Keywords

Summary



Keywords

1. Competition – Fines – Amount – Determination – Complex economic assessment –Commission’s margin of discretion – Review of legality – Judicial review – Scope

(Art. 263 TFEU; Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

2. Competition – Fines – Amount – Determination – Criteria – Gravity and duration of the infringement – Discretion of the Commission – Limits

(Council Regulations No 17, Art. 15(2), and No 1/2003, Art. 23(3); Commission Notice 98/C 9/03)

3. Competition – Fines – Amount – Determination – Application of the Guidelines on the method of setting fines – Statement of reasons for the decision – Scope

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

4. Competition – Fines – Amount – Determination – Discretion of the Commission – Judicial review – Unlimited jurisdiction of the Courts of the European Union – Scope

(Art. 261 TFEU; Council Regulations No 17, Art. 17, and No 1/2003, Art. 31)

5. European Union law – Principles – Right to effective judicial protection – Judicial review of decisions adopted by the Commission in competition matters – Review of legality and in the Court’s unlimited jurisdiction of both the law and the facts – Infringement – None

(Art. 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Art. 31)

Summary

1. Whilst, in areas giving rise to complex economic assessments, such as the determination of the amount of a fine imposed for infringement of the competition rules, the Commission has some discretion with regard to economic matters, that does not mean that the Courts of the European Union must refrain from reviewing the Commission’s interpretation of information of an economic nature. In the review of legality, not only must those Courts establish, among other things, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it.

The Courts of the European Union must carry out the review of legality incumbent upon them on the basis of the evidence adduced by the applicant in support of the pleas in law put forward. In carrying out such a review, the Courts cannot use the Commission’s discretion – either as regards the choice of factors taken into account in the application of the criteria relating to the determination of the fine that are mentioned in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty or as regards the assessment of those factors – as a basis for dispensing with the conduct of an in-depth review of the law and of the facts.

(see paras 54, 62)

2. In order to determine the amount of a fine for infringement of the competition rules, it is necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their 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 Community. Objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements.

Thus, the large number of factors to be taken into account necessarily gives the Commission a variety of options in its assessment of those factors, their weighting and their evaluation so as adequately to punish the infringement. However, the Commission remains subject to certain obligations. The duration of an infringement is referred to as such by the European Union legislature as a factor to which regard is to be had in fixing the amount of a fine and, in the absence of any criterion defined by the legislature, the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty provide a means of clarifying the impact of that element in the calculation of the fine.

(see paras 56-57, 71, 76-77)

3. In the interests of transparency the Commission adopted the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, in which it indicates the basis on which it will take account of one or other aspect of the infringement and what this will imply as regards the amount of the fine. Those Guidelines, which form rules of practice from which the administration may not depart in an individual case without giving reasons compatible with the principle of equal treatment, merely describe the method used by the Commission to examine infringements and the criteria that the Commission requires to be taken into account in setting the amount of a fine. It is therefore for the Commission, when stating the reasons for its decision, in particular to explain the weighting and assessment of the factors taken into account.

(see paras 59-61)

4. With regard to the determination of the amount of a fine imposed for infringement of the competition rules, the unlimited jurisdiction which the Courts of the European Union were afforded by Article 17 of Regulation No 17 is now recognised by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed.

However, the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, and proceedings before the Courts of the European Union are inter partes . With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, such as the failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas. That requirement, which is procedural in nature, does not conflict with the rule that, in regard to infringements of the competition rules, it is for the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement. What the applicant is required to do in the context of a legal challenge is to identify the impugned elements of the contested decision, to formulate grounds of challenge in that regard and to adduce evidence – direct or circumstantial – to demonstrate that its objections are well founded.

(see paras 63-65)

5. The review of decisions adopted by the Commission in competition matters that is provided for by the Treaties involves review by the Courts of the European Union of both the law and the facts, and means that they have the power to assess the evidence, to annul the contested decision and to alter the amount of a fine. The review of legality provided for under Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for under Article 31 of Regulation No 1/2003, is not therefore contrary to the requirements of the principle of effective judicial protection in Article 47 of the Charter of Fundamental Rights of the European Union.

(see para. 67)