ddrg/super_eurlex huggingface dataset:
Judgment of the Court (Third Chamber) of 19 July 2012 —

Kaimer and Others v Commission



(Case C-264/11 P)

Appeal — Competition — Agreements, decisions and concerted practices — Penalty — Copper and copper alloy fittings sector — Probative value of statements made in the context of the leniency policy

1. Appeals — Grounds — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted — Assessment of whether the evidence has been distorted in the context of cartel cases (Art. 81(1) EC; Art. 256 TFEU; Statute of the Court of Justice, Art. 58(1)) (see paras 22-24, 31)

2. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the findings of fact — Possible only where the clear sense of the evidence has been distorted — Assessment made by the General Court of the probative value of the statements of a leniency applicant — Issue of fact (Art. 81(1) EC; Art. 256 TFEU; Statute of the Court of Justice, Art. 58(1)) (see paras 45-47)

3. Appeals — Grounds — Necessity of a specific challenge to a point in the General Court’s reasoning (Art. 256 TFEU; Statute of the Court of Justice, Art. 58(1); Rules of Procedure of the Court of Justice, Art. 112(1)(1)(c)) (see para. 61)

4. Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility (Rules of Procedure of the Court of Justice, Art. 113(2)) (see para. 65)

Re:

Appeal brought against the judgment of the General Court (Eighth Chamber) of 24 March 2011 in Case T-379/06 Kaimer and Others v Commission , by which the General Court dismissed in part the appellants’ action for annulment of Commission Decision C(2006) 4180 final of 20 September 2006 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement concerning a cartel in the copper and copper alloy fittings sector or, in the alternative, for a reduction in the fine imposed on the appellants — Distortion of the evidence — Error of assessment regarding the probative value of statements made in the context of the leniency policy — Infringement of Articles 6 and 47 of the Charter of Fundamental Rights of the European Union

Operative part

The Court:

1. Dismisses the appeal;
27

In those circumstances, the Consiglio di Stato decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does [c]lause 4(4) of the [framework agreement], under which “[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds”, read in conjunction with [c]lause 5 [of that agreement], as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules on employment stabilisation for workers in precarious employment (Article 1(519) of Law No 296/2006), under which it is possible, in derogation from the rule requiring a public selection procedure, to recruit directly, under contracts of unlimited duration, workers who have already been recruited on fixed-term contracts but with the length of service accrued under those fixed-term contracts being set at nought; or does the loss of length of service, as provided for by the national legislature, fall within the ambit of the derogation relating to ‘objective grounds’, given the need to prevent workers in precarious employment from being admitted to the permanent staff to the detriment of workers already on the permanent staff, which would be the position if it were possible for workers in precarious employment to have the length of service accrued taken into account? (2) Does [c]lause 4(4) of the [framework agreement], under which ‘[t]he period-of-service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of-service qualifications are justified on objective grounds’, read in conjunction with [c]lause 5 [of that agreement], as interpreted by the Court of Justice to the effect that the Italian rules which prohibit, in the context of the public service, the conversion of a fixed-term contract into a contract of unlimited duration are lawful, preclude the national rules under which, without prejudice to the accrual of length of service for the period of the fixed-term contract, the fixed-term contract is to be terminated and a new contract of unlimited duration established, which is different from the previous contract and under which the length of service accrued is not to be maintained (Article 1(519) of Law No 296/2006)?’
8

Under that same title, Article 14 of Regulation No 1408/71, (‘Special rules applicable to persons, other than mariners, engaged in paid employment’), provides: ‘Article 13(2)(a) shall apply subject to the following exceptions and circumstances: (1) (a) A person employed in the territory of a Member State by an undertaking to which he is normally attached who is posted by that undertaking to the territory of another Member State to perform work there for that undertaking shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of that work does not exceed 12 months and that he is not sent to replace another person who has completed his term of posting; ... (2) A person normally employed in the territory of two or more Member States shall be subject to the legislation determined as follows: (a) A person who is a member of the travelling or flying personnel of an undertaking which, for hire or reward or on its own account, operates international transport services for passengers or goods by rail, road, air or inland waterway and has its registered office or place of business in the territory of a Member State shall be subject to the legislation of the latter State, with the following restrictions: ... (b) A person other than that referred to in (a) shall be subject: (i) to the legislation of the Member State in whose territory he resides, if he pursues his activity partly in that territory or if he is attached to several undertakings or several employers who have their registered offices or places of business in the territory of different Member States; (ii) to the legislation of the Member State in whose territory is situated the registered office or place of business of the undertaking or individual employing him, if he does not reside in the territory of any of the Member States where he is pursuing his activity.’
15

