JUDGMENT OF THE COURT (Second Chamber)

12 June 2014 ( *1 )

‛Appeal — Agreements, decisions and concerted practices — Italian market for the purchase and first processing of raw tobacco — Decision finding an infringement of Article 81 EC — Immunity from fines Immunity from fines — Obligation to cooperate — Rights of the defence — Limits of judicial review — Right to fair legal process — Hearing of witnesses or of parties — Reasonable time — Principle of equal treatment’

In Case C‑578/11 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 November 2011,

Deltafina SpA, established in Orvieto (Italy), represented by J.-F. Bellis, F. Di Gianni and G. Coppo, avvocati,

applicant,

the other party to the proceedings being:

European Commission, represented by E. Gippini Fournier and L. Malferrari, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Second Chamber),

composed of R. Silva de Lapuerta, President of the Chamber, J.L. da Cruz Vilaça, G. Arestis, J.-C. Bonichot and A. Arabadjiev (Rapporteur), Judges,

Advocate General: E. Sharpston,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 13 November 2012,

after hearing the Opinion of the Advocate General at the sitting on 27 March 2014,

gives the following

Judgment

1 By its appeal, Deltafina SpA (‘Deltafina’) seeks, principally, firstly, to have the judgment of the General Court in Case T‑12/06 Deltafina v Commission EU:T:2011:441 (‘the judgment under appeal’), by which that Court dismissed its action seeking the annulment and, in the alternative, the reduction of the fine imposed by Commission Decision C(2005) 4012 final of 20 October 2005 relating to a proceeding under Article 81(1) [EC] (Case COMP/C.38.281/B.2 — Raw tobacco Italy; ‘the contested decision’) set aside and, secondly, the annulment of that decision, in so far as it concerns Deltafina, and the annulment or reduction of the fine imposed on it by that decision and, in the alternative, to have the matter referred back to the General Court.

Background to the dispute

2 Deltafina is an Italian company whose main activities are the first processing of raw tobacco and the marketing of processed tobacco. It is wholly owned by Universal Corp. (‘Universal’), a company whose headquarters are in Richmond (United States).

3 On 3, 4 and 5 October 2001 the European Commission carried out inspections pursuant to Article 14 of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), inter alia at the headquarters of the European Federation of Tobacco Processors in Brussels (Belgium) and the principal Spanish raw tobacco processors. The Federation immediately informed its members of those inspections, including the Associazione professionale trasformatori tabacchi italiani (APTI) (National Association of Italian Tobacco Processors).

4 On 19 February 2002, Deltafina submitted an application for immunity from fines to the Commission by virtue of Title A of the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’). The immunity application related to a presumed cartel between raw tobacco processors on the Italian market.

5 On 6 March 2002 the Commission informed Deltafina that its application met the conditions laid down in the 2002 Leniency Notice and that it would grant Deltafina, at the end of the administrative procedure, the requested immunity from fines, provided that Deltafina met all the conditions set out at point 11 of that notice.

6 On 14 March 2002 a meeting took place between the Commission’s services and the representatives of Deltafina and Universal in order to discuss the details of Deltafina’s cooperation with the Commission (‘the meeting of 14 March 2002’).

7 At that meeting, the Commission’s services stated that they proposed to carry out random inspections as regards the cartel revealed by Deltafina, that those inspections could not take place before 18 April 2002 and that, in consequence, it was necessary to keep them confidential until that date in order to avoid compromising their effectiveness (recital 412 in the preamble to the contested decision).

8 Deltafina explained that it would be impossible for it not to divulge its immunity application until the proposed date of those inspections, because there were APTI meetings impending in which it would be difficult to maintain that confidentiality and because of the need to inform its middle management thereof and to divulge that immunity application in financial transactions involving Universal in the United States (recital 413 in the preamble to the contested decision).

9 The Commission noted those difficulties and asked Deltafina, given that the transmission of that information to the other members of the cartel was likely to hinder the proposed inspections, to provide it, within a shorter period, with evidence and several items of information to enable it to carry out those inspections (recitals 413 to 417 in the preamble to the contested decision).

