JUDGMENT OF THE COURT (Ninth Chamber)

22 October 2020 ( *1 )

(Appeal – Competition – Agreements, decisions and concerted practices – Retail food packaging market – Decision finding an infringement of Article 101 TFEU – Regulation (EC) No 1/2003 Article 23 – Article 6 of the European Convention on Human Rights – Fundamental right to a fair trial – Principle of equality of arms – Right ‘to an examination in person’ – Hearing of witnesses – Statement of reasons – Single and continuous infringement – Upper limit of fine)

In Case C‑702/19 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 September 2019,

Silver Plastics GmbH & Co. KG, established in Troisdorf (Germany), represented by M. Wirtz, Rechtsanwalt, and S. Möller, Rechtsanwältin,

Johannes Reifenhäuser Holding GmbH & Co. KG, established in Troisdorf, represented by C. Karbaum, Rechtsanwalt,

appellants,

the other party to the proceedings being:

European Commission, represented by G. Meessen, I. Zaloguin and L. Wildpanner, acting as Agents,

defendant at first instance,

THE COURT (Ninth Chamber),

composed of M. Vilaras (Rapporteur), President of the Fourth Chamber, acting as President of the Ninth Chamber, D. Šváby and S. Rodin, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By their appeal, Silver Plastics GmbH & Co. KG and Johannes Reifenhäuser Holding GmbH & Co. KG ask the Court of Justice to set aside the judgment of the General Court of the European Union of 11 July 2019, Silver Plastics and Johannes Reifenhäuser v Commission (T‑582/15, not published, EU:T:2019:497; ‘the judgment under appeal’), by which the General Court dismissed their action seeking, primarily, annulment in part of Commission Decision C(2015) 4336 final of 24 June 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39563 – Retail food packaging) (‘the decision at issue’) and, in the alternative, a reduction in the amount of the fines imposed on them by that decision.

Legal context

2 Article 23(2) and (3) of 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) provides: ‘2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a) they infringe Article [101] or Article [102 TFEU]; or … For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year. … 3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

Background to the dispute

3 The background to the dispute is set out in paragraphs 1 to 10 of the judgment under appeal and, for the purposes of the present proceedings, can be summarised as follows.

4 The first appellant, Silver Plastics, is a company which manufactures and supplies a variety of food packaging products, 99.75% of the shares of which were, at the time of the events that led to the adoption of the decision at issue, held by the second appellant, Johannes Reifenhäuser Holding.

5 It is clear from paragraphs 2 to 6 of the judgment under appeal that, following a leniency application submitted on 18 March 2008 by the undertaking formed by the group whose parent company is Linpac Group Ltd (‘Linpac’), the European Commission initiated a proceeding under Article 101 TFEU and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3), in the retail food packaging sector, which led to the adoption of the decision at issue.

6 As the General Court stated in paragraphs 7 and 8 of the judgment under appeal, the Commission concluded that companies active in the sector referred to above had, during periods between 2000 and 2008, participated in a single and continuous infringement consisting of five separate infringements, delimited according to the geographical area covered, namely Italy, South-West Europe, North-West Europe (‘NWE’), Central and Eastern Europe and France (‘the infringement at issue’). The goods concerned were retail foam food packaging trays and, as regards the cartel in NWE, rigid trays.

7 More specifically, as the General Court noted in paragraph 10 of the judgment under appeal, the operative part of the decision at issue stated: ‘Article 1 … 3. The following undertakings infringed Article 101 [TFEU] and Article 53 of the [Agreement on the European Economic Area] by participating, for the periods indicated, in a single and continuous infringement, which consisted of several separate infringements, in the foam and rigid trays for retail food packaging sector and covering [NWE]: … (d) Silver Plastics … and Johannes Reifenhäuser Holding … from 13 June 2002 to 29 October 2007. … 5. The following undertakings infringed Article 101 [TFEU] by participating, for the periods indicated, in a single and continuous infringement, which consisted of several separate infringements in the foam trays for retail food packaging sector and covering the territory of France: … (e) Silver Plastics … and Johannes Reifenhäuser Holding … from 29 June 2005 to 5 October 2005. Article 2 … 3. For the infringement referred to in Article 1.3, the following fines are imposed: … (e) Silver Plastics … and Johannes Reifenhäuser Holding …, jointly and severally: EUR 20317000. … 5. For the infringement referred to in Article 1.5, the following fines are imposed: … (e) Silver Plastics … and Johannes Reifenhäuser Holding …, jointly and severally: EUR 893000. …’

The procedure before the General Court and the judgment under appeal

8 By application lodged at the Registry of the General Court on 11 September 2015, the appellants brought an action for partial annulment of the decision at issue and, in the alternative, for a reduction of the fines imposed on them by that decision. That action was dismissed by the judgment under appeal.

9 In particular, in the context of the analysis of the first part of the appellants’ first plea in law, by which the latter maintained, in essence, that the Commission had not adduced reliable and sufficient evidence that there had been an agreement or concerted practice in NWE, the General Court examined, inter alia, in paragraphs 44 to 66 of the judgment under appeal, the arguments put forward by the appellants to dispute the fact that Silver Plastics had participated in an anticompetitive meeting which took place on 13 June 2002. Following that examination, the General Court found, in paragraph 67 of the judgment under appeal, that ‘even if a certain level of ambiguity as to the exact time of the start [of another meeting which took place on the same day and the object of which was not anticompetitive] cannot be ruled out, there is sufficient evidence to establish that competitors, including Silver Plastics, met outside of [that other meeting] to discuss pricing strategies’.

