Keywords

Summary



Keywords

1 Appeals - Pleas in law - Procedural irregularity - Infringement of the right to legal process within a reasonable period

(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Art. 51, first para.)

2 Appeals - Pleas in law - Review by the Court of the evaluation of the evidence - Not possible except where the sense of the evidence has been distorted

3 Procedure - Duration of the procedure before the Court of First Instance - Reasonable period - Factors to be taken into account

4 Procedure - Duration of the procedure before the Court of First Instance - Reasonable period - Dispute as to the existence of an infringement of the competition rules - Failure to complete the procedure within a reasonable period - Consequences

5 Procedure - Whether the deliberations leading to judgment must be completed within a specified period after the close of the oral procedure - No specified period

(Rules of Procedure of the Court of First Instance, Art. 55(1))

6 Procedure - Time allowed for the production of evidence - Article 48(1) of the Rules of Procedure of the Court of First Instance - Scope

(Rules of Procedure of the Court of First Instance, Arts 48(1) and 66(2))

7 Procedure - Dispute as to the existence of an infringement of competition rules - Right of access to the Commission's file - Measures of organisation of procedure - Request for the production of documents - Obligations of the person making the request

(Rules of Procedure of the Court of First Instance, Art. 64(3)(d) and (4))

8 Appeals - Pleas in law - Mere repetition of pleas and arguments submitted to the Court of First Instance - Inadmissible

(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Art. 51; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

9 Appeals - Jurisdiction of the Court of Justice - Challenge, on grounds of fairness, of the assessment by the Court of First Instance of the amount of the fines to impose on undertakings - Outside the Court's jurisdiction

10 Competition - Fines - Amount - Determination - Criteria - Turnover taken into account - Total turnover of the undertaking concerned - Turnover achieved from goods linked with the infringement

(Concil Regulation No 17, Art. 15(2))

Summary

1 Under Article 168a of the Treaty and the first paragraph of Article 51 of the Statute of the Court of Justice, in appeals the Court of Justice has jurisdiction only to verify whether a breach of procedure adversely affecting the appellant's interests was committed before the Court of First Instance and must satisfy itself that the general principles of Community law have been complied with.

Those principles include the right of everyone to fair legal process, provided for in Article 6(1) of the European Convention on Human Rights, and in particular the right to legal process within a reasonable period.

2 In an appeal, the Court of Justice has no jurisdiction to find the facts or, as a rule, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the Rules of Procedure relating to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value to be attached to the evidence produced. Save where the clear sense of that evidence has been distorted, that appraisal does not constitute a point of law which is subject, as such, to review by the Court of Justice.

3 The structure of the Community judicial system justifies, in certain respects, the Court of First Instance - which is responsible for establishing the facts and for undertaking a substantive examination of the dispute - being allowed sufficient time to investigate actions calling for a close examination of complex facts. However, that task does not relieve the Community Court established especially for that purpose of the obligation to observe reasonable time-limits in dealing with cases before it.

The reasonableness of the duration of the procedure before the Court of First Instance must be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and the competent authorities.

4 Where proceedings before the Court of First Instance, relating to the existence of an infringement of the competition rules, have lasted for around five years and six months, the requirements concerning completion within a reasonable time are not satisfied, even if account is taken of the relative complexity of the case, if it has been established that:

- the proceedings were of considerable importance not only for the applicant (even if its economic survival was not directly endangered by the proceedings) and for its competitors, but also for third parties, in view of the large number of persons concerned and the financial interests involved;

- the applicant did not contribute in any significant way to the protraction of the proceedings;

- such duration was not justified either by the constraints inherent in proceedings before the Community judicature, associated in particular with the use of languages, or by exceptional circumstances, particularly where there was no stay of proceedings under Articles 77 and 78 of the Rules of Procedure of the Court of First Instance.

A procedural irregularity of that kind justifies, as an immediate and effective remedy, first, annulment of the judgment of the Court of First Instance in so far as it set the amount of the fine imposed for the infringement found and, second, determination of that amount by the Court of Justice at a level which takes account of the need to give the applicant reasonable satisfaction.

However, in the absence of any indication that the duration of the procedure had any impact on the outcome of the proceedings, such a procedural irregularity cannot give rise to annulment of the contested judgment as a whole.

5 As regards the alleged infringement of the principle of prompt conduct of the procedure, neither Article 55(1) of the Rules of Procedure of the Court of First Instance nor any other provision of those Rules or of the Statute of the Court of Justice provides that the judgments of the Court of First Instance must be delivered within a specified period after the oral procedure.

6 Pursuant to Article 48(1) of the Rules of Procedure of the Court of First Instance, the parties may offer further evidence in support of their arguments in reply or rejoinder but they must give reasons for the delay in offering such evidence.

Evidence in rebuttal or the amplification of the offers of evidence submitted in response to evidence in rebuttal from the opposite party in his defence are not covered by the time-bar laid down in the abovementioned provision. That provision concerns offers of fresh evidence and must be read in the light of Article 66(2), which expressly provides that evidence may be submitted in rebuttal and that previous evidence may be amplified.

7 The general principles of Community law governing the right of access to the Commission's file in competition cases do not apply, as such, to proceedings before the Community judicature, these being governed by the Statute of the Court of Justice and by the Rules of Procedure of the Court of First Instance.

In particular, under Article 64(3)(d) and (4) of the Rules of Procedure of the Court of First Instance, measures of organisation of procedure may be proposed by the parties at any stage of the procedure and may consist in requesting the production of documents or any papers relating to the case.

Nevertheless, in order to enable the Court of First Instance to determine whether it is conducive to proper conduct of the procedure to order the production of certain documents, the party requesting production must identify the documents requested and provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings.

8 It is clear from Article 168a of the Treaty, Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. That requirement is not satisfied by an appeal which confines itself to repeating or reproducing word for word the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by it. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake.

9 It is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of the fines imposed on undertakings for infringements of Community law.

10 The factors on the basis of which to assess the gravity of an infringement of the Treaty competition rules may include the volume and value of the goods in respect of which the infringement was committed, and the size and economic power of the undertaking and, consequently, the influence which it was able to exert on the market.

It follows that it is permissible, for the purpose of determining the fine, to have regard both to the total turnover of the undertaking, which constitutes an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. Although the undertaking's market shares cannot be a decisive factor in concluding that an undertaking belongs to a powerful economic entity, they are nevertheless relevant in determining the influence which it may exert on the market.