62010CO0367_EN
Parties
Grounds
Operative part
Parties
In Case C‑367/10 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 22 July 2010,
EMC Development AB,
established in Luleå (Sweden), represented by W.-N. Schelp, avocat,
applicant,
the other party to the proceedings being:
European Commission,
represented by J. Bourke, acting as Agent, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Fifth Chamber),
composed of J.-J. Kasel, President, A. Borg Barthet and M. Ilešič (Rapporteur), Judges,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
after hearing the Advocate General,
makes the following
Order
Grounds
1. By its appeal, EMC Development AB (‘EMC Development’) requests the Court to set aside the judgment of the General Court of the European Union of 12 May 2010 in Case T‑432/05 EMC Development
v Commission, not yet published in the ECR (‘the judgment under appeal’), whereby the General Court dismissed EMC Development’s action for annulment of Commission Decision SG-Greffe (2005) D/205249 of 28 September 2005 rejecting the complaint brought by EMC Development against European Portland cement producers, the European Cement Association (Cembureau) and the European Committee for Standardisation (CEN) in relation to the European cement market (‘the decision at issue’).
Legal context
Directive 89/106/EEC
2. Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products (OJ 1989 L 40, p. 12), as amended by Council Directive 93/68/EEC of 22 July 1993 (OJ 1993 L 220, p. 1), (‘Directive 89/106’) is designed in particular to remove barriers to the free movement of construction products. Under Article 1(2) of Directive 89/106, for the purposes of that directive ‘construction product’ means ‘any product which is produced for incorporation in a permanent manner in construction works, including both buildings and civil engineering works.’ Under Article 2(1) and Article 3(1) of Directive 89/106, Member States are required to take all the measures necessary to ensure that construction products may be placed on the market only if they are fit for this intended use, that is to say, if they have such characteristics that the works in which they are to be incorporated, assembled, applied or installed, can, if properly designed and built, satisfy the essential requirements set out in Annex I to Directive 89/106 when and where such works are subject to regulations containing such requirements.
3. Directive 89/106 provides for the development of technical specifications, compliance with which, according to Article 4(2), raises a presumption of conformity with those essential requirements. According to Article 4(1) and Article 9(3) of that directive, those specifications may be the harmonised standards adopted by, inter alia, CEN or European technical approvals issued by an approval body designated by a Member State.
4. Under Article 4(2) of Directive 89/106, the CE marking is to indicate that construction products comply, in particular, with the relevant national standards transposing the harmonised standards, references to which have been published in the Official Journal of the European Union, or that they comply with a European technical approval. Under Article 4(2) and Article 6(1) of Directive 89/106, Member States are to allow the placing on the market or use in their territory of products which comply with that directive and bear the CE marking.
5. According to Article 7 of Directive 89/106, harmonised standards are to be adopted by the European standards organisations under a mandate given by the Commission of the European Communities and following an opinion given by the Standing Committee on Construction referred to in Article 19 of that directive. The resulting standards are to be expressed as far as practicable in product performance terms, having regard to the interpretative documents.
6. According to Article 8(2) of Directive 89/106, European technical approval may be granted, in particular, (i) to products for which there is neither a harmonised standard, nor a recognised national standard, nor a mandate for a harmonised standard, and for which the Commission considers that a standard could not, or could not yet, be elaborated, and (ii) to products which differ significantly from harmonised or recognised national standards.
The Guidelines on the applicability of Article 81 EC to horizontal agreements
7. Chapter 6 of the Commission’s Guidelines on the applicability of Article 81 [EC] to horizontal cooperation agreements (OJ 2001 C 3, p. 2) (‘the Guidelines’), which concerns agreements on standards, provides:
‘6.1 Definition
159. Standardisation agreements have as their primary objective the definition of technical or quality requirements with which current or future products, production processes or methods may comply. Standardisation agreements can cover various issues, such as standardisation of different grades or sizes of a particular product or technical specifications in markets where compatibility and interoperability with other products or systems are essential. The terms of access to a particular quality mark or for approval by a regulatory body can also be regarded as a standard.
…’
8. Footnote 47 to paragraph 159 of the Guidelines states:
‘Standardisation can take different forms, ranging from the adoption of national consensus based standards by the recognised European or national standards bodies, through consortia and fora, to agreements between single companies. Although Community law defines standards in a narrow way, these guidelines qualify as standards all agreements as defined in this paragraph.’
9. With regard to the application of the rules on competition, the Guidelines state, inter alia, as follows:
‘6.3 Assessment under Article 81(1) [EC]
162. Agreements to set standards … may be either concluded between private undertakings or set under the aegis of public bodies or bodies entrusted with the operation of services of general economic interest, such as the standards bodies recognised under Directive 98/34/EC [of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37)] … The involvement of such bodies is subject to the obligations of Member States regarding the preservation of non-distorted competition in the Community.
6.3.1	Nature of the agreement
6.3.1.1	Agreements that do not fall under Article 81(1) [EC]
163. Where participation in standard setting is unrestricted and transparent, standardisation agreements as defined above, which set no obligation to comply with the standard or which are parts of a wider agreement to ensure compatibility of products, do not restrict competition. This normally applies to standards adopted by the recognised standards bodies which are based on non-discriminatory, open and transparent procedures.
…
6.3.1.2. Agreements that almost always come under Article 81(1) [EC]
165. Agreements that use a standard as a means amongst other parts of a broader restrictive agreement aimed at excluding actual or potential competitors will almost always be caught by Article 81(1). For instance, an agreement whereby a national association of manufacturers set a standard and put pressure on third parties not to market products that did not comply with the standard would be in this category.
