Judgment of the Court (Fourth Chamber) of 19 December 2013 — Siemens and Others v Commission

(Joined Cases C‑239/11 P, C‑489/11 P and C‑498/11 P)

‛Appeals — Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Market sharing — Regulation (EC) No 1/2003 — Proof of the infringement — Single and continuous infringement — Distortion of the evidence — Probative value of statements which run counter to the interests of the declarant — Fines — Starting amount — Reference year — Deterrent multiplier — Powers of unlimited jurisdiction — Equal treatment — Rights of the defence — Duty to state reasons’

1. 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 (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 38-46)

2. Appeals — Grounds — Plea directed against a superfluous ground — Invalid plea in law — Rejection (see paras 53, 54)

3. Appeals — Grounds — Inadequate or contradictory grounds — Admissibility (see para. 67)

4. Appeals — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Observance of the rules of procedure in relation to the burden of proof and the taking of evidence — Question of law (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 128-130)

5. Agreements, decisions and concerted practices — Proof — Degree of precision required of the evidence used by the Commission — Burden of proof (Art. 101(1) TFEU) (see paras 217-220)

6. Agreements, decisions and concerted practices — Prohibition — Infringements — Agreements and concerted practices constituting a single infringement — Attribution of liability for the entire infringement to a single undertaking — Conditions (Art. 101(1) TFEU) (see paras 242-248)

7. Agreements, decisions and concerted practices — Prohibition — Infringements — Proof — Burden of proof on Commission — Proof adduced by a number of indicia and coincidences showing the existence and duration of anti-competitive practices — Lack of evidence in relation to certain specific periods of the overall period — No effect (Art. 101(1) TFEU) (see para. 264)

8. Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility (Statute of the Court of Justice, Art. 58, first para.) (see para. 287)

9. Competition — Fines — Amount — Determination — Criteria — Deterrent effect of the fine — Application of a multiplier — Account taken of the overall turnover of the undertaking concerned — Limits (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23) (see paras 298-301)

10. Competition — Administrative procedure — Observance of the rights of the defence — Scope of the principle — Limits — Right of the undertaking to question incriminating witnesses — Not included (Art. 101(1) TFEU) (see paras 317-319)

11. Judicial proceedings — Measures of inquiry — Hearing of witnesses — Discretion of the General Court — Impact of the principle of the right to a fair hearing (Rules of Procedure of the General Court, Art. 68(1)) (see paras 323-325)

12. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the Courts of the European Union — Scope (Arts 261 TFEU and 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Art. 31) (see paras 333-337)

13. Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Scope — Refusal to communicate a document — Consequences — Need to draw a distinction, in relation to the burden of proof borne by the undertaking concerned, between incriminating and exculpatory documents (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 27(2)) (see paras 364-369)

14. Competition — Fines — Decision imposing fines — Obligation to state reasons — Scope — Indication of the factors which led the Commission to assess the gravity and the duration of the infringement (Art. 296 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3)) (see paras 392-397)

Re:

Appeal against the judgment of the General Court (Second Chamber) of 3 March 2011 in Case T‑110/07 Siemens v Commission, by which the General Court dismissed the appellant’s action for annulment of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement concerning a cartel in the market in gas insulated switchgear projects or, in the alternative, for a reduction in the amount of the fine imposed on the appellant — Infringement of the right to a fair hearing, the rights of the defence, the principle of equal treatment and the duty to state reasons — Distortion of the evidence — Erroneous application of the rules on limitation of actions — Infringement of Article 47 of the Charter of Fundamental Rights of the European Union.

Operative part:

The Court:

1. Dismisses the appeals;