Case C‑58/12 P

Groupe Gascogne SA

v

European Commission

‛Appeal — Competition — Cartels — Industrial plastic bags sector — Whether the infringement by a subsidiary may be attributed to the parent company — Taking into account the total turnover of the group in order to calculate the upper limit of the fine — Excessive length of the proceedings before the General Court — Principle of effective legal protection’

Summary — Judgment of the Court (Grand Chamber), 26 November 2013

Appeals — Jurisdiction of the Court — Challenge on grounds of fairness to the General Court’s assessment concerning the amount of a fine imposed on an undertaking — Not included — Ground based on the appellant’s financial situation — Inadmissibility

Non-contractual liability — Application based on an excessive length of the proceedings before the General Court — Conditions — Unlawfulness — Damage — Causal link — Criteria for assessment — Composition of the Chamber delivering the judgment

Judicial proceedings — Duration of the proceedings before the General Court — Reasonable time — Proceedings concerning an infringement of the competition rules — Failure to act within a reasonable time — Consequences

EU law — Principles — Fundamental rights — Observance ensured by the Court — Right of every person to a fair hearing — Acting within a reasonable time — Affirmed by the European Convention on Human Rights — Reference to the Charter of Fundamental Rights of the European Union — Right to effective judicial protection

Competition — Fines — Amount — Determination — Maximum amount — Calculation — Turnover to be taken into consideration — Cumulative turnover of all the companies constituting the economic unit acting as an undertaking

Judicial proceedings — Introduction of new pleas in the course of proceedings — Conditions — Plea based on matters coming to light in the course of the procedure — Entry into force of the Treaty of Lisbon — Whether a new fact justifying the belated introduction of a complaint based on the failure to have regard to the principle of the presumption of innocence — Not included

The entry into force of the Lisbon Treaty, incorporating the Charter of Fundamental Rights of the European Union into EU primary law, cannot be considered a new matter of law within the meaning of the first subparagraph of Article 42(2) of the Rules of Procedure of the Court and cannot therefore give good grounds for introducing new pleas in law in the course of proceedings. Even before the Lisbon Treaty entered into force, the Court had found on several occasions that the right to a fair trial, which derives inter alia from Article 6 of the European Convention on Human Rights, constitutes a fundamental right which the European Union respects as a general principle under Article 6(2) EU. That interpretation provided by the Court for the purposes of applying its Rules of Procedure is also true mutatis mutandis for applying the corresponding provisions of the Rules of Procedure of the General Court. (see paras 32, 33)

See the text of the decision. (see para. 35)

See the text of the decision. (see para. 37)

See the text of the decision. (see paras 38-42)

When the undertaking to which an infringement of Article 81 EC is attributed heads a group which constitutes an economic unit, the turnover of the group as a whole must be taken into account when calculating the upper limit of the amount of the fine referred to in Article 23(2) of Regulation No 1/2003. For the purposes of assessing the financial capacity of that company, the Commission may take into consideration the latter’s consolidated accounts inasmuch as they may be regarded as constituting a relevant factor of assessment. The Commission cannot be required, after establishing that the parent company must be held liable for the infringement of its subsidiary, to demonstrate that each subsidiary in the group does not determine its conduct on the market independently. Attributing a subsidiary’s infringement to the parent company and prohibiting a fine being imposed in excess of 10% of the turnover of the undertaking concerned are two separate issues serving different purposes. If the case arises, it is for the company which considers that the consolidated turnover does not reflect the economic reality to submit evidence capable of refuting the existence of a power of control by the parent company. (see paras 52, 55, 57)

See the text of the decision. (see paras 67, 68, 96)

As regards the admissibility of a plea alleging a breach of procedure by the General Court, raised for the first time in the context of the appeal, it must be found that although a party must be able to raise a breach of procedure where it considers that a breach of the rules applicable is established, it cannot be required to do so at a stage where the full effects of that breach are not yet known. As regards, in particular, a failure by the General Court to adjudicate within a reasonable time, an appellant which considers that such a failure before the General Court prejudices its interests is not required to assert that prejudice immediately. Where appropriate, it may wait until the end of proceedings in order to ascertain the total duration of the prejudice and therefore to have all the information necessary to identify that which it has, in its view, sustained. Consequently, a plea in law alleging such a breach of procedure is admissible even if the appellant raises it for the first time in the context of the appeal. (see para. 70)

The sanction for a breach, by a Court of the European Union, of its obligation under the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union to adjudicate on the cases before it within a reasonable time must be an action for damages brought before the General Court, since such an action constitutes an effective remedy. It follows that a claim for compensation for the damage caused by the failure by the General Court to adjudicate within a reasonable time may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself. Moreover, where there are no indications that the excessive length of the proceedings before the General Court affected their outcome, failure to deliver judgment within a reasonable time cannot lead to the setting aside of the judgment under appeal. In addition, having regard to the need to ensure that the competition rules of EU law are complied with, the Court of Justice cannot allow an appellant to reopen the question of the validity or amount of a fine, on the sole ground that there was a failure to adjudicate within a reasonable time, where all of its pleas directed against the findings made by the General Court concerning the amount of that fine and the conduct that it penalises have been rejected. (see paras 72, 73, 78, 83, 84)

See the text of the decision. (see paras 85-87, 91-96)

In the context of examining a claim for compensation for the damage caused by the failure by the General Court to adjudicate within a reasonable time, it will be for the General Court to assess both the actual existence of the harm alleged and the causal connection between that harm and the excessive length of the legal proceedings in dispute by examining the evidence submitted for that purpose. In that regard, in an action for damages based on a breach by the General Court of the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union, in so far as it failed to have regard to the requirement that the case be dealt with within a reasonable time, the General Court must, in accordance with the second paragraph of Article 340 TFEU, take into consideration the general principles applicable in the legal systems of the Member States for actions based on similar breaches. In that context, the General Court must, in particular, ascertain whether it is possible to identify, in addition to any material loss, any other type of harm sustained by the party affected by the excessive period, which should, where appropriate, be suitably compensated. It is therefore for the General Court, which has jurisdiction under Article 256(1) TFEU, to determine such claims for damages, sitting in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticised and applying the criteria set out by the Court of Justice in order to assess whether the General Court has complied with the requirement that it adjudicate within a reasonable time. (see paras 88-90, 103)