In those circumstances, the rechtbank van eerste aanleg te Antwerpen decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘1. Is Article 217(2) of [the Customs Code] to be interpreted as meaning that, when determining the practical procedures for the entry in the accounts of the amounts of duty, the Member States can confine themselves to including in their national legislation provisions stipulating merely: — that, for the purposes of such national legislation, “entry in the accounts” is to mean “the entry, in the accounts or on any alternative medium, of the amount of duty corresponding to a customs debt” – in this case, Article 1(6) of the [General Law on customs and excise duty]) and — that the rules relating to entry in the accounts and conditions of payment of the amounts of duty payable pursuant to a customs debt are laid down in the regulations of the European Communities – in this case, Article 3 of the [General Law on customs and excise duty]), or must the Member States, in implementing Article 217(2) of the Community Customs Code, determine in their national legislation how the entry in the accounts provided for in Article 217(1) of the Community Customs Code is to be effected in practice, so that a debtor can ascertain whether such entry in the accounts has actually been effected by the customs authorities? 2. Is Article 217(2) of the Community Customs Code to be interpreted as meaning that, where national legislation merely provides: — that, for the purposes of such national legislation, “entry in the accounts” is to mean “the entry, in the accounts or on any alternative medium, of the amount of duty corresponding to a customs debt” – in this case, Article 1(6) of the [General Law on customs and excise duty]; and — that the rules relating to the entry in the accounts and conditions of payment of the amounts of duty payable pursuant to a customs debt are laid down in the regulations of the European Communities – in this case, Article 3 of the [General Law on customs and excise duty], the customs authorities can maintain that the entry by those authorities of the amount of duty on a “1552 B form” or in a “PLDA” (paperless customs and excise duty) debt database, or any other registration or entry by the customs authorities of the amount of duty on any other possible medium constitutes an entry in the accounts within the meaning of Article 217(1) of the Community Customs Code? 3. On the assumption that the entry by the customs authorities of the amount of duty on a 1552 B form may be deemed to constitute an entry in the accounts within the meaning of Article 217(1) of the Community Customs Code, is Article 217 of the Community Customs Code to be interpreted as meaning that only the entry on a 1552 B form of the precise amount of the duty arising pursuant to a customs debt constitutes an entry in the accounts within the meaning of Article 217(1) of the Community Customs Code?’
35

In those circumstances, the High Court of Justice of England and Wales, Chancery Division, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Do the references to “tax rates” and “different levels of taxation” at paragraph 56 of the [judgment in Test Claimants in the FII Group Litigation]: (a) refer solely to statutory or nominal rates of tax; or (b) refer to the effective rates of tax paid as well as the statutory or nominal rates of tax; or (c) do the phrases referred to have some different meaning and, if so, what? 2. Does it make any difference to the Court’s answer to Questions 2 and 4 of the reference in [Test Claimants in the FII Group Litigation] if: (a) foreign corporation tax is not (or not wholly) paid by the non-resident company paying the dividend to the resident company, but that dividend is paid from profits comprising dividends paid by its direct or indirect subsidiary resident in a Member State and which were paid out of profits on which tax has been paid in that State; and/or (b) [ACT] is not paid by the resident company which receives the dividend from a non-resident company, but is paid by its direct or indirect resident parent company upon the further distribution of the profits of the recipient company that directly or indirectly comprise the dividend? 3. In the circumstances described in Question 2(b) …, does the company paying the ACT have a claim for the repayment of the tax unduly levied (San Giorgio ...) or only a claim for damages (Brasserie du Pêcheur and Factortame …)? 4. Where the national legislation in question does not apply exclusively to situations in which the parent company exercises decisive influence over the dividend paying company, can a resident company rely upon Article 63 TFEU … in respect of dividends received from a subsidiary over which it exercises decisive influence and which is resident in a third country? 5. Does the Court’s answer to Question 3 of the reference in [Test Claimants in the FII Group Litigation] also apply where the non-resident subsidiaries to which no surrender could be made are not subject to tax in the Member State of the parent company?’
4

