OPINION OF ADVOCATE GENERAL

MAZÁK

delivered on 2 February 2012 ( 1 )

Case C-549/10 P

Tomra Systems ASA

Tomra Europe AS

Tomra Systems GmbH

Tomra Systems BV

Tomra Leergutsysteme GmbH

Tomra Systems AB

Tomra Butikksystemer AS

v

European Commission

‛Appeal — Competition — Abuse of a dominant position — Market for machines for the collection of used beverage containers — Exclusivity agreements, quantity commitments and loyalty rebates forming part of a strategy of excluding competitors from the market’

1. In the present case the appellants (referred to collectively as ‘Tomra’) are asking the Court of Justice to set aside the judgment in Case T-155/06 Tomra Systems and Others. ( 2 ) In that judgment the General Court dismissed Tomra’s application for annulment of Commission Decision C(2006) 734 final of 29 March 2006 relating to proceedings under Article 82 EC (now Article 102 TFEU) and Article 54 of the EEA Agreement (Case COMP/E-1/38.113 — Prokent-Tomra). ( 3 )

I – Background to the dispute

2. The facts, the administrative procedure and the contested decision are set out in detail in paragraphs 1 to 20 of the judgment under appeal. In short, Tomra group (which comprises the seven companies that brought the present appeal and others) produces automatic recovery machines for the collection of used, empty beverage containers (Reverse Vending Machines (‘RVMs’)). These machines identify the container by reference to certain parameters, such as shape and/or bar codes, and calculate the amount of the deposit to be reimbursed to the customer, typically printing a receipt which is credited back at the shop’s cashier. The group also provides RVM-related services throughout the world. In 2005, the Tomra group had a turnover of around EUR 300 million and 1900 employees.

3. Further to a complaint from Prokent AG, a German company also active in the RVM sector, the Commission, having carried out inspections, sent a statement of objections to Tomra Systems ASA, Tomra Europe AS and subsidiaries of the Tomra group in six States forming part of the European Economic Area (EEA). On 29 March 2006, the Commission adopted the contested decision, by which it found that Tomra had infringed Article 102 TFEU and Article 54 of the EEA Agreement in the period from 1998 to 2002 by implementing an exclusionary strategy in the national RVM markets in Germany, the Netherlands, Austria, Sweden and Norway, involving exclusivity agreements, individualised quantity commitments and individualised retroactive rebate schemes, thus foreclosing competition on the markets.

4. In that decision the Commission found, inter alia, that Tomra’s market shares in Europe had continuously exceeded 70% in the years before 1997, that after 1997 they exceeded 95% and that, on all the relevant markets, Tomra’s market shares were many times larger than those of their competitors. It concluded that the Tomra group was a dominant undertaking for the purposes of Article 102 TFEU and Article 54 of the EEA Agreement. In particular, the Commission maintained that Tomra had devised a strategy having an anti-competitive object or effect, both in their practices and in internal discussions within the group. According to the contested decision, Tomra sought to preserve their dominance and market share through means such as preventing new operators gaining market entry, keeping competitors small by limiting their growth possibilities and weakening and eliminating competitors by way of acquisition or other methods. That strategy was implemented through the conclusion, between 1998 and 2002, of 49 agreements between Tomra and a number of supermarket chains. These took the form of exclusivity agreements, agreements containing individualised quantity commitments and agreements establishing individualised retroactive rebate schemes. The contested decision states that the assessment of the gravity of Tomra’s infringement must take account of the fact that they had deliberately employed the practices in question in the context of their exclusionary strategy and also of the geographic scope of the infringement. The Commission concluded that it was a ‘serious’ infringement and imposed a fine of EUR 24 million on Tomra, jointly and severally.

II – The judgment under appeal

5. In support of their action for annulment of the contested decision before the General Court, Tomra put forward six pleas in law. They argued, essentially, that the Commission: (i) used manifestly incorrect and unreliable evidence to prove that the group designed a strategy to foreclose competition and implemented that strategy by 49 agreements with its customers between 1998 and 2002; (ii) committed manifest errors in its assessment of whether the agreements were capable of foreclosing competition, failed to state reasons in that regard; (iii) committed manifest errors in its assessment of whether these agreements actually foreclosed competition; (iv) committed a manifest error in law by finding the exclusivity agreements, individualised quantity commitments and individualised retroactive rebates unlawful per se under Article 102 TFEU; (v) committed a manifest error in concluding that non-binding quantity commitments can infringe Article 102 TFEU; and (vi) breached the principles of proportionality and non-discrimination when it imposed the EUR 24 million fine on Tomra. By the judgment under appeal, the General Court dismissed all those pleas.

III – Appeal

6. In the present case Tomra rely, in total, on five grounds of appeal. ( 4 ) The Commission, for its part, considers that those grounds are inadmissible, ineffective or unfounded.

A – The first ground of appeal, alleging an error of law in the review applied by the General Court when assessing the Commission’s finding of an anti-competitive intent to foreclose the market (paragraphs 33 to 41 of the judgment under appeal)

7. By their first ground of appeal Tomra essentially submit that, when analysing whether the Commission had established anti-competitive intent, the General Court erred in law by refusing to consider evidence showing that Tomra were intent on competing on the merits. Tomra reiterate the argument they made before the General Court that the Commission erroneously used Tomra’s internal correspondence as support for the alleged anti-competitive intent and strategy.

8. It should be pointed out at the outset that the notion of abuse is an objective concept. ( 5 ) Indeed, in the contested decision the Commission correctly did not refer to intent as a necessary element for the finding of abuse of a dominant position in the present case. In that connection, Tomra argue that it follows from recitals 97 to 105 of the contested decision that anti-competitive intent was a significant factor in the finding of an anti-competitive strategy and that that finding played a decisive role in establishing the infringement.

9. Tomra also referred to recital 111 of the contested decision. However, as the Commission noted, that recital is prefaced by the observation in recital 109 that the practices described in Section III.B are assessed under Article 102 TFEU elsewhere in that decision. To that end, Section IV.B of the contested decision correctly recalled the objective character of Article 102 TFEU and found that Tomra’s practices tended to restrict competition by analysing Tomra’s agreements with their customers, not their motives. Therefore, Tomra’s claim that the findings made about their intent had a decisive bearing on the finding of the infringement should be dismissed.

