ORDER OF THE COURT (Seventh Chamber)

11 June 2015 ( )

(Appeals — Rules of Procedure of the Court of Justice — Article 181 — Competition — Agreements, decisions and concerted practices — European tin stabilisers and epoxidised soya bean oil and esters markets — Fines — Gravity of the infringement — Principle of effective judicial protection — Appeal manifestly inadmissible or manifestly unfounded)

In Case C‑291/14 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 12 June 2014,

Faci SpA, established in Carasco (Italy), represented by S. Piccardo, avvocato, and S. Crosby, Solicitor,

applicant,

the other party to the proceedings being:

European Commission, represented by F. Castilla Contreras, J. Norris-Usher and F. Ronkes Agerbeek, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Seventh Chamber),

composed of J.-C. Bonichot, President of the Chamber, J. L. da Cruz Vilaça (Rapporteur) and C. Lycourgos, Judges,

Advocate General: N. Wahl,

Registrar: A. Calot Escobar,

having regard to the decision taken, after hearing the Advocate General, to give a decision by reasoned order in accordance with Article 181 of the Rules of Procedure of the Court,

makes the following

Order

1 By its appeal, Faci SpA (‘Faci’) requests the Court to set aside the judgment of the General Court of the European Union in Faci v Commission (T‑46/10, EU:T:2014:138, ‘the judgment under appeal) by which that Court dismissed its action for annulment of Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/38589 — Heat Stabilisers) (‘the decision at issue’) and, in the alternative, either to cancel or substantially reduce the fine imposed on it.

Legal context

Regulation (EC) No 1/2003

2 Under the heading ‘Fines’, Article 23(2) and (3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 EC] and [82 EC] (OJ 2003 L 1, p. 1) states:

‘2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:

(a) they infringe Article 81 [EC] or Article 82 [EC], …

…

3. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

The 2006 Guidelines on the method of setting fines

3 Paragraphs 19 to 23 and 35 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2, ‘the 2006 Guidelines on the method of setting fines’) state:

‘19. The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.

20. The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case.

21. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales.

22. In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.

23. Horizontal price-fixing, market-sharing and output-limitation agreements …, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.

…

35. In exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. It will not base any reduction granted for this reason in the fine on the mere finding of an adverse or loss-making financial situation. A reduction could be granted solely on the basis of objective evidence that imposition of the fine as provided for in these Guidelines would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value.’

Background to the dispute

4 By the decision at issue, the Commission found that a certain number of undertakings had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) by participating in two groups of agreements and anticompetitive concerted practices covering the territory of the European Economic Area and concerning both the tin stabiliser sector and the epoxidised soybean oil and esters sector (‘the ESBO/esters sector’).

5 The decision at issue states that the undertakings concerned participated in those infringements during various periods between 24 February 1987 and 21 March 2000, in respect of the tin stabilisers sector, and, between 11 September 1991 and 26 September 2000, in respect of the ESBO/esters sector.

6 Faci, which is a company governed by Italian law operating in the United Kingdom and Spain and whose seat is located in Carasco (Italy), produces and sells in particular epoxidised soybean oil and esters.

7 Article 1 of the decision at issue holds Faci liable for having participated, from 6 November 1996 to 26 September 2000, in a complex of agreements and concerted practices in the ESBO/esters sector across the European Economic Area and consisting in fixing prices, in allocating markets through sales quotas, in allocating customers and in exchanging commercially sensitive information, in particular on customers, production and sales.

8 Under Article 2 of the decision at issue, a fine of EUR 5 940 000 was imposed on Faci.

The procedure before the General Court and the judgment under appeal

9 By application lodged at the Registry of the General Court on 28 January 2010, Faci applied for the annulment of the decision at issue and, in the alternative, the annulment or substantial reduction of the fine that had been imposed on it.

10 In support of its action, Faci raised five pleas in law, of which only the first, the first part of the second and the fourth are relevant for the purposes of the present appeal. The General Court listed them in paragraphs 29 to 32 of the judgment under appeal as follows:

‘29 In its first plea in law, [Faci] identifies a number of manifest errors of assessment, in that the Commission found that it had colluded to fix prices, allocate markets through sales quotas and allocate customers on the [epoxidised soybean oil and esters] market.

30 In its second plea, [Faci] claims that there was an infringement of the principle of equal treatment. That plea consists of two parts, the first relating to the calculation of the amount of the fine …

…

32 In its fourth plea in law, the applicant contests the reduction granted to another undertaking affected by the [decision at issue]. That plea consists of two parts, the first relating to the principle of equal treatment and the second relating to the duty to state reasons.’