10 Furthermore, after examining the second part of the appellants’ first plea in law, in which they allege that there was no single and continuous infringement relating to the foam and rigid trays market in NWE, the General Court found, in paragraph 191 of the judgment under appeal, that the Commission was entitled to conclude that Silver Plastics had participated in that single and continuous infringement.

11 In the context of its examination of the appellants’ third plea in law, in which they allege that the principle of equality of arms and of the right ‘to an examination in person’ have been infringed, the General Court examined, in paragraphs 226 to 236 of the judgment under appeal, the appellants’ claims that that court should hear five witnesses and organise the cross-examination of one of those witnesses. In that regard, as is apparent from paragraphs 232 to 234 of the judgment under appeal, the General Court took the view that, in the light of the fact that the appellants had produced before it and used the written witness statements which they wished to have lodged, it was not apparent from the arguments put forward by the appellants in support of their application that the witness statements of those persons could add value to the evidence already in the file, which, according to paragraph 235 of the judgment under appeal, was sufficiently informative. Accordingly, the General Court decided, in paragraph 236 of the judgment under appeal, that it was neither necessary nor appropriate to grant the appellants’ request that witnesses be heard.

12 In paragraphs 255 to 279 of the judgment under appeal, the General Court examined the appellants’ fifth plea in law, in which they alleged infringement of the first and second subparagraphs of Article 23(2) of Regulation No 1/2003, read in conjunction with Article 101(1) TFEU, in so far as the Commission concluded that the two appellants formed an economic unit.

13 In that regard, the General Court found, first of all, in paragraphs 265 and 266 of the judgment under appeal, that the appellants did not dispute the fact that, during the period covering the infringement at issue in NWE, Johannes Reifenhäuser Holding held 99.75% of the equity capital of Silver Plastics and that, accordingly, the Commission was entitled to rely, in respect of those companies, on the presumption that the former exercised decisive influence over the latter, as recognised in the case-law of the Court of Justice. Next, the General Court analysed, in paragraphs 267 to 279 of the judgment under appeal, the various arguments put forward by the appellants and concluded, in paragraphs 280 and 281 of that judgment, that they had not adduced evidence capable of rebutting that presumption, with the result that the fifth plea had to be rejected as unfounded.

14 Finally, in paragraphs 287 to 314 of the judgment under appeal, the General Court examined the appellants’ sixth plea in law, by which they alleged, in essence, infringement of the second subparagraph of Article 23(2) of Regulation No 1/2003, on the ground that, for the purposes of determining the turnover relevant for the calculation of the 10% upper limit laid down by that provision, the Commission had taken into account the turnover of Reifenhäuser GmbH & Co. KG Maschinenfabrik (‘Maschinenfabrik’) although, when the decision at issue was adopted, Johannes Reifenhäuser Holding no longer held a shareholding in that company.

15 The General Court held, inter alia, in paragraphs 307 to 310 of the judgment under appeal, that, since the decision at issue had been adopted on 24 June 2015, the Commission was fully entitled to determine the upper limit of the fine imposed on Johannes Reifenhäuser Holding by the decision at issue on the basis of the company’s 2013/2014 business year, which was the company’s last complete business year preceding the adoption of the decision at issue. The fact that the transfer of Maschinenfabrik by Johannes Reifenhäuser Holding was duly registered on 28 May 2015, with retroactive effect from 30 September 2014, could not, according to the General Court, have any effect on Johannes Reifenhäuser Holding’s turnover in the 2013/2014 business year, which ended on 30 June 2014. After rejecting certain other arguments put forward by the appellants, the General Court held, in paragraph 315 of the judgment under appeal, that the sixth plea in law had to be rejected.

Forms of order sought by the parties before the Court of Justice

16 The appellants claim that the Court should: – set aside the judgment under appeal and refer the case back to the General Court; – in the alternative, set aside the judgment under appeal, annul the decision at issue in so far as it relates to Johannes Reifenhäuser Holding and reduce the amount of the fine imposed on Silver Plastics to an amount not exceeding 10% of its turnover during the company’s last full business year; – in the further alternative, set aside the judgment under appeal and reduce the amount of the fine imposed jointly and severally on the appellants to an amount not exceeding 10% of their turnover without taking account of Maschinenfabrik’s turnover; and – order the Commission to pay the costs.

17 The Commission contends that the Court should dismiss the appeal and order the appellants to pay the costs.

The appeal

18 In support of their appeal, the appellants rely on seven grounds of appeal, in which they allege, first, infringement of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), read in conjunction with the second paragraph of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), and of the principle of immediacy, second, infringement of the right ‘to an examination in person’, third, infringement of the principle of equality of arms, fourth, infringement of the obligation to state reasons, fifth, infringement of Article 23(3) of Regulation No 1/2003, sixth, infringement of Article 23(2) of Regulation No 1/2003 as regards the finding that the companies constituted an economic unit, and, seventh, infringement of the same provision as regards the upper limit of the fine jointly and severally imposed on the appellants.