…’
Background to the dispute
10. According to paragraphs 9 to 32 of the judgment under appeal, the background to the dispute is essentially as follows.
11. EMC Development is a company engaged in the ongoing testing, development and commercial exploitation of a method of producing energetically modified cement.
12. Cembureau, established in Brussels (Belgium) represented, at the date on which the contested decision was adopted, 25 national cement industry associations and cement companies in Europe, its objective being to advance its members’ interests through active representation of the European cement industry at European and international levels.
13. CEN is an independent organisation whose members were, at the date on which the contested decision was adopted, the national standard-setting bodies of 28 European States. The Commission is not a member of CEN but acts as a counsellor, inter alia to its technical board. CEN, which promotes voluntary technical harmonisation in Europe, is a European standardisation body recognised under Directive 98/34.
14. The EN 197‑1 Standard (‘the Standard’) was adopted in April 2000 by the 19 national standards bodies that were members of CEN at that time. It was developed by a CEN technical committee, CEN/TC 51 ‘Cement and building limes’ (‘CEN/TC 51’), under mandate M/114, which was granted by the Commission and the European Free Trade Association (EFTA) pursuant to Directive 89/106.
15. Cements which comply with the Standard can obtain the CE marking.
16. Following several contacts with EMC Development, in the context of which EMC Development claimed, inter alia, that there had been an infringement of Articles 81 EC and 82 EC, the Commission on 15 March 2002 registered a formal complaint under Article 3(2) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ English Special Edition 1959-1962, p. 87).
17. In its complaint, EMC Development claimed, in particular, that the European producers of Portland cement had formed a cartel in order to create barriers to entry into the European cement market, the most significant of those barriers being the Standard, which they adopted via Cembureau and CEN. EMC Development complained, in addition, that there had been a collective abuse of a dominant position by those producers which, by reinforcing their domination by means of vertical integration consisting in acquiring control of 30 to 70% of the producers of concrete and aggregates within the European Union, prevented those producers from buying energetically modified cement by threatening to interrupt supplies.
18. On 4 and 6 September 2002 respectively, CEN and Cembureau submitted their observations on the non-confidential version of the complaint. On 10 March 2003 EMC Development sent the Commission’s Directorate-General for Competition its observations on the submissions of Cembureau and CEN.
19. On 29 January 2004 the Commission sent a letter to EMC Development pursuant to Article 6 of Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles [81 EC] and [82 EC] (OJ 1998 L 354, p. 18), informing EMC Development of its intention to reject the complaint and inviting it to submit comments, which EMC Development did by letter of 22 March 2004.
20. Following another series of contacts with EMC Development, the Commission, by the decision at issue, formally rejected the latter’s complaint.
21. At paragraphs 73 to 123 of that decision, the Commission explains, first of all, its reasons for taking the view that there are insufficient grounds for upholding the complaint. As regards the alleged infringement of Article 81 EC, the Commission defines the relevant product market and geographic market and then examines the Standard in the light of the Guidelines, in particular paragraphs 162 and 163 thereof, and concludes, at paragraph 112 of that decision, that it does not restrict competition within the meaning of Article 81(1) EC. Next, the Commission states, at paragraph 107 of that decision, that it is not necessary, in the context of a complaint concerning the application of Articles 81 EC and 82 EC, to determine whether the Standard is expressed in prescriptive or performance-based terms, adding, at paragraphs 108 to 111 of the same decision, that the competent Commission department, namely the Directorate-General (DG) Enterprise, takes the view that the Standard is drafted in terms that are ‘sufficient[ly] performance based’. Last, the Commission examines and rejects the other arguments put forward by EMC Development.
The procedure before the General Court and the judgment under appeal
22. By application lodged at the Registry of the General Court on 8 December 2005, EMC Development brought an action for annulment of the decision at issue and requested that the Commission be ordered to pay the costs of the proceedings.
23. In support of its action, EMC Development raised a number of pleas in law, alleging, in substance, manifest errors of assessment in relation to the procedure for the adoption of the Standard and in relation to its non-binding nature and also failure to examine the Standard in the light of Directive 89/106 and the non-conformity of the Standard with that directive.
24. By the judgment under appeal, the General Court dismissed that action.
25. In the course of its examination, at paragraphs 43 to 53 of the judgment under appeal, of the Commission’s arguments relating to the admissibility of EMC Development’s application, the General Court concluded that only the pleas set out at paragraph 23 of the present order, relating to the applicability of Article 81(1) EC to the Standard, had been properly brought before it, and declared the other pleas and arguments in the application inadmissible.
26. At paragraphs 56 to 60 of the judgment under appeal the General Court presented the following preliminary observations on the scope of the Commission’s obligations when examining a complaint of infringement of Article 81:
‘…
56 The complainant has the right to be informed of and to submit comments on the grounds on which the Commission proposes to reject the complaint before it adopts a decision to that effect. Regulations No 17 and No 2842/98 – replaced from 1 May 2004 by, respectively, [Council] Regulation No 1/2003 [of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1)] and Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 [EC] and 82 [EC] (OJ 2004 L 123, p. 18) – confer certain procedural rights on persons who have lodged a complaint with the Commission on the basis of Article 3 of Regulation No 17 (now Article 7 of Regulation No 1/2003). Those rights include the rights laid down in Article 6 of Regulation No 2842/98 (now Article 7 of Regulation No 773/2004), which provides that, where the Commission takes the view that, on the basis of the information in its possession, there are insufficient grounds for acting on the complaint, it is to inform the complainant of its reasons and set a date by which the latter may make known its views in writing (see, with regard to Regulation No 2842/98, Case T‑204/03 Haladjian Frères
v Commission
[2006] ECR II‑3779, paragraph 26).
