Opinion of the Advocate General — ECLI:EU:C:2012:800
Date: 2012-12-13
Language of the case: French
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Action for damages
Origin: Belgium

summary manner, for example by a reference to those decisions. (80) The same applies where the decision was adopted in a context with which the persons concerned were familiar. (81) It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. (82) 100. Taking the foregoing as the relevant benchmark, the General Court rightly held in the present case that the contested decision provided sufficient reasons with regard to the calculation of the basic amount of the fine and the deterrent factor. 101. The contested decision fits seamlessly into the new administrative practice of the Commission, as made transparent in relation to cartel proceedings by the 2006 Guidelines on fines. Those guidelines already contain numerous explanations which did not need to be repeated by the Commission in the contested decision. For example, the guidelines state inter alia that ‘horizontal price-fixing, market-sharing and output-limitation agreements …, which are usually secret’ – i.e. hardcore restrictions – ‘will be heavily fined’; in accordance with the guidelines, for such infringements a basic amount ‘at the higher end of the scale’ of between 0% and 30% of the value of sales and a deterrent factor of between 15% and 25% of that value are to be applied. (83) 102. As a ‘very serious infringement’ by which it was intended to influence the setting of prices and to share jobs between the participants in the cartel, the removals cartel undoubtedly fell within precisely that category of practices and therefore – in accordance with the 2006 Guidelines on fines – a fine had to be imposed consisting of a basic amount ‘at the higher end of the scale’ of between 0% and 30% of the value of sales plus a deterrent factor of between 15% and 25% of that value. 103. The fact that a basic amount of 17% of the value of sales, the percentage finally fixed by the Commission, is in the upper half of the scale of between 0% and 30% of the value of sales is quite clear and requires no further explanation. If anything, it is in fact questionable whether a proportion of the value of sales equivalent to 17% is actually ‘at the higher end of that scale’, as required by the 2006 Guidelines on fines, (84) or whether that percentage has perhaps been set too low. However, in this regard, Ziegler has no legitimate interest in any further explanations, since a comparatively lower percentage is more favourable to it than a higher percentage. (85) The same is true of the deterrent factor of 17% of the value of sales applied by the Commission, since that factor is likewise not particularly high on the established scale of between 15% and 25% of the value of sales. (86) 104. It is certainly conceivable that sometimes a lower proportion of the value of sales than envisaged in the 2006 Guidelines on fines might be taken as the basis for the calculation of the basic amount of a fine imposed in cartel proceedings on account of particular circumstances of the individual case; this possibility is expressly provided for in the guidelines, not least by the use of the word ‘generally’. (87) However, contrary to Ziegler’s view, a general tightening of the requirements to state reasons applicable to decisions imposing fines cannot be inferred from this. Rather, the Commission is required to deal with particular circumstances of the individual case when stating the reasons for its decision to impose a fine only where it is actually aware of such circumstances. Where an undertaking is aware of circumstances which might justify the use of a lower proportion of the value of sales than that stated in the guidelines for the purpose of calculating the fine, it is for that undertaking to bring those circumstances to the Commission’s attention. However, as far as can be seen, Ziegler has not claimed that it specifically relied on any such factors in connection with the calculation of the basic amount of the fine or the deterrent factor. 105. Finally, the legal requirements applicable to the statement of reasons for decisions imposing fines must be higher the more complex the case in question and the higher the proportion of the value of sales taken into account by the Commission in order to calculate the basic amount and the deterrent factor. (88) It is consistent with the spirit and purpose of the obligation to state reasons that the explanations to be given by the Commission must be more detailed the greater the extent to which the penalty imposed exceeds the minimum requirements laid down in the guidelines on fines. This is because the interest of the undertaking concerned in learning the reasons for any particularly harsh decision made by the Commission also increases to that same extent. This is not however the situation here, since the case is not characterised by any particular complexity and the Commission has based the calculation of the fine on a comparatively low proportion of sales. 106. All in all, the General Court has therefore correctly applied the legal requirements governing the examination of the statement of reasons for the contested decision. Accordingly, the complaint regarding a breach of the obligation to state reasons is unfounded. ii) The fundamental right to fair legal process 107. In addition to a breach of the general obligations to state reasons, Ziegler also complains of an infringement of the fundamental right to fair legal process and relies in that regard on Article 6 of the ECHR (89) and on Article 47 of the Charter of Fundamental Rights of the European Union. 108. It must be pointed out first of all in this connection that it is not in dispute that Ziegler did not claim such an infringement at first instance. Nor, contrary to Ziegler’s view, is such a claim a mere addition to or further development of its criticism at first instance of the statement of reasons for the contested decision, but rather a new and inadmissible plea in law based on the infringement of completely different legal provisions. The fact that in the meantime a number of more recent judgments of the European Court of Human Rights have been delivered in relation to Article 6 of the ECHR does not change the factual or legal position, such that the assertion of a new plea would be justified. More particularly, a new plea of this kind cannot form the subject-matter of substantive discussion before the Court of Justice in appeal proceedings (90) (Article 42(2), in conjunction with Article 118, of the Rules of Procedure of the Court of Justice of 19 June 1991). (91) 109. However, even if Ziegler’s claim regarding the fundamental right to fair legal process were to be considered admissible, it would in any event be unfounded. 110. It is true that there is an indisputable connection between the obligation to state reasons for legal acts of the European Union and the fundamental right to fair legal process, since only if the person concerned is duly informed of the reasons for a measure is he able to determine whether it makes sense to seek legal redress against that measure and can the competent courts duly review the legality of the measure. 