First ground of appeal, alleging infringement of Article 6 of the ECHR, read in conjunction with the second paragraph of Article 47 and Article 48(2) of the Charter, and of the principle of immediacy

Arguments of the parties

19 The appellants submit that the procedural guarantees and the rights of the defence enshrined in Article 6(1) and (3) of the ECHR, as interpreted by the case-law of the European Court of Human Rights, and in the second paragraph of Article 47 and Article 48(2) of the Charter must be taken into consideration in proceedings before the Courts of the European Union, including in cartel proceedings, as such proceedings are criminal in nature.

20 They claim that, in so far as the General Court confined itself to taking into consideration only the minutes of the statements made by Mr W. to Silver Plastics’ lawyers, without summoning him in order to hear him in person as a witness, it infringed the principle of a fair trial guaranteed in Article 6 of the ECHR and in the second paragraph of Article 47 and Article 48(2) of the Charter and infringed the principle of the immediacy of the administration of evidence.

21 According to the appellants, which rely, in that regard, on, inter alia, the judgment of the European Court of Human Rights of 16 July 2019, Júlíus þór Sigurþórsson v. Iceland (CE:ECHR:2019:0716JUD003879717), the judgment of the Court of Justice of 29 July 2019, Gambino and Hyka (C‑38/18, EU:C:2019:628), and the Opinion of Advocate General Bot in the case that gave rise to that judgment, the fairness of the proceedings guaranteed in Article 6(1) of the ECHR requires that a court reviewing a decision concerning a person’s guilt should gather all the necessary evidence by hearing witnesses in person and not basing its review solely on the written statements of witnesses.

22 The appellants claim that it follows that, contrary to what the General Court held in paragraph 230 of the judgment under appeal, it could not properly settle the dispute before it without hearing Mr W. in person. Furthermore, contrary to what is suggested in paragraph 229 of the judgment under appeal, the General Court cannot assess the relevance of such a hearing without holding the hearing and by merely concluding that it would not, in any event, be such as to influence its decision in the case.

23 The Commission contends that the first ground of appeal is inadmissible since it seeks, in reality, to call into question the assessment of the facts by the General Court and is, in any event, unfounded.

Findings of the Court

24 As a preliminary point, it should be noted that, although, as Article 6(3) TEU confirms, the fundamental rights enshrined in the ECHR constitute general principles of EU law and Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by that convention, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (judgment of 16 July 2020, Facebook Ireland and Schrems, C‑311/18, EU:C:2020:559, paragraph 98 and the case-law cited).

25 In that regard, the Court has also pointed out that, in so far as the Charter contains rights corresponding to rights guaranteed under the ECHR, Article 52(3) of the Charter is intended to ensure the necessary consistency between the rights contained in the Charter and the corresponding rights guaranteed under the ECHR, ‘without thereby adversely affecting the autonomy of Union law and … that of the Court of Justice of the European Union’ (see, to that effect, judgment of 20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 23). According to the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17), the second paragraph of Article 47 of the Charter corresponds to Article 6(1) of the ECHR and Article 48 of the Charter is ‘the same’ as Article 6(2) and (3) of the ECHR. The Court must, accordingly, ensure that its interpretation of the second paragraph of Article 47 and of Article 48 of the Charter ensures a level of protection which does not disregard that guaranteed by Article 6 of the ECHR, as interpreted by the European Court of Human Rights (see, by analogy, judgment of 26 September 2018, Belastingdienst/Toeslagen (Suspensory effect of the appeal), C‑175/17, EU:C:2018:776, paragraph 35 and the case-law cited).

26 In the light of those considerations, the appellants’ first ground of appeal must be understood as claiming, in essence, that, by refusing to hear Mr W. orally as a witness, the General Court infringed their right to a fair trial enshrined in, inter alia, the second paragraph of Article 47 and Article 48(2) of the Charter.

27 It follows that, contrary to what the Commission claims, such a ground does not seek to call into question the assessment of the facts by the General Court, but alleges that that court erred in law. It is, therefore, admissible.

28 As regards the examination of the substance of that ground of appeal, it must be recalled that, according to the settled case-law of the Court of Justice, the General Court is the sole judge of whether the information available to it concerning the cases before it needs to be supplemented (judgment of 24 September 2009, Erste Group Bank and Others v Commission, C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P, EU:C:2009:576, paragraph 319 and the case-law cited).

29 As the Court of Justice has held previously, even where a request for the examination of witnesses, made in the application, states precisely about what facts and for what reasons the witness or witnesses should be examined, it falls to the General Court to assess the relevance of the application to the subject matter of the dispute and the need to examine the witnesses named (judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 323 and the case-law cited).

30 The General Court’s discretion in that regard is in line with the fundamental right to a fair hearing, in particular with the provisions of the second paragraph of Article 47 and Article 48(2) of the Charter, read in conjunction with Article 6(3)(d) of the ECHR. It is apparent from the case-law of the Court of Justice that that provision does not confer on the accused person an absolute right to obtain the attendance of witnesses before a court and that it is in principle for the national court to determine whether it is necessary or appropriate to call a witness. Article 6(3) of the ECHR does not require that every witness be called but is aimed at full equality of arms, ensuring that the procedure in issue, considered in its entirety, gave the accused person an adequate and proper opportunity to challenge the suspicions concerning him (judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraphs 324 and 325 and the case-law cited).