57 However, neither Regulations No 17 and No 2842/98 nor Regulations No 1/2003 and No 773/2004 contain express provisions relating to the action to be taken concerning the substance of a complaint and any obligations on the part of the Commission to carry out an investigation. On that point, it must be borne in mind that the Commission is under no obligation to initiate procedu res to establish possible infringements of Community law and that the rights conferred on complainants by those regulations do not include the right to obtain a final decision as to the existence or non-existence of the alleged infringement (see, with regard to Regulations No 17 and No 2842/98, Haladjian Frères
v Commission, cited in paragraph 56 above, paragraph 27 and the case-law cited).
58 It is on the basis of those principles that the case-law has recognised that, if the Commission is under no obligation to rule on the existence or non-existence of an infringement, it cannot be compelled to carry out an investigation, because such an investigation could have no purpose other than to seek evidence of the existence or non-existence of an infringement which it is not required to establish (see, with regard to Regulations No 17 and No 2842/98, Haladjian Frères
v Commission, cited in paragraph 56 above, paragraph 28 and the case-law cited).
59 However, although the Commission cannot be compelled to conduct an investigation, it is nevertheless obliged to examine carefully the factual and legal particulars brought to its notice by the complainant in order to decide whether they disclose conduct of such a kind as to distort competition in the common market and affect trade between the Member States (see, with regard to Regulation No 17, Case T‑24/90 Automec
v Commission
[1992] ECR II‑2223, paragraph 79 and the case-law cited, and Case T‑198/98 Micro Leader
v Commission
[1999] ECR II‑3989, paragraph 27). Furthermore, since the Commission’s only obligation is to examine the factual and legal particulars brought to its notice by the complainant, it is not, contrary to the applicant’s assertions, incumbent on the Commission to prove that it has adopted measures of investigation.
60 It is in the light of all those considerations that the Court must assess whether the … decision [in issue] contains an appropriate examination of the factual and legal particulars submitted for the Commission’s appraisal in the context of the administrative procedure. In that regard, it must be borne in mind that the judicial review of Commission measures involving appraisal of complex economic matters, as is the case for allegations of infringements of Article 81 EC, is limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of assessment or a misuse of powers ( Automec
v Commission, cited in paragraph 59 above, paragraph 80, and Micro Leader
v Commission, … paragraph 27; see Haladjian Frères
v Commission, … paragraph 30 and the case-law cited).’
27. The General Court examined EMC Development’s first and second complaints, alleging manifest errors of assessment in relation, respectively, to the procedure for the adoption of the Standard and to its non-binding nature, in the following paragraphs:
‘62 It must be noted that the Commission may adopt a policy as to how it will exercise its discretion in the form of measures such as guidelines, in so far as those measures contain rules indicating the approach which the institution is to take and do not depart from the rules of the Treaty (see Case C‑278/00 Greece
v Commission
[2004] ECR I‑3997, paragraph 98 and the case-law cited).
63 The applicant does not deny that the purpose of the Guidelines is to set out the principles governing the Commission’s assessment, in the light of Article 81 EC, of horizontal cooperation agreements and, in particular, of agreements on standards.
64 Furthermore, the Court notes that the applicant agrees in its application that the Guidelines are applicable in the present case and does not deny that the Standard was adopted by CEN, a standards body recognised under Directive 98/34.
65 Therefore, since the applicant did not produce information that could call into question the criteria set out in paragraphs 162 and 163 of the Guidelines, the Commission was right to examine the applicant’s complaints, more particularly in the light of paragraph 163, in order to assess (i) whether the procedure for adoption of the Standard had not been non-discriminatory, open and transparent, and (ii) whether the Standard was binding.’
28. At paragraphs 79 to 104 of the judgment under appeal the General Court examined the arguments put forward by EMC Development in the context of the first plea and concluded that EMC Development had not demonstrated that the decision at issue was vitiated by a manifest error of assessment in that the Commission considered that the procedure for the adoption of the Standard was open, non-discriminatory and transparent.
29. Paragraphs 89 and 97 of the judgment under appeal are worded as follows:
‘89 In view of the foregoing, it must be held that the applicant has not established that the … decision [at issue] is vitiated by a manifest error of assessment as regards the Commission’s finding, in paragraphs 95 and 102, that the applicant had failed to prove that Cembureau and the chairman of CEN/TC 51 acted together to ensure that the Standard would correspond to the products of Portland cement producers and would exclude competing products. Nor has the applicant demonstrated that paragraph 96 of the … decision [at issue], rejecting its allegation that Cembureau controlled CEN/TC 51 through the chairman of CEN/TC 51, is vitiated by a manifest error of assessment.
…
97 In any event, the applicant’s arguments are ineffective. As the Court has observed in paragraph 59 above, the Commission’s only obligation was to examine the particulars put forward by the applicant in its complaint. It is therefore for the applicant to demonstrate that the Commission made a manifest error of assessment in taking the view that the particulars which had been submitted to it did not establish that the procedure for adoption of the Standard by CEN had not been transparent. First, the applicant invokes the failure to disclose documents relating to the drawing-up of the draft mandate by the Commission before the Standard was drawn up by CEN. Second, the Commission’s failure to disclose documents, assuming that were established, does not imply any lack of transparency in the procedure for adoption of the Standard by CEN.’
