CELEX: 62016CC0123
Language: en
Date: 2018-02-21 00:00:00
Title: Opinion of Advocate General Wathelet delivered on 21 February 2018.

OPINION OF ADVOCATE GENERAL
WATHELET
delivered on 21 February 2018 (1)

Case C‑123/16 P

Orange Polska S.A.

v

European Commission

(Appeal — Competition — Abuse of a dominant position — Polish telecommunications market — Legitimate interest in finding that an infringement has been committed in the past when a fine is imposed — Calculation of the fine — Gravity — Taking into account the effects of the infringement — Mitigating circumstances)

1.        By this appeal, Orange Polska S.A. (‘Orange’) seeks to have set aside the judgment of the General Court of the European Union of 17 December 2015, Orange Polska v Commission (T‑486/11, ‘the judgment under appeal’, EU:T:2015:1002), by which the General Court dismissed Orange’s action seeking, principally, annulment of Commission Decision C(2011) 4378 final (2) or, in the alternative, annulment or reduction of the amount of the fine imposed on it by that decision.
I.      Background to the dispute and the decision at issue

2.        For the purposes of the present appeal, it is sufficient to note the following; a fuller account will be found in paragraphs 1 to 34 of the judgment under appeal.

3.        Telekomunikacja Polska S.A. is a telecommunications undertaking, incorporated in Poland in 1991 following the privatisation of a former State monopoly. After the acquisition by that undertaking on 7 November 2013 of the companies Orange Polska sp. z o.o. and Polska Telefonia Komórkowa — Centertel sp. z o.o., it became Orange. (3)

4.        The European Commission found that Orange was the only provider of wholesale broadband internet access services and of unbundled access to the local loop, and that during the period covered by the decision at issue it held a large market share on the retail market.

5.        Furthermore, the Commission explained that the regulatory framework applicable in Poland at the relevant time obliged the operator identified by the national regulatory authority (4) as being an operator with significant market power on the market for the provision of fixed public telephone networks, in this case Orange, to grant new entrants — known as ‘alternative operators’ (‘AOs’) — unbundled access to its local loop and to related services under transparent, fair and non-discriminatory conditions at least as favourable as the conditions determined in a reference offer, proposed by the operator identified by the national regulatory authority and adopted following a procedure before the UKE. From 2005 onwards the UKE acted on several occasions to remedy Orange’s failures to comply with its regulatory obligations.

6.        On 22 October 2009 Orange signed an agreement with the UKE, in accordance with which it voluntarily undertook, in particular, to comply with its regulatory obligations, to conclude agreements with AOs on access in a manner consistent with the relevant reference offers and to invest in the modernisation of its broadband network (‘the agreement with UKE’).

7.        In Article 1 of the decision at issue, the Commission concluded that Orange, by refusing to grant AOs broadband access to its wholesale products had committed a single and continuous infringement of Article 102 TFEU, which had started on 3 August 2005, the date on which the first negotiations began between Orange and an AO regarding access to Orange’s network on the basis of the reference offer for local loop unbundling (LLU) access, and had lasted until at least 22 October 2009, the date on which the agreement with the UKE was signed.

8.        The Commission penalised Orange by imposing on it, as is indicated in Article 2 of the decision at issue, a fine of EUR 127 554 194, calculated in accordance with the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (5) (OJ 2006 C 210, p. 2, ‘the Guidelines’). In that calculation, it determined the basic amount of the fine by calculating 10% of the average value of sales made by Orange on the relevant markets and multiplying the number obtained by a factor of 4.2, corresponding to the duration of the infringement, and decided not to adjust that amount on the basis of aggravating or mitigating circumstances. It did, however, deduct from it the fines which had been imposed by the UKE on Orange for breach of its regulatory obligations.
II.    Procedure before the General Court and the judgment under appeal

9.        By application lodged at the Registry of the General Court on 2 September 2011, Orange brought an action seeking, principally, annulment of the decision at issue or, in the alternative, annulment or reduction of the amount of the fine imposed on it by that decision.

10.      The Polska Izba Informatyki i Telekomunikacji (the Polish Chamber of Information Technology and Telecommunications, ‘the PIIT’), which describes itself as an association of undertakings operating in the telecommunications sector in Poland, intervened before the General Court in support of the forms of order sought by Orange. The European Competitive Telecommunications Association (‘the ECTA’), which describes itself as the representative body of competitive industry in the European communications sector, intervened before the General Court in support of the forms of order sought by the Commission.

