Case C‑523/15 P

Westfälische Drahtindustrie GmbH and Others

v

European Commission

‛Appeal — Article 181 of the Rules of Procedure of the Court — Competition — Agreements, decisions and concerted practices — European prestressing steel market — Fines — Appraisal of the ability to pay — The 2006 Guidelines on the method of setting fines — Unlimited jurisdiction — Taking into account facts subsequent to the contested decision — Principles of proportionality and equal treatment — Right to effective judicial protection)’

Summary — Order of the Court (Sixth Chamber), 7 July 2016

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

Competition — Fines — Amount — Judicial review — Unlimited jurisdiction — Scope — Obligation to reduce the amount of the fine for an inability to pay — Absence — Elements to be taken into consideration — Facts prior and subsequent to the decision imposing the fine

In the event that the General Court’s exercise of its review of the legality of a decision that found an infringement of Article 101(1) TFEU and imposed a fine for that infringement, leading to the annulment of that decision in so far as a fine was imposed, that circumstance does not in any way mean that the General Court has, for that reason, no power to exercise its unlimited jurisdiction. The General Court remains fully seised of the matter of the assessment of the amount of the fine since the undertakings affected by the fine claim in their appeal for a reduction of that amount, in particular because of their inability to pay within the meaning of point 35 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003. Exercising its unlimited jurisdiction, the General Court therefore only has the power to sanction the undertakings and, therefore, is empowered, on the basis of the evidence submitted by the parties and in compliance with the principle audi alteram partem, to vary the amount of the fine that had been imposed on them by the contested decision. By regularly substituting its assessment for that of the Commission as regards the exercise of the power to sanction, the fact that the General Court ultimately considers it appropriate to maintain the same amount of fine as that which has been fixed in the Commission’s decision does not affect the propriety of that exercise of power. In that context, the EU Courts are entitled to take into account all the factual circumstances which they consider to be relevant, whether they be prior to or subsequent to the contested decision. (see paras 30-34, 38-40, 43)

Compliance with the principle of effective judicial protection, which is a general principle of EU law now expressed in Article 47 of the Charter of Fundamental Rights of the European Union, requires that the EU Courts may, in the exercise of their unlimited jurisdiction with regard to the penalties imposed in the field of competition law by the Commission, consider all the questions of fact and law that are relevant to the case before them. This applies a fortiori where the exercise of unlimited jurisdiction relates to the assessment of the ability to pay on the part of the undertaking concerned. If the EU Courts were unable to assess that capacity by taking into account the prevailing factual situation at the time at which they give their ruling, they could be required to refuse or to grant a reduction or a cancellation of a fine owed or not owed, in such a way as to cause a disadvantage or provide an unfair competitive advantage for that undertaking. An undertaking’s ability to pay can be relevant only in a specific social context, namely the consequences which payment of the fine could have, in particular, by leading to an increase in unemployment or a deterioration in the economic sectors upstream and downstream of the undertaking concerned. (see paras 44-46)

See the text of the decision. (see para. 55)

See the text of the decision. (see para. 56)