30. The General Court also considered, at paragraphs 113 to 130 of the judgment under appeal, that the Commission had examined the evidence put forward by the applicant to demonstrate that the Standard was de facto binding, that EMC Development disregarded that analysis when it complained that the Commission had failed to examine the alleged effects of the Standard and that it had failed to establish that the decision at issue was vitiated by a manifest error of assessment with respect to the Commission’s finding that the Standard was not binding.
31. Paragraph 116 of the judgment under appeal is worded as follows:
‘However, as the Commission correctly contends, the applicant does not adduce any evidence to show that the situation in the market changed as a result of the adoption of the Standard.’
32. At paragraphs 135 to 138 of the judgment under appeal the General Court rejected EMC Development’s plea alleging failure to examine the Standard in the light of Directive 89/106 and the non-conformity of the Standard with that directive, taking the view that the action related to a review of the legality of the contested decision and not of the Standard and that, as that decision had been adopted by the Commission following a procedure conducted on the basis of a complaint lodged pursuant to Regulation No 17, judicial review of that decision must necessarily be limited to the competition rules as they result from Articles 81 EC and 82 EC and consequently could not extend to compliance with other provisions of the Treaty or of Directive 89/106.
Forms of order sought by the parties
33. EMC Development claims that the Court should:
– annul the decision at issue;
– in the alternative, set aside the judgment under appeal in whole or in part and refer the case back to the General Court for judgment in the light of such guidance as the Court may give, and
– in any event, order the Commission to pay the costs of the proceedings at first instance and on appeal.
34. The Commission contends that the Court should dismiss the appeal and order EMC Development to pay the Commission’s costs.
The appeal
35. Under Article 119 of its Rules of Procedure, where the appeal is clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, by reasoned order, and without opening the oral procedure, dismiss the appeal.
36. Article 119 of the Rules of Procedure should be applied to the present appeal.
37. In support of its appeal, EMC Development relies, essentially, on six pleas in law.
Admissibility of the appeal in its entirety
Arguments of the parties
38. Although it responds to each of the pleas in law raised by EMC Development in support of its appeal, the Commission expresses doubt as to the admissibility of the appeal in its entirety. It maintains that EMC Development’s arguments, which are not arranged systematically, but are ‘intertwined together’, are frequently expressed in too vague a manner to be comprehensible.
Findings of the Court
39. It follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 112(1)(c) of the Rules of Procedure of the Court that an appeal must state precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or plea concerned is inadmissible (see, in particular, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/426 P to C‑208/14 P and C‑213/08 P Dansk Rørindustri and Others
v Commission
[2005] ECR I‑5425, paragraph 426, and Case C‑280/08 P Deutsche Telekom
v Commission, [2010] ECR I-0000, paragraph 24).
40. An appeal or a plea in it which is too vague to be answered does not satisfy those requirements and must be declared inadmissible (see, to that effect, Case C‑194/99 P Thyssen Stahl
v Commission [2003] ECR I‑10821, paragraph 106).
41. In the present case, it must be observed that the appeal has certainly not been drafted with all desirable clarity and that it is in many respects confused.
42. Notwithstanding such defects, however, the appeal identifies, in relation to several pleas, the elements of the judgment under appeal which are contested and sets out the legal arguments advanced in support of those complaints.
43. Consequently, the present appeal cannot be regarded as inadmissible in its entirety. The admissibility of the various pleas will therefore be ascertained when each of them is examined.
The first plea, alleging failure by the General Court to examine arguments raised before it by EMC Development
Arguments of the parties
44. By its first plea, EMC Development takes issue with the General Court for not having considered, first, its plea alleging that the Standard is incompatible with Directive 89/106 and, second, its argument that the sole function of the Guidelines is to provide guidance and that they do not in themselves constitute a ground for avoiding a wider analysis under Article 81 EC.
45. The Commission contends that this plea is unfounded.
Findings of the Court
46. As a preliminary point, first, it must be borne in mind that the purpose of review by the Court in an appeal is, in particular, to examine to what extent the General Court responded, to the requisite legal standard, to all the arguments on which the appellant relied (Case C‑202/07 P France Télécom
v Commission [2009] ECR I‑2369, paragraph 41 and the case-law cited) and, second, it must be observed that the plea alleging that the General Court failed to rule on arguments relied on at first instance amounts essentially to relying on a breach of the obligation to state reasons which derives from Article 36 of the Statute of the Court of Justice, applicable to the General Court by virtue of the first paragraph of Article 53 of that Statute, and from Article 81 of the Rules of Procedure of the General Court (Case C‑583/08 P Gogos
v Commission, [2010] ECR I‑0000, paragraph 29).
47. As regards the alleged failure to examine EMC Development’s plea alleging that the Standard is incompatible with Directive 89/106, it is sufficient to observe that the General Court examined that complaint at paragraphs 135 to 138 of the judgment under appeal. EMC Development’s argument is therefore factually incorrect. However, that finding has no impact on the question whether the General Court erred in law in holding that judicial review of a decision adopted by the Commission following a procedure conducted on the basis of a complaint lodged pursuant to Regulation No 17 must necessarily be limited to the competition rules as they result from Articles 81 EC and 82 EC and that consequently it cannot extend to compliance with the other provisions of European Union law.