111. However, as already mentioned, (92) the requirements governing the provision of a proper statement of reasons for the contested decision were satisfied in the present case, since – in conjunction with the 2006 Guidelines on fines – the reasons for the calculation of the amount of the fine were clearly discernible and could easily be reviewed in the course of fair judicial proceedings. 112. Finally, the appellant’s claim that the General Court does not duly exercise its power of unlimited jurisdiction where it accepts a statement of reasons such as that in the contested decision is totally unsubstantiated. Ziegler has wholly failed to submit to what extent the General Court should have conducted a more intensive examination of the contested decision. In particular, it has not put forward any evidence to show that specifically the statement of reasons relating to the calculation of the fine provided by the Commission in the present case would have made it impossible or simply more difficult to conduct a comprehensive judicial review of any questions of fact or of law raised by the contested decision. 113. In conclusion, Ziegler’s argument relating to the fundamental right to fair legal process must therefore be rejected as inadmissible or, in any event, as unfounded. b) The complaint advanced in the alternative concerning an infringement of the principle of equal treatment and of the obligation of the General Court to state the reasons for its judgments (second part of the second ground of appeal) 114. In the alternative, the appellant argues that the ‘exemption’ from the obligation to state reasons granted to the Commission in the judgment under appeal runs counter to the principle of equal treatment and non-discrimination and, in addition, that insufficient reasons have been stated for that exemption. i) The principle of equal treatment and non-discrimination 115. The principle of equal treatment – sometimes also referred to as ‘the principle of equal treatment or non-discrimination’ (93) – is a general principle of European Union law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights. (94) Its significance in connection with the imposition of fines in cartel cases has been acknowledged by the Court of Justice on multiple occasions. (95) 116. The infringement of that principle complained of by the appellant is said to consist in the fact that the General Court unjustifiably treats cases such as the present case, in which the fine is calculated on the basis of a proportion of the value of sales equivalent to 17%, in the same way as other cases in which a proportion of the value of sales equivalent to 15% might be taken into account. 117. These submissions by Ziegler are extremely vague and appear to be based on a purely hypothetical comparison with a completely theoretical situation, not described in any greater detail, in which the Commission might take into account a proportion of the value of sales equivalent to 15% and not – as is the case here – one equivalent to 17% for the purpose of calculating the fine. 118. In view of the lack of precision of the appellant’s submissions, I have significant doubts as to whether this aspect of its argument may be regarded as admissible at all. (96) 119. However, the argument is in any event unfounded. 120. The calculation of fines is not a mechanical process by which it is possible to determine in advance and with mathematical precision what percentage of the value of sales should be applied when calculating the basic amount of the fine and the deterrent factor for every cartel. Nor would such an ability to predict the fine down to the last decimal point even be appropriate, since that would make it all too simple for the participants in the cartel to determine in advance the ‘cost’ of their unlawful conduct and calculate whether it is more lucrative for them to engage in unlawful or lawful business practices. 121. Accordingly, when it imposes fines on undertakings involved in a cartel, the Commission – as the competition authority – must necessarily enjoy a certain degree of discretion as regards determining the proportion of the value of sales on the basis of which the fine is calculated. (97) The fact that that proportion may be 17% of the value of sales in the present case and 15% in another cartel case lies in the very nature of the calculations of such fines and cannot be called into question by reliance on the principle of equal treatment, provided that the Commission remains within the framework of the guidelines on fines, by which it made commitments in relation to the exercise of its discretion. (98) 122. As a counterbalance to this discretion enjoyed by the Commission in connection with determining the proportion of the value of sales taken as the basis for the calculation of a fine, its decisions to impose fines are subject to the unlimited jurisdiction of the Courts of the European Union (Article 261 TFEU, in conjunction with Article 31, of Regulation No 1/2003). (99) In the hypothetical example given by Ziegler, if the General Court considered a proportion of the value of sales equivalent to 15% to be more appropriate or fairer, it could therefore exercise its discretion to apply that percentage rather than the 17% applied by the Commission and reduce the fine imposed accordingly. 123. In the light of the foregoing, Ziegler’s argument based on the principle of equal treatment must be rejected. ii) The requirements applicable to the statement of grounds in the judgment under appeal 124. In addition, Ziegler claims that the General Court infringed its duty to state reasons for the judgment at first instance. This failure to state reasons is said to lie in the fact that the General Court allowed the Commission in the present case to set the deterrent factor at 17% of the value of sales by relying solely on the ‘very serious nature’ of the infringement. The General Court therefore fails to provide more detailed reasons for a departure from point 25 of the 2006 Guidelines on fines, which provides for account to be taken of ‘a number of factors’. 125. The obligation of the General Court to state the reasons on which its judgments are based follows from Article 36, in conjunction with the first paragraph of Article 53, of the Statute of the Court of Justice. As has already been said, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review. (100) 126. In the present case, the General Court provided a very clear explanation as to why it considered it to be lawful to set a deterrent factor equivalent to 17% of the value of sales: it referred to its immediately preceding considerations regarding the calculation of the basic amount of the fine and gave as the reasons for that reference, first, the fact that ‘the lower limit of the scale is the same’ for the calculation of both elements and, second, that the Commission likewise gives the same reasons for both calculations by means of an internal reference within the recitals of the contested decision. (101) 127. The considerations of the General Court in relation to this issue follow clearly and unambiguously from the judgment under appeal. Ziegler may take a different view from the General Court on the substance of the matter. However, that fact cannot in itself vitiate the judgment under appeal for failure to state reasons. (102) 128. The complaint concerning an inadequate statement of grounds in the judgment under appeal is therefore unfounded. 