10 On 22 March 2002 a telephone conversation (‘the telephone conversation of 22 March 2002’) took place between Deltafina’s representatives and the Commission official handling the case, during which several questions relating to Deltafina’s cooperation with the Commission were discussed (recitals 418 to 420 in the preamble to the contested decision and paragraphs 10, 157 and 158 of the judgment under appeal).

11 On 4 April 2002, at a meeting at the APTI offices, the president of Deltafina disclosed to the persons present that the company was cooperating with the Commission (‘the disclosure of 4 April 2002’). On the same day, Dimon Italia SrL (‘Dimon Italia’) and Transcatab SpA (‘Transcatab’), whose representatives were present at that meeting, submitted applications under the 2002 Leniency Notice without mentioning the statements made by the chairman of Deltafina at the APTI meeting (recitals 421 to 426, 454 and 455 in the preamble to the contested decision).

12 On 18 and 19 April 2002 the Commission carried out investigations pursuant to Article 14 of Regulation No 17 at the premises of Dimon Italia and Transcatab and also at the premises of Trestina Azienda Tabacchi SpA and Romana Tabacchi SpA (recital 428 in the preamble to the contested decision).

13 On 29 May and 11 July 2002 two other meetings took place between Deltafina’s representatives and the Commission’s services, during which neither the Commission nor Deltafina raised the question of the confidentiality of the immunity application made by that company and nor did Deltafina state that it had disclosed that immunity application to Dimon Italia and Transcatab at the meeting at the APTI offices on 4 April 2002 (recitals 420 and 429 in the preamble to the contested decision).

14 On 25 February 2004 the Commission sent a statement of objections to a number of undertakings or associations of undertakings, including Deltafina, Universal, Dimon Italia and Transcatab.

15 An oral hearing, in which Deltafina participated, took place on 22 June 2004. At that hearing, a representative of Dimon Italia drew the Commission’s attention to two documents placed in the file at the time of the inspections carried out at Dimon Italia’s premises, consisting of two handwritten notes which summarised the statements made by the chairman of Deltafina at the meeting at APTI’s offices on 4 April 2002.

16 On 21 December 2004 the Commission adopted an addendum to the statement of objections of 25 February 2004, whereby it informed Deltafina and the other undertakings concerned that it intended not to grant Deltafina immunity from fines on the ground that it had breached the obligation to cooperate set out at point 11(a) of the 2002 Leniency Notice.

17 On 20 October 2005 the Commission adopted the contested decision, Article 1 of which states, inter alia, that Deltafina and Universal infringed Article 81(1) EC between 29 September 1995 and 19 February 2002 by participating in agreements and/or concerted practices in the Italian raw tobacco sector. Under Article 2 of the contested decision, Deltafina and Universal were jointly and severally fined EUR 30 million in respect of the infringements referred to in Article 1 of that decision.

18 The Commission took into account Deltafina’s effective cooperation as an attenuating circumstance as an attenuating circumstance by reducing the fine to be imposed on that company by 50%. In particular, the Commission accepted that Deltafina had made a substantial contribution to the Commission’s investigation from the outset and had never disputed the facts.

19 With regard to Deltafina’s application from immunity from fines, the Commission took the view that the obligation to cooperate, laid down in point 11(a) of the 2002 Leniency Notice, includes the obligation to refrain from taking any step that could undermine the Commission’s ability to investigate and/or to find the infringement. The Commission added that that obligation precludes any disclosure of an immunity application while the Commission has not yet carried out inspections and while the sector is unaware of the impending inspections. Such a disclosure runs the risk of irredeemably compromising the Commission’s ability to carry out effective inspections and, accordingly, to find the infringement (recitals 432 and 433 in the preamble to the contested decision).

20 The Commission has stated that the ‘inherent tension’ between that obligation and the obligation laid down at point 11(b) of the 2002 Leniency Notice, namely that the applicant must end its involvement in the infringement no later than the time of its immunity application, does not license an applicant voluntarily to disclose to the other cartel members that it has applied for immunity (recital 434 in the preamble to the contested decision).

21 The Commission has concluded that Deltafina did not comply with that condition, since, although it was aware that the Commission intended to carry out inspections between 18 and 20 April 2002, Deltafina’s chairman voluntarily informed its main competitors of its immunity application before those inspections had been carried out (recitals 441 to 444 and 460 in the preamble to the contested decision).