11.      Orange put forward five pleas in support of its action. After rejecting all those pleas as unfounded and finding that there was no element that might justify an adjustment of the amount of the fine, the General Court dismissed the action in its entirety.
III. The appeal

12.      Orange puts forward three grounds in support of its appeal.
A.      First ground: an error of law as regards the Commission’s obligation to demonstrate the existence of a legitimate interest in adopting a decision finding that an infringement was committed in the past
1.      Summary of the arguments of the parties

13.      Orange observes, first, that it is undisputed that in the decision at issue the Commission did not substantiate a legitimate interest in finding the infringement at issue and, secondly, that that infringement ended nearly 18 months before the decision at issue was adopted. It was therefore committed in the past. However, in paragraph 76 of the judgment under appeal, by stating that under Article 7(1) of Regulation No 1/2003 the Commission must establish the existence of a legitimate interest in finding an infringement when not only has the infringement ceased but nor does the Commission impose a fine, the General Court inferred that that was the only circumstance in which the Commission had to establish the existence of such an interest. In that respect that assertion constitutes an error of law in the interpretation of that provision. Paragraph 77 of the same judgment, in which the General Court moreover confined the requirement for the Commission to demonstrate the existence of such an interest solely to situations in which the power to impose fines is time-limited, is also erroneous.

14.      In that regard, Orange claims first of all that the wording of Article 7(1) of Regulation No 1/2003 is unequivocal. It cannot be inferred from it that when a fine may be imposed there is no need to identify a legitimate interest in finding an infringement in relation to conduct that has come to an end. Moreover, that provision alone gives the Commission the power to find an infringement of Article 101 or 102 TFEU. Recital 11 of Regulation No 1/2003 and the preparatory work for that regulation, together with the Commission’s administrative practice, confirm that the obligation on the Commission to demonstrate a legitimate interest in finding an infringement committed in the past exists whether or not a fine is imposed.

15.      Next, there is no basis for making the requirements of Article 7 of Regulation No 1/2003 contingent upon the Commission’s power to impose fines. The Commission’s power to make a finding of infringement is not subject to any limitation period and is conferred on it in a separate section of Regulation No 1/2003 from that conferring on it the power to impose fines.

16.      Lastly, the fact that, under Article 16 of Regulation No 1/2003, the Commission’s finding of a past infringement establishes, in the context of actions for damages, proof of the liability of the undertaking concerned and also the fact that such a finding may harm that undertaking, even if no fine was imposed, as a result of suspension of the limitation period as provided for under Article 10(4) of Directive 2014/104/EU of the European Parliament and the Council, (6) justify the Commission being required to set out in its decision the reasons establishing its legitimate interest in pursuing a past infringement which has been voluntarily terminated by an undertaking.

17.      In the present case, according to Orange, the judgment under appeal should be set aside and the decision at issue annulled, since the Commission did not substantiate in that decision a legitimate interest in finding the infringement committed by Orange in the past.

18.      The Commission contends, in essence, that Orange’s reasoning is absurd since it leads to the conclusion that the Commission’s power to impose fines exists only for ongoing infringements and that in every other situation, in particular where a fine is imposed for an infringement that has already ceased, which is the case in most of the Commission’s decisions, the Commission may not adopt a decision without demonstrating a legitimate interest in so doing.

19.      In the present case the Commission imposed a fine on Orange for committing a single and continuous infringement of Article 102 TFEU from 3 August 2005 until at least 22 October 2009. The imposition of a fine being enough to justify the finding of an infringement, the Commission was not required to further establish the existence of a legitimate interest in making that finding. Hence, the first ground of the appeal is unfounded.

20.      Furthermore, the Commission contends that that first ground of appeal is directed only at paragraph 77 of the judgment under appeal, and Orange quotes approvingly paragraph 76. The latter paragraph and the General Court’s reasoning set out in paragraphs 74 and 75 of the judgment under appeal suffice in themselves to support the findings made in paragraphs 78 and 79 of that judgment, by which the General Court rejected the first plea raised before it. The first ground of the appeal, directed only against paragraph 77, is therefore ineffective. The argument put forward in the reply, that that first ground of appeal actually challenges paragraphs 74 to 80 of the judgment under appeal, is inadmissible because it is out of time.

21.      The PIIT does not submit any observations on the first ground of appeal.

22.      The ECTA contends, in essence, that the Commission’s power to impose a fine irrespective of whether the infringement has ceased or not is based on Article 23(2) of Regulation No 1/2003 and, other than requiring the proof of intention or negligence, that provision does not subject that power to any other condition. Article 7(1) of that regulation was wrongly relied on by Orange.
2.      Assessment
(a)    Preliminary observations

23.      By its first ground of appeal, Orange claims that the General Court erred in law in its interpretation of Article 7(1) of Regulation No 1/2003 by not requiring the Commission to demonstrate the existence of a legitimate interest in adopting a decision finding an infringement, regardless of whether a fine has been imposed or not.

24.      Article 7(1) of Regulation No 1/2003 provides that ‘where the Commission … finds that there is an infringement of Article [101 or 102 TFEU] it may by decision require the undertakings … concerned to bring such infringement to an end. … If the Commission has a legitimate interest in doing so, it may also find that an infringement has been committed in the past’.