The Commission Notice on agreements of minor importance which do not appreciably restrict competition under Article 81(1) [EC] (de minimis) (OH 2001 C 368, p. 13, ‘the de minimis notice’) states at paragraphs 1, 2, 4, 6 and 7: ‘1. ... The Court of Justice […] has clarified that [Article 81(1) EC] is not applicable where the impact of the agreement on intra-Community trade or on competition is not appreciable. 2. In this notice the Commission quantifies, with the help of market share thresholds, what is not an appreciable restriction of competition under Article 81 [EC]. This negative definition of appreciability does not imply that agreements between undertakings which exceed the thresholds set out in this notice appreciably restrict competition. Such agreements may still have only a negligible effect on competition and may therefore not be prohibited by Article 81(1) [EC] … ... 4. In cases covered by this notice the Commission will not institute proceedings either upon application or on its own initiative. Where undertakings assume in good faith that an agreement is covered by this notice, the Commission will not impose fines. Although not binding on them, this notice also intends to give guidance to the courts and authorities of the Member States in their application of Article 81 [EC]. ... 6. This notice is without prejudice to any interpretation of Article 81 [EC] which may be given by the Court of Justice or the Court of First Instance ... 7. The Commission holds the view that agreements between undertakings which affect trade between Member States do not appreciably restrict competition within the meaning of Article 81(1) [EC]: (a) if the aggregate market share held by the parties to the agreement does not exceed 10% on any of the relevant markets affected by the agreement, where the agreement is made between undertakings which are actual or potential competitors on any of these markets (agreements between competitors) ... ...’
14

Article 13 of that legislative decree provides, under the heading ‘Administrative expulsion’: ‘… 2. The expulsion shall be ordered by the prefect, on a case-by-case basis, where the foreign national: … (b) has remained on the territory of the State … without applying for a residence permit within the period imposed … … 3. In all circumstances, the decision to expel a foreign national shall be made by reasoned decree which shall be immediately enforceable, even if that measure is contested by the person concerned. Where the foreign national is the subject of criminal proceedings and he is not in pre-trial detention, the Questore shall, prior to carrying out that expulsion, request authorisation from the judicial authority … After having obtained that authorisation, the Questore shall carry out the expulsion pursuant to the rules provided for in paragraph 4. … Pending the decision on that request for authorisation, the Questore may place the foreign national in a temporary detention centre, in accordance with Article 14. … 4. The expulsion shall be carried out by the Questore by means of deportation by the law enforcement authorities: (a) in the circumstances provided for in paragraphs 1 and 2(c) of this article …; (b) where there is the risk of absconding referred to in paragraph 4a …; … (f) in the circumstances provided for in Articles 15 and 16 and in other circumstances under which the expulsion of a foreign national has been provided for as a criminal law sanction or as a consequence of a criminal law sanction; … … 4a. The risk of absconding mentioned in paragraph 4(b) shall be realised when at least one of the following circumstances, on the basis of which the prefect shall assess, on a case-by-case basis, the likelihood that the foreign national may avoid voluntary compliance with the decision to expel him, are present: (a) lack of valid passport or any other equivalent document; … 5. Where the conditions for immediate deportation referred to in paragraph 4 are not met, a foreign national receiving an expulsion order may ask the prefect, for the purposes of carrying out the expulsion, to grant him a period within which to depart voluntarily … The Questura [police headquarters], having obtained proof that the return of the foreign national has indeed taken place, shall inform the judicial authority which has jurisdiction to find that the offence set out in Article 10a has been committed, for the purposes stated in paragraph 5 of that article …’.
3

