of Fundamental Rights of the European Union, Art. 49(1)) 3. Competition — Fines — Amount — Determination — Determination of the basic amount — Methodology established by the Guidelines not applied — Lawfulness — Conditions (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Communication 2006/C 210/02, points 13 and 37) 4. Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope — Indication of the factors which led the Commission to assess the gravity and the duration of the infringement — Sufficient indication — Whether the Commission is under an obligation to indicate the figures relating to the method of calculating the fine — No such obligation (Arts 81(1) EC and 253 EC; Council Regulation No 1/2003, Art. 23(2)) 5. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction enjoyed by the Courts of the European Union — Scope (Arts 261 TFEU and 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Arts 23(3) and 31) 1. A consultancy firm may be held liable for infringement of Article 81(1) EC where such a firm actively contributes, in full knowledge of the relevant facts, to the implementation and continuation of a cartel among producers active on a market that is separate from that on which the firm itself operates. Where it is a question of the implementation or continuation of anti-competitive agreements and concerted practices, it may be found that an undertaking participated in an infringement and is liable for all the various elements comprising the infringement if the Commission demonstrates that the undertaking concerned intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk. In that context, the terms ‘agreement’ and ‘concerted practice’ do not presuppose a mutual restriction of freedom of action on one and the same market on which all the parties are present. Moreover, there is nothing in the wording of Article 81(1) EC that indicates that the prohibition laid down therein is directed only at the parties to such agreements or concerted practices who are active on the markets affected by those agreements or practices. On the contrary, the text of that provision refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the common market, irrespective of the market on which the parties operate, and only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question. Moreover, if the conduct adopted by a consultancy firm is directly linked to the efforts made by the parties to the agreement, as regards both the negotiation and monitoring of the implementation of the obligations entered into by those parties in connection with the cartels, the very purpose of the services provided by the consultancy firm on the basis of service contracts concluded with those parties being the attainment, in full knowledge of the facts, of the anti-competitive objectives in question, namely price-fixing, market-sharing and customer-allocation and the exchange of commercially sensitive information, it cannot be concluded that the action taken by the consultancy firm in that capacity constituted mere peripheral services that were unconnected with the obligations assumed by the producers and the ensuing restrictions of competition. (see paras 26, 27, 30, 33, 35, 38, 39) 2. The principle that offences and penalties must be defined by law cannot be interpreted as precluding the gradual, case-by-case clarification of the rules on criminal liability by judicial interpretation, provided that the result was reasonably foreseeable at the time the offence was committed, especially in the light of the interpretation put on the provision in the case-law at the material time. The scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it covers and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. Such persons can therefore be expected to take special care in evaluating the risk that such an activity entails. (see paras 41, 42) 3. Even though point 13 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 pursues the objective of adopting, in principle, as the starting point for the setting of the fine imposed on an undertaking, an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it, the Commission is entitled to depart from the method of calculating fines set out in those guidelines by fixing, on the basis of point 37 of those guidelines, the basic amount of the fines imposed as a lump sum in a case in which the markets affected by the infringements established are markets in which the firm which actively contributed to the infringements was not present, so that no portion of that firm’s turnover may be accounted for by the goods in respect of which the infringements were committed. (see paras 64, 66-67) 4. See the text of the decision. (see para. 68) 5. With regard to judicial review of decisions made by the Commission imposing a fine or periodic penalty payment for infringement of the competition rules, in addition to the review of legality provided for by Article 263 TFEU, the European Union judicature has the unlimited jurisdiction which it is afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU, and which empowers it to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed. However, the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, and proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, it is therefore for the applicant to raise pleas in law against the contested decision and to adduce evidence in support of those pleas. On the other hand, in order to satisfy the requirements of the principle of effective judicial protection enshrined in the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union and bearing in mind Article 23(3) of Regulation No 1/2003, the courts of the European Union are bound, in the exercise of the powers conferred by Articles 261 TFEU and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement. (see paras 74-76)