62017TJ0466_RES
Case T‑466/17
Printeos, SA and Others
v
European Commission
Judgment of the General Court (Third Chamber, Extended Composition), 24 September 2019
(Competition — Agreements, decisions and concerted practices — European stock/catalogue and special printed envelopes market — Decision establishing an infringement of Article 101 TFEU — Annulment in part on the ground of infringement of the obligation to state reasons — Amending decision — Settlement procedure — Fines — Basic amount — Exceptional adjustment — 10% ceiling on the total turnover — Article 23(2) of Regulation (EC) No 1/2003 — principle ne bis in idem — Legal certainty — Legitimate expectations — Equal treatment — Cumulation of penalties — Proportionality — Fairness — Unlimited jurisdiction)
Actions for annulment — Judgment annulling a measure — Effects — Obligation to implement — Scope — Decision adopted by the Commission following a settlement procedure and finding an infringement of the competition rules — Annulment for failure to state adequate reasons — Partial annulment limited to the part imposing a fine– Adoption of a new decision imposing a fine of the same amount — principle ne bis in idem — Not applicable — Infringement of the principles of legal certainty and the protection of legitimate expectations — No such infringement
(Arts 101 and 266, first para., TFEU; EEA Agreement, Art. 53; Charter of Fundamental Rights of the European Union, Art. 50)
(see paragraphs 56-69)
Competition — Fines — Amount — Determination — Determination of the basic amount — Fine imposed following a settlement procedure — Methodology established by the Guidelines not applied — Breach of the principle of equal treatment — No such breach
(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, paras 13 and 37)
(see paragraphs 91-95, 98, 99, 103-135)
Competition — Fines — Amount — Determination — Determination of the basic amount — Fine imposed following a settlement procedure — Methodology established by the Guidelines not applied — Breach of the principle of equal treatment — Impossible to rely on an unlawful act committed in favour of a third party
(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, paras 13 and 37)
(see paragraphs 91-95, 98, 99, 136-146)
Competition — Fines — Amount — Determination — Maximum amount — Application of the maximum amount to all the undertakings penalised after participating in the same infringement — Breach of the principle of equal treatment — No such breach
(Council Regulation No 1/2003, Art. 23(2) and (3)
(see paragraphs 96, 97, 101, 102)
Competition — Fines — Amount — Determination — No account taken of a fine imposed by a national competition authority — Different territory, anticompetitive conduct and periods — Infringement of the principle of fairness — No such infringement
(Art. 101 TFEU; EEA Agreement, Art. 53)
(see paragraphs 152-158)
Résumé
By its judgment in Printeos and Others v Commission (T‑466/17) of 24 September 2019, the General Court dismissed the action brought by several companies dealing in stock/catalogue and special printed envelopes (‘the applicants’), seeking, primarily, the partial annulment of a decision of the European Commission (
1
) imposing on them a fine for infringement of Article 101 TFEU (‘the contested decision’). That infringement took the form of agreements or concerted practices between the applicants and four other groups of undertakings in the territories of several European countries.
The contested decision was adopted following the partial annulment, (
2
) for failure to state adequate reasons, of a previous Commission decision (
3
) imposing on the applicants a fine of EUR 4729000, adopted under a settlement procedure (‘the original decision’). Following that judgment, the Commission adopted the contested decision, amending the initial decision while imposing a fine of the same amount.
The Court held, in the first place, that the Commission could, where the annulment of an EU act was based on a procedural defect, such as a failure to state adequate reasons, and the EU Courts had not used their unlimited jurisdiction to vary the fine imposed, adopt a new decision imposing a fine on the applicants without exposing itself to the complaints in law alleging infringement of the principles of legal certainty, protection of legitimate expectations and ne bis in idem. In that regard, the Court stated that the application of the principle ne bis in idem presupposed that a ruling had been given on the question whether an offence had in fact been committed or that the legality of the assessment thereof had been reviewed. Consequently, the principle ne bis in idem did not in itself preclude the resumption of proceedings in respect of the same anticompetitive conduct where the first decision had been annulled for procedural reasons without any ruling having been given on the substance of the facts alleged, since the annulment decision cannot in such circumstances be regarded as an ‘acquittal’ within the meaning given to that expression in penal matters. The Court considered that this approach also applied in the event of annulment for failure to state adequate reasons of a decision imposing a fine, when that decision had been adopted under a settlement procedure.
As regards, in the second place, the plea in law, alleging infringement of the principle of equality of treatment in determining the amount of the fine, the Court considered that, for the purposes of reviewing compliance with that principle, it was necessary to draw a distinction between, first, the requirement to determine in a fair way the basic amount of the fines to be imposed on the undertakings concerned and, secondly, the application with respect to those undertakings of the 10% ceiling pursuant to the second subparagraph of Article 23(2) of Regulation No 1/2003, (
4
) which is likely to vary according to their respective total turnovers. Indeed, although the Commission could reasonably choose a method of calculating the basic amount based on the value of sales made over the course of a full year covered by the infringement for the purpose of determining the economic importance of the infringement and the relative weight of each undertaking participating in it, the Commission was required, in that context, to observe the principle of equal treatment. By contrast, application of the 10% ceiling for the purpose of determining the final amount of the fines was, in principle, not dependent on the economic importance of the infringement, or the relative weight of each participating undertaking or the gravity or duration of the infringement committed by that undertaking, but was purely automatic in nature, being linked exclusively to its total turnover, and therefore that application was ipso facto consistent with the principle of equal treatment.
However, the Court held that the Commission was mistaken in its analysis that the application of the 10% ceiling at an intermediate stage of the calculation of the fines to be imposed ipso facto produced results which were consistent with the principle of equal treatment. In that regard, the Court noted that, in adopting such an approach, which did not fall within the scope of Article 23(2) of Regulation No 1/2003, the Commission was using its discretion under paragraph 37 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003. (
5
) Following an examination of the adjustment of the basic amounts made in accordance with that approach in relation to the various groups of undertakings to which the contested decision was addressed, the Court considered that one of those groups had benefited, without objective justification, from more favourable treatment. However, the Court held that the applicants could not rely, to their own advantage, on the unlawful act resulting from such inequality of treatment.
As regards the parallel application of Article 101 TFEU and national competition law, in this case regarding the effects on Spanish territory of the applicants’ conduct, which was the subject matter of the third plea in law, alleging an infringement of the principle of fairness, the Court noted at the outset that the contested decision did not relate to that territory and that the Spanish competition authority had penalised conduct which occurred during a different period. The Court held that, in such circumstances, a comprehensive and sufficiently deterrent penalty for the applicants’ anticompetitive conduct necessarily involved taking into account all the effects of that conduct on the different territories, including over time, and therefore the Commission cannot be criticised for not having reduced, on the same grounds, the fine imposed on the applicants in the initial and contested decisions.
(
1
)	Commission Decision C(2017) 4112 final of 16 June 2017 amending Commission Decision C(2014) 9295 final of 10 December 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (AT.39780 — Envelopes).
(
2
)	Judgment of the Court of 13 December 2016, Printeos and Others v Commission (T‑95/15, EU:T:2016:722).
(
3
)	Commission Decision C(2014) 9295 final of 10 December 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (AT.39780 — Envelopes).
(
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)	Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1).
(
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)	OJ 2006 C 210, p. 2.