10. Nonetheless, it is true that the evidence of intent is not altogether irrelevant insofar as it may actually be relevant to the assessment of the behaviour of a dominant undertaking, which requires an understanding of the economic rationale of that behaviour, its strategic aspects and its likely effects. As the General Court correctly noted in paragraph 35, such evidence may indicate whether the exclusion of competition was intended or, on the contrary, suggest another explanation for the practices under consideration. Indeed, the evidence allows the Commission to place the practices at issue in their context. For instance, if the Commission (or a national competition authority) finds on the basis of evidence in the file that an undertaking designed the rebate or discount schemes (also) for the benefit of consumers — if the undertaking was anticipating efficiency gains, say — then that fact should result in those authorities delving deeper in their investigation.

11. It is apparent from the documents before the Court that Tomra were unable or unwilling to explain their practices by reference to any particular business rationale ( 6 ) and I consider that, in paragraph 36, the General Court correctly found that the Commission’s examination had to concentrate primarily on the anti-competitive conduct. In any case, it should be pointed out that the Commission went on to investigate of its own motion whether Tomra’s internal documentation suggested a pro-competitive explanation for the practices in question or, rather, an exclusionary one. In that connection, while the appeal refers to paragraph 36 of the judgment under appeal, it does not identify the evidence of Tomra’s intention to compete on the merits that the General Court allegedly failed to address, nor does it spell out how any such evidence could vitiate the analysis of Tomra’s exclusionary practices.

12. I also agree with the Commission that the fact that the judgment under appeal acknowledged the existence of evidence of Tomra’s intention to use other (legitimate) methods of competing means that Tomra are now, in fact, attempting to call into question the General Court’s appraisal of the relevance and probative force of the evidence, which cannot be challenged on appeal. ( 7 ) Tomra appear to repeat the line of argument followed at first instance, stressing their disagreement with the General Court’s assessment of the facts. However, paragraph 35 of the judgment under appeal correctly points out that ‘the Commission’s findings in the contested decision are never based on just one of [Tomra’s] documents taken in isolation but on a whole series of different items’.

13. Finally, Tomra specifically criticise the General Court’s statement in paragraph 36 of the judgment under appeal that the contested decision ‘does not conceal’ documents indicating that Tomra also intended to use legitimate means to compete. Suffice it to say that that statement in the judgment under appeal does not concern relevant evidence. Instead, like the Commission, I consider that the General Court clearly wished to recognise that the contested decision referred to evidence which related to other, legitimate means of competition — despite its lack of relevance in explaining the abusive conduct which was the subject-matter of that decision.

14. It follows from all the foregoing considerations that the General Court made no error of law in the review it applied when assessing the Commission’s finding of an anti-competitive intent to foreclose the market. As a consequence, the first ground of appeal should be dismissed as unfounded.

B – The second ground of appeal, alleging an error of law and a failure to provide sufficient reasoning with regard to the portion of total demand the agreement had to cover to be abusive (paragraphs 238 to 246 of the judgment under appeal)

15. Tomra argued before the General Court that the Commission had failed to consider whether the contestable share of the RVM market ( 8 ) was large enough for as-efficient competitors to remain in the market. ( 9 ) Now Tomra submit, essentially, that the General Court erred in law and failed to provide sufficient reasoning when finding that the alleged exclusivity agreements covered a sufficient portion of total demand so as to be capable of restricting competition. In particular, Tomra submit that the reasoning used by the General Court in rejecting the argument on the relevant commercial demand relied primarily on terms such as ‘substantial’, ‘far from being small’ and ‘very high’. The General Court should have insisted on an unambiguous method of establishing whether exclusivity agreements are capable of foreclosing competition on the market, namely the calculation of the minimum viable scale required to operate profitably on the market in question.

16. It should be pointed out at the outset that, as is clear from settled case-law, the statement of reasons required by Article 296 TFEU (formerly Article 253 EC) must be appropriate to the act at issue. ( 10 ) Therefore, it remains to be seen whether the General Court was entitled to use expressions such as ‘significant’ in this context or whether Tomra are right in arguing that the judgment under appeal lacks sufficient reasoning insofar as it does not state exactly what ‘significant’ stands for (say, in quantitative terms) in the present case.

17. In paragraph 20 of the appeal Tomra claim that the General Court erred in law in holding, at paragraph 241, that ‘competitors should be able to compete on the merits for the entire market and not just for a part of it’. As the Commission pointed out, by that criticism Tomra put forward an unacknowledged demand that the Court overturn a point decided in Hoffmann-La Roche vCommission. ( 11 ) There the Court rejected the claim to an ‘appreciable effect’ or de minimis threshold under Article 102 TFEU, holding that ‘since the course of conduct under consideration is that of an undertaking occupying a dominant position on a market where for this reason the structure of competition has already been weakened, within the field of application of Article [102 TFEU] any further weakening of the structure of competition may constitute an abuse of a dominant position’.

18. The Court there followed Advocate General Reischl (at p. 593), who had distinguished Articles 85 EEC and 86 EEC (now Articles 101 and 102 TFEU), arguing that ‘the theory of perceptibility [sensibilité in French] has been extended to Article [101], that is to a field where by definition existing effective competition has been restricted through agreements and the like. On the other hand, in circumstances to which Article [102] applies competition is practically eliminated because an undertaking in a dominant position is not exposed to effective competition. In the present case it does not in fact appear to be permissible to disregard conduct engaged in by such an undertaking, which according to the criteria of Article [102] must be held to be an abuse, because its effects on the conditions of competition are not appreciable. However, even if it were held to be justifiable to disregard abuses or at least not to penali[s]e them, whenever so to speak only “quantités négligeables” are in question, it must nevertheless be seriously doubted whether the present case belongs to that category’.

19. Be that as it may, Tomra’s bare assertion, which is unsupported by any authority, in a case where the General Court confirmed that, on the facts, Tomra’s foreclosure went far beyond any conceivable minimum threshold, clearly cannot succeed in the present appeal.

20. I consider that what the General Court did in the judgment under appeal is precisely what it should have done. Indeed, only by an analysis of the circumstances of the case, like that of the Commission in the contested decision, can it be determined whether the practices of an undertaking in a dominant position are capable of excluding competition (in the present case the contested decision even states that those practices ‘in fact had’ a market-distorting foreclosure effect). It would, however, be artificial to establish without prior analysis the portion of the tied market beyond which the practices of a dominant undertaking may have an exclusionary effect on competitors (see paragraph 242 of the judgment under appeal).

21. In any event, there can be no doubt that Tomra’s practices covered a ‘substantial’ part of the market, and therefore it would appear that the ground of appeal put forward is simply academic in the present case. ( 12 ) In fact, Tomra themselves appear to accept that, on average and taking the five years and five markets together, the practices in question tied about 39% of demand.