25.      In paragraph 76 of the judgment under appeal the General Court inferred from the wording of that provision and from a passage in the statement of reasons accompanying the proposal that led to the adoption of that regulation ‘that the Commission must establish the existence of a legitimate interest in finding an infringement where both the infringement has ceased and the Commission does not impose a fine’.

26.      Furthermore, the General Court held in paragraph 77 of that judgment that that finding was consistent with its case-law concerning the existence of a link between the obligation imposed on the Commission to demonstrate a legitimate interest in finding an infringement and the time-barring of its power to impose fines. Consequently, in paragraphs 78 to 80 of the judgment under appeal it rejected Orange’s claim for annulment of the decision at issue.
(b)    Arguments of the Commission regarding the ineffectiveness of the ground of appeal

27.      The Commission’s arguments in that regard (set out in point 20 above) cannot be accepted.

28.      Although Orange expressly cites only paragraphs 76 and 77 of the judgment under appeal and does not challenge, as such, the content of paragraph 76, the fact remains that Orange’s arguments consist, in essence, in contending that it is clear from a combined reading of those two paragraphs that the General Court held that the only cases in which the Commission is required to establish the existence of a legitimate interest in finding an infringement of EU competition law are cases in which not only has the infringement ceased but the Commission does not impose a fine either, in particular because there is a time limit to its power to impose a fine and because in finding that such a time limit exists the General Court has erred in interpreting Article 7(1) of Regulation No 1/2003.

29.      In any event, those paragraphs 76 and 77 constitute the crux of the General Court’s reasoning, so that if they were to be flawed by the alleged error the findings it derived from them would be automatically invalid.

30.      Hence, that first ground of appeal is not ineffective.
(c)    The substance of the first ground of appeal

31.      An interpretation based on the wording, the general scheme and the objective of the relevant provisions of Regulation No 1/2003 leads, nonetheless, to the conclusion that this ground of appeal is unfounded.

32.      Under Regulation No 1/2003 — in particular Article 7(1) and Article 23 of that regulation — in relation to substantive infringements of the EU competition rules the Commission has the power both to impose fines and to order the infringement to be brought to an end. These powers provide a summary of the Commission’s tasks in enforcing the competition rules. When the Commission exercises them, it is not obliged to demonstrate any ‘legitimate interest’ whatsoever.

33.      It is clear that imposing fines and ordering termination of an infringement both require a prior finding of infringement — Orange does not appear to contest this. As the Commission states, it not only may, but even must, find an infringement if it is to order its termination or impose a fine.

34.      In the first place, Article 7 of Regulation No 1/2003 states clearly that it is only ‘where the Commission … finds that there is an infringement’ that it may issue a decision requiring such infringement to be brought to an end.

35.      In the second place, under Article 23(2) of that regulation the Commission is authorised to impose fines when undertakings or associations of undertakings, intentionally or negligently, infringe Article 101(1) or Article 102 TFEU.

36.      The wording of Article 7(1) of Regulation No 1/2003 could appear ambiguous, inasmuch as it is not expressly indicated that the Commission may, when imposing a fine, adopt a decision finding that an infringement has been committed in the past without having to establish specifically that there exists a legitimate interest in doing so.

37.      However, in my view, the way in which recital 11 of that regulation is worded supports the position taken by the General Court and the Commission. That recital reads: ‘provided there is a legitimate interest in doing so, the Commission should also be able to adopt decisions which find that an infringement has been committed in the past even if it does not impose a fine’ (emphasis added).

38.      As the Commission points out, recital 11 follows the structure of Article 7(1) of that regulation and confirms that the last sentence of that provision provides for a specific power accompanied by a special condition. The recital refers first to decisions requiring that an infringement that is still ongoing be brought to an end. Recital 11 explains that in addition to that power (‘also’), the Commission may make a declaratory finding (that is to say, one not involving a fine) about an infringement committed in the past, on condition that there is a legitimate interest in doing so. The words ‘even if it does not impose a fine’ and ‘also’ presuppose that the power of the Commission to make a finding about a ceased infringement accompanied by a fine already exists, and is not subject to a special condition.

39.      The statement of reasons accompanying the proposal that led to the adoption of Regulation No 1/2003 (already cited in paragraph 75 of the judgment under appeal) is even more explicit in its support of the General Court’s position.

40.      With regard to the proposed Article 7, it explains that one of the differences in relation to Article 3 of Regulation No 17 (7) lies in the fact that ‘it makes clear … that the Commission is empowered to adopt a decision finding an infringement not only when it orders the termination of an infringement or imposes a fine, but also where the infringement has already come to an end and no fine is imposed’, adding in that regard that ‘in conformity with the case-law of the Court …, (8) the power of the Commission to adopt an infringement decision in such circumstances is limited to cases where it has a legitimate interest in doing so’.