11 By the judgment under appeal, the General Court dismissed the action in its entirety.

Forms of order sought

12 Faci requests the Court:

– to set aside the judgment under appeal;

– in the alternative to annul or substantially reduce the fine imposed on it; or

– to send the case back to the General Court for re-assessment; and

– to order the Commission to pay the costs of the proceedings.

13 The Commission requests the Court:

– to dismiss the appeal; and

– to order Faci to pay the costs of the proceedings.

The appeal

14 Under Article 181 of the Court’s Rules of Procedure, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

15 That article must be applied in the present case.

16 In support of its appeal, Faci raises two grounds of appeal, the first based on an infringement of the 2006 Guidelines on the method of setting fines, of Article 23 of Regulation No 1/2003 and the principle of proportionality of penalties set out in Article 49 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and the second based on an infringement of the principle of effective judicial protection laid down in Article 47 of the Charter.

17 Since those grounds of appeal are closely connected, it is appropriate to consider them together.

Arguments of the parties

18 By its grounds of appeal, Faci submits in essence, in the first place, that by not satisfactorily examining all of the relevant circumstances for the purpose of assessing the gravity of the infringement at issue, the General Court infringed the 2006 Guidelines on the method of setting fines, Article 23 of Regulation No 1/2003 and the principle of effective judicial protection provided for in Article 47 of the Charter. As a result, there was an infringement of the principle of proportionality of penalties stated in Article 49 of the Charter and an excessive fine was imposed on Faci.

19 In that regard, Faci criticises the General Court for having dismissed, in paragraphs 96 to 98, 120 to 122 and 133 to 135 of the judgment under appeal, its arguments that the infringement at issue was much less serious in phase three of the cartel, namely from November 1996 to September 2000, without conducting a detailed assessment of the radical change in nature of the infringement which took place before that phase began.

20 According to Faci, the General Court should have conducted a comparative analysis of the nature of the cartel during the course of the second and third phases. According to the evidence in the Commission’s file, such a comparison would indeed have revealed that the cartel was in a position to control and manipulate the market during the second phase, namely from March 1987 to November 1996. However, the cartel could not have functioned during the third phase, in essence, because the most important participants left the cartel and the system for ensuring its enforcement was discontinued.

21 Faci submits that, by failing to examine the role of each undertaking participating in the cartel with reference to the evolution of the cartel over time, the General Court imputed to Faci anticompetitive activities established during the second phase of the cartel even though Faci had participated only in the third phase of the cartel and had submitted, in the alternative, that, in any event, it had committed less serious infringements than the other participants.

22 As a result, the General Court confirmed the percentage of the value of sales used by the Commission for calculating the basic amount of the fine imposed on Faci although in relation to Faci that percentage was excessive since it did not sufficiently reflect the difference between its conduct and that of the undertakings which participated in the second phase of the cartel.

23 As far as the termination of the enforcement mechanism is concerned, Faci submits that the General Court erred in not taking account, in paragraphs 122 and 134 of the judgment under appeal, of recital 707 of the decision at issue, where the Commission stated that the cartel’s enforcement had not been taken into consideration in setting the fines that it imposed on Faci.

24 Faci also submits that, in paragraphs 65, 90, 91, 101 and 102 of the judgment under appeal, the General Court failed to assess correctly the evidence that Faci adduced in order to demonstrate the difference between the second and third phases of the cartel, in particular, the ‘Reagens notes’ and the ‘Akcros memorandum’, which show that price fixing and market allocation had come to an end.

25 Faci also criticises the General Court for having dismissed its arguments to the effect that quotas had not been allocated during the third phase of the cartel on the sole basis of the considerations set out in paragraph 114 of the judgment under appeal and without considering the necessity of an enforcement mechanism for the cartel in operating a quota system of sales.

26 Faci also observes that the General Court examined the cartel with sole reference to its object. However, the Commission stated in recital 438 of the decision at issue that the behaviour at issue had the object and effect of restricting competition. Arguing that the effects of the cartel on competition by themselves constitute aggravating circumstances, Faci criticises the General Court for having implicitly recognised that its conduct was less serious without, however, reducing the fine.

27 In the second place, Faci claims that the General Court infringed the principle of effective judicial protection provided for in Article 47 of the Charter by not reviewing, for the reasons stated in paragraphs 141 and 166 of the judgment under appeal, the legality of the reduction in the fine granted to Baerlocher for inability to pay on the basis of paragraph 35 of the 2006 Guidelines on the method of setting fines.

28 In this regard, Faci observes, first, that mistakes made in the granting of such a reduction are capable of distorting competition and infringing the principle of non-discrimination, thereby justifying a reduction in the fines imposed on those parties that were discriminated against. Second, Faci submits that the General Court erred in stating that Faci claimed that it should benefit from a reduction by virtue of paragraph 35 of the 2006 Guidelines on the method of setting fines whereas in fact Faci only sought to obtain compensation for the consequential loss from such a distortion of competition resulting from the reduction in the fine granted to Baerlocher, if that reduction proved to have been unlawful.