31 In the present case, it should be noted that, following a detailed examination of a body of evidence which the appellants had ample opportunity to challenge, the General Court found, first, in paragraph 153 of the judgment under appeal, that the Commission had established to the requisite legal standard, in the decision at issue, that Silver Plastics had participated in anticompetitive agreements and concerted practices and, second, in paragraph 191 of that judgment, that Silver Plastics had participated in a single and continuous infringement in NWE.

32 Furthermore, in paragraphs 232 and 233 of the judgment under appeal, the General Court observed that the appellants had put before it statements from several persons, including those of Mr W., which they were able to use to support their arguments. It added, in paragraph 234 of that judgment, that the reasons put forward by the appellants as regards the usefulness of the testimony of those persons did not show that their being heard, by the General Court, as witnesses could add value to the evidence already in the file.

33 Thus, the General Court took the view, as is apparent from paragraph 236 of the judgment under appeal, that, in the light of the subject matter of the action and the material in the file, it was neither necessary nor appropriate to grant the appellants’ request that the witnesses be heard. Accordingly, it was entitled, without erring in law, to refuse that request.

34 That finding is not called into question by the guidance which emerges from the judgment of the European Court of Human Rights of 16 July 2019, Júlíus þór Sigurþórsson v. Iceland (CE:ECHR:2019:0716JUD003879717), relied on by the appellants. As is apparent, in essence, from paragraphs 39 to 44 of that judgment, it was in the light of the particular circumstances of the case which gave rise to that judgment that that court found an infringement of Article 6(1) of the ECHR. Those circumstances, characterised by the fact that the accused person who had been acquitted at first instance was subsequently convicted by an appeal court which reduced the probative value of oral testimony given before the court of first instance even though it could not, under its national law, reassess the oral testimony given before such a court without having heard again the persons who gave that testimony, are in no way comparable to the circumstances of the case which gave rise to the judgment here under appeal.

35 Equally, the judgment of 29 July 2019, Gambino and Hyka (C‑38/18, EU:C:2019:628), on which the appellants also rely, does not lead the Court to reach a different conclusion.

36 That judgment concerns the interpretation of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (OJ 2012 L 315, p. 57). In that judgment, the Court held that Articles 16 and 18 of Directive 2012/29 must be interpreted as not precluding national legislation under which, where the victim of a criminal offence has already been examined by a panel of judges of a first-instance court and the composition of that panel is subsequently changed, that victim must, in principle, be examined again by the panel in its new composition, where one of the parties to the proceedings does not consent to that panel basing its decision on the written record of the evidence that the victim gave at the first examination (judgment of 29 July 2019, Gambino and Hyka, C‑38/18, EU:C:2019:628, paragraph 59).

37 It is in that context that it is necessary to view the finding, set out in paragraphs 42 and 43 of the judgment of 29 July 2019, Gambino and Hyka (C‑38/18, EU:C:2019:628), that those who have the responsibility for deciding the guilt or innocence of an accused person ought, in principle, to be able to hear witnesses in person and assess their trustworthiness, since an important aspect of fair criminal proceedings is the ability for the accused person to be confronted with the witnesses in the presence of the judge who ultimately decides his or her fate.

38 It should be recalled, in that regard, that the proceedings before the General Court were not ‘criminal proceedings’ within the meaning of Directive 2012/29, but instead concerned an action for annulment of an administrative decision which imposed a fine on the appellants, two legal persons, for infringement of the EU competition rules.

39 Irrespective of whether, in such circumstances, the appellants may be treated in the same way as accused persons in criminal proceedings, it is sufficient to note that the present case does not in any way relate to the question of whether a witness who has already been heard by a different panel of judges must be heard again, but rather to whether the General Court is obliged to hear a witness whose examination has been requested by the applicants. No such obligation can be inferred from paragraphs 42 and 43 of the judgment of 29 July 2019, Gambino and Hyka (C‑38/18, EU:C:2019:628).

40 Lastly, the appellants’ argument that, in essence, the General Court could not assess the trustworthiness of the statements of Mr W. without having heard him as a witness must also be rejected.

41 An oral hearing is not the only means of assessing the trustworthiness of a person’s statements. The Court may, for that purpose, inter alia, rely on other evidence which corroborates those statements or contradicts them.

42 It is precisely because some of the statements of Mr W. were contradicted by other evidence submitted to the General Court that the latter held, in paragraphs 74, 102 and 107 of the judgment under appeal – to which the appellants refer in their ground of appeal – that those statements were barely credible, if at all.

43 In the light of all the foregoing considerations, the first ground of appeal must be rejected as unfounded.

Second ground of appeal, alleging infringement of the right ‘to an examination in person’

Arguments of the parties

44 The appellants claim that the General Court infringed their right ‘to an examination in person’, enshrined in Article 6(1) and 6(3)(d) of the ECHR, by refusing their request that they themselves be allowed to question Mr W. as an incriminating witness.

45 According to the appellants, it is clear from the case-law of the European Court of Human Rights that if a court has used evidence and based its decision on that evidence, the defence must, in order to respect the right ‘to an examination in person’, be given the opportunity to take a position on the conclusions reached on the basis of that evidence.

46 The appellants maintain, in that regard, that, as a source who was essential to Linpac’s leniency application, Mr W. was the main incriminating witness in the procedure which led to the adoption of the decision at issue and subsequently to the judgment under appeal. The statements of Mr W. in that application were a decisive factor on which the General Court based its decisions to ‘convict’ the appellants, without giving the latter the opportunity for an examination of the witness in person. By doing so, the General Court limited the appellants’ right to an examination in person without there being any legitimate reason justifying that limitation.