48. As regards the alleged failure to examine the argument that the Guidelines have only indicative value and cannot prevail over a wider analysis carried out in accordance with Article 81 EC, it must be borne in mind that the requirement that the General Court give reasons for its decisions cannot be interpreted as meaning that it was obliged to respond in detail to every single argument advanced by the appellant, particularly if the argument was not sufficiently clear and precise (Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others
v Council and Commission
[2008] ECR I‑6513, paragraph 91 and the case-law cited).
49. However, examination of the application lodged by EMC Development before the General Court does not precisely reveal the conclusion which that company intended to draw from its assertion that ‘[t]he Guidelines are designed to provide guidance only and do not per se demonstrate intractable or immutable principles of law in specific cases’, and that application does not disclose how that assertion calls in question the validity of the decision at issue. Furthermore, EMC Development states in its application that it ‘agrees that [those] Guidelines are applicable’ in the present case.
50. In addition, the General Court implicitly ruled on that assertion when, at paragraphs 62 to 65 of the judgment under appeal, it held, in substance, first, that the Commission may adopt a policy as to how it will exercise its discretion, in the context of the application of Article 81 EC, in the form of measures such as guidelines, in so far as those measures contain rules indicating the approach which the institution is to take and do not depart from the rules of the Treaty and, second, that EMC Development had not disputed the applicability and the validity of the guidelines applied by the Commission in the present case.
51. The first plea in the appeal must therefore be rejected as clearly unfounded.
The second plea, alleging breach of Article 48(2) of the Rules of Procedure of the General Court
Arguments of the parties
52. By its second plea, EMC Development takes issue with the General Court, in the first part of this plea, for having breached Article 48(2) of its Rules of Procedure by rejecting, at paragraphs 83, 96, 100 and 103 of the judgment under appeal, as inadmissible certain arguments submitted to the General Court by EMC Development in its reply on the ground that they constitute new evidence adduced in the course of the proceedings which is not based on matters of law or of fact that came to light in the course of the procedure, within the meaning of that provision. According to those arguments, first, it is necessary to determine, in the context of the assessment of the discriminatory or non-discriminatory nature of the procedure for the adoption of the Standard, whether Cembureau manipulated mandate M/144 referred to at paragraph 14 of this order and used the means necessary to exert such manipulation. Second, that procedure cannot be characterised as transparent, since there are lacunae in the evidence available and since EMC Development experienced difficulties in obtaining disclosure from the Commission of a number of documents relating to the procedure for the adoption of the Standard. Third, that procedure cannot be characterised as transparent owing to the existence of unregulated ad hoc groups, in particular an ad hoc group of members of CEN/TC 51. Fourth, the procedure for the adoption of the Standard cannot be characterised as open, in so far as EMC Development was not invited to make submissions to CEN and there was no procedure enabling it to take part in the discussions.
53. EMC Development claims that a detailed examination of the pleadings demonstrates that it had indicated the matters of law and of fact on which its pleas were based, although certain aspects of those matters had been mentioned in a summary fashion. All the arguments which the General Court rejected as inadmissible at paragraphs 83, 96, 100 and 103 of the judgment under appeal are based on matters of law and of fact that had come to light in the course of the procedure or on points summarily set out in the application.
54. EMC Development contends, moreover, that the lack of case-law on standardisation agreements meant that it had to develop its arguments using a ‘first basis’ approach. In addition, it was entitled to challenge, in its reply, the Commission’s arguments set out in its defence, which shifted the burden of proof to EMC Development.
55. In a second part of its second plea, EMC Development maintains that the General Court breached Article 48(2) of its Rules of Procedure in so far as it did not reject as inadmissible the Commission’s argument, in paragraph 49 of the rejoinder which it lodged before the General Court, that in order to determine whether the Standard restricted competition, it was necessary to analyse what the competition situation would have been if the Standard had not existed, which constitutes a fresh plea raised during the proceedings, not based on matters of law and of fact that came to light in the course of the procedure, and in so far as the General Court adopted that argument at paragraph 116 of the judgment under appeal.
56. The Commission contends that this plea is ineffective in part and clearly unfounded in part.
Findings of the Court
57. It should be observed at the outset that when it decides whether a submission is to be classified as a new plea, within the meaning of the first paragraph of Article 48(2) of its Rules of Procedure, or a permissible amplification of a plea put forward at the appropriate time, the General Court does not proceed to an assessment of the facts, but determines their legal nature and establishes the legal consequences thereof. Such a legal characterisation of the facts is a point of law which may be raised on appeal (see, to that effect, Dansk Rørindustri and Others
v Commission, paragraphs 77 to 90)
58. As for the first part of the second plea, it must be borne in mind, as already stated at paragraph 39 of the present order, that an appeal must state precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or plea concerned is inadmissible.
59. In fact, the arguments raised by EMC Development in this first part of the plea do not satisfy those requirements. The appellant merely states generally that the arguments which the General Court rejected as inadmissible at paragraphs 83, 96, 100 and 103 of the judgment under appeal are based on matters of fact and of law which came to light in the course of the procedure before the General Court or develop complaints set out summarily in the application, but fails to explain what those matters of fact and of law are or to state, for each of those arguments, precisely what pleas formulated in the application those arguments are supposed to amplify.
60. As the first part of this plea is therefore insufficiently detailed, it must be rejected as clearly inadmissible.
61. As regards the second part of the second plea, according to which the General Court ought to have declared inadmissible the Commission’s argument at paragraph 49 of its rejoinder before the General Court, it must be observed that examination of that pleading shows that that argument forms part of the Commission’s assertion that the preference for Portland cement on the cement market is not the result of the existence of the Standard.
