Opinion of the Advocate General — ECLI:EU:C:2015:487
Date: 2015-07-16
Language of the case: Spanish
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Appeal against penalty
Origin: Spain

Summary — Judgment of the Court (Fifth Chamber), 9 June 2016 1. 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.) 2. Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned — Conditions — Evidence relating to facts previously unknown to the Commission — Restrictive interpretation — Requirement for the Commission to know about the content of those facts — None (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Communication 2002/C 45/03, point 23(b), third para.) 3. 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 — Whether it may review that assessment on grounds alleging infringement of the principle of proportionality — Lawfulness (Arts 101 TFEU, 102 TFEU, 256(1), TFEU and 261 TFEU; Statute of the Court of Justice, Art. 58, first para.; Council Regulation No 1/2003, Art. 31) 4. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — 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) 5. Judicial proceedings — Duration of the proceedings before the General Court — Reasonable time — Dispute concerning whether there has been an infringement of the competition rules — Failure to act within a reasonable time — Consequences — Non-contractual liability — Composition of the judgment formation (Arts 101 TFEU, 102 TFEU, 256(1) TFEU, 268 TFEU and 340, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47, second para.) 6. Judicial proceedings — Duration of the proceedings before the General Court — Reasonable time — Criteria for assessment (Arts 101 TFEU, 102 TFEU, 256(1) TFEU, 268 TFEU and 340, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47, second para.) 1. See the text of the decision. (see paras 47, 63) 2. In the context of setting fines for infringement of EU competition law, the final paragraph of point 23(b) of the Commission Notice on immunity from fines and reduction of fines in cartel cases (the 2002 Leniency Notice) must be interpreted as meaning that evidence provided by an undertaking in the context of its application under that notice may be considered to be evidence relating to facts previously unknown to the Commission only if it objectively presents significant added value with respect to the evidence already in the Commission’s possession. That interpretation follows, first, from the general scheme of the 2002 Leniency Notice. In accordance with points 7, 21 and 23(a) of that notice, a reduction of the fine imposed by the Commission under that notice presupposes that undertakings seeking to benefit from it provide evidence to the Commission which has a significant added value compared to that already in the Commission’s possession. The same is also true as regards the partial immunity laid down in the final paragraph of point 23(b) of that notice. Second, for the purposes of the application of that provision, it must be held that the Commission’s possession of evidence amounts to knowledge of its content, regardless of whether that evidence was actually examined and analysed by its services. (see paras 70-72) 3. See the text of the decision. (see paras 81, 82) 4. See the text of the decision. (see paras 84-86) 5. See the text of the decision. (see paras 98, 99) 6. A claim for compensation in respect of the damage caused by the General Court’s failure to adjudicate within a reasonable period may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself, an action for damages constituting an effective remedy. That said, where it is clear, without any need for the parties to adduce additional evidence in that regard, that the General Court infringed, in a sufficiently serious manner, its obligation to adjudicate on the case within a reasonable time, the Court of Justice may note that fact. An infringement of that principle exists in the case where the duration of the proceedings before the General Court, namely almost 5 years and 9 months, which includes, in particular, a period of almost 4 years and 1 month which elapsed, without any step in the proceedings, between the end of the written procedure and the hearing, cannot be explained by either the nature or the complexity of the case or by its context. (see paras 98, 100, 101)