129. It may be mentioned simply as an aside that the legal view taken by Ziegler in relation to points 22 and 25 of the 2006 Guidelines on fines is also unconvincing in substantive terms. The general statement made by the Commission in those guidelines to the effect that it ‘has regard to a number of factors’ when setting the deterrent factor constitutes a very general description of its administrative practice and does not necessarily mean that the Commission must rely on all those factors in every single case and provide a detailed statement of reasons for its decision in this regard. The relevant factors and the number of such factors are matters which are rather dependent on the individual case in question. As far as can be seen, Ziegler has not made any specific submissions in the present case to the effect that account should have been taken of other factors ignored by the Commission in connection with the setting of the basic amount of the fine, including the deterrent factor. 130. Considered in its entirety, the second ground of appeal is therefore in part inadmissible and in part unfounded. 3. The Commission’s ‘objective impartiality’ (third ground of appeal) 131. The third ground of appeal is directed against paragraphs 103 to 107 of the judgment under appeal, in which the General Court considers the impartiality of the Commission, upon which doubts are cast by Ziegler. Ziegler complains that the General Court failed to provide a proper statement of grounds for its judgment in this regard and, in addition, that it infringed the fundamental rights to fair legal process and to good administration. 132. The background to this complaint is that the Commission regards itself as one of the victims of the removals cartel. In view of this fact, Ziegler is of the opinion that the Commission should not itself have been permitted to adopt a decision on the removals cartel, because it is both victim and judge at the same time. 133. Accordingly, given the particular circumstances of the present case, the appellant considers the impartiality of the Commission to be impaired. Ziegler does not, however, call into question generally the European Union’s system of antitrust law enforcement, including the institutional role of the Commission as competition authority. a) The alleged failure to state reasons for the judgment under appeal (first part of the third ground of appeal) 134. First of all, Ziegler accuses the General Court of having failed to respond to its complaint made at first instance concerning the objective impartiality of the Commission. In the view of the appellant, in its judgment the General Court examined only the requirement of subjective impartiality and not that of objective impartiality. The judgment under appeal is therefore vitiated by a failure to state reasons. 135. It is not in dispute that the appellant is ultimately complaining of an infringement of the obligation to state the reasons on which judgments at first instance are based (Article 36, in conjunction with the first paragraph of Article 53, of the Statute of the Court of Justice) when it claims that the General Court failed to examine one of the pleas in law put forward by it at first instance. (103) In the context of an appeal it is necessary to bear in mind that the purpose of review by the Court of Justice is, primarily, to examine to what extent the General Court took into consideration, in a legally correct manner, all the arguments upon which the appellant relies. (104) 136. In the present case, in paragraphs 103 to 107 of the judgment under appeal, the General Court examined – albeit only briefly – the argument advanced by Ziegler at first instance regarding the alleged partiality of the Commission and set out why it rejected the related plea in law put forward by Ziegler. 137. Admittedly, the General Court does not draw a clear distinction in that regard between objective and subjective impartiality. This is without doubt regrettable. However, the substantive accuracy of the findings made in the judgment under appeal – here the issue of whether the same requirements are to be applied to objective impartiality as to subjective impartiality – is not a problem pertaining to the obligation to state reasons incumbent on the General Court, but rather a question of substantive law. (105) The fact that the General Court, on the merits, arrived at a different conclusion from the appellant cannot in itself vitiate the judgment for failure to state reasons. (106) 138. The first part of the third ground of appeal is therefore unfounded. b) The fundamental rights to fair legal process and to good administration (second part of the third ground of appeal) 139. In addition, Ziegler claims infringement of its fundamental rights to fair legal process and to good administration. That infringement is said to consist in the fact that in the present case the Commission was ‘judge in its own cause’. To this end, the appellant relies on Article 6 of the ECHR and on Articles 47 and 41 of the Charter of Fundamental Rights. 140. The Commission is not a ‘tribunal’ within the meaning of Article 6 of the ECHR or Article 47 of the Charter of Fundamental Rights. (107) However, as the competition authority of the European Union, it must observe the right to good administration, which is enshrined in Article 41 of the Charter as a fundamental right of the European Union. (108) Under that provision, every person has inter alia the right to have his or her affairs handled impartially by the institutions, bodies and other agencies of the European Union. 141. There are two aspects to that requirement of impartiality: subjective impartiality, meaning that no official of the agency concerned must show bias or personal prejudice in any way whatsoever, and objective impartiality, meaning that there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the agency concerned. (109) 142. This ground of appeal is concerned solely with the second aspect, that is to say the requirement of objective impartiality. Ziegler claims that the Commission was unable to handle the present case with objective impartiality because it was itself one of the main victims of the removals cartel and because Commission officials ‘requested cover quotes’ (sic). (110) The General Court ignored this fact in the judgment under appeal. 143. For the purposes of this appeal, the issue of whether the General Court should have annulled the contested decision in the event of a breach of the requirement of objective impartiality by reason of a lack of competence ? as argued by Ziegler ? or by reason of infringement of the right to good administration may be left unresolved, since in any event there are no indications at all in the present case that the General Court might have overlooked a lack of objective impartiality on the part of the Commission. 