Case T‑216/13

Telefónica, SA

v

European Commission

‛Competition — Agreements, decisions and concerted practices — Portuguese and Spanish telecommunications markets — Non-competition clause with respect to the Iberian market inserted in the contract for the acquisition by Telefónica of Portugal Telecom’s share in the Brazilian mobile telephone operator Vivo — Legal safeguard ‘to the extent permitted by law’ — Infringement by subject-matter — Ancillary restriction — Autonomy of the applicant’s conduct — Potential competition — Infringement by effects — Calculation of the amount of the fine — Request for examination of witnesses’

Summary — Judgment of the General Court (Second Chamber), 28 June 2016

Judicial proceedings — Measures of inquiry — Hearing of witnesses — Discretion of the General Court — Relevance of the principle of the right to a fair process

Competition — Fines — Amount — Determination — Method of calculation laid down by the guidelines drawn up by the Commission — Adjustment of the basic amount — Obligation to take account of the individual circumstances of each of the participant undertakings

EU law — Principles — Right to effective judicial protection — Judicial review of decisions adopted by the Commission in competition matters — Unlimited jurisdiction — Scope — Review involving investigative acts in the file to make good failures of the Commission in making such investigation — Not included

Competition — Fines — Amount — Determination — Criteria — Overall turnover of the undertaking concerned — Turnover corresponding to the goods covered by the infringement — To be taken into consideration — Limits — Determination of the value of sales directly or indirectly related to the infringement — Criteria

Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines — Indication of the factors which led the Commission to assess the gravity and the duration of the infringement — Sufficient indication

Competition — Fines — Amount — Determination — Infringements classified as very serious on the basis of their nature alone — No requirement to determine their impact and geographical extent

Acts of the institutions — Guidelines on the method of setting fines for infringements of the competition rules — Measure of general scope — Effects

Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Description of an undertaking as a potential competitor — Criteria — Essential evidence — Ability of the undertaking to enter the relevant market

Competition — Administrative procedure — Commission decision finding an infringement of Article 101 TFEU — Obligation to define the market — None where an arrangement has the object of market-sharing

Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision based on documentary or direct evidence — Evidential obligations of undertakings disputing the reality of the infringement

Agreements, decisions and concerted practices — Adverse effect on competition — Criteria for assessment — Content and objective of a cartel and economic and legal context of its development — Distinction between infringements by subject-matter and infringements by effect — Intention of the parties to an agreement to restrict competition — Not a necessary criterion — Infringement by subject-matter — Whether sufficiently damaging — Criteria for assessment

Agreements, decisions and concerted practices — Agreements between undertakings — Concept — Joint intention as to the conduct to be adopted on the market

EU law — Principles — Rights of defence — Audi alteram partem rule — Compliance in the context of judicial proceedings — Scope — Applicant having no access to the pleadings of another party submitted in the context of a parallel action and cited by the Commission — Infringement of the said principle

Competition — Fines — Amount — Whether appropriate — Judicial review — Factors which may be taken into account by the European Union judicature — Information not contained in the decision imposing the fine — Inclusion

EU law — Principles — Right to effective judicial protection — Judicial review of decisions adopted by the Commission in competition matters — Review of legality and unlimited jurisdiction, in law and in fact — Annexes attached to the application, put forward in support of pleas challenging the establishment of the infringement and the amount of the fine, not provided during the administrative procedure under Article 101 TFEU — Admissibility

See the text of the decision. (see para. 87)

See the text of the decision. (see para. 87)

See the text of the decision. (see para. 89)

See the text of the decision. (see paras 93-95)

See the text of the decision. (see para. 98)

See the text of the decision. (see paras 100, 102-105, 120, 212, 229, 230)

Articles 101 TFEU and 102 TFEU apply only to anti-competitive conduct engaged in by undertakings on their own initiative. If anti-competitive conduct is required of undertakings by national legislation or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, Articles 101 TFEU and 102 TFEU do not apply. In such a situation, the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the undertakings. That possibility of excluding particular anti-competitive conduct from the scope of Articles 101 TFEU and 102 TFEU has been only partially accepted by the Court of Justice. Whilst the conduct of an undertaking may escape the application of Article 101(1) TFEU on account of a lack of autonomy on its part, it does not, however, follow that all conduct sought or directed by the national authorities falls outside the scope of that provision. Thus, if a State measure encompasses the elements of an agreement concluded between traders in a given sector or is adopted after consulting the traders concerned and with their agreement, those traders cannot rely on the binding nature of the rules in order to escape the application of Article 101(1) TFEU. In the absence of any binding regulatory provision imposing anti-competitive conduct, the Commission can therefore conclude that there was a lack of autonomy on the part of the traders in question only if it appears on the basis of objective, relevant and consistent evidence that that conduct was imposed on them by the national authorities through the exercise of irresistible pressures, such as the threat to adopt State measures likely to cause them to sustain substantial losses. In addition, in order to escape the application of Article 101(1) TFEU, such pressures must be applied in such a way as to deprive the traders concerned of any autonomy in implementing the decisions of the public authorities. In the absence of such a loss of autonomy, the fact that anti-competitive was favoured or encouraged by the public authorities has in itself no impact from the aspect of the applicability of Article 101 TFEU. (see paras 114-118)