41.      It is clear from the case-law (based on Regulation No 17) that the Commission’s power to impose penalties is in no way affected by the fact that the conduct constituting the infringement has ceased and that it can no longer have detrimental effects. (9)

42.      It is also settled case-law that ‘the power [for the Commission] to take decisions [requiring undertakings to bring to an end any infringement which it establishes and imposing on them fines in respect of an infringement] necessarily implies a power to make a finding that the infringement in question exists’. (10)

43.      The legal regime is different in part when no fine is imposed and the infringement has already come to an end (therefore, there is no basis justifying an order to terminate). I consider that without a fine, or an order to terminate the infringement, the finding of infringement becomes declaratory and thus cannot serve as the necessary premiss to the exercise by the Commission of powers of enforcement.

44.      It is only in those circumstances (that is to say, if no fine is imposed and if the infringement has ceased) that the Commission is obliged to show a legitimate interest justifying, nevertheless, its decision finding that an infringement has been committed.

45.      The General Court has rightly held that it is only when the Commission does not impose a fine (11) that its power to adopt a decision finding an infringement committed in the past is conditional on the Commission’s showing a legitimate interest in making such a finding. (12) Conversely when, as in the present case, the Commission has the power to impose a fine and does so, it is not required to refer to any specific legitimate interest to find an infringement. The imposition of a fine is sufficient to bear out the necessity of making a finding of an infringement.

46.      It follows from the above that the Commission, when it imposes a fine, necessarily has the power to find the infringement, even if it has already come to an end. Moreover, the undertaking will often have put an end to the impugned practice following intervention by the Commission, before the latter takes a decision.

47.      That being said, the General Court ought to have held that application of Article 23(2)(a) of Regulation No 1/2003 was sufficient to warrant the Commission finding the infringement concerned, even if it was committed in the past, and hence to reject Orange’s plea on a ground other than the one it chose. If there is no order to terminate it is superfluous to cite Article 7 as the legal basis.

48.      As the ECTA points out, the Commission’s power to impose fines, whether or not the infringement has ceased, clearly has its legal basis in Article 23(2) of Regulation No 1/2003. Other than requiring the proof of Orange’s intention or negligence, that provision is formulated broadly and does not make the Commission’s power to impose fines subject to any condition.

49.      It follows that, despite the General Court’s error identified above, the first ground of appeal must be rejected as unfounded.
B.      Second ground of appeal: errors of law and distortion of evidence in connection with the Commission’s assessment of the impact of the infringement for the purpose of calculating the amount of the fine
1.      Summary of the arguments of the parties

50.      Orange claims that the General Court distorted the decision at issue. The distortion concerns first of all the actual effects of the infringement. It is apparent from recital 902 of the decision at issue that the Commission took those actual effects into account in order to calculate the amount of the fine, a point it confirmed before the General Court by acknowledging that the wording of that recital, in so far as the latter concerns the actual effects of the infringement, constituted a ‘clerical mistake’. However, in paragraph 169 of the judgment under appeal the General Court stated that that recital could be read only as referring, ‘in a general and abstract manner, to the nature of the infringement’.

51.      The General Court’s reading fails to have regard to the clear meaning of the words used in that recital, which refers specifically to the effects on competition that had occurred as a result of Orange’s actual behaviour on the market. In paragraph 182 of the judgment under appeal the General Court makes reference moreover to actual past events, referring to, inter alia, recital 902 of the decision at issue, while at the same time, in paragraph 169, it refused to acknowledge that actual effects had been found in the decision at issue.

52.      Next, and in any case, in holding that the Commission had merely considered matters in a ‘general and abstract’ manner, the General Court distorted the decision at issue with regard to the likely effects of the infringement. It is clear that in recital 902 of the decision at issue the Commission did, at least, allow for its likelyeffects in calculating the amount of the fine, as it acknowledged moreover in its submissions to the General Court. The latter nonetheless wrongly held that the fact of taking into account the nature of the infringement did not involve taking into consideration its likely effects. The likely effects, like the actual effects, of the behaviour are essential indicators of the nature of the infringement, and consequently of its gravity, which cannot be assessed in the abstract. Hence, the General Court was required to examine whether the finding of those likely effects was justified or not. Orange adds that, the General Court having thus failed to examine the decision at issue correctly, its analysis of the proportionality of the fine was thereby flawed.

53.      Another error by the General Court was breach of the principle of effective judicial protection, because it failed to assess whether the effects of the infringement had been correctly established by the Commission. In consequence, Orange claims that the Court of Justice should exercise its unlimited jurisdiction in order to reduce the amount of the fine because of the want of proper evidence on which to base any finding of actual effects.

54.      In any case, the General Court wrongly failed to exercise its power of judicial review in respect of the evidence of the likely effects of the infringement.