144. In particular, a lack of objective impartiality on the part of the Commission cannot exist solely by virtue of the fact that the Commission brings proceedings against and fines a cartel which has operated to the financial disadvantage of the European Union. (111) In this regard, the Commission is in the same position as State authorities which for example bring actions against those responsible for tax evasion and avoidance and as local authorities which prosecute parking offenders. Although Ziegler claims that, in contrast to such State and local authorities, the Commission has a very strong independent interest as an institution of the European Union and employer of officials affected by the removals, it completely fails to substantiate that argument. (112) 145. Ultimately, the decisive factor as far as the issue of objective impartiality is concerned is that within the organisation of the authority in question the necessary precautions are taken to avoid any semblance of bias in the eyes of the persons concerned. To that end, it must be ensured in particular that proceedings against an infringement are not brought, and a punishment imposed in that regard, by the service which has felt the impact of that infringement. 146. Neither the documents in the case file nor the oral submissions of the parties made before the Court give any specific indications whatsoever that the Commission failed to take the necessary precautions in the present case. For example, two different and completely separate services within the Commission are responsible for the utilisation of removal services and the prosecution of infringements of competition law. Although both services are admittedly subject to the decision-making power of all the Members of the Commission acting collectively, (113) they fall within the area of responsibility of different Commissioners. (114) 147. In addition, in this regard, the position within the organisational structure of the European Union is ultimately not significantly different from that within a local authority, all of the services of which ? those responsible for its budget and those responsible for prosecuting parking offenders alike ? are subject to the authority of a joint, politically appointed leadership, such as a mayor, local authority council or college of aldermen. The same is true of State authorities tasked with pursuing and punishing tax evasion and tax fraud. Even though they enjoy independence as a matter of substance, those authorities are ultimately part of the same State organisational structure as the agencies responsible for the administration of the national budget. This fact is incapable in itself of calling into question their objective impartiality. (115) 148. Finally, Ziegler’s argument that Commission officials ‘requested cover quotes’ must be rejected. First, the Court of Justice has in its possession no information to suggest that Commission officials obtained quotes from removal undertakings knowing, or merely suspecting, that they were cover quotes. Even in response to questioning at the hearing, Ziegler’s argument in this regard went no further than extremely general and unsubstantiated claims. Second, no evidence came to light in the course of the judicial proceedings that the same Commission officials who handled those quotes were also tasked with bringing proceedings against and imposing fines on the removals cartel. 149. The effective enforcement of the competition rules laid down in the Treaties, one of the principal tasks of the Commission, would be placed in considerable jeopardy if that authority were automatically to be deprived of the competence to pursue and punish infringements as soon as the financial interests of the European Union or of its officials were concerned, even if only remotely. As is clear not least from the present case, nor is it possible ? contrary to Ziegler’s view ? to resolve this problem of enforcement reliably by involving one or more national competition authorities instead of the Commission, since national authorities may also be victims of the cartels in question. (116) 150. In conclusion, the General Court cannot seriously be accused of having ignored the requirements which follow from the principles of fair legal process and good administration as far as the present case is concerned. 151. This is all the more true in view of the fact that, as an administrative authority, the Commission does not have to satisfy the same strict requirements as an independent tribunal within the meaning of Article 47 of the Charter of Fundamental Rights. Rather, the actions of the Commission, including decisions adopted by it on fines under antitrust law, are subject to independent judicial review by the Courts of the European Union. (117) In a case such as this one, contrary to what appears to be Ziegler’s view, (118) the Commission is therefore definitely not prosecutor and judge at the same time. c) Interim conclusion 152. The second part of the third ground of appeal is therefore also unfounded. Consequently, this ground of appeal should be rejected in its entirety. 4. The principle of equal treatment and non-discrimination (fourth ground of appeal) 153. By its fourth and final ground of appeal, Ziegler objects to paragraphs 165 to 172 of the judgment under appeal. In that passage of the judgment, the General Court examines the issue of whether, when the contested decision was adopted, Ziegler’s economic difficulties required that the fine imposed on it be reduced, and whether the Commission treated Ziegler less favourably in this regard than Interdean NV, another undertaking involved in the removals cartel. 154. The appellant accuses the General Court of failing to have regard to ‘the general principle of equal treatment and non-discrimination’ when it reviewed the contested decision. The unequal treatment overlooked by the General Court is said to consist in the fact that, in the administrative procedure, Interdean was granted a 70% reduction of the fine imposed on it, on the basis of point 37 of the 2006 Guidelines on fines, whereas Ziegler’s situation was not even examined on the basis of that provision of the guidelines, even though by its own admission Ziegler was also experiencing financial difficulties. 155. As previously mentioned, (119) the principle of equal treatment is a general principle of European Union law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights, which is of considerable importance in connection with the imposition of fines in cartel cases. That principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. (120) 156. In that connection, the comparability of different situations must be assessed with regard to all the elements which characterise them. These elements must in particular be determined and assessed in the light of the subject-matter and purpose of the European Union act which makes the distinction in question. (121) The principles and objectives of the field to which the act relates must also be taken into account. (122) 157. In the present case, Ziegler claims that the General Court should have found its situation to be comparable to that of Interdean, in particular from the perspective of its inability to pay, and taken account of that situation in the context of point 37 of the 2006 Guidelines on fines. 