Recitals 6 to 8 and 12 in the preamble to Regulation No 1393/2007 state: ‘(6) Efficiency and speed in judicial procedures in civil matters require that judicial and extrajudicial documents be transmitted directly and by rapid means between local bodies designated by the Member States. Member States may indicate their intention to designate only one transmitting or receiving agency or one agency to perform both functions, for a period of five years. This designation may, however, be renewed every five years. (7) Speed in transmission warrants the use of all appropriate means, provided that certain conditions as to the legibility and reliability of the document received are observed. Security in transmission requires that the document to be transmitted be accompanied by a standard form, to be completed in the official language or one of the official languages of the place where service is to be effected, or in another language accepted by the Member State in question. (8) This Regulation should not apply to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party. … (12) The receiving agency should inform the addressee in writing using the standard form that he may refuse to accept the document to be served at the time of service or by returning the document to the receiving agency within one week if it is not either in a language which he understands or in the official language or one of the official languages of the place of service. This rule should also apply to the subsequent service once the addressee has exercised his right of refusal. These rules on refusal should also apply to service by diplomatic or consular agents, service by postal services and direct service. It should be established that the service of the refused document can be remedied through the service on the addressee of a translation of the document.’
8

Under Article 15 of that directive: ‘1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence. … 4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately. 5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months. 6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a) a lack of cooperation by the third-country national concerned, or (b) delays in obtaining the necessary documentation from third countries.’
5

In Part VII of the TRIPs Agreement, ‘Institutional arrangements; final provisions’, Article 70, ‘Protection of Existing Subject Matter’, provides: ‘1. This Agreement does not give rise to obligations in respect of acts which occurred before the date of application of the Agreement for the Member in question. 2. Except as otherwise provided for in this Agreement, this Agreement gives rise to obligations in respect of all subject matter existing at the date of application of this Agreement for the Member in question, and which is protected in that Member on the said date, or which meets or comes subsequently to meet the criteria for protection under the terms of this Agreement. … 8. Where a Member does not make available as of the date of entry into force of the WTO Agreement patent protection for pharmaceutical and agricultural chemical products commensurate with its obligations under Article 27, that Member shall: (a) notwithstanding the provisions of Part VI, provide as from the date of entry into force of the WTO Agreement a means by which applications for patents for such inventions can be filed; (b) apply to these applications, as of the date of application of this Agreement, the criteria for patentability as laid down in this Agreement as if those criteria were being applied on the date of filing in that Member or, where priority is available and claimed, the priority date of the application; (c) provide patent protection in accordance with this Agreement as from the grant of the patent and for the remainder of the patent term, counted from the filing date in accordance with Article 33 of this Agreement, for those of these applications that meet the criteria for protection referred to in subparagraph (b). …’
13

Decree-Law No 98/2011 also introduced in Article 37 a paragraph 1b, which reads as follows: ‘The head of the department referred to in paragraph 1a shall be chosen from among persons whose independence and moral character are beyond doubt and whose professional qualities and expertise in the railway sector are recognised; the person shall be appointed by decree of the President of the Council of Ministers, acting on a proposal from [the Minister], pursuant to Article 19(4), (5a) and (6) of Decree-Law No 165 of 30 March 2001, as amended. That proposal shall be submitted beforehand for the opinion of the competent parliamentary commissions, who shall give their opinion within 20 days of the request being submitted. Those commissions may hold a hearing with the person concerned. The head of the department referred to in paragraph 1a shall be appointed for a period of three years, renewable only once. The function of head of the department referred to in paragraph 1a is not compatible with elected political office; similarly, nobody may be appointed to this role if that person’s interests, of any kind whatsoever, are contrary to the functions of the department. The head of the department referred to in paragraph 1a may not pursue, directly or indirectly, any professional or consulting activity; the person may not be a director or employee of public or private bodies or perform other public roles or hold any direct or indirect interests in undertakings operating in the sector, failing which the person shall be barred from office. The current head of the department shall remain in the post until the expiry of his or her mandate.’