See the text of the decision. (see paras 124, 125, 128-130, 163, 164, 190, 191)

See the text of the decision. (see paras 126, 127)

See the text of the decision. (see paras 213, 214, 216)

In the context of a procedure for finding an infringement of the competition rules, in order to demonstrate the existence of potential competition on the market in question between two undertakings having stipulated a non-competition agreement, where the relevant market has been liberalised, the Commission is not required to analyse the structure of the market and the question whether entry to that market would correspond to a viable economic strategy for each of the parties, but it is required to examine whether there are insurmountable barriers to entry to the market that would rule out any potential competition. In that regard, whilst the intention of an undertaking to enter a market may be of relevance in order to determine whether it can be considered to be a potential competitor in that market, the essential factor on which such a description must be based is nevertheless whether it has the ability to enter that market. (see paras 221, 226)

See the text of the decision. (see paras 233, 234, 318)

See the text of the decision. (see paras 236-238)

See the text of the decision. (see paras 243, 244)

See the text of the decision. (see paras 260-262)

See the text of the decision. (see para. 264)

See the text of the decision. (see paras 269-272)

See the text of the decision. (see paras 275-277)

As regards the determination of the amount of fines imposed for breach of the competition rules, point 13 of the Guidelines for the calculation of fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 pursues the objective of adopting as the starting point for the setting of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it. Consequently, the concept of value of sales referred to in point 13 of the Guidelines extends to sales made in the market to which the infringement relates in the EEA, without there being any need to determine whether those sales were actually affected by the infringement, as the proportion of turnover deriving from the sale of products in respect of which the infringement was committed is best able to reflect the economic importance of the infringement. Nonetheless, whilst it would, admittedly, be contrary to the goal pursued by that provision if the concept of value of sales to which it refers were understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by the impugned cartel, that concept cannot be extended to cover the undertaking’s sales which do not fall, directly or indirectly, within the scope of that cartel. In that context, the Commission cannot be required, when faced with a restriction by subject-matter, to carry out on its own initiative an examination of potential competition for all the markets and services concerned by the scope of the infringement, lest it introduce, by determining the value of sales to be taken into account when calculating the fine, the obligation to examine potential competition when such an exercise is not required in the case of a restriction of competition by subject-matter. However, requiring the Commission to determine sales in direct or indirect relation to the infringement does not mean imposing upon it, when determining the amount of the fine, an obligation by which it is not bound for the purposes of applying Article 101 TFEU in the case of an infringement which has an anti-competitive object. Such a solution merely consists in drawing the inferences from the fact that the value of sales must be directly or indirectly related to the infringement within the meaning of point 13 of the Guidelines and cannot cover sales which do not fall, directly or indirectly, within the scope of the infringement. It follows that, from the time when the Commission chooses to rely, in order to determine the amount of the fine, on the value of sales directly or indirectly related to the infringement, it must determine that value precisely. (see paras 297-299, 302-307)

As regards determination of the amount of fines imposed for breach of the competition rules, the unlimited jurisdiction which the Court enjoys under Article 31 of Regulation No 1/2003 empowers it, in addition to merely reviewing the lawfulness of the penalty, to substitute its own assessment for the Commission’s. However, in a case where the Commission has not analysed the material put forward by the applicant in order to demonstrate the absence of potential competition between the parties with respect to certain services when determining the value of sales to be taken into consideration in the calculation of the amount of the fine, for the Court to determine the value of those sales would imply it being led to fill in a gap in the investigation of the file. The exercise of unlimited jurisdiction cannot go so far as to lead the Court to carry out such an investigation, which would go beyond the substitution of the Court’s assessments for the Commission’s, since the Court’s assessment would be the only and the first assessment of the material that the Commission ought to have taken into account when determining the value of the sales directly or indirectly related to the infringement within the meaning of point 13 of the Guidelines, which it is for the Commission to analyse. (see paras 314, 315)

See the text of the decision. (see para. 331)