Judgment — ECLI:EU:C:2017:48
Date: 2017-01-26
Language of the case: Italian
Court formation: First Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Appeal against penalty
Origin: Italy

Summary — Judgment of the Court (First Chamber), 26 January 2017 1. Competition — Fines — Amount — Determination — Principle of equal treatment — Taking into account of the differences and circumstances particular to the undertakings concerned (Article 101(1) TFEU; Charter of Fundamental Rights of the European Union, Arts 20 and 21; Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, points 13, 28 and 29) 2. 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 (Art. 261 TFEU; Statute of the Court of Justice, Art. 58, first para.; Council Regulation No 1/2003, Art. 31) 3. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Information needed for an assessment (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, points 19 to 23 and 25) 4. Appeal — Grounds — Grounds of a judgment vitiated by an infringement of EU law — Operative part well founded for other legal reasons — Rejection (Art. 256(1), second subpara, TFEU; Statute of the Court of Justice, Art. 58, first para.) 5. Competition — Fines — Amount — Determination — Determination of the base amount — Gravity of the infringement — Criteria for assessment — Nature of the infringement (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, points 19 to 23 and 25) 6. 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), second subpara, TFEU; Statute of the Court of Justice, Art. 58, first para.) 1. When the amount of the fine for infringement of the competition rules is determined, there cannot, by the application of different methods of calculation, be any discrimination between the undertakings which have participated in an agreement or a concerted practice contrary to Article 101(1) TFEU. The differentiation in the amounts of the fine, which the principle of equal treatment between undertakings requires, need not necessarily be undertaken in the context of setting the multipliers for the ‘gravity of the infringement’ and the ‘additional amount’, in view of the broad discretion enjoyed by the Commission in calculating the fine. The differences and circumstances particular to the undertakings concerned may, if need be, be taken into account at another stage in calculating the fine, such as in the context of adjusting the basic amount in the light of aggravating and mitigating circumstances under points 28 and 29 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, or in the context of the value of sales taken into account in calculating the basic amount of the fine, inasmuch as that value reflects, for each participating undertaking, the extent of its participation in the infringement in question, in accordance with point 13 of the 2006 Guidelines. That point pursues the objective of adopting, as the starting point for the calculation 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. (see paras 38, 56, 57) 2. See the text of the decision. (see para 43) 3. Although, in order to assess the gravity of an infringement of the provisions of Article 101 TFEU and, subsequently, set the fine to be imposed, account may be taken, inter alia, of the geographic extent of that infringement and the number of products it covers, the mere fact that the geographic scope of one infringement is more extensive and that the infringement covers a greater number of products than that of another does not, in itself, necessarily mean that the first infringement, considered as a whole, and in particular in the light of its nature, must be classified as more serious than the second and as therefore justifying the setting of higher multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ than those used in calculating the fine for the second infringement. (see para 48) 4. See the text of the decision. (see paras 49, 58, 59) 5. The basic amount of the fines imposed for infringement of the competition rules includes the amount reflecting the gravity of the infringement and the additional amount. The amount reflecting the gravity of the infringement is determined in accordance with a percentage between 0 and 30% of the value of the relevant sales of the undertaking concerned in the final year of its participation in the cartel. Accordingly, that value is specific to each undertaking which participated in the infringement concerned. For the purposes of setting the multiplier for the ‘gravity of the infringement’, it is necessary to take into account, in particular, the nature of the infringement concerned. A cartel with the objective of coordinating prices is by its nature one of the most harmful restrictions of competition. Consequently, it may not be claimed that the Commission and the General Court made errors of law in setting, for such an infringement, a rate of 15% as the multiplier for the ‘gravity of the infringement’ and considering that rate to be consistent with the principle of proportionality. (see paras 51-54) 6. See the text of the decision. (see para 68)