22. In that connection, paragraph 243 of the judgment under appeal is correct: the proportion of two fifths of total demand during the period and in the countries under consideration is, on any view, considerable and may, in any event, certainly not be considered ‘small’. The General Court also rightly pointed out in this respect that Tomra’s practices often led to a very high proportion of ‘tied’ demand during the ‘key years’ in which demand was highest and would have been most likely to attract successful market entries, in particular the years 1999 and 2000 in Austria, 2001 in the Netherlands and 1999 in Norway. ( 13 ) Finally, in paragraph 245 the General Court correctly notes that ‘[Tomra’s] practices tied end customer, not distributor, demand. Competitors were thus unable to use alternative distribution methods which could have mitigated the effects of [Tomra’s] practices’.

23. It follows that on any reasonable interpretation of expressions such as ‘significant’, their use by the General Court in the present case was amply justified by the facts.

24. As regards Tomra’s final argument that the approach of the Commission and of the General Court is incompatible with the current economic thinking, suffice it to state that that argument was never raised and sufficiently explored at first instance and may not, in consequence, be made now on appeal.

25. It follows from all the foregoing considerations that the General Court made no error of law with regard to the portion of total demand the agreement had to cover to be abusive, nor did it fail to provide sufficient reasoning in that regard. Therefore, the second ground of appeal should be dismissed as unfounded.

C – The third ground of appeal, alleging a procedural error and an error of law in the examination of retroactive rebates (paragraphs 258 to 272 of the judgment under appeal)

26. Tomra submit, essentially, that the General Court made a procedural error in misrepresenting the arguments put forward concerning retroactive rebates. The General Court misread and misinterpreted their arguments, by stating that Tomra had contended that ‘negative prices’ were a fundamental basis of the contested decision, and consequently failed to take that argument into account in a legally correct manner. Had the General Court taken the correct approach to the rebate schemes, it would have significantly affected the basis for its finding that all the agreements were capable of foreclosing the RVM market. Tomra point out that a proper analysis of the arguments put forward would have involved an examination of the rebate schemes in accordance with the approach based on their effects. Tomra argue that retroactive rebates which do not result in pricing below cost must be presumed incapable of foreclosing competitors. Consequently, the General Court erred in law by not requiring the Commission to establish that the retroactive rebates used by Tomra led to pricing below cost in order to qualify those rebates as exclusionary.

27. It must be observed at the outset that this ground of appeal concerns only retroactive rebates. Contrary to Tomra’s contention, the arguments presented in support of it may not, in any case, affect the findings relating to the other practices, in particular quantity commitments and exclusivity commitments or de facto exclusivity.

28. The Commission correctly points out that the passage from the application at first instance quoted in the appeal, although referring to costs in the framework of establishing prices, must be assessed in its context. The passage from the application which Tomra now quote in their appeal does, it is true, refer to costs in the framework of establishing exclusionary prices. However, that reference to costs ( 14 ) is an isolated ( 15 ) one, and would appear to be merely accessory to the application’s insistence on the ‘negative prices’ argument, which put forward a test that made ‘negative prices’ a prerequisite for finding loyalty rebate schemes abusive under Article 102 TFEU. ( 16 )

29. In particular, the full wording of paragraph 105 of the application at first instance was: ‘It is also important to note that the Commission did not examine Tomra’s costs. Although the Commission refers, at [recital] 165 [to] the Decision, to rebates leading to “very low prices, possibly even negative prices”, it did not examine Tomra’s costs in order to establish the level below which prices would be exclusionary or predatory. The implicit test in the Decision is that if Tomra’s rebates would force a competitor to charge a negative price, then this would have an exclusionary impact — since the price must be below Tomra’s average variable cost. Although the Commission refers to “very low” prices, Tomra [submit] that the Decision does not contain any evidence to suggest that rebates have exclusionary effects where they allow competitors to charge positive prices or earn positive revenues. This is important because it will be shown below that in nearly all of the Commission’s examples prices were never capable of being negative and in all cases competitors would be able to earn positive revenues from their sales’.

30. The fact remains that, except for the passage just quoted, that part of the application (in paragraphs 102 to 131) dealt with the question whether or not Tomra’s rebates forced competitors to charge negative prices. As the Commission noted, the application focused exclusively on showing that Tomra’s prices only rarely required a competitor to offer ‘negative prices’ to secure sales. ( 17 )

31. Therefore, I disagree with Tomra’s contention in the reply that they set out the argument questioning the Commission’s failure to compare ‘RVM cost and price at any point … in very clear terms in paragraphs 102 to 131 of the application’. Rather, as used in the application at first instance, ‘positive revenue’ is synonymous with ‘positive price’ — in other words, costs are ignored and play no role. In fact, it would appear that, in their submission at first instance, Tomra never considered decisive the price-cost test that they now claim is the proper one.

32. In addition, as the Commission pointed out, the application at first instance focused unambiguously on the ‘negative prices’ issue, the plea was presented as focusing on that issue, and Tomra devoted many pages to it.

33. It follows from the foregoing considerations that the General Court cannot be criticised for having failed to address an argument which was not properly raised in the application. Indeed, the ‘more sophisticated contention’ Tomra now discern from their application would clearly have required extensive argument and supporting evidence, yet nothing more can be found in Tomra’s case at first instance than the fragment which has already been shown to be inadequate to impugn the judgment under appeal.

34. As a consequence, I consider that the present ground of appeal should be declared inadmissible.

35. In the alternative, should the Court nonetheless decide that the third ground of appeal is admissible, I agree with the Commission that the appeal does not contest the General Court’s finding to the effect that the question whether a competitor would have to offer a negative price (instead of just a low price) was not decisive for the conclusion that Tomra’s retroactive rebate schemes were abusive according to the Court’s case-law. The General Court correctly stated in paragraph 266 that the Commission, in the contested decision, first, does not state that the rebate schemes automatically resulted in negative prices and, second, does not maintain that showing that is a prerequisite to finding rebate schemes abusive. Moreover, the contested decision does not contain diagrams for each of the discount and rebate schemes employed by Tomra. It includes only one or two diagrams per country which serve to illustrate the foreclosure effect of Tomra’s rebate schemes.

36. Next, in their reply, Tomra rely on the ‘Guidance on the Commission’s Enforcement Priorities in Applying Article [102 TFEU] to abusive exclusionary Conduct by Dominant Undertakings’, ( 18 ) arguing that the Commission there endorses a cost-price test.