22 The Commission has added that neither the discussions at the meeting of 14 March 2002 nor its subsequent conduct leave any doubt as to the fact that it never accepted that Deltafina inevitably had to disclose its immunity application to its competitors and that the inspections could therefore no longer take place. It argues that it had made clear that it was necessary to maintain confidentiality for another month in order to prepare for those inspections (recitals 445 to 448 in the preamble to the contested decision).

23 The Commission has asserted that it recognised both the practical difficulties that Deltafina would encounter in preserving the confidentiality of the immunity application and the fact that the inspections would have become highly unlikely if Deltafina had been obliged to disclose its immunity application to its competitors. It has pointed out that as Deltafina’s chairman did not act under the effect of any compelling threat, the disclosure of 4 April 2002 was voluntary and unsolicited (recitals 450 to 453 and 459 in the preamble to the contested decision).

24 That institution took the view that that conduct could in no way be justified (recitals 454 to 459 in the preamble to the contested decision).

25 The Commission has also stated that the fact that Deltafina did not inform it of the disclosure of 4 April 2002 in particular indicated that Deltafina did not expect that institution to approve its conduct (recital 449 of the contested decision).

26 Thus, the Commission concluded, for ‘all the reasons expressed above, … Deltafina, by voluntarily disclosing its immunity application at the APTI meeting of 4 April 2002, breached the co-operation obligation to which it was subject by virtue of point 11(a) of the Leniency Notice’ (recital 460 in the preamble to the contested decision).

The proceedings before the General Court and the judgment under appeal

27 By application lodged at the Registry of the General Court on 19 January 2006, Deltafina brought an action, principally, for annulment of the fine imposed on it and, in the alternative, for a reduction of that fine.

28 In support of its action, Deltafina put forward seven pleas in law, of which four were in support of its principal claim for annulment of the contested decision in so far as it ordered Deltafina to pay a fine, and three were in the alternative in support of its claim for reduction of the amount of that fine.

29 The General Court rejected all the pleas in law put forward by Deltafina apart from the sixth, which Deltafina had withdrawn.

Forms of order sought by the parties

30 Deltafina claims that the Court should: — principally, set aside, entirely or in part, the judgment under appeal and, in so far as it concerns Deltafina, annul the contested decision and annul or reduce the amount of the fine imposed on it; — in the alternative, refer the case back to the General Court, and — order the Commission to pay the costs.

31 The Commission contends that the Court should: — dismiss the appeal; — order Deltafina to pay the costs.

The appeal

32 In support of its appeal, Deltafina relies on four grounds of appeal. It is appropriate, first of all, to examine the first and second grounds of appeal together, then the fourth ground of appeal and, finally, the third ground of appeal.

The first and second grounds of appeal

Arguments of the parties

33 By its first ground of appeal, Deltafina, first of all, alleges that the General Court failed to rule on the plea in law alleging that, following the meeting of 14 March 2002, Deltafina was entitled to conclude that the Commission had released it from its obligation of confidentiality and that, in consequence, by the disclosure of 4 April 2002 it had not failed to fulfil its obligation to cooperate.

34 Next, Deltafina points out that, in the contested decision, the only breach of the obligation to cooperate of which it is accused comprises the disclosure of 4 April 2002. Consequently, by holding that there was a breach of the obligation to cooperate because of Deltafina’s failure to inform the Commission of that disclosure, the General Court infringed the rights of the defence and exceeded its powers, which were limited to the assessment of the lawfulness of that decision.

35 Finally, Deltafina is of the opinion that, in paragraph 149 of the judgment under appeal, the General Court substituted its own analysis of the obligations to cooperate on that company for that which had been agreed between it and the Commission at the meeting of 14 March 2002. In order to ascertain the precise scope of that obligation to cooperate, the General Court ought to have taken into account the agreed details of the cooperation.

36 The General Court took as its basis the incorrect premiss that Deltafina’s failure to inform the Commission of the disclosure of its immunity application constituted, in any event, a breach of the obligation to cooperate, since the classification of those facts depends on the agreed terms of that cooperation. As confirmed by point 12(a) of the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 2006 C 298, p. 17), the Commission could have authorised the disclosure of that immunity application.