29 The Commission submits that both grounds of appeal raised by Faci are inadmissible and, in any event, unfounded.

Findings of the Court

30 As a preliminary point, to the extent that Faci submits that the evidence in the Commission’s file indicates that the cartel could not have functioned during the third phase, it must be held that Faci is seeking to challenge the General Court’s findings of fact in paragraphs 62 to 92 of the judgment under appeal.

31 It must be pointed out that, pursuant to Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, appeals are to be limited to points of law. The General Court has exclusive jurisdiction to find and assess the relevant facts and assess the evidence. The assessment of the facts and the evidence does not therefore, save where it distorts those facts and evidence, constitute a point of law which is, as such, subject upon appeal to review by the Court (judgment in ICF v Commission, C‑467/13 P, EU:C:2014:2274, paragraph 26 and the case-law cited).

32 Furthermore, according to the established case-law of the Court, such a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, in particular, judgments in JCB Service v Commission, C‑167/04 P, EU:C:2006:594, paragraph 108, and YKK and Others v Commission, C‑408/12 P, EU:C:2014:2153, paragraph 44).

33 Given that the above arguments of Faci are not supported by evidence capable of establishing that the General Court obviously distorted the facts and evidence, those arguments must be held manifestly inadmissible.

34 As for Faci’s submissions that, in paragraphs 65, 90, 91, 101 and 102 of the judgment under appeal, the General Court failed to assess certain evidence correctly, in particular, the ‘Reagens notes’ and the ‘Akcros memorandum’, those submissions must be dismissed as manifestly inadmissible for the same reasons as those stated in paragraphs 31 to 33 of the present order.

35 The same is true of Faci’s submission, in connection with paragraph 114 of the judgment under appeal, that it cannot be concluded from the facts as stated by the General Court that quotas had been allocated during the third phase of the cartel.

36 As regards the other arguments upon which Faci grounds its appeal, it is appropriate, in the first place, to assess the grounds of appeal by which Faci claims in essence that the General Court erred in law by not satisfactorily taking account of all of the relevant circumstances for the purpose of assessing the gravity of the infringement at issue during the third phase of the cartel.

37 In that regard, it must be noted at the outset that, in paragraphs 62 to 87 of the judgment under appeal, the General Court considered whether the Commission had established to the requisite legal standard that the meetings which Faci attended during the third phase of the cartel had as their object the fixing of prices and the allocation of markets by means of sales quotas and the allocation of customers, which the General Court termed as ‘the first aspect of the infringement’. For that purpose, the General Court assessed the evidence adduced concerning each year of that phase.

38 Following that assessment, the General Court, first, came to the conclusion in paragraphs 88 to 92 of the judgment under appeal that the Commission’s evidence clearly showed that the first aspect of the infringement at issue was continued during the relevant period. In particular, the General Court noted in that regard in paragraph 91 of the judgment under appeal that the meetings during the third phrase of the cartel which Faci ‘admits having attended, did not take a different turn, in respect of their anti-competitive object, from the previous meetings over several years’. In paragraphs 93 to 122 of the judgment under appeal, the General Court, second, considered several arguments put forward by Faci and decided that those arguments could not overturn that conclusion.

39 As a result, the General Court cannot be criticised for having erred in its assessment of the specific nature of the infringement at issue during the third phrase of the cartel. As is clear from the preceding considerations, the General Court carried out a detailed and reasoned analysis of the evidence adduced by the Commission referring specifically to the third phase of the cartel, in such a way as to ascertain whether the Commission was wrong in finding that Faci had participated in anticompetitive arrangements aiming at fixing prices and at allocating markets and customers through sales quotas.

40 In that regard, contrary to Faci’s submissions, the General Court cannot be criticised in that context for not having conducted a comparative analysis of the characteristics of the cartel during the second and third phases. Given the scope of the decision at issue, which finds Faci liable for having participated in anticompetitive arrangements solely during the third phase of the cartel, it is indisputable, as the General Court correctly pointed out in paragraph 96 of the judgment under appeal, that an assessment of the characteristics of the cartel before that phase was not relevant in the present case.

41 It cannot be disputed either that, having concluded that the Commission had established to the requisite legal standard that Faci had participated in the abovementioned arrangements during the third phase of the cartel, the General Court did not in any way attribute infringements committed during the previous phase to Faci, so that the General Court cannot be criticised for confirming a fine for which the basic amount established by the Commission would, on that ground, be excessive in relation to Faci.