62. Accordingly, that argument must be regarded as merely amplifying the argument put forward by the Commission in its defence before the General Court that the Standard has no binding effect and had therefore to be regarded as admissible (see, to that effect, Case C‑485/08 P Gualtieri
v Commission, [2010] ECR I-0000, paragraph 37 and the case-law cited).
63. It follows that the General Court did not adjudicate on a new plea and therefore did not breach Article 48(2) of its Rules of Procedure.
64. The second part of the second plea is therefore clearly unfounded.
65. It follows from the foregoing that this plea must be rejected as clearly inadmissible in part and clearly unfounded in part.
The third plea, alleging breach of the rules relating to the burden of proof
Arguments of the parties
66. By the third plea, EMC Development takes issue with the General Court for having wrongly placed the burden of proof on it.
67. First, EMC Development takes issue with paragraph 97 of the judgment under appeal, where the General Court considered that it was for EMC Development to demonstrate that the Commission had made a manifest error of assessment in taking the view that the particulars which EMC Development had submitted to it did not demonstrate that the procedure for adoption of the Standard by CEN had not been transparent. In the appellant’s submission, the General Court thus required that it adduce ex post facto
evidence which is extremely difficult to produce and evidence of a ‘double’ negative fact. In fact, the burden of proof should be borne by the Commission, since in the present case it controlled the evidence and it was necessary to prove a positive fact.
68. Second, EMC Development claims, relying in particular on paragraph 30 of Case C‑413/08 P Lafarge
v Commission, [2010] ECR I-0000, that even if the burden of proof rests on one party, the evidence which it submits may be of such a kind as to require the other party to provide justification and may thus transfer the burden of proof to that other party. In EMC Development’s submission, since the Commission maintained that it had carefully considered evidence which it always had in its possession, full credit ought to have been given to EMC Development’s submissions and substantial weight ought to have been accorded to the evidence which it adduced.
69. Third, EMC Development maintains that, in so far as agreements between undertakings infringe Article 81(1) EC where they are intended to organise artificially the operation of the market and where such organisation is also the raison d’être
of any standard, there is a presumption that standards infringe that provision. It was for the Commission to rebut that presumption in the present case and not for EMC Development to prove, as regards the non-discriminatory nature of the procedure for the adoption of the Standard, that Cembureau’s activities had exceeded the limits of normal lobbying. At paragraph 89 of the judgment under appeal the General Court thus reversed the burden of proof and unlawfully ‘elevated’ the requirement placed on EMC Development in relation to proof. EMC Development relies, in that regard, in particular, on paragraph 142 of Dansk Rørindustri and Others
v Commission, where this Court held, in substance, first, that it was sufficient for the Commission to show that the undertaking concerned had participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove that that undertaking had participated in the cartel and, second, that it was for that undertaking to submit indicia capable of proving that its participation in those meetings was without any anti-competitive intention.
70. Fourth, EMC Development, referring to paragraph 22 of Lafarge
v Commission, takes issue with the General Court for not having given sufficient weight to its assertions resulting from certain details which it reconstituted by deduction, although this Court has held that it is usual for anti-competitive practices and agreements to take place in secret and for the associated documentation to be reduced to a minimum and that it is therefore often necessary to reconstitute certain details by deduction.
71. The Commission disputes the admissibility and/or the merits of the arguments put forward in the context of this plea.
Findings of the Court
72. It should be observed at the outset that the General Court did not err in law in identifying, at paragraphs 56 to 59 of the judgment under appeal, the rights of the complainant and the obligations of the Commission where a complaint alleging infringement of Article 81 EC is rejected.
73. According to consistent case-law, Article 3 of Regulation No 17, the terms of which were essentially reproduced in Article 7 of Regulation No 1/2003, does not give a complainant the right to insist that the Commission take a final decision as to the existence or non-existence of the alleged infringement and does not oblige the Commission to continue the proceedings, whatever the circumstances, right up to the stage of a final decision (Case 125/78 GEMA
v Commission [1979] ECR 3173, paragraph 18; Case C‑119/97 P Ufex and Others
v Commission [1999] ECR I-1341, paragraph 87; and also Case C‑449/98 P IECC
v Commission [2001] ECR I‑3875, paragraph 35).
74. On the other hand, the Commission is required to consider attentively all the matters of fact and of law which the complainant brings to its attention (Case 210/81 Schmidt
v Commission
[1983] ECR 3045, paragraph 19; Case 298/83 CICCE
v Commission
[1985] ECR 1105, paragraph 18; Joined Cases 142/84 and 156/84 British American Tobacco and Reynolds Industries
v Commission
[1987] ECR 4487, paragraph 20; Ufex and Others
v Commission, paragraph 86; and IECC
v Commission, paragraph 45).
75. Complainants are entitled to have the fate of their complaint settled by a decision of the Commission against which an action may be brought (Case C-282/95 P Guérin Automobiles
v Commission
[1997] ECR I-1503, paragraph 36, and IECC
v Commission, paragraph 35). In that regard, the Commission is under an obligation to state reasons if it declines to continue with the examination of a complaint. Since the reasons stated must be sufficiently precise and detailed to enable the General Court effectively to review the Commission’s use of its discretion to define priorities, the Commission must set out the facts justifying the decision and the legal considerations on the basis of which it was adopted ( Ufex and Others
v Commission, paragraphs 90 and 91).