37 In the present case, that authorisation emerged from the meeting of 14 March 2002. On the basis of the contemporaneous records of that meeting and of the subsequent conduct of the parties involved, the General Court should have found that Deltafina and the Commission had reached an agreement as regards the inevitability of that disclosure and the consequently more onerous requirement for that company rapidly to supply other proof.

38 Deltafina states that it is apparent from the records of the meeting of 14 March 2002 that the question of whether that disclosure should be ‘voluntary and unsolicited’ or ‘involuntary and necessary’ was not broached and it therefore argues that the General Court’s assessment, taking into account the manner of that disclosure, is based on an ex post reconstruction of the facts which cannot be accepted. In any event, any doubt as to the content of the alleged agreement on the details of its cooperation must, in Deltafina’s view, operate to its benefit.

39 By its second ground of appeal, Deltafina submits that the General Court has infringed Articles 65 and 68 of its Rules of Procedure by having admitted at the hearing the oral testimony of its lawyer, Mr R., and of Mr V.E., the Commission official in charge of the case, as participants in the meeting of 14 March 2002 and, in consequence, as witnesses, without adopting an order to state the facts to be established, without those witnesses being sworn in and without any record of their evidence being taken.

40 According to Deltafina, the General Court took as its basis, in paragraph 159 of the judgment under appeal, the statement of Mr V.E. to establish that he had not understood that Deltafina intended to make the disclosure of 4 April 2002 and that, in any event, he would not have agreed to it. By failing to compare his statement with that of Mr J., who was not asked to give evidence, the General Court infringed Deltafina’s right to a fair hearing.

41 The Commission disputes Deltafina’s line of argument.

Findings of the Court

42 With regard to the admissibility of the argument summarised in paragraph 33 of the present judgment, which the Commission disputes, it must be noted that Deltafina asks the Court not to conduct a fresh appraisal of the facts, but to find a failure to state reasons in the judgment under appeal. This line of argument is therefore admissible.

43 As regards the admissibility of the argument summarised in paragraphs 35 and 36 of this judgment, it must be noted that Deltafina complains that the General Court erred in law in its assessment of the obligations on Deltafina. Accordingly, that argument is also admissible.

44 However, as the Commission rightly points out, by the argument summarised in paragraphs 37 and 38 of the present judgment, Deltafina calls into question an assessment of the facts made by the General Court but does not claim that the evidence was distorted. In accordance with the settled case-law of the Court of Justice, such an assessment falls outside the Court’s jurisdiction, so that line of argument must be rejected as inadmissible.

45 As regards the substance, it must be noted that, by the line of argument summarised in paragraphs 33 and 34 of this judgment, Deltafina complains that the General Court, firstly, failed to rule on the plea in law alleging that the Commission had released it from the obligation of confidentiality and, secondly, unlawfully substituted grounds and thus exceeded its powers.

46 As regards the first part of Deltafina’s argument, it must be noted that the General Court held, in paragraph 160 of the judgment under appeal, that the Commission could not have given Deltafina prior authorisation spontaneously to make the disclosure of 4 April 2002, since that company had failed to demonstrate that it had, in advance, duly informed the Commission of its intentions.

47 In the light, in particular, of that consideration, the General Court confirmed, in paragraph 173 of the judgment under appeal, the Commission’s assessment that Deltafina breached its obligation to cooperate.

48 In that regard, it is apparent from recitals 441, 450 and 460 in the preamble to the contested decision that the Commission was of the opinion that the ‘voluntary and unsolicited’ disclosure by an undertaking which had participated in a cartel of its cooperation with the Commission to other undertakings which had participated in the same cartel, at a stage where on-site inspections of those undertakings were to be carried out, is different from the discovery, by those undertakings, of that cooperation, due to the practical difficulties faced by the undertaking in keeping its cooperation confidential.

49 The Commission took the view that that voluntary and unsolicited disclosure is sufficient in itself to show the breach of the obligation to cooperate, unless it is established, unequivocally, that such a disclosure had been expressly authorised in advance by that institution.

50 The General Court held that that was not the situation in the present case and therefore confirmed, in paragraphs 160 and 173 of the judgment under appeal, Deltafina’s breach of the obligation to cooperate which the Commission noted in recital 460 in the preamble to the contested decision.

