Case C‑469/15 P

FSL Holdings NV and Others

v

European Commission

(Appeal — Competition — Agreements, decisions and concerted practices — European banana market in Greece, Italy and Portugal — Coordination in the fixing of prices — Admissibility of evidence transmitted by national tax authorities — Rights of the defence — Calculation of the amount of the fine — Scope of judicial review — Classification as an ‘agreement having as its object the restriction of competition’)

Summary — Judgment of the Court (First Chamber), 27 April 2017

Competition—Administrative procedure—Commission decision finding an infringement—Admissible evidence—Lawfulness of the transmission to the Commission of information obtained by national authorities—Assessment by national courts having regard to national law—Transmission not declared unlawful by a national court—Commission taking account of information thus transmitted as evidence—Lawfulness (Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, Art. 12(1) and (2))

Competition—Administrative procedure—Observance of the rights of the defence—No obligation for the Commission to exclude automatically the compromising evidence obtained for other purposes by the national authorities (Art. 101(1) TFEU)

Competition—Administrative procedure—Observance of the rights of the defence—Possibility of the undertaking concerned fully relying on those rights only after the sending of the statement of objections—Possession by the Commission of handwritten notes obtained in the course of national investigations—No obligation to inform the undertaking in question thereof during the preliminary investigation stage preceding the notification of the statement of objections (Art. 101 TFEU; Council Regulation No 1/2003)

Appeal—Grounds—Mistaken assessment of the facts—Inadmissibility—Review by the Court of the assessment of the facts and evidence—Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

Competition—Fines—Amount—Determination—Discretion of the Commission—Judicial review—Unlimited jurisdiction of the EU judicature—Scope (Arts 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Arts 23(3) and 31)

Appeal—Jurisdiction of the Court—Whether it may review, on grounds of fairness, the assessment by the General Court in regard to the amount of the fines imposed on undertakings which have infringed the competition rules of the Treaty—Precluded—Challenge to that assessment on grounds alleging breach of the principle of proportionality—Lawfulness (Arts 101 TFEU, 102 TFEU, 256(1) TFEU and 261 TFEU; Statute of the Court of Justice, Art. 58, first para.; Council Regulation No 1/2003, Art. 31)

Competition—Fines—Amount—Determination—Method of calculation laid down by the guidelines drawn up by the Commission—Calculation of the basic amount of the fine—Criteria—Gravity of the infringement—Assessment according to the nature of the infringement (Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, points 19 to 24)

Agreements, decisions and concerted practices—Adverse effect on competition—Criteria for assessment—Distinction between infringements by object and infringements by effect—Infringement by subject-matter—Sufficient degree of harmfulness—Sufficient (Art. 101(1) TFEU)