37. However, that communication, issued in 2009, cannot have any bearing on the assessment of the present appeal. How the Commission intends to make adjustments to the future implementation of its competition policy in relation to Article 102 TFEU is irrelevant. Indeed, any new emphasis in the application of that provision is potentially relevant only to future decisions adopted by the Commission, but not to the legal assessment of a decision already taken in 2006. ( 19 )

38. Furthermore, as regards retroactive rebates, in paragraph 46 of the reply at first instance, Tomra argued: ‘the Decision ([recitals] 165, 186, 224, 225, 235, 236 and 268) analysed contracts, which allegedly contained retroactive rebates. In particular, it set out a detailed analysis of seven example agreements. The Decision alleged that these agreements would have exclusionary effects because: (a) customers would not be willing to purchase more than “a small number” of RVMs ([recital] 165); and (b) competitors would be forced to charge “very low, or possibly even negative prices” for this small number of units ([recital] 165)’.

39. In other words, it is clear that Tomra’s argument that the Commission improperly found the retroactive rebates to be exclusionary was based on a single recital to the contested decision (that is, recital 165). ( 20 )

40. In paragraph 32 of the appeal, however, Tomra note the reference in paragraphs 260 to 263 of the judgment under appeal to the section of the contested decision where the Commission’s legal analysis of Tomra’s rebates is set out (that is, recitals 314 to 329). ( 21 ) Tomra seek to dismiss the significance of the matters analysed therein to the conclusion that Tomra’s rebates infringed Article 102 TFEU. However, it is sufficient to point out that those recitals were not challenged at first instance. In any case, even if those paragraphs did contest some factual findings made in the contested decision, the fact remains that they did not contest the reliance on Hoffmann-La Roche v Commission and Michelin II in that decision. ( 22 )

41. Therefore, the narrow issue raised in the appeal about Tomra’s costs and those of an efficient competitor cannot call into question the dismissal of the claims made at first instance concerning the contested rebates and their capability to weaken competition.

42. Indeed, as the General Court rightly noted in paragraph 214 of the judgment under appeal, ‘in determining whether a quantity rebate system is abusive, it will be necessary to consider all the circumstances, particularly the criteria and rules governing the grant of the rebate, and to investigate whether, in providing an advantage not based on any economic service justifying it, the rebates tend to remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties or to strengthen the dominant position by distorting competition’. ( 23 )

43. The contested decision did apply that test. It did not simply consider, in abstract terms, whether the exclusivity or rebates were, ‘by their nature’, capable of having a negative impact on competition. Rather, it demonstrated that these practices tended to have, or were capable of having, such effects in the circumstances of the case.

44. I cannot stress enough the fact that this is precisely the correct approach. Reference to negative (anti-competitive) effects should clearly not be mechanical. The (likely) existence of such exclusionary effects in a particular case should not be merely presumed, it should be assessed and demonstrated. ( 24 )

45. The above is supported by the recent judgments of the Court. In TeliaSonera, ( 25 ) the Court held at paragraph 64 that ‘in order to establish whether such a practice is abusive, that practice must have an anti-competitive effect on the market, but the effect does not necessarily have to be concrete, and it is sufficient to demonstrate that there is an anti-competitive effect which may potentially exclude competitors who are at least as efficient as the dominant undertaking’. That statement should be read in conjunction with paragraph 254 of Deutsche Telekom v Commission, ( 26 ) where the Court held that ‘admittedly, where a dominant undertaking actually implements a pricing practice resulting in a margin squeeze of its equally efficient competitors, with the purpose of driving them from the relevant market, the fact that the desired result is not ultimately achieved does not alter its categorisation as abuse within the meaning of Article [102 TFEU]. However, in the absence of any effect on the competitive situation of competitors, a pricing practice such as that at issue cannot be classified as exclusionary if it does not make their market penetration any more difficult’.

46. Next, it should be pointed out that, in paragraphs 259 to 272, the judgment under appeal rightly took account of a whole range of considerations set out in the contested decision. That is why the General Court did not need to pursue its discussion of price levels any further than the observation at paragraph 267 that ‘retroactive rebate schemes ensure that, from the point of view of the customer, the effective price for the last units is very low because of the “suction effect”’. ( 27 ) In that connection, the judgment under appeal did not engage in discussion of the question whether the diagrams in the contested decision contained errors (see paragraph 268).

47. The Commission is right when it submits that criticising the judgment under appeal on the issue of negative prices is therefore ineffective, since even if the appeal were correct on that point, this would be insufficient to justify setting aside a conclusion reached by the General Court after taking into account wider considerations ( 28 ) which are not themselves contested on appeal. In other words, even if Tomra were to succeed in showing that the ‘negative prices’ issue was not fundamental to their case at first instance, they do not contest, in their appeal, the General Court’s finding that the question whether a competitor would have to offer a negative price to secure sales was not decisive for the conclusion that the retroactive rebate schemes were abusive.

48. It follows from all the foregoing considerations that the third ground of appeal is ineffective.

49. Finally, I consider that, in any event, the third plea should be declared unfounded. It is clear from the judgment under appeal that factual questions about ‘negative prices’ were much debated at first instance. As the Commission pointed out, Tomra accepted that in at least two out of the seven examples discussed in the application a competitor would have to offer negative prices. The Commission provided many additional examples of negative prices not contested by Tomra. ( 29 ) On that issue, Tomra misread the decision by assuming that negative prices were a pre-requisite for finding loyalty-inducing price schemes abusive. It is clear from a reading of the contested decision that it referred to the ‘suction effect’ brought about by retroactive rebate schemes (see footnote 27 above).

50. The alternative test Tomra refer to as the appropriate one is based on a cost-price comparison, where the rebate would be allocated to one unit or spread over a ‘range’ of units that a competitor could supply, and the result would be considered the ‘effective price’ of that unit or units. According to Tomra, retroactive rebates which do not result in pricing below cost (even for one unit) must be presumed incapable of foreclosing competitors.

51. However, such a test is not required by the case-law.

52. In Michelin II, it was recalled in paragraph 240 that ‘the Court of Justice, after referring to the principle reproduced at paragraph 238 [of that judgment ( 30 )], stated that it is necessary “to consider all the circumstances, particularly the criteria and rules for the grant of the discount, and to investigate whether, in providing an advantage not based on any economic service justifying it, the discount tends to remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties or to strengthen the dominant position by distorting competition”’. ( 31 )

53. In that connection, as the Commission correctly pointed out, Tomra do not even claim that the General Court erred in law in applying those criteria.