51 Contrary to Deltafina’s submissions, that assessment is not vitiated by any error.

52 In particular, the finding of fact made by the General Court of the lack of express authorisation in advance by the Commission for the unsolicited disclosure of 4 April 2002 was not disputed by Deltafina. In those circumstances, the General Court was not required expressly to reject Deltafina’s argument seeking to establish the existence of an agreement on the inevitability of the disclosure of its cooperation.

53 Since the disclosure of 4 April 2002 was unsolicited, it was not inevitable. Even if the Commission had accepted a possible non-voluntary disclosure by Deltafina of its cooperation, that cannot justify the unsolicited disclosure which Deltafina made and cannot therefore call into question the finding that that company had breached its obligation to cooperate. It follows that that line of argument is ineffective.

54 With regard to the second part of the argument put forward to support the first plea in law, namely the allegation of an unlawful substitution of grounds, it is apparent from paragraphs 143 to 145 of the judgment under appeal that the General Court made an overall analysis of the obligation to cooperate placed on an undertaking applying at the end of the administrative procedure for definitive immunity. That obligation to cooperate fully, on a continuous basis and expeditiously, as set out in point 11(a) of the 2002 Leniency Notice, also includes, in particular, an obligation to provide full information as regards all the facts relevant to the Commission’s inquiry.

55 In addition, it follows from recitals 429, 449 and 459 in the preamble to the contested decision that the Commission took into account the absence of certain pieces of information which the undertaking was to provide, in particular as regards the circumstances surrounding the meeting of 4 April 2002.

56 Thus, the General Court, in paragraphs 152 to 162 of the judgment under appeal, merely responded to the argument raised before it by Deltafina, as it is set out in paragraph 151 of that judgment. Accordingly, since the General Court in no way made a substitution of grounds, the second part of Deltafina’s argument must be rejected.

57 Furthermore, in so far as Deltafina claims, by its second ground of appeal, that the General Court infringed the company’s right to a fair hearing, since, firstly, in breach of Articles 65 and 68 of its Rules of Procedure, it obtained, at the hearing, the oral testimony of Deltafina’s lawyer and of the Commission official in charge of the case and, secondly, it took as its basis, in paragraph 159 of the judgment under appeal, one of those testimonies without having compared that testimony with that of Mr J., who was not asked to testify, the following must be stated.

58 First of all, it is not in dispute that the General Court heard, at the hearing, Mr R. and Mr. V.E. in their capacity as participants in the meeting of 14 March 2002, and Mr V.E. as a participant in the telephone conversation of 22 March 2002. It is also not in dispute that the persons concerned were questioned by the General Court with regard to their understanding of the matters discussed in that meeting and conversation, that those questions were put outside the procedural framework laid down in Article 68 of the Rules of Procedure of the General Court and that Deltafina did not raise any objection in that respect at that hearing.

59 In that regard, firstly, contrary to the Commission’s submissions, the fact that Deltafina did not raise any objection at the hearing does not have the effect of rendering the second ground of appeal inadmissible (see, to that effect, Case C‑199/99 P Corus UK v Commission EU:C:2003:531, paragraphs 32 and 35).

60 Secondly, as the Commission rightly points out, the General Court does indeed follow a current and legitimate practice of questioning, on technical matters or complex facts, the persons representing the parties who know the relevant details.

61 Nevertheless, in the present case, as the Advocate General noted in points 116 and 117 of her Opinion, the questions put by the General Court to Mr R. and Mr V.E. concerned, in particular, facts which are contentious and in dispute between the parties. In addition, those subjects do not reveal any technicality or complexity and, furthermore, it does not appear that Mr R. and Mr V.E. were questioned because of their particular technical knowledge.

62 In those circumstances, it must be noted that Deltafina rightly argues that, by questioning its lawyer and the Commission official in charge of the case at the hearing on their understanding of what was agreed at the meeting of 14 March 2002 and in the telephone conversation of 22 March 2002, the General Court went beyond what may be carried out under that practice, since the General Court’s questioning concerned facts which ought to be established, as necessary, by witness statements, under the procedure laid down in Article 68 of the Rules of Procedure of the General Court.