76. Furthermore, among the procedural rights enjoyed by a complainant is the right, provided for in Article 6 of Regulation No 2842/98, the terms of which have been substantially reproduced in Article 7(1) of Regulation No 773/2004, to be informed of the grounds on which the Commission proposes to reject the complaint and to make known its views before a decision to that effect is adopted by the Commission.
77. It follows from the foregoing that the General Court was correct to consider, at paragraph 59 of the judgment under appeal, that the Commission is not required to prove that it has adopted measures of investigation following a complaint.
78. As regards, in the first place, the argument whereby EMC Development criticises paragraph 97 of the judgment under appeal, it must be observed that that argument is directed against a ground included in that judgment purely for the sake of completeness. In fact, complaints directed against grounds included in a judgment of the General Court purely for the sake of completeness must be rejected outright, since they cannot lead to the judgment being set aside (see, to that effect, in particular, Case C‑164/01 P van den Berg
v Council and Commission [2004] ECR I‑10225, paragraph 60, and also Dansk Rørindustri and Others
v Commission, paragraph 148).
79. In any event, that argument is manifestly unfounded, since, as is clear from paragraphs 72 to 77 of the present order, the General Court did not err in law in considering that the Commission was required solely to consider attentively all the matters of fact and of law which EMC Development had brought to its attention and that it was for EMC Development to demonstrate that the Commission had failed to fulfil that obligation. Nor did the General Court require EMC Development to adduce evidence of a negative fact, as it could simply have demonstrated that the procedure for the adoption of the Standard was lacking in elements ensuring its transparency.
80. As regards, in the second place, EMC Development’s argument that if the burden of proof is borne by one party, the evidence which it adduces may be of such a kind as to require the other party to present justification and the burden of proof may thus be transferred to that other party, it is sufficient to observe that, in any event, that argument is clearly inadmissible by virtue of the case-law cited, in particular, at paragraph 39 of the present order, since EMC Development has merely cited the case-law deriving, in particular, from paragraph 30 of Lafarge
v Commission, without specifying what arguments required the Commission to present justification.
81. In the third place, the arguments whereby EMC Development criticises paragraph 89 of the judgment under appeal cannot succeed either. Contrary to EMC Development’s contention, no rule of European Union law establishes a presumption that harmonised standards are generally incompatible with the competition rules. EMC Development’s argument alleging the existence of such a presumption is therefore clearly unfounded.
82. In addition, EMC Development merely cites the case-law referred to at paragraph 142 of Dansk Rørindustri and Others
v Commission, without specifying how, in its submission, that case-law would be relevant to the facts of the present case and thus without specifying how that case-law would affect the requirement that EMC Development must adduce evidence that the Commission failed to fulfil its obligation to consider attentively all the matters of fact and of law which were brought to its attention. The argument which EMC Development derives from that case-law therefore does not satisfy the requirements referred to at paragraph 39 of the present order and must be rejected as clearly inadmissible.
83. As regards, in the fourth place, EMC Development’s argument that the General Court ought to have given more weight to its assertions resulting from details which it had reconstituted by deduction, it must be observed that EMC Development does not identify precisely the elements of the judgment under appeal which it criticises, nor does it mention which details it reconstituted by deduction. In addition, that argument, too, fails to satisfy the requirements referred to at paragraph 39 of the present order and must also be rejected as clearly inadmissible.
84. In the light of the foregoing, the third plea must be rejected as clearly unfounded in part and clearly inadmissible in part.
The fourth plea, alleging distortion of evidence adduced before the General Court
Arguments of the parties
85. By its fourth plea, EMC Development takes issue with the General Court for having distorted evidence which it adduced, in finding, in substance, at paragraphs 82, 84, 85, 91, 97, 99, 100, 102 and 103 of the judgment under appeal, that that evidence did not prove its allegations that the procedure for the adoption of the Standard was discriminatory and lacking in transparency and openness.
86. The Commission contends that this plea is inadmissible.
Findings of the Court
87. It is sufficient to state that EMC Development puts forward no argument to support its assertion that the General Court distorted any evidence.
88. The fourth plea must therefore be rejected as clearly inadmissible, in application of the case-law referred to at paragraph 39 of the present order.
The fifth plea, alleging infringement of Article 81(1) EC
Arguments of the parties
89. By its fifth plea, EMC Development takes issue with the General Court for having infringed Article 81(1) EC by failing to apply the case-law of this Court, in particular that resulting from paragraph 55 of 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 [2009] ECR I‑9291, where it was held, first, that the anti-competitive object and effect of an agreement are not cumulative but alternative conditions for assessing whether such an agreement is anti-competitive and, second, that the alternative nature of that condition, indicated by the conjunction ‘or’, leads first to the need to consider the precise purpose of the agreement. It follows from that case-law that the Commission ought to have considered first of all the object of the Standard instead of confining itself to the examination provided for in the Guidelines and to the effect of the Standard. EMC Development maintains that, in order to assess the anti-competitive nature of an agreement, it is necessary, in accordance with paragraph 58 of GlaxoSmithKline Services and Others
v Commission, to have regard to the content of its provisions.
90. The Commission contends that this plea is inadmissible.
Findings of the Court
91. It should be observed that this plea, in that it relies on the argument that the Commission ought, when examining EMC Development’s complaint, to have carried out an analysis other than that provided for in the Guidelines, amounts in reality to challenging the validity of the Guidelines by reference to Article 81(1) EC.