54. In any event, it is clear that, according to the case-law, a finding that Tomra’s practices tended to weaken competition in the market or to prevent, delay or make more difficult its emergence or expansion does not require a price-cost comparison. However, such an analysis may be useful in assessing more precisely the extent of the effects of those practices. For instance, it could assist the Commission in determining whether the practices made entry and expansion merely more difficult or whether they made them economically impossible.

55. I consider that the General Court correctly applied the Court’s case-law when it recalled in paragraph 289 that ‘for the purposes of establishing an infringement of Article [102 TFEU], it is not necessary to show that the abuse under consideration had an actual impact on the relevant markets. It is sufficient in that respect to show that the abusive conduct of the undertaking in a dominant position tends to restrict competition or, in other words, that the conduct is capable of having that effect’. ( 32 ) It should be pointed out that Tomra do not contest that finding in the present appeal.

56. In any case, it is important to recall here what I stated in point 42 et seq. above: in the present case the contested decision did not simply consider, in abstract terms, whether the exclusivity or rebates were ‘by their nature’ capable of having a negative impact on competition. Rather, it demonstrated that these practices tended to have, or were capable of having, such effects in the circumstances of the case. Indeed, that is precisely the correct approach. Reference to negative effects should not be mechanical. The (likely) existence of such exclusionary effects in a particular case should not be merely presumed, it should be assessed and demonstrated.

57. It follows from all the foregoing considerations that the General Court committed no procedural error or error of law in the examination of retroactive rebates. As a consequence, the third ground of appeal should be dismissed as unfounded.

D – The fourth ground of appeal, alleging an error of law and a failure to provide adequate reasoning when determining whether the agreements in which Tomra are named as ‘preferred, main or primary supplier’ could be classed as exclusive (paragraphs 55 to 67 of the judgment under appeal)

58. Tomra submit, in essence, that the General Court erred in law and failed to give adequate reasons when determining whether the agreements in which Tomra were named as ‘preferred, main or primary supplier’ could be described as exclusive and abusive. Having rejected the argument that its assessment should take into account whether the agreements were binding exclusivity agreements under national law, the General Court failed to consider and establish whether all the agreements at issue contained incentives to source exclusively from Tomra, as required by Hoffmann-La Roche v Commission. Tomra state that the General Court merely relied on Tomra’s alleged subjective intentions to conclude that all the agreements in question were exclusive.

59. In paragraph 57, the General Court found — (i) generally — that ‘the Commission, in the contested decision, characterised the preferred supplier agreements as exclusive on the basis of the available evidence of the parties’ intentions. That evidence shows that the agreements were in fact intended to be exclusive and were understood to be exclusive, irrespective of the question as to whether they were enforceable under national contract law’. Moreover, later in the judgment under appeal (in paragraphs 58 to 66), the General Court also found — (ii) specifically — that the above was true for each contract.

60. It follows that the General Court clearly found that the question whether those agreements were understood by the parties concerned as a commitment to exclusivity was an issue of fact, to be decided on the basis of the evidence available and not on the basis of the national law governing the different contracts.

61. Therefore, Tomra are challenging a finding of fact ( 33 ) in the judgment under appeal.

62. The Commission is right when it argues that Tomra could have chosen to challenge the legal reasoning underlying the General Court’s finding; they could have maintained that the existence of a commitment to exclusivity must be decided according to national contract law alone and, indeed, that was Tomra’s position at first instance.

63. However, that is not their position in the present appeal. Paragraph 39 of the appeal would appear to accept that this plea was rejected by the General Court but the fact remains that it does not challenge this rejection on appeal. It should be pointed out that the appeal does not challenge the findings to the same effect made in paragraphs 223 and 298 of the judgment under appeal.

64. I consider that, contrary to what Tomra claim in the present appeal, the General Court did ‘consider whether an agreement contains incentives to source exclusively from the supplier’ in finding exclusivity. It examined in detail the specific arguments made on that point and rejected them on the merits, on the basis of the evidence before it, in paragraphs 88 to 197 of the judgment under appeal.

65. According to the case-law, appraisal of the evidence by the General Court does not constitute a point of law for the purposes of an appeal except where ‘the clear sense of the evidence has been distorted’. ( 34 )

66. Therefore, I consider that, since Tomra neither show nor even argue that the General Court distorted the facts and evidence, it is necessary to reject this part of the fourth ground of appeal as inadmissible.

67. Tomra claim, further, that the General Court failed to examine whether the contracts contained ‘other incentives’ to source exclusively from them. Tomra observe that the General Court failed to examine whether there were any objective incentives in all the contracts so that these could all be labelled exclusive. The General Court has to consider whether an agreement contains incentives to source exclusively from the supplier in order to conclude that the agreement is exclusive. By failing to assess each agreement in that way, the General Court made an error of law.

68. I agree with the Commission that the fourth ground of appeal would appear to reflect a significant shift in Tomra’s case.

69. In paragraph 36 of the appeal, Tomra claim that the General Court ‘failed to consider and establish whether all the agreements at issue contained incentives to source exclusively from [Tomra], after having rejected [Tomra’s] argument that it should take into account in its assessment whether the agreements were binding exclusivity agreements under national law’.

70. The appeal admits, in effect, that the plea at first instance was dismissed, yet it offers no challenge to the General Court’s rejection of that plea. Rather, it would appear that, the plea at first instance having failed, Tomra have now shifted to what is, on its own premises, a quite different plea alleging that the General Court failed to consider whether the agreements contained other ‘incentives’ to source exclusively from Tomra.

71. Thus, even though the General Court was not called on to consider the plea now raised, it is nevertheless presented as a ground of appeal against the judgment. Indeed, it would appear that the inspiration for that shift in Tomra’s case is the citation of paragraphs 89 and 90 of Hoffmann-La Roche v Commission in the judgment under appeal (paragraph 59).

72. It follows that the fourth ground of appeal constitutes a new plea in law. According to the Court’s case-law, ‘to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the [General Court] would be to allow it to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the [General Court]. In an appeal the Court’s jurisdiction is thus confined to review of the findings of law on the pleas argued before the [General Court]’. ( 35 )

73. It follows from all the foregoing considerations that the fourth ground of appeal should be declared inadmissible in its entirety.

74. In any event — even if the Court were to rule that the fourth ground of appeal is not a new plea in law and is not a challenge to the assessment of the evidence by the General Court — to my mind the Commission has succeeded in showing that the fourth ground of appeal is unfounded.