63 None the less, contrary to Deltafina’s submissions, that procedural irregularity does not constitute an infringement of its right to a fair hearing.

64 As the Commission rightly points out and contrary to Deltafina’s claims, the General Court took the statements of the Commission official in charge of the case into account, in paragraph 159 of the judgment under appeal, only in respect of a superfluous point, its reasoning being based essentially on the written evidence examined in paragraphs 153 to 158 of the judgment under appeal, namely, in particular, the records of the meeting of 14 March 2002 and of the telephone conversation of 22 March 2002.

65 As the Advocate General also noted in point 120 of her Opinion, the General Court was able to base its findings on that written evidence alone.

66 In particular, having regard, firstly, to the fact that that written evidence is silent as to any express communication by Deltafina of its intention voluntarily to disclose its cooperation with the Commission and as regards any express authorisation from the Commission for that disclosure and, secondly, to the importance of such express authorisation both to Deltafina and for the effectiveness of the proposed inspections, the view must be taken that the General Court was entitled to consider, without making any error, that the lack of express communication or authorisation was established to the requisite legal standard by that written evidence.

67 It is settled case-law that the General Court is the sole judge of any need to supplement the information available to it in respect of the cases before it. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the substantive inaccuracy of the findings of the General Court is apparent from the documents in the case (Case C‑385/07 P Der Grüne Punkt — Duales System Deutschland v Commission, EU:C:2009:456, paragraph 163 and the case-law cited).

68 In the circumstances of the present case, given that Deltafina made no application for witnesses to be heard and has not claimed any distortion of the evidence taken into account by the General Court, that Court was entitled to take the view that there was no need to hear Mr R., Mr J. or Mr V.E. as witnesses.

69 It follows, firstly, that the second ground of appeal is not well founded and, secondly, that the General Court’s reasoning in paragraphs 153 to 160 of the judgment under appeal is in no way vitiated by an infringement of the rights of the defence.

70 In those circumstances, the first and second grounds of appeal must be rejected.

The fourth ground of appeal

Arguments of the parties

71 Deltafina asks the Court to reduce the fine imposed on it, in order to remedy the infringement of the principle of equal treatment which it alleges that the Commission committed by granting it the same reduction as that granted to Dimon Italia.

72 According to Deltafina, the General Court erred in law by stating that that application, which had been submitted at the hearing at first instance, constituted a new plea in law not founded on legal and factual elements which came to light during the proceedings and, accordingly, was inadmissible. Deltafina’s arguments rest on case-law arising from the judgment in Case T‑13/03 Nintendo and Nintendo of Europe v Commission EU:T:2009:131 which did not come into being until after the end of the written procedure.

73 The Commission contests Deltafina’s line of argument.

Findings of the Court

74 As is clear from Article 48(2) of the Rules of Procedure of the General Court and from Article 127(1) of the Rules of Procedure of the Court of Justice, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure (order in Case C‑615/12 P Arbos v Commission EU:C:2013:742, paragraph 35).

75 Before the General Court, Deltafina did not adduce any evidence capable of showing that the plea in question was based on a point of law which came to light during the proceedings. As the Advocate General noted in point 127 of her Opinion, the principle of equal treatment is a general principle of EU law compliance with which, in accordance with settled case-law, is ensured by the Court of Justice and the General Court, particularly where fines for infringements of competition law are concerned.

76 Accordingly, a judgment stating the obligations on the Commission under the principle of equal treatment, such as that referred to by Deltafina, cannot be regarded as being a new legal fact justifying the late submission of a new plea in law.

77 It follows that the fourth ground of appeal must be rejected.

The third ground of appeal

Arguments of the parties

78 Deltafina points out that the proceedings before the General Court lasted five years and eight months and states that 43 months elapsed between the end of the written procedure and the decision to open the oral procedure. It regards those proceedings as having been excessively long and asks the Court of Justice to annul or substantially reduce, in the exercise of its unlimited jurisdiction, the fine imposed on Deltafina, to remedy the infringement of Deltafina’s fundamental right to obtain a decision within a reasonable time as guaranteed in Article 41(1) and the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

79 The Commission disputes Deltafina’s line of argument.

Findings of the Court

80 It must be borne in mind that a failure to adjudicate within a reasonable time must, as a procedural irregularity constituting the breach of a fundamental right, give rise to an entitlement of the party concerned to an effective remedy granting him appropriate relief (Case C‑40/12 P Gascogne Sack Deutschland v Commission EU:C:2013:768, point 80).