55.      The Commission contends that the second ground of appeal is inadmissible in so far as Orange seeks to obtain from the Court of Justice a reassessment of the facts. This second ground of appeal does not meet the criteria of the case-law relating to distortion and is, at all events, both unfounded and ineffective.

56.      As a preliminary point, the Commission observes that Orange challenges only paragraphs 169 to 173 of the judgment under appeal and not paragraphs 162, 163, 166 and 167, according to which the 2006 Guidelines do not require the Commission to take into account the actual impact of the infringement on the market in order to fix the amount of the fine, or paragraphs 176 to 187, in which the General Court considered the proportionality of the fine. Those paragraphs are sufficient to support the General Court’s conclusion that Orange’s line of argument is ineffective.

57.      As regards the alleged distortion of the decision at issue, the Commission contends that the last sentence of paragraph 169 of the judgment under appeal must be read together with the paragraphs which precede and follow it, concerning the nature of the infringement, its geographical scope, Orange’s market shares, implementation of the infringement, Orange’s aim to exclude competitors and the fact that Orange was aware of the unlawfulness of its conduct, together with the considerations set out in the section of the decision at issue on calculation of the amount of the fine. Under the case-law, it was legitimate for the Commission to rely only on those elements in order to come to the conclusion that 10% of the value of the sales concerned was an appropriate gravity factor. Moreover, the last sentence in recital 902 is formulated in general and abstract terms in the sense that it relates to the intrinsic capability of Orange’s abusive conduct to be harmful to competition and thereby consumers. In the light of this, the alleged conflict between, on the one hand, paragraphs 169 to 171 of the judgment under appeal and, on the other hand, paragraph 182 thereof disappears.

58.      Moreover, Orange’s line of argument fails to recognise the distinction between likely effects of an abusive behaviour and its actual impact on the market. The behaviour engaged in by Orange was real and its intensity from a competitive point of view was established in paragraph 124 et seq. of the judgment under appeal, which Orange does not challenge.

59.      High prices, poorer choice and a limited number of innovative products is a description of the type of adverse repercussions inherent in abusive exclusionary conduct such as that alleged against Orange, and the latter did not deny that its behaviour was capable of having an exclusionary effect on competitors.

60.      Moreover, from the point of view of logic, abusive conduct that is liable to exclude competitors and is put into effect must necessarily distort competition and, by so doing, be prejudicial to consumers. Hence, the General Court’s finding in paragraph 169 of the judgment under appeal regarding the one contested sentence in recital 902 of the decision at issue is not flawed by any distortion. The question whether that last sentence contained a clerical error was not relevant, the General Court having rightly found that, in the decision at issue, the Commission had not based the calculation of the amount of the fine on actual effects of the infringement.

61.      As regards the alleged taking into account of the likely effects of the infringement in the decision at issue during the examination of the nature of the infringement, that part of Orange’s reasoning is unfounded as well. It is only in the alternative, in the event that the General Court held that effects were taken into account — quod non — that the Commission stated that those would have been likely and not actual effects. Referring to paragraphs 11, 112 and 166 to 170 of the judgment under appeal, the Commission considers that the General Court did not distort the decision at issue in holding, in paragraph 171 of the judgment under appeal, that the Commission had not taken account of the likely effects when assessing the gravity of Orange’s abusive conduct for the purposes of fixing the amount of the fine. The finding in paragraph 169 of the judgment under appeal is, for its part, correct in light of the considerations set out in the decision at issue.

62.      As regards the alleged errors of law and breach of the principle of effective judicial protection with regard to the assessment of the evidence submitted by Orange, that line of argument ought, so far as the actual effects are concerned, to be rejected, for in the judgment under appeal the General Court rightly held that they had not been taken into account in order to determine the amount of the fine. So far as the likely effects are concerned, before the General Court Orange only contested their extent. The arguments put forward in that regard in the appeal are inadmissible given that they relate to factual matters, without any distortion being claimed. Those arguments are also unfounded: because the General Court had rightly found that the Commission had not specifically relied upon the likely effects in order to determine the gravity of the infringement, it was not required to rule on the matters raised by Orange.

63.      In the event that the Court of Justice were to consider, unlike the General Court, that the effects of the infringement were allowed in determining the amount of the fine, the Commission submits that the decision at issue must stand in all regards. The actual impact of an infringement on the market must be regarded as sufficiently demonstrated if the Commission is able to provide specific and credible evidence indicating with reasonable probability that the infringement had an impact on the market. In the present case, in Section 4.4 of Title 10 of the decision at issue, the Commission provided such evidence. Moreover, the arguments put forward in the appeal to demonstrate the errors committed by the Commission in establishing the likely effects of the infringement are not relevant, for they concern the existence of actual effects.

64.      The PIIT supports Orange’s line of argument. It contends, in addition, that the Commission made significant errors in its assessment of the effects of the infringement by failing to have due regard to the regulatory and historical context of the development of broadband in Poland, which distorted its analysis of the gravity of the infringement. The General Court failed to condemn those errors.