92. In that regard, it has consistently been held that a plea raised for the first time in an appeal before this Court must be rejected as inadmissible. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal the Court’s jurisdiction is therefore confined to review of the assessment made by the General Court of the pleas argued before it (see, in particular, Dansk Rørindustri and Others
v Commission, paragraph 165).
93. In fact the question of the validity of the Guidelines by reference to Article 81(1) EC was not discussed before the General Court. As that Court correctly stated at paragraphs 64 and 65 of the judgment under appeal, EMC Development, first, agreed that the Guidelines were applicable in the present case and, second, put forward no argument seeking to call in question the criteria set out in the Guidelines.
94. The fifth plea therefore amounts to bringing before this Court a case of wider ambit than that which came before the General Court and must therefore be rejected as clearly inadmissible.
The sixth plea, directed against the General Court’s assessment of the alleged binding nature of the Standard
Arguments of the parties
95. By its sixth plea, EMC Development criticises the General Court’s findings relating to the non-binding effect of the Standard.
96. First, in EMC Development’s submission, whether products can obtain the ‘CE’ mark by means other than compliance with the Standard is irrelevant for the purpose of determining that effect. The significant aspect in that regard is the de facto binding nature of the Standard.
97. Second, EMC Development claims that, in so far as an agreement between undertakings falls within the scope of Article 81(1) EC if it was capable of having a direct effect on trade, the binding effect of the Standard is presumed. The General Court therefore acted unlawfully in applying, at paragraph 116 of the judgment under appeal, the test relating to whether or not the market was altered owing to the adoption of the Standard.
98. EMC Development further maintains that the General Court failed to assess the Guidelines in their context. In its submission, it follows from paragraph 95 of GlaxoSmithKline Services and Others
v Commission that a prospective analysis is necessary in order to appraise the effects of an agreement on innovation. It follows that the General Court could not rely on a retroactive examination, such as the test mentioned above.
99. Third, EMC Development maintains that the Standard goes further than a simple common policy of the operators active on the cement market, since, in its submission, the Standard results in collective dominance. EMC Development claims that that market presents the appropriate characteristics for that purpose and cites this Court’s case-law on cartels on the cement market.
100. Fourth, EMC Development disputes the General Court’s finding, at paragraphs 122 and 123 of the judgment under appeal, that it failed to explain in what respect the guide to the selection of concretes published by a commercial association in the United Kingdom and the document drawn up in 2000 for the Commission’s Directorate-General ‘Enterprise’, on which it relied, showed that the Standard was de facto binding. Furthermore, the General Court raised that criticism of its own motion, without making any mention of its misgivings at the hearing.
101. The Commission contends that these arguments are inadmissible and/or unfounded.
Findings of the Court
102. It should be observed, in the first place, that where an appeal merely repeats or reproduces verbatim the pleas in law and arguments submitted to the General Court, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, referred to at paragraph 39 of the present order. Such an appeal amounts to an application for mere reconsideration of the application submitted to the General Court, which falls outside the jurisdiction of the Court of Justice (see, in particular, Case C‑131/03 P Reynolds Tobacco and Others
v Commission [2006] ECR I‑7795, paragraphs 49 and 50).
103. That applies to the present appeal, so far as concerns EMC Development’s argument alleging that the Standard has de facto binding effect, whereby it merely repeats the assertions developed in its written submissions to the General Court.
104. That argument must therefore be rejected as clearly inadmissible.
105. As regards, in the second place, the arguments whereby EMC Development criticises paragraph 116 of the judgment under appeal, it must be observed, first, that no rule of European Union law provides that a harmonised standard is presumed to have binding effect when it is capable of exercising a direct influence on trade. The argument set out at paragraph 97 of the present order is therefore clearly unfounded.
106. Second, EMC Development fails to specify the reasons why the case-law on the application of Article 81(3) EC resulting from paragraph 95 of GlaxoSmithKline Services and Others
v Commission
is relevant in the present case. The argument mentioned at paragraph 98 of the present order is therefore clearly inadmissible, in accordance with the case-law referred to at paragraph 39 of the present order.
107. In the third place, EMC Development’s argument alleging the existence of a collective dominant position was submitted for the first time in the appeal and must in any event be rejected as clearly inadmissible, in application of the case-law referred to at paragraph 92 of the present order.
108. In the fourth place, it must be borne in mind that the General Court has exclusive jurisdiction to find the facts, except in a case where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and to evaluate the evidence adduced. The establishment of those facts and the evaluation of that evidence do not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject as such to review by the Court of Justice on appeal (see in particular, to that effect, Case C‑449/99 P EIB
v Hautem [2001] ECR I‑6733, paragraph 44, and also Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied
v Commission [2006] ECR I-8725, paragraphs 69 and 70).
109. The argument that EMC Development directs against paragraphs 122 and 123 of the judgment under appeal, in so far is it amounts to challenging an assessment of evidence by the General Court, without any allegation of distortion of that evidence, must be rejected as clearly inadmissible.
110. In those circumstances, the sixth plea must be rejected as clearly inadmissible in part and clearly unfounded in part.
111. It follows from all of the foregoing that none of the pleas put forward by EMC Development in support of its appeal can be upheld and that, accordingly, the appeal must be rejected as clearly inadmissible in part and clearly unfounded in part.
Costs
112. Under Article 69(2) of the Rules of Procedure, which applies to the appeal procedure by virtue of Article 118 of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and EMC Development has been unsuccessful, EMC Development must be ordered to pay the costs.
Operative part
On those grounds, the Court (Fifth Chamber) hereby orders:
1. The appeal is dismissed.
2. EMC Development AB shall pay the costs.