47 They claim that the Commission’s agents spoke with Mr W. in his capacity as an incriminating witness, after having ruled out any participation by the appellants in that hearing and without drawing up minutes of it and communicating them to the appellants. In order to compensate for that imbalance, they should have allowed the appellants themselves to question Mr W. before the Commission or, at the very least, before the General Court.

48 The Commission contests those arguments. It claims that the appellants’ argument in which they complain that they did not have the opportunity to question Mr W. themselves during the administrative procedure is inadmissible, since it does not relate to the judgment under appeal. In any event, all the arguments put forward by the appellants in the context of the second ground of appeal should be rejected as unfounded.

Findings of the Court

49 By their second ground of appeal, the appellants submit, in essence, that the General Court was required, under the second paragraph of Article 47 and Article 48(2) of the Charter, read in conjunction with Article 6 of the ECHR, to accede to their request that Mr W. be heard as a witness in order to allow them to question him themselves, on the ground that he was the ‘main incriminating witness’ in the proceedings concerning them and had been heard by the Commission without their representatives having been able to participate in that hearing.

50 It is therefore only indirectly that the appellants refer to the hearing of Mr W. by the Commission, with the result that it is necessary to reject the Commission’s assertion that such an argument, when raised in an appeal, is inadmissible.

51 As regards the examination of the substance of that ground of appeal, it should be noted that, specifically, the appellants criticise the General Court for failing to hear Mr W. as a witness, which means that Mr W. cannot logically be described as an ‘incriminating witness’ before the General Court.

52 Furthermore, it is not apparent from the judgment under appeal that the General Court took account of any written statement of Mr W. produced by the Commission. The only written statements of Mr W. taken into consideration by the General Court are those produced by the appellants themselves, as is clear from paragraphs 34 to 39 of the judgment under appeal.

53 Although it is apparent from paragraph 36 of the judgment under appeal that Mr W. was one of the sources of the leniency statements made by Linpac, his former employer, on which the Commission relied, inter alia, in the decision at issue, the fact remains that it was that undertaking which was liable for those statements, which were made with knowledge of the potential negative consequences of submitting inaccurate information (see, to that effect, judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 138). Therefore, the fact that Mr W. was one of the sources of those statements, or even the main source of those statements, is not sufficient for him to be classified as an ‘incriminating witness’.

54 The appellants’ argument that, since the Commission heard Mr W. before adopting the decision at issue, without the appellants’ representatives being present, the General Court was required to call Mr W. as a witness in order to enable the appellants to question him themselves, must also be rejected. The appellants were in a position to contact Mr W. themselves in order to obtain a statement from him, which they did, moreover, since the written statements obtained in that way were produced before the General Court and taken into consideration by it.

55 It follows that the arguments put forward in support of the second ground of appeal do not demonstrate that, notwithstanding the unfettered discretion of the General Court in that regard, referred to in paragraphs 28 to 30 of the present judgment, the General Court could not validly refuse to hear Mr W. as a witness. Accordingly, the second ground of appeal must be rejected as unfounded.

Third ground of appeal, alleging infringement of the principle of equality of arms

Arguments of the parties

56 The appellants submit that the General Court infringed the principle of equality of arms, which forms part of the right to a fair trial, within the meaning of Article 6(1) and 6(3)(d) of the ECHR. They argue that, in accordance with that principle, the General Court should have ordered that a hearing be organised so that Mr W. and the other witnesses whom they had requested could be heard in person.

57 The appellants note that they had indicated the names of the witnesses whom they wished to have heard by the General Court and the facts which they intended to prove by means of those testimonies. However, they allege that the General Court rejected the request that those witnesses be heard on the basis of a statement of reasons which did not satisfy the requirements of the case-law of the European Court of Human Rights, as recalled, inter alia, in paragraph 164 of the judgment of 18 December 2018, Murtazaliyeva v. Russia (CE:ECHR:2018:1218JUD003665805).

58 The Commission contends that the third ground of appeal is unfounded and must be rejected.

Findings of the Court

59 As regards, in the first place, the infringement of the principle of equality of arms, relied on by the appellants, it is sufficient to note that, since the General Court did not hear witnesses proposed by the Commission, it cannot be accused of having infringed that principle by similarly having decided not to hear witnesses proposed by the appellants.

60 In the second place, in so far as the appellants criticise the General Court, in essence, for infringing the obligation to state its reasons for refusing their request that witnesses be heard, it must be found that, in paragraphs 232 to 235 of the judgment under appeal, the General Court set out to the requisite legal standard the reasons which led it to find that it was neither necessary nor appropriate to grant the appellants’ request that witnesses be heard. In so doing, it complied with the obligation to state the reasons on which its judgments are based.

61 The judgment of the European Court of Human Rights of 18 December 2018, Murtazaliyeva v. Russia (CE:ECHR:2018:1218JUD003665805) cannot call the above findings into question. Although that court held, in paragraph 164 of that judgment, that the reasoning of courts dealing with a request that witnesses be heard must correspond to the grounds put forward in support of that request, that is to say, it must be as full and detailed as those grounds, it added, in paragraph 165 of that judgment, that, since the ECHR does not require the summoning or questioning of every exonerating witness, the domestic courts are not supposed to give a detailed response to each request made to that effect by the defence; they must, nevertheless, give adequate reasons for their decision.