65.      The ECTA takes the view that the General Court did not distort the decision at issue and puts forward arguments similar to those put forward by the Commission.
2.      Assessment

66.      The part of the decision at issue which Orange claims has been distorted is the last sentence of recital 902, which appears in the section of that decision dealing with the determination of the basic amount of the fine, more specifically in the subsection in which the Commission assesses the nature of the infringement in order to determine its gravity.

67.      That recital reads as follows: ‘It has also been outlined in section VIII.1 that [Orange’s] practices form part of an abusive behaviour aimed at excluding competitors from the retail market or at least delaying their entry and/or expansion in this market. Also as it was stated in recital (892) [Orange] was aware of illegality of its conduct. This impacts negatively the competition and consumers, who have suffered from higher prices, less choice and reduced availability of innovative broadband products.’

68.      I fail to understand why the General Court did not accept that, in that last sentence, the Commission was referring to the effects of the infringement on the market, considering, in particular, that it had based its finding of abuse on the existence of likely effects on competition and on consumers, to which it devoted no fewer than 60 recitals of the decision at issue.

69.      Moreover, the reason given by the General Court, in paragraph 170 of the judgment under appeal, for excluding such an interpretation, namely, the fact that that last sentence contained no reference to that section of the decision at issue, (13) seems to me to be particularly weak and unconvincing.

70.      That said, I consider that the main error of law committed by the General Court in the judgment under appeal in connection with breach of the principle of effective judicial protection was its refusal to assess whether the effects of the infringement had been properly established by the Commission, or even to examine Orange’s arguments on that subject. In so far as Orange claimed that the Commission had based its arguments on the actual, or even likely, effects of the infringement in order to calculate the amount of the fine, the General Court ought to have examined those arguments (and not merely decided they were ‘ineffective’) and determined whether the decision at issue contained specific, credible and adequate evidence of those effects, which it manifestly failed to do.

71.      This is especially so since Orange submitted to the General Court evidence to show that the Commission’s approach was incorrect. That evidence, which Orange sets out again in its appeal, was not taken into account by the General Court.

72.      Given the fact that the Grand Chamber of the Court of Justice subsequently delivered, on 6 September 2017, the judgment in Intel Corporation v Commission (C‑413/14 P, EU:C:2017:632), I take the view that the latter is to be interpreted in so far as it is relevant for the present case.

73.      In summary, the judgment in Intel Corporation v Commission (C‑413/14 P, EU:C:2017:632) was delivered in an appeal challenging the judgment by which the General Court had found that conditional rebates and other restrictions having foreclosure effects constituted an abuse of a dominant position and were contrary to Article 102 TFEU. The Court of Justice set aside the judgment of the General Court, finding that the General Court had not properly considered whether the loyalty rebates in question were capable of restricting competition (‘the capability to restrict’). The Court of Justice considered that the analysis of the capability to restrict should have been carried out in the light of all the circumstances, including examining all the arguments and evidence to the contrary submitted by the accused undertaking for the purposes of challenging the Commission’s claims.

74.      Having, in paragraph 137 of that judgment, cited its case-law (judgment of 13 February 1979, Hoffmann-La Roche v Commission, 85/76, EU:C:1979:36, paragraph 89), the Court of Justice stated in paragraph 138 that ‘that case-law must be further clarified in the case where the undertaking concerned submits, during the administrative procedure, on the basis of supporting evidence, that its conduct was not capable of restricting competition and, in particular, of producing the alleged foreclosure effects’ (emphasis added).

75.      In that case, according to the next paragraph (139), ‘the Commission is not only required to analyse, first, the extent of the undertaking’s dominant position on the relevant market and, secondly, the share of the market covered by the challenged practice, as well as the conditions and arrangements for granting the rebates in question, their duration and their amount; it is also required to assess the possible existence of a strategy aiming to exclude competitors that are at least as efficient as the dominant undertaking from the market (see, by analogy, judgment of 27 March 2012, Post Danmark, C‑209/10, EU:C:2012:172, paragraph 29)’.

76.      In my view, this is by no means a purely procedural requirement.

77.      I would also point out that paragraph 133 of that judgment reads: ‘it must be borne in mind that it is in no way the purpose of Article 102 TFEU to prevent an undertaking from acquiring, on its own merits, the dominant position on a market. Nor does that provision seek to ensure that competitors less efficient than the undertaking with the dominant position should remain on the market (see, inter alia, judgment of 27 March 2012, Post Danmark, C‑209/10, EU:C:2012:172, paragraph 21 and the case-law cited)’. (14)

78.      In any case, and so far as concerns the present appeal, I consider that it follows from the above that, when presented with a decision by which the Commission finds the existence of abuse and makes an analysis of whether that conduct is capable of excluding a competitor or of distorting or affecting competition and consumers in any other way, the General Court must necessarily examine all the applicant’s arguments seeking to call into question the validity of the Commission’s findings as to whether the practice concerned is capable of hindering competition.