75. Indeed, an argument that an additional incentive, besides an exclusivity clause, is necessary to satisfy the test stated in paragraphs 89 and 90 of Hoffmann-La Roche v Commission discussed above is based on a misunderstanding of that judgment.

76. As the judgment under appeal recalled in paragraph 296 (which is not contested by the appeal), ‘obligations of this kind to obtain supplies exclusively from a particular undertaking, whether or not they are in consideration of rebates or of the granting of fidelity rebates intended to give the purchaser an incentive to obtain his supplies exclusively from the undertaking in a dominant position, are incompatible with the objective of undistorted competition within the common market, because they are not based on an economic transaction which justifies this burden or benefit but are designed to remove or restrict the purchaser’s freedom to choose his sources of supply and to deny producers access to the market’. ( 36 ) It is clear from Hoffmann-La Roche v Commission and from the context in which it was quoted in paragraph 59 of the judgment under appeal that a commitment to exclusivity, regardless of its status and enforceability under national contract law, is itself an incentive to exclusivity.

77. Indeed, this is what the General Court found, first in paragraph 223, in general for all of Tomra’s practices, and secondly in paragraph 298, specifically in relation to quantity commitments.

78. Paragraph 223 states that ‘with regard to the fact that the supermarket chains are professional buyers which were able to compare [Tomra’s] RVMs with competing RVMs and make a choice between them, [Tomra’s] conduct was clearly designed to set up schemes which provided an incentive to customers not to purchase from other suppliers and to maintain that situation’.

79. Paragraph 298 states that ‘individualised quantity commitments, like those to which the contested decision refers at recital 302, which de facto tie and/or induce the purchaser to obtain all or most of its requirements from the dominant undertaking and which are not based on an economic transaction which justifies this burden or benefit but are designed to remove or restrict the purchaser’s freedom to choose his sources of supply and to deny producers access to the market, — even if it is accepted that they do not bind the purchaser by a formal obligation — constitute an abuse of a dominant position within the meaning of Article [102 TFEU]’. ( 37 )

80. As the Commission pointed out, this part of the judgment under appeal is not contested by Tomra. It follows that this part of the fourth ground of appeal is both unfounded and ineffective.

81. Moreover, the fourth plea fails to satisfy the requirements of Article 38(1)(c) of the Rules of Procedure. The only passage in the appeal where Tomra refer to the other agreements designating them as ‘preferred, main or primary supplier’, which it is claimed were incorrectly assessed by the General Court, is nothing more than a footnote which merely lists four agreements without any explanation. This cannot be considered an adequately substantiated plea in conformity with Article 38(1)(c).

82. Indeed, in paragraph 38 of the appeal Tomra accept that the judgment under appeal mentions some agreements ‘which contained quantity commitments or progressive retroactive rebates’. However, the appeal submits that it is not sufficient to state, on the basis of these few examples, that all agreements using the terms ‘preferred’, ‘main’ or ‘primary’ contained incentives to source exclusively from Tomra. In their reply, Tomra argue that the ‘error of law’ which the General Court allegedly committed consists in ‘failing to do … for every agreement’ the type of analysis that the General Court did for some agreements in paragraph 60 of the judgment under appeal.

83. The fact remains, however, that the appeal lists, as agreements allegedly incorrectly assessed in that manner, just four agreements (contained in a footnote), without providing any explanation.

84. The Commission rightly pointed out that one of those four agreements (Royal Ahold) is, in fact, among those mentioned in paragraph 60 of the judgment under appeal. Therefore, it would appear to be one of the ‘few examples’ where Tomra concede that the General Court correctly examined the existence of incentives. Furthermore, two other agreements (Edeka Baden-Württemberg (2000) and COOP Schleswig-Holstein (2000)) are, indeed, not ‘preferred’, ‘main’ or ‘primary supplier’ agreements. They are in fact expressly exclusive agreements. Finally, in relation to Edeka Bayern-Sachsen-Thüringen (Kooperationsverbund Süd) (1998-1999), the evidence before the General Court included the terms of the agreement and internal documents describing the results of the negotiations; ( 38 ) an email within Tomra Germany, referring to earlier oral contact and describing the result of the negotiations, makes clear that the agreement was understood as exclusive, ( 39 ) and the significance of a clause permitting purchases of competing RVMs only ‘if they offer significant advantages’ or ‘for testing purposes’, under very strict conditions. ( 40 )

85. I accordingly take the view that it is clear that Tomra’s arguments in the fourth ground of appeal do nothing to erode the findings in the judgment under appeal about the exclusive nature of Tomra’s agreements.

86. It follows from the foregoing that the General Court made no error of law, nor did it fail to provide adequate reasoning, when determining whether the agreements in which Tomra are named as ‘preferred, main or primary supplier’ could be classed as exclusive. As a consequence, it is necessary to dismiss the fourth ground of appeal as unfounded.

E – The fifth ground of appeal, alleging that the General Court, in its review of the fine, erred in law by failing to apply correctly the principle of equal treatment (paragraphs 310 to 321 of the judgment under appeal)

87. Tomra submit, essentially, that the General Court erred in law by failing to apply correctly the principle of equal treatment when reviewing the fine imposed by the Commission. That principle requires that the Commission should not impose on an undertaking a fine that is substantially higher than that imposed on other undertakings in a comparable situation.

88. The Commission submits that the alleged infringement was a clear one ( 41 ) and had been committed deliberately. There were, in its submission, no special circumstances to justify a reduction in the fine. The Commission adds that there is nothing unusual or particularly harsh about the fine in the present case.

89. I consider that Tomra’s argument is, as a matter of law, unfounded.

90. The appeal contests the amount of the fine by repeating, essentially, some of the arguments raised at first instance. However, to my mind the General Court correctly applied the relevant case-law and made no error of law in its judgment.

91. I refer to the case-law cited in paragraphs 310 to 321 of the judgment under appeal and shall confine myself to making just the following few remarks.