62 In the present case, the General Court took account of the grounds put forward by the appellants in support of their request that witnesses be heard, which it summarised in paragraphs 221 to 225 of the judgment under appeal and to which it responded in paragraphs 232 to 235 of that judgment, in a manner which could not be regarded as inadequate.

63 It follows that the third ground of appeal must be rejected as unfounded.

Fourth ground of appeal, alleging infringement of the obligation to state reasons

Arguments of the parties

64 The appellants claim that the General Court infringed the obligation to state reasons for its decisions. They argue, first, that it is impossible to understand on what evidence the General Court relied when it found, in paragraph 67 of the judgment under appeal, that Silver Plastics had participated in the alleged anticompetitive meeting of 13 June 2002. At no time, they submit, did the General Court explain why the handwritten notes referred to in paragraph 54 of the judgment under appeal reveal an infringement of EU competition law. In addition, in paragraph 63 of the judgment under appeal, the General Court sought to demonstrate only how the arguments put forward by the appellants do not necessarily demonstrate that another meeting – the object of which was not anticompetitive and which was held on the same day and was attended by representatives of Silver Plastics – began at 9.00, and that, consequently, representatives of Silver Plastics could not have participated in the anticompetitive meeting held at the same time. By contrast, the reasons why the General Court concluded that the meeting which did not have an anticompetitive object started later remain unclear. The appellants point out that they do not call into question the General Court’s assessment of the evidence, but criticise it on the ground that it did not actively substantiate its assumptions.

65 Second, the appellants criticise the General Court for merely asserting on numerous occasions in the judgment under appeal, without giving further reasons, that the written statements of Mr W. were not credible.

66 The Commission contends that the fourth ground of appeal is inadmissible in part since it seeks, in reality, to call into question the assessment of the facts by the General Court, and that it is, in any event, unfounded.

Findings of the Court

67 As the appellants have themselves pointed out, the fourth ground of appeal seeks a review of the General Court’s compliance with its obligation to state the reasons on which its judgments are based and does not seek a new assessment of the facts, for which the Court of Justice does not have jurisdiction at the appeal stage. Therefore, the Commission’s argument that this ground of appeal is inadmissible in part must be rejected.

68 In the first place, as regards the appellants’ argument relating to paragraph 67 of the judgment under appeal, the General Court found in that paragraph that, on 13 June 2002, various undertakings which compete on the market concerned, including Silver Plastics, had met to discuss pricing strategies, outside of a meeting held on the same day, the object of which was not anticompetitive.

69 Before the General Court, the appellants had, in essence, claimed that the meeting which did not have an anticompetitive object and the meeting concerning pricing had been held at the same time, which meant that the representatives of Silver Plastics, who had participated in the former meeting, could not also have participated in the latter.

70 In paragraphs 47 to 66 of the judgment under appeal, the General Court set out exhaustively all the evidence which, in its view, showed that the representatives of Silver Plastics had participated in the anticompetitive meeting on pricing. Contrary to what is alleged by the appellants, it was in no way necessary for the General Court to determine, in that regard, the exact time at which the meeting with an anticompetitive object began. It was able, without infringing its obligation to state reasons, to find, in paragraph 67 of the judgment under appeal, that there was ambiguity as to when that meeting started.

71 As regards the handwritten notes mentioned in paragraph 54 of the judgment under appeal, contrary to what the appellants claim, it is clear from paragraph 56 of that judgment that they concerned the prices charged by various competing undertakings, including Silver Plastics, and that, consequently, they showed an infringement of EU competition law.

72 Therefore, contrary to what the appellants submit in their appeal, paragraphs 54, 63 and 67 of the judgment under appeal do not show any infringement by the General Court of the obligation to state reasons.

73 In the second place, the appellants complain that the General Court did not give reasons for its assertion that the statements of Mr W. which they had submitted to that Court were not credible.

74 In that regard, contrary to what is suggested by the appellants, the General Court did not carry out an assessment as to the credibility of the statements of Mr W. taken as a whole.

75 As has already been pointed out in paragraph 42 of the present judgment, in a number of paragraphs of the judgment under appeal, the General Court took the view that only some of the claims made by Mr W. in the statements put before that Court by the appellants were barely credible, if at all, since they were contradicted by other evidence referred to by the General Court.

76 Accordingly, the General Court cannot be criticised for having failed to fulfil its obligation to state reasons as regards whether or not the claims of Mr W., taken as a whole, were credible.

77 Consequently, the fourth ground of appeal must be rejected as unfounded.

Fifth ground of appeal, alleging infringement of Article 23(3) of Regulation No 1/2003

Arguments of the parties

78 The appellants submit that the General Court infringed Article 101 TFEU and Article 23(3) of Regulation No 1/2003 when it held that the infringement at issue in NWE which was the subject of the decision at issue constituted a single and continuous infringement relating to the rigid trays market, which covered, inter alia, the period from 13 June 2002 to 24 August 2004. The General Court, they argue, failed to demonstrate the existence, during that period, on the market concerned, of an overall plan which extended to individual infringements which could be linked together. On the contrary, it itself conceded, in paragraph 177 of the judgment under appeal, that a meeting with that market as its subject was held for the first time on 24 August 2004.