79.      In other words, the principles adopted by the Court of Justice in the judgment in Intel Corporation v Commission (C‑413/14 P, EU:C:2017:632) in order to assess an abusive practice’s ‘capability to restrict’ are relevant, not only when it is a matter of challenging the substantive finding of an infringement (the case giving rise to that judgment), but also when it is a matter of assessing the nature and gravity of the infringement for purposes of determining the amount of the fine (as in the present appeal).

80.      Contrary to what the Commission contends, the judgment in Intel Corporation v Commission (C‑413/14 P, EU:C:2017:632) therefore applies, by analogy, to calculation of the basic amount of the penalty provided for in Article 23(3) of Regulation No 1/2003.

81.      As observed by legal writers, while in cartel cases the Commission is not obliged, when calculating the amount of the fine, to allow for the impact or effects of the infringement, the approach must necessarily be different in the case of abuse of a dominant position, for it may not then be based on mere ‘rules of thumb’ (15) or be ‘general and abstract’ (paragraph 169 of the judgment under appeal).

82.      Admittedly, the Commission enjoys some discretion in determining the amount of fines, (16) but that discretion may not be unlimited. Certain principles must be taken into account in that determination, in particular, the principles of equal treatment and of proportionality, lest too broad a discretion lead to legal uncertainty. The principle of proportionality constitutes a significant limit to the Commission’s discretion in the fixing of the amount of fines.

83.      In his Opinion in Dansk Rørindustri and Others v Commission (C‑189/02 P, EU:C:2004:415, points 129 to 130 and 132), Advocate General Tizzano had previously noted the necessity of safeguarding against certain risks. I cite two passages from the Opinion: ‘I must … point out that the examination so far carried out [in that case] shows that the calculation method used by the Commission is not without risk as far as the fairness of the system is concerned’ (point 129) and ‘it does not seem to me to be fully consistent with the requirements of individualisation and progressiveness of the “penalty” — two principles of cardinal importance in any punitive system, both in the criminal and the administrative spheres — that, as in the present cases, some of the calculation operations are essentially formal and abstract in character and therefore do not have concrete repercussions on the final amount of the fine[I would point out here the ‘general and abstract’ approach reiterated in paragraph 169 of the judgment under appeal]. Nor may the fact be ignored that, for the same reasons, the objective of greater transparency pursued by the Guidelines is liable to be less than fully attained’ (point 130, emphasis added). He adds that he has doubts whether the fines are therefore in conformity with the requirements of reasonableness and fairness (point 133).

84.      Furthermore, the discretion enjoyed by the Commission with regard to fines must be exercised within the limits (and according to the requirements) of Regulation No 1/2003 and in particular Article 23(3) thereof: ‘in fixing the amount of the fine, regard shall be hadbothtothe gravity and to the duration of the infringement’ (emphasis added), whether the penalty is to be increased or reduced (this is contrary to the 2006 Guidelines, which provide for taking into account the effects of the infringement only in order to increase the fine). (17)

85.      Those aspects can be assessed only case by case, taking into consideration all the circumstances of a given case and not simply on the basis of a ‘general and abstract’ approach (paragraph 169 of the judgment under appeal). (18)

86.      The foregoing is confirmed by the judgment in Intel Corporation v Commission (C‑413/14 P, EU:C:2017:632) in so far as: first, abuse of a dominant position, as provided in Article 102 TFEU, is not to be established in abstracto; second, an in-depth examination of all the circumstance of the case is necessary (paragraph 142 of that judgment); and third, as Advocate General Wahl stated in his Opinion, (19) ‘the degree of likelihood required for ascertaining that the impugned conduct amounts to an abuse of a dominant position [should be “likely” and not merely be] nothing more than the mere theoretical possibility of an exclusionary effect, as seems to be suggested by the Commission’.

87.      The Court of Justice’s reasoning in the judgment in Intel Corporation v Commission (C‑413/14 P, EU:C:2017:632) concerning the infringement itself should be applied in a similar way to the analysis of the nature and gravity of the infringement in order to determine the amount of the fine.

88.      In the present case, Orange has put forward specific arguments explaining why the nature and gravity of the conduct at issue did not warrant the amount of the fine.

89.      The nature and, in consequence, the gravity of the infringement depend to a great extent on Orange’s propensity to eliminate competition on the retail broadband market in Poland and, hence, to have an adverse effect on competition and on consumers.

90.      Orange notes that, in the decision at issue, the Commission conducted a limited analysis of its theory of harm, setting out its assessment of the actual or likely effects of the infringement. During the administrative procedure, Orange submitted evidence and arguments to identify the Commission’s main errors in assessing the harmful effects.