158. It is therefore necessary to examine whether an allegedly reduced ability to pay ? which Ziegler’s argument assumes ? is in itself capable of making the positions of two undertakings comparable, having regard to the subject-matter and objectives of point 37 of the 2006 Guidelines on fines. 159. It must be observed in this regard that point 37 of the 2006 Guidelines allows the Commission to calculate a fine in a different manner to the general method specified in those guidelines on account of the ‘particularities’ of the individual case in question. The fine calculated in accordance with the general method may therefore be increased or reduced as a result of the application of point 37. 160. However, with regard to the reduction of a fine, the provision laid down in point 37 of the 2006 Guidelines on fines ? unlike that in point 35 ? makes no direct reference to an undertaking’s inability or reduced ability to pay in a specific social and economic context. The two provisions of the 2006 Guidelines mentioned are, rather, dependent on the satisfaction of different conditions and do not have the same purpose. Point 37, in addition to point 35, would be superfluous as the basis for an exceptional reduction of fines if the two provisions were intended to be interpreted and applied such that their substance were essentially the same. 161. Accordingly, even if at the time the contested decision was adopted Ziegler had had a reduced ability to pay or was even unable to pay for the purposes of point 35 of the 2006 Guidelines on fines, that fact alone would not have been decisive from the perspective of point 37 of the guidelines for the purpose of concluding that Ziegler’s situation was comparable to that of Interdean. 162. It is true that an undertaking’s inability to pay may also be relevant to some degree in the context of point 37 of the 2006 Guidelines on fines when assessing the particularities of the case in question, namely the particular financial circumstances. However, the bar for grant the reduction of a fine under point 37 must be set considerably higher than that applicable to point 35. In other words, the ability of the undertaking concerned to pay must be affected to an exceptionally great extent in order for particular financial circumstances to be found for the purposes of point 37. 163. Otherwise, it would have to be feared that the strict requirements applicable to the reduction of a fine by reason of an inability to pay, as laid down in point 35 of the 2006 Guidelines on fines, could be circumvented by reliance on the much more generally worded point 37, and there would be a serious risk of the absolutely exceptional nature of reductions in fines, which forms the basis of point 35, (123) being eroded by the use of point 37. 164. With regard to the application of point 37 of the 2006 Guidelines on fines, the General Court therefore rightly compared the severity of the effects of the fines set in accordance with the general method on the ability of Ziegler and of Interdean to pay, taking as a basis their respective annual turnover. (124) It did so because, unlike what appears to be the appellant’s view, not every restriction on an undertaking’s ability to pay can be cause for a reduction in the fine under Article 37 of those guidelines, even if the size of that reduction may vary. Rather, particular financial circumstances for the purposes of point 37 of the guidelines may be found only where an undertaking’s ability to pay is affected to an exceptionally great degree which goes significantly beyond the scale of the (mere) inability to pay within the meaning of point 35. 165. It is undisputed in the present case that Ziegler ? unlike Interdean ? put forward neither in the course of the administrative procedure nor during the first instance proceedings any particular factors which even only prima facie would form reasons why, in its case, particular financial circumstances beyond the alleged restriction on its ability to pay (point 35 of the 2006 Guidelines) might exist which would have justified a reduction of the fine (point 37 of those guidelines). The burden of proving the existence of such circumstances rests with the party who relies on them. There was nothing to prevent Ziegler from making appropriate submissions in this regard, especially since the necessary information would have had to come first and foremost from that undertaking itself. 166. Since Ziegler did not make any appropriate submissions on the basis of which the existence of particularities within the meaning of point 37 of the guidelines might have been found to exist, the General Court was able to consider, without erring in law, that Ziegler and Interdean were not in a comparable situation and that an infringement of the principle of equal treatment could therefore not be found to exist. 167. All in all, the fourth ground of appeal is therefore also unfounded. C – Interim conclusion 168. As none of the grounds of appeal put forward by Ziegler can be upheld, the appeal should be dismissed in its entirety. V – Costs 169. If, as I propose in this case, the appeal is dismissed, the Court will make a decision as to costs (Article 184(2) of the Rules of Procedure of 25 September 2012), the detailed provisions for which are set out in Articles 137 to 146, in conjunction with Article 184(1), of those Rules of Procedure. (125) 170. It follows from Article 138(1) in conjunction with Article 184(1) of the Rules of Procedure that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has applied for costs and Ziegler has been unsuccessful in its submissions, the latter must be ordered to bear the costs. VI – Conclusion 171. In the light of the foregoing considerations, I propose that the Court should: (1) dismiss the appeal; (2) order Ziegler SA to bear the costs. 1 – Original language: German. 2 – Commission Notice – Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty (OJ 2004 C 101, p. 81; ‘the 2004 Guidelines’). 3 – Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines on fines’). 4 – Commission Decision of 11 March 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/38.543 – International Removal Services), notified under document number C(2008) 926 final, summarised at OJ 2009 C 188, p. 16; the full text of the decision is only available on the internet, on the website of the Commission’s Directorate-General for Competition, in a non-confidential version in French (http://ec.europa.eu/competition/antitrust/cases/index.html). 5 – Case T‑199/08 Ziegler v Commission [2011] ECR II‑3507. 6 – See Case C‑429/11 P Gosselin Group v Commission and Others; Case C‑440/11 P Commission v Stichting Administratiekantoor Portielje and Others; and Case C‑444/11 P Team Relocations and Others v Commission. Furthermore, I delivered my Opinion in Case C‑441/11 P Commission v VerhuizingenCoppens on 24 May 2012 and my Opinion in Case C‑440/11 P Commission v Stichting Administratiekantoor Portielje and Others on 29 November 2012. On 6 December 2012 the Court delivered its judgment in Commission v VerhuizingenCoppens. 7 – Paragraph 3 of the judgment under appeal. 8 – Paragraph 2 of the judgment under appeal. 9 – Allied Arthur Pierre, Compas, Coppens, Gosselin, Interdean, Mozer, Putters, Team Relocations, Transworld and Ziegler (see, for example, recital 345 of the contested decision). 