92. According to the case-law, ( 42 ) the Commission’s practice in previous decisions does not in itself serve as a legal framework for the fines imposed in competition matters insofar as that framework is defined solely by Council Regulation (EC) No 1/2003. ( 43 ) Moreover, the fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 1/2003 if that is necessary to ensure the implementation of EU competition policy. On the contrary, the proper application of the EU competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy. ( 44 ) In addition, since fines constitute an instrument of the Commission’s competition policy, that institution must be allowed a margin of discretion when fixing their amount, in order that it may direct the conduct of undertakings towards compliance with the competition rules. ( 45 )

93. Furthermore, the Commission cannot be criticised for failing to mark infringements of comparable gravity in different cases with fines that represent the same proportion of turnover. ( 46 )

94. I agree with the Commission that there is no good reason why a comparison of the severity of a fine for the purposes of the principle of equal treatment should be based on the percentage of global turnover. The severity of the fine could be evaluated as a function of its absolute amount or according to other relative parameters such as sales affected or profits achieved. Total turnover has no particular relevance in that regard. Fines are not calculated as a proportion of global turnover.

95. The Court has held that ‘the Commission is not required, when assessing fines in accordance with the gravity and duration of the infringement in question, to calculate the fines on the basis of the turnover of the undertaking concerned’. ( 47 )

96. Indeed, according to Article 23(2) of Regulation No 1/2003, fines must not exceed 10% of the undertaking’s turnover in the preceding business year. It is clear that that absolute limit on the amount of the fine that may be imposed was not exceeded in the present case. Incidentally, it would appear that the 10% limit was actually reached in numerous recent cases: between 1998 and 2009 no fewer than 24 addressees of Commission decisions have seen their fines reduced insofar as the final amount of the fine exceeded 10% of their total turnover — therefore, overall, that absolute limit was, in fact, reached in relation to approximately 10% of addressees.

97. In my view, the General Court, in its review of the fine in the judgment under appeal, made no error of law regarding the principle of equal treatment, and correctly applied the case-law. The General Court rightly held, essentially, that the fine in the present case was in line with the Commission’s obligations under the applicable guidelines on the method of setting fines. ( 48 ) Therefore, Tomra’s argument — to the effect that the only way for the General Court to ensure that there was no discrimination was for it to assess the ‘level’ of fines imposed by the Commission at the time of the contested decision, by reference to other, comparable cases — must be rejected.

98. As a consequence, the fifth ground of appeal should be dismissed.

99. It follows from all the foregoing considerations that the appeal must be dismissed in its entirety.

IV – Conclusion

100. In the light of all of the foregoing, I propose that the Court should: — dismiss the appeal; — order Tomra Systems ASA, Tomra Europe AS, Tomra Systems GmbH, Tomra Systems BV, Tomra Leergutsysteme GmbH, Tomra Systems AB and Tomra Butikksystemer AS to bear their own costs and to pay those incurred by the European Commission.

( 1 ) Original language: English.

( 2 ) [2010] ECR II-4361 (‘the judgment under appeal’).

( 3 ) ‘The contested decision’, a summary of which was published in the Official Journal of the European Union (OJ 2008 C 219, p. 11).

( 4 ) It should be borne in mind that in the context of the present Opinion I will only deal with those arguments which have been raised by the parties and which fulfil the strict limitations inherent to appeals and to the restricted review of the Court of Justice. See Article 256(1) TFEU and Article 58 of the Statute of the Court of Justice of the European Union. See also, for instance, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 29.

( 5 ) See Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 91.

( 6 ) Cf. recitals 349 to 357 to the contested decision (in relation to Tomra’s claims to economies of scale) in conjunction with paragraph 224 of the judgment under appeal.

( 7 ) See, for instance, Case C-551/03 P General Motors v Commission [2006] ECR I-3173, paragraphs 52 to 54. Nor does the appeal argue that the General Court distorted the evidence.

( 8 ) That is to say, the part of demand not tied by Tomra’s practices.

( 9 ) See, in particular, paragraphs 90 to 95 of the application to the General Court and paragraphs 38 to 45 of the reply to the defence at first instance.

( 10 ) See, for instance, Case C-266/05 P Sison v Council [2007] ECR I-1233, paragraph 80 and the case-law cited.

( 11 ) Cited in footnote 5, paragraph 123.

( 12 ) As the Commission pointed out, in 1999 more than 55% of the entire demand over the five countries was tied. Looking at individual markets, ‘non-contestable’ or ‘tied’ demand in 1999 and 2000 was between 80% and 90% in Norway and around 65% in the Netherlands (almost 60% in 2001). These facts were not contested before the General Court. Thus, in the countries and years considered to have contributed to the infringement, the contested decision found that the part of demand foreclosed was always significant, and in some years in each of these markets (usually the ‘key years’ of market growth), it was a very significant proportion (see, inter alia, recitals 392, and 160, 163, 183, 187, 218-219, and 290 to the contested decision).

( 13 ) See paragraph 244 of the judgment under appeal. Cf., for example, recitals 163, 219 and 237 to the contested decision.

( 14 ) As the Commission pointed out, that argument, despite the obvious technical implications of such a point, is unsupported by any of the numerous annexes to the application. Indeed, the table of annexes to the application does not show that any evidence was relied on in support of the argument to which such significance is now attached on appeal.

( 15 ) In fact, in other parts of the application at first instance Tomra refer to ‘positive revenues’. It is only at paragraph 128 that the application states that an as-efficient competitor could be expected to earn the same level of profits.

( 16 ) Indeed, the application’s main argument was that Tomra’s rebate schemes either did not require, or only rarely required, ‘negative prices’ for a competitor to secure sales.

( 17 ) Cf. inter alia, paragraphs 105, 106, 108, 110, 111, 116, 117, 118, 122, 127, and 128 of the application.

( 18 ) Communication from the Commission – Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings (OJ 2009 C 45, p. 7).

( 19 ) I agree on this point with Advocate General Kokott. See her Opinions in Case C-95/04 P British Airways v Commission [2007] ECR I-2331, point 28, and Case C-109/10 P Solvay v Commission [2011] ECR I-10329, point 21.

( 20 ) That recital is in the subsection of the contested decision dealing with ‘Impact’ (recitals 159 to 166) within the section dealing with Tomra’s practices in ‘The Netherlands’ (recitals 134 to 166).

( 21 ) The Commission points out that it is notable that recitals 314 to 329 do not refer at all to ‘negative prices’. Rather, they note the ‘suction effect’ of the rebates and, as mentioned in recital 354, there was no correlation between the rebate mechanism and Tomra’s costs (that is, the rebates were not based on any ‘economic service’).

( 22 ) In recitals 314 to 329. See Hoffmann-La Roche v Commission, cited in footnote 5, and Case T-203/01 Michelin v Commission (‘Michelin II’) [2003] ECR II-4071.

( 23 ) See Michelin II, cited in footnote 22, paragraph 60.