79 They claim that the error made by the General Court affected the amount of the fine imposed on the appellants, in so far as it was set on the basis of a starting amount calculated using the turnover achieved during the 2006 business year generated by, inter alia, sales of rigid trays. That amount was then multiplied by the number of years of the infringement at issue, which had as a consequence that the turnover generated from sales of rigid trays for the period prior to September 2004 was included in the calculation of that fine.

80 The Commission disputes the appellants’ arguments and contends that the fifth ground of appeal must be rejected.

Findings of the Court

81 It must be borne in mind that the concept of a ‘single and continuous infringement’, as recognised in the case-law of the Court of Justice, presupposes the existence of an ‘overall plan’ which consists of various acts, each of which has the identical object of distorting competition in the internal market, irrespective of the fact that one or more of those acts could also, in themselves and taken in isolation, constitute an infringement of Article 101 TFEU (judgment of 26 January 2017, Villeroy & Boch v Commission, C‑644/13 P, EU:C:2017:59, paragraph 47 and the case-law cited).

82 It is clear from that case-law that an undertaking may have participated in a single and continuous infringement without directly participating in all the forms of anticompetitive conduct comprising that infringement and that a single and continuous infringement may exist without all the undertakings participating in that infringement being active on the same market (see, to that effect, judgment of 26 January 2017, Villeroy & Boch v Commission, C‑644/13 P, EU:C:2017:59, paragraphs 49 and 51 and the case-law cited).

83 In the present case, it is apparent from paragraph 177 of the judgment under appeal that the General Court found, in its unfettered assessment of the facts, that the infringement at issue in NWE, in which the appellants participated, related to both foam and rigid trays. On those grounds, the General Court therefore found that there was an ‘overall plan’ covering both of those products.

84 In the light of that finding, the General Court did not err in law when it confirmed the conclusion in the statement of reasons for the decision at issue that the appellants had participated in a single and continuous infringement in NWE that covered both foam and rigid trays during the period from 13 June 2002 to 29 October 2007.

85 Indeed, even if it is assumed that the first meeting concerning the rigid tray market took place only on 24 August 2004, as alleged by the appellants, this fact would be irrelevant to their participation in a single and continuous infringement covering both foam trays and rigid trays, since, as the General Court noted, the implementation of the ‘overall plan’, within the meaning of the case-law of the Court of Justice referred to in paragraph 81 of this judgment, which also included the actions relating to rigid trays, began on 13 June 2002.

86 It follows that the fifth ground of appeal must be rejected as unfounded.

Sixth ground of appeal, alleging infringement of Article 23(2) of Regulation No 1/2003 as regards the finding that the companies constituted an economic unit

Arguments of the parties

87 The appellants submit that the General Court infringed the first and second sentences of Article 23(2) of Regulation No 1/2003, read in conjunction with Article 101(1) TFEU, in so far as it based its reasoning on the premiss that they formed an economic unit and disregarded the facts and evidence which they had put forward and which rebut the presumption that they formed an economic unit, that presumption being based on fact that virtually all of the equity capital of Silver Plastics was held by Johannes Reifenhäuser Holding. However, as is apparent from several items of evidence relied on before the General Court, Johannes Reifenhäuser Holding never presented itself vis-à-vis third parties as being the owner of Silver Plastics. It is merely an administrative shell and should have been disregarded for the purposes of determining whether there was an economic unit. The company’s objects, which are broadly generic, do not preclude such a finding, contrary to what is stated in paragraph 269 of the judgment under appeal.

88 The Commission disputes the appellants’ arguments.

Findings of the Court

89 In paragraph 265 of the judgment under appeal, the General Court observed that, during the period relevant to the infringement at issue, Johannes Reifenhäuser Holding held almost all (99.75%) of the equity capital in Silver Plastics.

90 Therefore, the General Court held, in paragraph 266 of the judgment under appeal, that the Commission could rely on the presumption that, in the particular case in which a parent company holds, directly or indirectly, all or almost all of the capital in a subsidiary which has committed an infringement of the EU competition rules, there is a rebuttable presumption that that parent company actually exercises a decisive influence over its subsidiary (see, to that effect, judgments of 25 October 1983, AEG-Telefunken v Commission, 107/82, EU:C:1983:293, paragraph 50, and of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 28).

91 After analysing, in paragraphs 267 to 279 of the judgment under appeal, the arguments and evidence relied on by the appellants, the General Court found, in paragraph 280 of that judgment, that those arguments and evidence were not sufficient to rebut the presumption referred to in the preceding paragraph.

92 By their arguments put forward in support of that ground of appeal, the appellants reiterate, in essence, the arguments that they had put forward before the General Court to show that Johannes Reifenhäuser Holding did not exercise a decisive influence over Silver Plastics, without specifying what error the General Court allegedly committed in the context of that assessment.

93 According to the settled case-law of the Court of Justice, an appeal must indicate precisely the contested elements of the judgment or order which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. Where an appeal merely repeats or reproduces the pleas in law and arguments already submitted to the General Court, without even including an argument specifically seeking to identify the error in law allegedly vitiating the judgment or order under appeal, it fails to satisfy that requirement (order of 4 July 2012, Région Nord-Pas-de-Calais v Commission, C‑389/11 P, not published, EU:C:2012:408, paragraph 25 and the case-law cited).