81 Since Deltafina seeks to have the judgment under appeal set aside and, in the alternative, a reduction of the fine imposed on it, the Court notes that it has held that, 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 (Gascogne Sack Deutschland v Commission EU:C:2013:768, paragraph 81 and the case-law cited).

82 That case-law is based, in particular, on the consideration that, where the failure to adjudicate within a reasonable time has no effect on the outcome of the dispute, the setting aside of the judgment under appeal would not remedy the infringement of the principle of effective legal protection committed by the General Court (Gascogne Sack Deutschland v Commission EU:C:2013:768, paragraph 82 and the case-law cited).

83 In the present case, Deltafina has not provided any evidence to the Court from which it may be inferred that a failure by the General Court to adjudicate within a reasonable time could have affected the outcome of the dispute before it.

84 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 (Gascogne Sack Deutschland v Commission EU:C:2013:768, paragraph 84 and the case-law cited).

85 It follows that, contrary to Deltafina’s claims, the third ground of appeal cannot lead to the setting aside, even in part, of the judgment under appeal.

86 In so far as Deltafina seeks the annulment of or a reduction in the fine imposed on it in order to take into account the financial consequences arising for it from the excessive duration of the proceedings before the General Court, the Court of Justice has held that the failure by the General Court to fulfil its obligation under the second paragraph of Article 47 of the Charter to adjudicate on the cases before it within a reasonable time can give rise to a claim for damages and that, according, the sanction for such a breach is an action for damages brought before the General Court, since such an action constitutes an effective remedy (Gascogne Sack Deutschland v Commission EU:C:2013:768, paragraphs 87 and 89).

87 It follows that it is 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 that those claims may not be made directly to the Court of Justice in the context of an appeal (Gascogne Sack Deutschland v Commission EU:C:2013:768, paragraphs 90 and 96).

88 In that regard, it must be recalled that, in an action for damages based on a breach by the General Court of the second paragraph of Article 47 of the Charter, in that it failed to have regard to the requirement that the case be dealt with within a reasonable time, which breach constitutes a sufficiently serious breach of a rule of law intended to confer rights on individuals (see, inter alia, Case C‑198/03 P Commission v CEVA and Pfizer EU:C:2005:445, paragraph 63 and the case-law cited), it is for the General Court, in its assessment of that breach, to take account of the circumstances specific to each case, such as the complexity of the case and the conduct of the parties, the fundamental requirement of legal certainty on which economic operators must be able to rely and the aim of ensuring that competition is not distorted, as is clear from paragraphs 91 to 95 of the judgment in Gascogne Sack Deutschland v Commission EU:C:2013:768.

89 It will also 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 and to take into consideration the general principles applicable in the legal systems of the Member States for actions based on similar breaches.

90 That being the case, since it is clear in the present case, without its being necessary for the parties to produce evidence in that regard, that the General Court has sufficiently seriously breached its duty to adjudicate within a reasonable period, the Court can so find.

91 The length of the proceedings before the General Court, namely almost five years and eight months, to which contributed, in particular, a period of three years and seven months which elapsed between the end of the written procedure and the hearing, cannot be justified either by the certain degree of difficulty of the case, by the fact that six addressees of the contested decision brought an action for annulment against it, or by the application made by Deltafina seeking the production, during the written procedure before the General Court, of a document held by the Commission.

92 It follows, nevertheless, from the considerations set out in paragraphs 81 to 87 of the present judgment that the third ground of appeal must be rejected.

93 Having regard to all the foregoing considerations, the appeal must be dismissed.

Costs

94 In accordance with the first paragraph of Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court shall make a decision as to costs. Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) of those rules, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

95 Since the Commission has applied for costs to be awarded against Deltafina, and as the latter has been unsuccessful, Deltafina must be ordered to pay the costs of these proceedings.

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

1. Dismisses the appeal;

2. Orders Deltafina SpA to pay the costs.

[Signatures]

( *1 ) Language of the case: Italian.