10 – These periods lasted between three months and more than 18 years. 11 – See, inter alia, recitals 307, 314 and 345 of the contested decision. 12 – See recital 121 of the contested decision and paragraphs 10 and 13 to 15 of the judgment under appeal. 13 – See recitals 123 to 153 of the contested decision. 14 – Article 1 of the contested decision. 15 – The individual fines amounted to between EUR 1 500 and EUR 9 200 000. 16 – See, in addition to the judgment under appeal, four further judgments of 16 June 2011, in Joined Cases T‑204/08 and T‑212/08 Team Relocations and Others v Commission [2011] ECR II‑3569; Joined Cases T‑208/08 and T‑209/08 Gosselin Group and Others v Commission [2011] ECR II‑3639; Case T‑210/08 Verhuizingen Coppens v Commission [2011] ECR II‑3713; and Case T‑211/08 Putters International v Commission [2011] ECR II‑3729. 17 – An application made by Ziegler for suspension of operation of Article 2 of the contested decision and for an exemption from the need to provide a bank guarantee was likewise unsuccessful; see the order of the President of the General Court of 15 January 2009 in Case T‑199/08 R Ziegler v Commission, and the order of the President of the Court of Justice of 30 April 2010 in Case C‑113/09 P(R) Ziegler v Commission. 18 – Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others v Commission and Others [2009] ECR I‑9291, paragraphs 23 to 26, and judgment of 21 December 2011 in Case C‑329/09 P Iride v Commission, paragraphs 48 to 51. 19 – GlaxoSmithKline Services and Others v Commission and Others, cited in footnote 18, paragraphs 23 to 26, and Case C‑27/09 P France v People’s Mojahedin Organization of Iran [2011] ECR I‑13427, paragraphs 43 to 50. 20 – Case C‑19/93 P Rendo and Others v Commission [1995] ECR I‑3319, paragraph 13, last sentence; Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission (‘Akzo and Akcros’) [2010] ECR I‑8301, paragraphs 22 and 23; GlaxoSmithKline Services and Others v Commission and Others, cited in footnote 18, paragraph 23; and France v People’s Mojahedin Organization of Iran, cited in footnote 19, paragraph 43. 21 – GlaxoSmithKline Services and Others v Commission and Others, cited in footnote 18, paragraph 15. 22 – Iride v Commission, cited in footnote 18, paragraph 48. 23 – See below, point 27 of this Opinion. 24 – Joined Cases C‑71/09 P, C‑73/09 P and C‑76/09 P Comitato ‘Venezia vuole vivere’ and Others v Commission [2011] ECR I‑4727, paragraph 118, and Joined Cases C‑465/09 P to C‑470/09 P Diputación Foral de Vizcaya v Commission [2011] ECR, paragraph 171; to the same effect, see also Case C‑30/91 P Lestelle v Commission [1992] ECR I‑3755, paragraphs 27 and 28; Case C‑93/02 P Biret International v Council [2003] ECR I‑10497, paragraphs 59 to 65; and Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others v Council and Commission [2008] ECR I‑6513, in particular paragraph 187. 25 – See, to that effect, the order of 27 September 2004 in Case C‑470/02 P UER v M6 and Others, paragraph 69, and Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden v API and Commission [2010] ECR I‑8533, paragraph 65. 26 – Paragraphs 56 to 63 of the judgment under appeal. 27 – The appellant challenges the very next passage of the judgment under appeal, in paragraphs 64 to 74 thereof; that passage is devoted not to the EUR 40 million threshold but to the 5% market share threshold (see, in this regard, the first ground of appeal). 28 – Case C‑76/01 P Eurocoton and Others v Council [2003] ECR I‑10091, paragraph 52; Case C‑203/07 P Greece v Commission [2008] ECR I‑8161, paragraphs 42 and 43; and Case C‑520/09 P Arkema v Commission [2011] ECR I‑8901, paragraph 31. 29 – Case C‑35/92 P Parliament v Frederiksen [1993] ECR I‑991, paragraph 31; FIAMM and Others v Council and Commission, cited in footnote 24, paragraphs 187 to 189; and France v People’s Mojahedin Organization of Iran, cited in footnote 19, paragraph 79. 30 – Case C‑407/08 P Knauf Gips v Commission [2010] ECR I‑6371, paragraphs 89 to 91. 31 – Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299; Joined Cases 6/73 and 7/73 Commercial Solvents v Commission [1974] ECR 223, paragraph 31; Case C‑475/99 Ambulanz Glöckner [2001] ECR I‑8089, paragraph 47; and Case C‑238/05 Asnef-Equifax [2006] ECR I‑11125, paragraph 33. 32 – Joined Cases C‑215/96 and C‑216/96 Bagnasco and Others [1999] ECR I‑135, paragraph 60; Ambulanz Glöckner, cited in footnote 31, paragraph 48; Asnef‑Equifax, cited in footnote 31, paragraph 34; Case C‑49/07 MOTOE [2008] ECR I‑4863, paragraph 39; and Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 36. 33 – Asnef-Equifax, cited in footnote 31, paragraph 35, and Erste Group Bank and Others v Commission, cited in footnote 32, paragraphs 37, 46 and 66. 34 – Paragraphs 52(a) and 53 of the 2004 Guidelines. 35 – Paragraphs 66 and 67 of the judgment under appeal. 36 – Paragraph 68 of the judgment under appeal. 37 – Paragraph 69 of the judgment under appeal. 38 – Paragraph 70 of the judgment under appeal. 39 – Paragraph 72 of the judgment under appeal. 40 – Case C‑259/96 P Council v de Nil and Impens [1998] ECR I‑2915, paragraphs 32 and 33; Case C‑202/07 P France Télécom v Commission [2009] ECR I‑2369, paragraph 29; and Case C‑280/08 P Deutsche Telekom v Commission [2010] ECR I‑9555, paragraph 136. 41 – Examples of the Court’s review of grounds of judgments of the General Court to determine whether they are contradictory can be found in Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 202, and Case C‑380/09 P Melli Bank v Council [2012] ECR, paragraph 41; see also Case C‑47/07 P Masdar (UK) v Commission [2008] ECR I‑9761, paragraph 76. 42 – Paragraph 68 of the judgment under appeal. 43 – Paragraph 70 of the judgment under appeal. 44 – Paragraph 72 of the judgment under appeal. 45 – Paragraph 25 of the 2004 Guidelines. 46 – Paragraph 66 of the judgment under appeal. 47 – Paragraph 11 of the judgment under appeal and recital 2 of the contested decision. 48 – Paragraph 70 of the judgment under appeal. 49 – Paragraph 3 of the 2004 Guidelines. 50 – Penultimate and last sentences of paragraph 50 of the 2004 Guidelines. 51 – See, to that effect, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission (‘Dansk Rørindustri’) [2005] ECR I‑5425, paragraph 211; Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraphs 207 and 208; Arkema v Commission, cited in footnote 28, paragraph 88; and Case C‑272/09 P KME and Others v Commission [2011] ECR I‑12789, paragraph 100. See, to the same effect, in relation to the law on State aid, for example, Case C‑288/96 Germany v Commission [2000] ECR I‑8237, paragraph 62. In addition, see also – outside the context of competition law – Case 190/82 Blomefield v Commission [1983] ECR 3981, paragraph 20. 52 – Paragraph 55 of the 2004 Guidelines. 53 – Commission Notice on the definition of the relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5), cited in footnote 41 of the 2004 Guidelines. 54 – Point 10 of the Notice on the definition of the relevant market. 55 – Point 12 of the Notice on the definition of the relevant market. 