Case C‑604/13 P

Aloys F. Dornbracht GmbH & Co. KG

v

European Commission

(Appeal — Agreements, decisions and concerted practices — Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria — Coordination of selling prices and exchange of sensitive business information — Regulation (EC) No 1/2003 — Article 23(2) — Ceiling of 10% of turnover — 2006 Guidelines on the method of setting fines — Principle of non-retroactivity — Exercise of unlimited jurisdiction — Excessive duration of the proceedings)

Summary — Judgment of the Court (First Chamber), 26 January 2017

Judicial proceedings—Duration of the proceedings before the General Court—Reasonable time—Dispute as to whether there has been an infringement of the competition rules—Failure to act within a reasonable time—Consequences—Non-contractual liability pursued by means of an action for damages

Judicial proceedings—Duration of the proceedings before the General Court—Reasonable time—Dispute as to whether there has been an infringement of the competition rules—Failure to act within a reasonable time—Consequences

Competition—Fines—Amount—Determination—Judicial review—Unlimited jurisdiction of the EU judicature—Scope—Limit—Respect for the principle of equal treatment—Taking into account of differences between, and of the particular circumstances of, the undertakings concerned

Appeal—Jurisdiction of the Court—Whether it may review, on grounds of fairness, the assessment by the General Court in regard to the amount of the fines imposed on undertakings which have infringed the competition rules of the Treaty—Precluded

EU law—Principles—Non-retroactivity of penal provisions—Scope—Fines imposed for infringement of competition rules—Included—Whether breach by applying the Guidelines on the method of setting fines to an infringement predating their introduction—Foreseeability of changes made by the Guidelines—No infringement

Article 23(2) of Regulation No 1/2003 must be interpreted as meaning that it is only the final amount of the fine imposed which must comply with the upper limit of 10% of turnover referred to in that provision, and that that provision does not prohibit the Commission from arriving, during the various stages of calculation of the fine, at an intermediate amount higher than that limit, provided that the final amount of the fine does not exceed that limit. The fact that, owing to the application of the limit of 10% of turnover referred to in the second subparagraph of Article 23(2) of that regulation, certain factors such as the gravity and duration of the infringement are not actually reflected in the amount of the fine imposed is merely a consequence of the application of that upper limit to the final amount. The limit is one which is uniformly applicable to all undertakings and arrived at according to the size of each of them, and seeks to ensure that the fines are not excessive or disproportionate. That upper limit thus has a distinct and autonomous objective by comparison with the criteria of gravity and duration of the infringement. (see paras 22, 23, 25)

See the text of the decision. (see paras 32, 33)

See the text of the decision. (see paras 42, 43)

The system of judicial review of Commission decisions relating to proceedings under Articles 101 and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of applicants, by the General Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission. The scope of that unlimited jurisdiction of the General Court is strictly limited, unlike the review of legality provided for in Article 263 TFEU, to determining the amount of the fine. It concerns solely the assessment by that Court of the fine imposed by the Commission, to the exclusion of any alteration of the constituent elements of the infringement lawfully determined by the Commission in the decision under examination by the General Court. (see paras 52, 53)

See the text of the decision. (see para. 58)

See the text of the decision. (see para. 66)

In setting the amount of fines imposed for infringement of the competition rules, regard must be had to the duration of the infringement and to all the factors capable of affecting the assessment of the gravity of that infringement. The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union. In the case of a secret cartel to coordinate future price increases in respect of the products at issue in the territories of Germany and Austria, the 15% multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ are warranted in view of the very nature of the infringement, since it is among the most harmful restrictions of competition for the purpose of point 23 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, and that rate is the lowest rate on the scale of penalties prescribed for such infringements under those guidelines. (see paras 67, 68, 72, 75)

Observance of the principle of equal treatment is binding on the General Court not only in the exercise of its review of the legality of the Commission’s decision imposing fines but also in the exercise of its unlimited jurisdiction. When the amount of the fines imposed is determined, the exercise of such jurisdiction cannot result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 101(1) TFEU. In assessing the gravity of an infringement, the taking into account, by virtue of that principle, of differences between the undertakings that have participated in a single cartel (in particular with regard to the geographic scope of their respective involvement) need not necessarily occur when the multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ are set but may occur at another stage in the setting of the fine, such as when the basic amount of the fine is adjusted in the light of mitigating and aggravating circumstances under points 28 and 29 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003. Such differences may also be reflected by means of the value of sales that is used in calculating the basic amount of the fine inasmuch as that value reflects, for each participating undertaking, the scale of its involvement in the infringement in question, in accordance with point 13 of the 2006 Guidelines, under which it is possible to take as a starting point for the calculation of the fines an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it. (see paras 78-80)

See the text of the decision. (see paras 84-86)

In the absence of any evidence that the duration of the proceedings before the General Court had an effect on the outcome of the dispute, failure on the part of the General Court to adjudicate within a reasonable time cannot lead to the judgment under appeal being set aside. Indeed, where 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 provide a remedy for any infringement by the General Court of the principle of effective judicial protection. (see paras 94)