( 24 ) See, for instance, Case COMP/39.451 – Velux, where the Commission’s investigation showed that Velux had designed a conditional rebate system without any anti-competitive foreclosure effects, that is, competitors were not foreclosed in a way that could cause likely harm to consumers. See also the Decision of the United Kingdom Office of Fair Trading (‘OFT’) under section 47 relating to Decision CA98/20/2002, BSkyB of 29 July 2003 (points 170 and 178 to 181), where the applicants had suggested that any rebate or discount offered by a dominant firm has a tendency to restrict a buyer’s choice as to his sources of supply and is, therefore, prima facie an abuse requiring objective justification. However, this approach was rejected by the OFT. See also Commission Decision C(2009) 3726 final of 13 May 2009 in Case COMP/C-3/37.990 — Intel finding that it committed a single and continuous infringement of Article [102 TFEU] and Article 54 EEA by implementing a strategy aimed at foreclosing competitors from the market of x86 central processing units (see Case T-286/09 Intel v Commission, pending before the General Court).

( 25 ) Case C-52/09 [2011] ECR I-527. See also my Opinion in that case.

( 26 ) Case C-280/08 P [2010] ECR I-9555. See also my Opinion in that case.

( 27 ) That is, the closer a customer is to reaching a threshold entitling it to obtain (or keep) a rebate on all the units previously purchased, the more costly it is for a competitor to make any sales to this customer. In order to compete for units before the threshold, the competitor has to offer a much lower price. Thus, the rebate schemes deterred entry by making it structurally unattractive and more costly than it would be in the absence of the rebates, without a benefit for the customers since this strategy allowed Tomra to maintain a high average price and the rents of its monopoly.

( 28 ) See, in particular, point 41 et seq. above and footnote 23.

( 29 ) The Commission cites examples of rebates leading to negative prices for the customers Rimi Svenska, KB Exonen, Netto, Norgesgruppen, HakonGruppen and Rema 1000 (see paragraphs 68 and 69 of the rejoinder at first instance).

( 30 ) That is, ‘that an “abuse” is an objective concept referring to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is already weakened and which, through recourse to methods different from those governing normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition’ (see, inter alia, Hoffmann-La Roche v Commission, cited in footnote 5, paragraph 91).

( 31 ) That judgment (Michelin II, cited in footnote 22) refers to Case 322/81 Nederlandsche Banden-Industrie-Michelin v Commission (‘Michelin I’) [1983] ECR 3461, paragraph 73.

( 32 ) See Michelin II, cited in footnote 22, paragraph 239, and British Airways v Commission, cited in footnote 19, paragraph 293.

( 33 ) That the contracts designating Tomra as ‘preferred, main or primary supplier’ implied a commitment to exclusivity.

( 34 ) See, for instance, Case C-481/01 P(R) NDC Health v IMS Health and Commission [2002] ECR I-3401, paragraph 88. See also Joined Cases C-65/02 P and C-73/02 P ThyssenKrupp v Commission (‘Alloy surcharge’) [2005] ECR I-6773, paragraphs 80 to 87, and Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission (‘Cement’) [2004] ECR I-123, paragraphs 48 and 49.

( 35 ) See Commission v Brazzelli Lualdi and Others, cited in footnote 4, paragraph 59.

( 36 ) Reference is made to Hoffmann-La Roche v Commission, cited in footnote 5, paragraph 90.

( 37 ) Emphasis added. Reference is made here, to that effect, to Case T-65/98 Van den Bergh Foods v Commission [2003] ECR II-4653, paragraphs 84 and 160.

( 38 ) Reference is made to recitals 192 to 194 to the contested decision as well as footnote 415 therein.

( 39 ) ‘Es wird einen Exklusivvertrag mit Tomra zu den Bedingungen vom 20.03.98 geben’ (There shall be an exclusive contract with Tomra subject to the conditions of 20.03.98). Annex B.1 to the defence, p. 6686 of the Commission’s file.

( 40 ) Clause 4 reads: ‘Die Kooperationspartner sowie deren Regiebetriebe haben die Möglichkeit, jeweils einen Testmarkt innerhalb des Zeitraums mit Wettbewerbserzeugnissen auszustatten’ (The Cooperation Partner, as well as its outlets, have the possibility to have one test market each for competing products throughout this period of time). Application, Annex A-21, p. 892.

( 41 ) Indeed, this type of infringement had been the subject of several decisions and judgments in the past. Reference is made, inter alia, to: Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 517 et seq.; Hoffmann-La Roche v Commission, cited in footnote 5, paragraph 90 et seq.; Michelin I, cited in footnote 31, paragraph 62 et seq.; Case C-163/99 Portugal v Commission [2001] ECR I-2613, paragraph 50 et seq.; British Airways v Commission, cited in footnote 19; Case T-30/89 Hilti v Commission [1991] ECR II-1439, paragraph 101; Case T-65/89 BPB Industries and British Gypsum v Commission [1993] ECR II-389, paragraphs 71 and 120; Case T-228/97 Irish Sugar v Commission [1999] ECR II-2969, paragraphs 198, 201 and 213; Michelin II, cited in footnote 22, paragraph 53 et seq.; and Solvay v Commission, cited in footnote 19.

( 42 ) See Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 205. See also, for instance, Case T-52/02 SNCZ v Commission [2005] ECR II-5005, paragraph 77. The Commission is free to change the weight that it gives to particular factors in its assessment of gravity: Case T-347/94 Mayr-Melnhof v Commission [1998] ECR II-1751, paragraph 368, and Case T-241/01 Scandinavian Airlines System v Commission [2005] ECR II-2917, paragraph 132 (the fact that the Commission may have taken a less serious view in the past of the type of infringement at issue is irrelevant).

( 43 ) Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1).

( 44 ) Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 109.

( 45 ) Case T-49/95 Van Megen Sports v Commission [1996] ECR II-1799, paragraph 53.

( 46 ) See, to that effect, SNCZ v Commission, cited in footnote 42, paragraph 79, and Case T-67/01 JCB Service v Commission [2004] ECR II-49, paragraphs 187 to 189.

( 47 ) See, inter alia, Dansk Rørindustri and Others v Commission, cited in footnote 42, paragraph 255.

( 48 ) For illustration, as the Commission pointed out in relation to Tomra’s arguments that the fine represented 8% of Tomra’s turnover, it would appear that the final amount of the fine is equivalent to approximately 7.14% of Tomra’s turnover. Taking into account the duration of the infringement (that is five years, which was never contested), the fine amounted to approximately 1.6% of Tomra’s aggregate turnover during the period of infringement.