56 – Order in Case C‑19/95 P San Marco v Commission [1996] ECR I‑4435, paragraph 39; Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraph 49; Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR I‑8947, paragraph 68; Comitato ‘Venezia vuole vivere’ v Commission, cited in footnote 24, paragraph 149; and Joined Cases C‑628/10 P and C‑14/11 P AOI and Others v Commission (‘AOI’) [2012] ECR, paragraph 85. 57 – Third sentence of paragraph 71 of the judgment under appeal. 58 – The total size of the international removal services market in Belgium, excluding the turnover achieved by the removal undertakings in their capacity as subcontractors, is put at EUR 67.5 million in paragraph 15 of the Commission’s written pleading of 22 March 2010. 59 – See paragraph 71 of the judgment under appeal: ‘Third, in answer to the Court’s questions, the applicant itself stated, at the hearing …’. 60 – In paragraph 71 of the judgment under appeal, the General Court expressly corrects the figures determined by the Commission regarding the size of the market; that correction relates to the duplicated inclusion of the removal services provided by undertakings in their capacity as subcontractors. 61 – See the case-law cited in footnote 56. 62 – Case 5/69 Völk [1969] ECR 295, paragraph 5; Case 1/71 Cadillon [1971] ECR 351, paragraph 6; Case 42/84 Remia and Others v Commission [1985] ECR 2545, paragraph 22; Bagnasco and Others, cited in footnote 32, paragraph 47; Asnef-Equifax, cited in footnote 31, paragraph 34; and Erste Group Bank and Others v Commission, cited in footnote 32, paragraph 36. 63 – Case C‑250/92 DLG [1994] ECR I‑5641, paragraph 54; Bagnasco and Others, cited in footnote 32, paragraph 47; Asnef-Equifax, cited in footnote 31, paragraph 35; and Erste Group Bank and Others v Commission, cited in footnote 32, paragraph 37. 64 – See, to that effect, Case 19/77 Miller International Schallplatten v Commission [1978] ECR 131, paragraph 9, and Case 107/82 AEG-Telefunken v Commission (‘AEG’) [1983] ECR 3151, paragraphs 56 to 58; in Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 86 in conjunction with paragraph 82, even market shares of less than 5% were considered to be a sufficient basis on which to assume there to be an appreciable effect on trade. 65 – Case 8/72 Vereeniging van Cementhandelaren v Commission [1972] ECR 977, paragraph 29; Remia and Others v Commission, cited in footnote 62, end of paragraph 22; Asnef-Equifax, cited in footnote 31, paragraph 37; and Erste Group Bank and Others v Commission, cited in footnote 32, paragraph 38. 66 – The addressees of the decision imposing fines comprise undertakings established both inside and outside Belgium (see Article 4 of the contested decision). 67 – See, to the same effect, in relation to the activity of travel agents, Case 311/85 Vlaamse Reisebureaus [1987] ECR 3801, paragraph 18. 68 – See, in this regard, the findings of the General Court regarding the services affected by the removals cartel in paragraph 11 and its comments on the ‘description of the relevant sector’ in paragraphs 70 and 71, i.e. the paragraphs immediately before the passage at issue here in paragraph 73 of the judgment under appeal. 69 – See above, point 56 of this Opinion. 70 – Points 13 to 18 of the 2006 Guidelines on fines explain exactly how the value of sales is to be determined. 71 – Point 19 of the 2006 Guidelines on fines. 72 – Point 25 of the 2006 Guidelines on fines. 73 – Paragraph 92 in conjunction with paragraph 91 of the judgment under appeal; with regard to the deterrent factor, see also paragraph 94 of that judgment. 74 – Recitals 543 and 556 of the contested decision and paragraphs 93 and 94 of the judgment under appeal. 75 – Paragraph 93 of the judgment under appeal. 76 – See above, point 32 of this Opinion. 77 – Case 24/62 Germany v Commission [1963] ECR 63; Case C‑367/95 P Commission v Sytraval and Brink’s France [1998] ECR I‑1719, paragraph 63; Case C‑413/06 P Bertelsmann and Sony v Impala [2008] ECR I‑4951, paragraph 166; and AOI, cited in footnote 56, paragraph 72; to the same effect, see also Case 2/56 Geitling v High Authority [1957] ECR 3, and Case 73/74 Groupement des fabricants de papiers peints de Belgique and Others v Commission (‘Papiers peints’) [1975] ECR 1491, paragraph 30. 78 – KME and Others v Commission, cited in footnote 51, paragraph 101; Case C‑386/10 P Chalkor v Commission [2011] ECR I‑13085, paragraph 61; and Case C‑389/10 P KME Germany and Others v Commission [2011] ECR I‑13125, paragraph 128. 79 – Deutsche Telekom v Commission, cited in footnote 40, paragraph 131, and Elf Aquitaine v Commission, cited in footnote 56, paragraph 150. 80 – Papiers peints, cited in footnote 77, paragraph 31; Case C‑295/07 P Commission v Département du Loiret [2008] ECR I‑9363, paragraph 44; and Elf Aquitaine v Commission, cited in footnote 56, paragraph 155. 81 – Case C‑335/09 P Poland v Commission [2012] ECR, paragraph 152, and Case C‑417/11 P Council v Bamba [2102] ECR, paragraph 54. 82 – Commission v Sytraval and Brink’s France, cited in footnote 77, paragraph 63; Bertelsmann and Sony v Impala, cited in footnote 77, paragraphs 166 and 178; Deutsche Telekom v Commission, cited in footnote 40, paragraph 131; and Elf Aquitaine v Commission, cited in footnote 56, paragraph 150. 83 – Points 23 and 25 in conjunction with points 21 and 22 of the 2006 Guidelines on fines. 84 – See again point 23 of the 2006 Guidelines on fines. 85 – With regard to the criterion of a legitimate interest in connection with the assessment of the statement of reasons for legal acts of the European Union, see above in point 98 of this Opinion. 86 – See again point 25 of the 2006 Guidelines on fines. 87 – See the third sentence of point 23 of the 2006 Guidelines on fines. 88 – To that effect, see also paragraph 92 of the judgment under appeal. 89 – European Convention for the Protection of Human Rights and Fundamental Freedoms (signed in Rome on 4 November 1950). 90 – Dansk Rørindustri, cited in footnote 51, paragraphs 88 and 89; France Télécom v Commission, cited in footnote 40, paragraph 60; and AOI, cited in footnote 56, paragraph 111. 91 – Since the appeal was lodged before 1 November 2012, the assessment of its admissibility is governed by the Rules of Procedure of the Court of Justice of 19 June 1991. 92 – See, in this regard, points 94 to 106 of this Opinion. 93 – See, for example, Case C‑300/04 Eman and Sevinger [2006] ECR I‑8055, paragraph 57. 94 – Akzo and Akcros, cited in footnote 20, paragraph 54. 95 – Case C‑280/98 P Weig v Commission [2000] ECR I‑9757, paragraphs 63 to 68; Case C‑291/98 P Sarrió v Commission [2000] ECR I‑9991, paragraphs 97 to 100; Dansk Rørindustri, cited in footnote 51, paragraph 304; and, recently, AOI, cited in footnote 56, paragraph 58. See also points 48 to 53 of my Opinion in AOI. 96 – With regard to the legal requirements governing the precision of arguments advanced by appellants, see, inter alia, France Télécom v Commission, cited in footnote 40, paragraph 55; Case C‑227/04 P Lindorfer v Council [2007] ECR I‑6767, paragraphs 82 to 84; and Case C‑369/09 P ISD Polska and Others [2011] ECR I‑2011, paragraph 66. 97 – With regard to the Commission’s discretion in relation to the calculation of fines in cartel cases, see, in general, Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraph 46; Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 133; and Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 43. 