42 It should also be pointed out in that regard that it follows from paragraph 23 of the 2006 Guidelines on the method of setting fines that horizontal price-fixing, market-sharing and output-limitation agreements are, by their very nature, among the most harmful restrictions of competition and they will therefore be heavily fined.

43 It follows from the foregoing that Faci’s submissions according to which the General Court did not properly take account of the change in nature of the infringement at issue during the third phase of the cartel must be rejected as manifestly unfounded.

44 As for the ground of appeal by which Faci claims that the General Court should have taken account of the non-implementation of the cartel for the purpose of assessing the amount of the fine imposed on Faci, that ground of appeal must be dismissed as manifestly unfounded.

45 Thus, recital 707 of the decision at issue, according to which the implementation of the cartel was not taken into consideration in setting the fines for Faci, must be understood in the light of all the Commission’s considerations in that regard. It follows, in particular from recitals 706 and 709 of the decision at issue, the latter expressly referring to recital 707, that the Commission found that the cartel had been rigorously implemented until 1996 and that that fact should not be taken into account in relation to Faci.

46 Therefore, the General Court cannot be criticised for having only held in paragraphs 122 and 134 of the judgment under appeal that it was apparent from the decision at issue that the cartel had been less rigorously enforced during the third phase.

47 As for Faci’s ground of appeal relating to the non-reduction of the fine, even though, Faci alleges, the General Court limited its assessment to that of the anticompetitive object of the cartel, whereas the Commission also took into account its anticompetitive effects, which in themselves constitute aggravating circumstances, that ground of appeal must be dismissed as manifestly unfounded.

48 It is sufficient to point out, in that regard, that the argument at issue is based upon the premiss that the Commission assessed the actual anticompetitive effects of the cartel and concluded that that actual influence of the infringement at issue on competition was an aggravating circumstance when calculating the amount of the fines. However, it is apparent from recitals 446 and 718 to 721 of the decision at issue that that was not the case, since the Commission emphasised that it was not necessary to show the actual anticompetitive effects of the infringement in the present case and since the only aggravating circumstance found by the Commission was that of recidivism.

49 It is appropriate, in the second place, to assess the grounds of appeal by which Faci submits, in essence, that the reasons stated in paragraphs 141 and 166 of the judgment under appeal are vitiated by errors of law which led the General Court not to review the legality of the reduction in the fine granted by the Commission to Baerlocher on grounds of inability to pay under paragraph 35 of the 2006 Guidelines on the method of setting fines.

50 In that regard, it must be stated at the outset that paragraph 141 of the judgment under appeal does not by any means concern the above reduction. To the extent that Faci’s argument can be construed as, in fact, directed at paragraph 182 of that judgment, it must be pointed out that it is apparent from the paragraph which precedes it, introduced by the expressions ‘in any event, even were the view to be taken that’, that the reasoning developed by the General Court in those paragraphs is included in that judgment for the sake of completeness. According to settled case-law of the Court, in an appeal, complaints directed against a ground included in a judgment of the General Court purely for the sake of completeness must be immediately dismissed as ineffective, since they cannot lead to the judgment under appeal being set aside (see, to that effect, judgment in Commission v Deutsche Post, C‑399/08 P, EU:C:2010:481, paragraph 75 and the case-law cited).

51 In addition, it is common ground, as evidenced by paragraph 25 of the judgment under appeal, that during those proceedings Faci withdrew one of its heads of claim by which it claimed that the General Court should either annul the reduction of the fine granted by the Commission to Baerlocher, or substantially lower the amount of that reduction.

52 In those circumstances, the General Court was, without erring in law, able to find in paragraph 166 of the judgment under appeal that, by claiming that the granting of the reduction at issue was contrary to the principle of equal treatment, Faci sought, in essence, to obtain a similar reduction of the fine imposed upon it, despite the fact that Faci did not submit such a request to the Commission under paragraph 35 of the 2006 Guidelines on the method of setting fines, which might have also allowed Faci to benefit from a reduction for inability to pay.

53 It follows that the General Court cannot be criticised for not having reviewed the legality of the reduction in the fine granted to Baerlocher on such a basis. The ground of appeal raised by Faci must, therefore, be dismissed as manifestly unfounded in that regard.

54 In the light of all of the foregoing considerations, the present appeal must be dismissed in its entirety as partly manifestly inadmissible and partly manifestly unfounded.

Costs

55 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

56 Since the Commission has applied for costs to be awarded against Faci and the latter has been unsuccessful, Faci must be ordered to pay the costs.

On those grounds, the Court (Seventh Chamber) hereby orders:

1. The appeal is dismissed.

2. Faci SpA shall pay the costs.

[Signatures]