Judgment of the Court (Second Chamber) of 5 December 2013 — Caffaro v Commission

(Case C‑447/11 P)

‛Appeal — Agreements, decisions and concerted practices — European market for hydrogen peroxide and sodium perborate — Decision finding an infringement of Article 81 EC — Calculation of the fine — Duration of the infringement — Limitation period — Mitigating circumstances’

1. Appeals — Grounds — Incorrect assessment of the facts and evidence — 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 — Ground of appeal alleging distortion of the clear sense of the evidence — Necessity of indicating precisely the evidence alleged to have been distorted and showing the errors of appraisal which led to that distortion (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 168(1)(d)) (see paras 25, 27, 69)

2. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Participation allegedly under pressure — Situation of economic dependency — Matter not providing a justification for an undertaking which did not make use of the possibility of lodging a complaint with the competent authorities — No obligation on the Commission to take account thereof for the calculation of the fine (Art. 81(1) EC; Council Regulation No 1/2003, Art. 7) (see para. 30)

3. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Discretion of the Commission — Whether the Commission is obliged to abide by its previous decision-making practice — No such obligation (Council Regulation No 1/2003, Art. 23(2)) (see paras 33, 34)

4. Competition — Fines — Amount — Determination — Deterrent effect — Criteria for assessing the deterrent effect — Whether possible to impose a fine on an undertaking which has ceased to operate on the market concerned — Included (Art. 81 EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 36-39)

5. Appeals — Grounds — Inadequate statement of reasons — Reliance by the General Court on implied reasoning — Lawfulness — Conditions (Art. 256 TFEU; Statute of the Court of Justice, Arts 36 and 53, first para.) (see para. 42)

6. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Use by the Commission of a business year other than the one preceding the decision imposing the fine in the case of an undertaking which has since left the market — No breach of the principle of equal treatment (Council Regulation No 1/2003; Commission Communication 98/C 9/03) (see paras 49-52)

7. Competition — Administrative procedure — Commission decision finding an infringement — Irregularities affecting that decision — Not relevant where there are other grounds which further justify that decision (Art. 81(1) EC) (see para. 64)

8. Agreements, decisions and concerted practices — Participation of an undertaking in anti-competitive initiatives — Sufficiency, in order to engage the liability of the undertaking, of tacit approval without publicly distancing itself or reporting the matter to the competent authorities (Art. 81(1) EC) (see para. 67)

9. Competition — Administrative procedure — Observance of the rights of the defence — Duty to act within a reasonable time — Commission’s obligation to warn, before communicating any statement of complaints, the undertakings concerned by an investigation of the possibility of the adoption of investigatory measures or proceedings — No such obligation (Art. 81 EC; Council Regulation No 1/2003) (see paras 88, 89)

10. Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility (Statute of the Court of Justice, Art. 58; Rules of Procedure of the Court of Justice, Art. 127(1)) (see para. 92)

11. Competition — Fines — Guidelines on the method of setting fines — Calculation method taking various elements of flexibility into account — Discretion of the Commission — Judicial review — Need to take individual account of each of the mitigating circumstances listed in the guidelines — No such need — Overall assessment (Council Regulation No 1/2003, Art. 23; Commission Communication 98/C 9/03, para. 3) (see paras 101-103)

Re:

Appeal brought against the judgment of the General Court (Sixth Chamber, Extended Composition) of 16 June 2011 in Case T‑192/06 Caffaro v Commission by which the Court dismissed the action for partial annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate) in so far as in it the Commission imposes a joint and several fine on the applicant and SNIA SpA, or a reduction of that fine — Fines — Equal treatment — Limitation period — Obligation to state reasons.

Operative part

The Court:

1. Dismisses the appeal;