98 – See, to that effect, JCB Service v Commission, cited in footnote 51, paragraph 205; Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 98; and Case C‑549/10 P Tomra Systems and Others v Commission [2012] ECR, paragraphs 104 to 108. 99 – See, in addition, KME and Others v Commission, cited in footnote 51, paragraphs 103 and 106; Chalkor v Commission, cited in footnote 78, paragraphs 63 and 67; and KME Germany and Others v Commission, cited in footnote 78, paragraphs 130 and 133. 100 – See above, point 44 and footnote 40 of this Opinion. 101 – Paragraph 94 of the judgment under appeal. 102 – Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 80, and Case C‑583/08 P Gogos v Commission [2010] ECR I‑4469, paragraph 35. 103 – Case C‑283/90 P Vidrányi v Commission [1991] ECR I‑4339, paragraph 29; Case C‑68/91 P Moritz v Commission [1992] ECR I‑6849, paragraphs 37 to 39; and Gogos v Commission, cited in footnote 102, paragraph 29. 104 – France Télécom v Commission, cited in footnote 40, paragraph 41. 105 – See my comments on the second part of the third ground of appeal (below in points 139 to 150 of this Opinion). 106 – Wunenburger v Commission, cited in footnote 102, paragraph 80, and Gogos v Commission, cited in footnote 102, paragraph 35. 107 – Joined Cases 209/78 to 215/78 and 218/78 van Landewyck and Others v Commission [1980] ECR 3125, paragraph 81, and Musique Diffusion française and Others v Commission, cited in footnote 64, paragraph 7; see also, to the same effect recently, European Court of Human Rights, A.Menarini Diagnostics S:R.L. v.Italy, no. 43509/08, §§ 58 and 59, 27 September 2011, regarding the Italian competition authority, the Autorità Garante della Concorrenza e del Mercato. 108 – The fact that Article 41 of the Charter of Fundamental Rights, and not Article 47 thereof, applies in administrative proceedings in cartel cases before the Commission is clear, inter alia, from Case C‑109/10 P Solvay v Commission [2011] ECR I‑10329, last sentence of paragraph 53, and Case C‑110/10 P Solvay v Commission [2011] ECR I‑10439, last sentence of paragraph 48. 109 – See, to that effect, in relation to the impartiality of tribunals, Case C‑308/07 P Gorostiaga Atxalandabaso v Parliament [2009] ECR I‑1059, paragraph 46, and order of 15 December 2011 in Case C‑411/11 P Altner v Commission, paragraph 15; see also European Court of Human Rights, Didierv.France (dec.), no. 58188/00, § 2, ECHR 2002-VII. 110 – In the language of the case: ‘… des fonctionnaires de la Commission étaient impliqués en tant que demandeurs de devis de complaisance fournis par les entreprises de déménagement concernées …’. 111 – See, to the same effect, the Opinion of 26 June 2012 of Advocate General Cruz Villalón in Case C‑199/11 Otis and Others [2012] ECR, points 56 to 71, which sheds light on a similar issue from the perspective of civil proceedings brought by the Commission against undertakings involved in a cartel. The Court of Justice gave the parties to the present dispute the opportunity to comment on that Opinion at the hearing on 24 October 2012. 112 – It is worth mentioning in this connection that recital 598 of the contested decision is incorrectly cited by the appellant. Indeed, contrary to what is implied by Ziegler, the Commission in no way presented itself in that recital as ‘among the main victims’ of the removals cartel. The wording of the recital is a great deal more general, namely that ‘Belgian and international public bodies’ ‘appear to be among’ the ‘main victims’ of the practice of providing cover quotes. The position is similar in connection with the defence submitted by the Commission at first instance, paragraph 1 of which is referred to by Ziegler. Once again, that paragraph merely states in general terms that some of the natural persons whose removals were concerned were officials of the European institutions, including Commission officials. 113 – Article 1 of the Rules of Procedure of the Commission (see also Article 17(6)(b) TEU). 114 – Article 217(2) EC (now Article 17(6)(b) TUE and Article 248 TFEU). 115 – In this regard, see also Otis and Others, cited in footnote 111, paragraph 64; see, in a similar vein, the Opinion of Advocate General Cruz Villalón in that case, point 41. 116 – In this regard, see again recital 598 of the contested decision, according to which ‘Belgian and international public bodies’ ‘appear to be among’ the ‘main victims’ of the practice of providing cover quotes. 117 – With regard to the fact that the Commission is not a tribunal, see the case-law cited above in footnote 107; with regard to the judicial review of the activities of the Commission, see, inter alia, KME and Others v Commission, cited in footnote 51, paragraphs 102 to 106; Chalkor v Commission, cited in footnote 78, paragraphs 62 to 67; KME Germany and Others v Commission, cited in footnote 78, paragraphs 129 to 133; and Otis and Others, cited in footnote 115, paragraphs 59 to 64. 118 – Ziegler bases its written and oral submissions in relation to the third ground of appeal inter alia on Kyprianouv.Cyprus [GC], no. 73797/01, § 127, ECHR 2005‑XIII, in which it is held that the confusion of roles between complainant, witness, prosecutor and judge may prompt justified doubts as to the impartiality of a court or tribunal (‘… the confusion of roles between complainant, witness, prosecutor and judge could self-evidently prompt objectively justified fears as to the conformity of the proceedings with the time-honoured principle that no one should be a judge in his or her own cause and, consequently, as to the impartiality of the bench …’). 119 – See above, point 115 of this Opinion. 120 – Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 95; Case C‑127/07 Arcelor Atlantique et Lorraine and Others (‘Arcelor’) [2008] ECR I‑9895, paragraph 23; and Akzo and Akcros, cited in footnote 20, paragraph 54. 121 – Arcelor, cited in footnote 120, paragraphs 25 and 26; Case C‑236/09 Association Belge des Consommateurs Test-Achats and Others [2011] ECR I‑773, paragraph 29; Case C‑221/09 AJD Tuna [2011] ECR I‑1655, paragraph 93; and Case C‑176/09 Luxembourg v Parliament and Council [2011] ECR I‑3727, paragraph 32. 122 – Arcelor, cited in footnote 120, paragraph 26, and Luxembourg v Parliament and Council, cited in footnote 121, paragraph 32. 123 – See the introductory wording to point 35 of the 2006 Guidelines on fines: ‘In exceptional cases …’. 124 – Paragraph 171 of the judgment under appeal. 125 – In accordance with the general principle that new rules of procedure apply to all proceedings pending at the time of the entry into force of those rules (settled case‑law, see Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others [1981] ECR 2735, paragraph 9), the decision as to costs in the present case is governed by the Rules of Procedure of the Court of Justice of 25 September 2012, which entered into force on 1 November 2012 (to the same effect, Commission v Verhuizingen Coppens, cited in footnote 6, paragraphs 83 to 85). There are, however, no substantive differences from Article 69(2) in conjunction with Articles 118 and 122(1) of the Rules of Procedure of the Court of Justice of 19 June 1991.