Opinion of the Advocate General — ECLI:EU:C:2018:238
Date: 2018-04-12
Language of the case: English
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - successful
Origin: Germany

Summary — Judgment of the Court (Fourth Chamber), 26 September 2018 1. Competition — Fines — Amount — Determination — Judicial review — Unlimited jurisdiction of the EU judicature — Scope (Arts 101, 261 and 263 TFEU; Council Regulation No 1/2003, Art. 31) 2. 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 — Single and continuous infringement — Judicial review – Review of the Commission’s decision carried out by the General Court only in relation to certain unlawful contacts found — Lawfulness (Arts 101, 261 and 263 TFEU) 3. Competition — Administrative procedure — Commission decision finding an infringement — Principle of the free assessment of evidence – Circumstances which might affect the credibility and authenticity of that evidence – Burden of proof on the undertaking concerned by the Commission’s decision finding an infringement (Art. 101 TFEU) 4. Competition — Administrative procedure — Obligations of the Commission — Commission’s obligation to play its part, using the means available to it, in ascertaining the relevant facts and circumstances – Assessment of the lawfulness of a decision finding an infringement on account of a breach of the rights of defence of the undertaking concerned — Assessment having regard to the proceedings as a whole (Art. 101 TFEU) 5. Appeal — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.) 6. Appeal — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the findings of fact — Possible only where the clear sense of the evidence has been distorted — Ground of appeal alleging distortion of the clear sense of the evidence — Need to indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which led to that distortion (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.) 7. Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Distinction between infringements by object and infringements by effect — Infringement by object — Sufficient degree of harmfulness — Sufficient — Criteria for assessment — Content and objective of a cartel and economic and legal context of its development (Art. 101(1) TFEU) 8. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability for the entire infringement to a single undertaking — Conditions (Art. 101(1) TFEU) 9. Appeal — Jurisdiction of the Court — Review of the assessment carried out by the Commission of the gravity of the infringement for the purpose of setting the fine — Precluded — Review limited to ascertaining whether the General Court took into account all the factors essential to the assessment of the gravity of the infringement and all the arguments raised against the fine imposed (Art. 101 TFEU; Statute of the Court of Justice, Art. 58, first para.; Council Regulation No 1/2003, Art. 23) 10. Competition — Fines — Amount — Determination — Judicial review — Unlimited jurisdiction of the EU judicature — Scope — Observance of the principle of proportionality – Absence of review of the proportionality of the amount of the fine imposed in relation to the number of unlawful contacts — Infringement (Arts 261 and 263 TFEU; Charter of Fundamental Rights, Art. 47; Council Regulation No 1/2003, Art. 31; Commission Notice 2006/C 210/02, point 23) 11. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — No binding or exhaustive list of criteria — Commission's margin of discretion (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, points 19 to 23 and 25) 1. See the text of the decision. (see paras 47, 48) 2. In order to uphold the lawfulness of the Commission’s finding of an undertaking’s participation in a single and continuous infringement of competition law, the General Court is entitled to confine itself to reviewing the Commission’s assessments relating not only to the first and last collusive contacts, but also to one or two contacts per year of participation. In the context of an infringement extending over a certain period, the fact that the agreement is shown to have applied during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the agreement, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement. Moreover, the fact that an undertaking did not take part in all aspects of an anticompetitive arrangement or that it played only a minor role in the aspects in which it did participate is not material for the purposes of establishing the existence of an infringement on its part, given that those factors need to be taken into consideration only when the gravity of the infringement is assessed and only if and when it comes to determining the fine. (see paras 51-54) 3. The principle which prevails in EU law is that of the unfettered evaluation of evidence, from which it results, first, that, where evidence has been obtained lawfully, its admissibility cannot be contested before the General Court and, secondly, that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility. When the Commission relies on evidence which is in principle sufficient to demonstrate the existence of an infringement of the completion rules, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence so that the Commission bears the burden of proving that that circumstance was not capable of affecting the probative value of that evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned on account of the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, first, the existence of the circumstance relied on by it and, second, that that circumstance calls into question the probative value of the evidence relied on by the Commission. Those considerations are applicable to a situation in which the undertaking concerned contests the authenticity of an item of evidence rather than its credibility. (see paras 65-67) 4. See the text of the decision. (see paras 76-79) 5. See the text of the decision. (see paras 97, 116) 6. See the text of the decision. (see paras 100, 103) 7. See the text of the decision. (see paras 138, 155, 156, 160) 8. See the text of the decision. (see paras 172, 173) 9. The General Court alone has jurisdiction to examine how in each particular case the Commission assessed the gravity of the unlawful conduct constituting a breach of competition law. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the General Court took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 101 TFEU and Article 23 of Regulation No 1/2003 and, second, to consider whether the General Court responded to a sufficient legal standard to all the arguments raised in support of the claim for cancellation or reduction of the fine. (see para. 192) 10. The unlimited jurisdiction conferred on the EU judicature by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU empowers the competent Court, in addition to carrying out a mere review of legality with regard to the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed. It is true that the exercise of that jurisdiction does not amount to a review of the Court’s own motion, and proceedings are inter partes. It is, in principle, for the applicant to raise pleas in law against the decision at issue and to adduce evidence in support of those pleas. However, in order to satisfy the requirements of Article 47 of the Charter of Fundamental Rights of the European Union when conducting a review in the exercise of its unlimited jurisdiction with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 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. In those circumstances, the General Court is not entitled, without misconstruing the extent of its unlimited jurisdiction, to refrain from responding to the argument that the Commission infringed the principle of proportionality by setting the amount of the fine imposed without taking into account the small number of contacts in which the undertaking fined participated. That conclusion is all the more compelling if the General Court has confined itself in its review of the lawfulness of the penalty, to confirming 5 of the 11 contacts found in the Commission’s decision, whilst not responding to the question whether the Commission had established the existence of the 6 other contacts found in that decision. Although, for the purpose of assessing the gravity of that infringement and setting the amount of the fine, the General Court is not required to rely on the exact number of bilateral contacts found in regard to the undertaking fined, that factor may nevertheless constitute a relevant factor among others. Where the General Court does not review the proportionality of the amount of the fine imposed in relation to the number of contacts that it found against the undertaking fined, and does not set out the reasons why it did not conduct such a review, it errs in law. (see paras 193-195, 205-208) 11. The gravity of an infringement of Article 101 TFEU must be assessed on an individual basis. In order to determine the amount of a fine, it is necessary to take account of the duration of the infringement and of all the factors capable of affecting the assessment of its gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the European Union. Those factors also include the number and intensity of the incidents of anticompetitive conduct. However, there is no binding or exhaustive list of criteria to be taken into account when assessing the gravity of an infringement. Moreover, the Commission may take into account the relative gravity of the participation of an undertaking in an infringement and the particular circumstances of the case when assessing the gravity of the infringement within the meaning of Article 23 of Regulation No 1/2003, or when adjusting the basic amount of the fine in the light of mitigating and aggravating circumstances. (see paras 196-199)