94 Consequently, the sixth ground of appeal must be rejected as inadmissible.

Seventh ground of appeal, alleging infringement of Article 23(2) of Regulation No 1/2003 as regards the upper limit of the fine

Arguments of the parties

95 The appellants claim that the General Court infringed the second subparagraph of Article 23(2) of Regulation No 1/2003, in that it wrongly included in the calculation of the fine imposed on them jointly and severally the turnover generated by an activity that was subsequently transferred to Maschinenfabrik, which resulted in the upper limit laid down in that provision – corresponding to 10% of the turnover of each undertaking concerned by the infringement – being exceeded. They criticise the General Court on the ground that it failed to have regard to the case-law of the Court of Justice on the application of that provision, in that, in paragraph 311 of the judgment under appeal, it took the period of the infringement as the only criterion relevant for determining the turnover to be taken into consideration for the purposes of calculating the upper limit of the fine. According to the appellants, it was necessary, in order to determine that turnover, to choose an appropriate business year, having regard to the economic activity during the period of the infringement, and then to have regard, by way of correction, to the ability to pay of the undertaking concerned at the time when the decision imposing the fine was adopted. They add that, in the present case, their ability to pay had significantly diminished by the date on which the decision at issue was adopted, and that the Commission was aware of this.

96 The Commission disputes the appellants’ arguments and contends that the seventh ground of appeal must be rejected.

Findings of the Court

97 Under Article 23(2) of Regulation No 1/2003, for each undertaking and association of undertakings which have participated in an infringement of Article 101 or 102 TFEU, the fine imposed may not exceed 10% of its total turnover in the preceding business year.

98 In paragraph 307 of the judgment under appeal, the General Court noted that the decision at issue had been adopted on 24 June 2015 and, since the business year of Johannes Reifenhäuser Holding ended on 30 June each year, that the ‘preceding business year’ within the meaning of Article 23(2) of Regulation No 1/2003 was, for that company, the 2013/2014 business year, which had ended on 30 June 2014.

99 It is apparent from paragraph 309 of that judgment that it was not until 28 May 2015, that is to say, on a date after the end of the 2013/2014 business year, that the demerger of Johannes Reifenhäuser Holding and the future Maschinenfabrik was duly registered. As the General Court also held in the same paragraph of that judgment, the fact that the transfer had retroactive effect to 30 September 2014 was irrelevant, since the latter date was also after 30 June 2014.

100 In the light of those factors, which are not disputed by the appellants, the General Court correctly applied Article 23(2) of Regulation No 1/2003 by taking into account, for the purposes of calculating the upper limit of the fine imposed on them, the turnover generated by Johannes Reifenhäuser Holding during the 2013/2014 business year, including that generated in the context of the activity which, following the demerger registered on 28 May 2015, was allocated to Maschinenfabrik.

101 The appellants’ argument that their ability to pay was significantly reduced by the date on which the decision at issue was adopted following the demerger of Johannes Reifenhäuser Holding which gave rise to Maschinenfabrik cannot affect that conclusion.

102 It is true that, according to the settled case-law of the Court of Justice, in determining the ‘preceding business year’, the Commission must assess, in each specific case and in the light of both its context and the objectives pursued by the scheme of penalties created by Regulation No 1/2003, the intended impact on the undertaking in question, taking into account in particular a turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed. In situations where the turnover of the undertaking concerned does not provide any useful indication as to its actual economic situation and the appropriate level of fine to impose on it, the Commission is entitled to refer to another business year in order to be able to make a correct assessment of the financial resources of that undertaking and to ensure that the fine has a sufficient and proportionate deterrent effect (see, to that effect, judgment of 15 May 2014, 1. garantovaná v Commission, C‑90/13 P, not published, EU:C:2014:326, paragraphs 15 to 17 and the case-law cited).

103 However, the facts relied on by the appellants in support of their sixth plea in law before the General Court, namely the demerger of Johannes Reifenhäuser Holding which gave rise to Maschinenfabrik on a date significantly later than the period during which the infringement in question was committed, in no way cast doubt on whether the turnover of Johannes Reifenhäuser Holding during the 2013/2014 business year could provide a useful indication as to the actual economic situation of that undertaking during the period in which that infringement was committed and as to the appropriate level of fine to impose on it.

104 On the contrary, if it were to be accepted that an undertaking which has infringed EU competition rules could significantly reduce the upper limit which that fine must not in any event exceed by transferring to a third party a sector of its business a few days before the adoption of the decision imposing a fine on it, the effectiveness of the penalties laid down in Regulation No 1/2003 would be seriously undermined.

105 The General Court did not therefore err in law when it took into account, for the purposes of calculating the upper limit of the fine imposed jointly and severally on the appellants, the turnover generated by Johannes Reifenhäuser Holding in the 2013/2014 business year.

106 It follows that the seventh ground of appeal must be rejected as unfounded.

107 The appeal must therefore be dismissed in its entirety.

Costs

108 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs.

109 In accordance with Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

110 Since the appellants have been unsuccessful and the Commission has applied for costs, the appellants must, in addition to bearing their own costs, pay those incurred by the Commission.

On those grounds, the Court (Ninth Chamber) hereby:

1. Dismisses the appeal;

2. Orders Silver Plastics GmbH & Co. KG and Johannes Reifenhäuser Holding GmbH & Co. KG to bear their own costs and to pay those incurred by the European Commission.

[Signatures]

( *1 ) Language of the case: German.