91.      It follows — as confirmed by the judgment in Intel Corporation v Commission (C‑413/14 P, EU:C:2017:632) — that the General Court could no longer choose to ignore the applicant’s arguments and, in the circumstances, ought to have examined all Orange’s evidence and arguments challenging the validity of the Commission’s findings as to the practice concerned being capable of having an adverse effect on competition in Poland.

92.      However, in the judgment under appeal the General Court refused to examine Orange’s pleas alleging that the Commission had not properly examined the actual or likely effects of the applicant’s infringement or had not produced in that assessment specific, credible and adequate evidence to warrant, inter alia, use of the 10% threshold for calculating the basic amount of the fine.

93.      The General Court rejected Orange’s arguments in their entirety, considering that the Commission had taken into account neither the actual effects nor the likely effects of the infringement and that it had merely analysed the nature of the infringement ‘in a general and abstract manner’, taking the view that the conduct had the capacity to affect competition and consumers adversely (see judgment under appeal, paragraph 169), such an uncertain, unclear and hypothetical approach being in its view sufficient.

94.      The General Court concluded from this that it was not necessary to examiner the applicant’s arguments concerning the errors made by the Commission in assessing the actual or likely anticompetitive effects, for they were ‘ineffective’ (see judgment under appeal, paragraph 173).

95.      I (like Orange) consider it remarkable that in paragraphs 25 and 26 of its rejoinder the Commission supports the findings of the General Court contained in paragraph 169 of the judgment under appeal, stating: ‘… Therefore, it is correct that Orange’s behaviour had the capacity to adversely affect competition and consumers. … In a case like the present one at leastlikely anticompetitive effects are inherent. … abusive conduct which is capable of excluding competitors and is implemented cannot but be distortive of competition and thereby harmful to consumers’ (emphasis added).

96.      This reveals the formalistic approach taken by the Commission in order to relieve itself of the burden of proof on the basis of mere inferences and hypotheses rather than by reference to evidence of the effects, and without a properly reasoned rebuttal of the counter-explanations of the party complained against.

97.      In supporting the Commission’s approach the General Court did not determine, on the one hand, whether the facts relied upon by the Commission in concluding that the infringement was such as to affect competition adversely had been properly presented, or, on the other hand, whether the Commission had made an error of assessment in its estimation of the extent and probability of harmful effects and whether the legal inferences to be drawn from those facts were correct.

98.      That abstract approach is contrary to the requirements of the standard of proof earlier referred to by Advocate General Wahl in his Opinion in Intel Corporation v Commission (C‑413/14 P, EU:C:2016:788, points 114 to 121) with which I can only concur: ‘capability cannot merely be hypothetical or theoretically possible’ and ‘the aim of the assessment of capability is to ascertain whether, in all likelihood, the impugned conduct has an anticompetitive foreclosure effect’ and ‘ the assessment of capability as concerns presumptively unlawful behaviour must be understood as seeking to ascertain that, having regard to all circumstances, the behaviour in question does not just have ambivalent effects on the market …, but that its presumed restrictive effects are in fact confirmed’ (emphasis added).

99.      In the same vein, I agree with Advocate General Mazák in his Opinions in Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:212, point 64), and in TeliaSonera Sverige (C‑52/09, EU:C:2010:483, points 39 to 40), (20) which require a similar standard.

100. I (like Orange) consider that the General Court’s approach in the judgment under appeal is also incompatible with the statement made by the Court of Justice, in paragraphs 138 to 146 of the judgment in Intel Corporation v Commission (C‑413/14 P, EU:C:2017:632), that the Commission and, in its turn, the General Court ‘must examine all of the applicant’s arguments seeking to call into question the validity of the Commission’s findings concerning the foreclosure capability of the [abuse] concerned’ (emphasis added). (21)

101. Thus, the approach taken by the General Court in the judgment under appeal is similar to that criticised by the Court of Justice in the judgment in Intel Corporation v Commission (C‑413/14 P, EU:C:2017:632) (and by Advocate General Wahl in the same case), as it had been earlier in the case at first instance giving rise to the judgment of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062) and which I had criticised in my Opinion in that case (C‑295/12 P, EU:C:2013:619).

102. The General Court’s approach is contrary to point 20 of the 2006 Guidelines on fines as well, which reads: ‘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.’ (22)

103. The General Court’s refusal to conduct a full and detailed examination of the arguments and evidence submitted by Orange is equivalent also to lack of any appropriate and comprehensive review of the legality of the decision at issue under Article 263 TFEU. (23)

104. In addition, the General Court misapplied the criterion of the proportionality of the fine with regard to the nature and, therefore, to the gravity of the infringement, thus depriving Orange of effective judicial protection.

105. A fine is not to be considered proportionate if the elements determining its amount described in the contested decision (especially if it is a matter of the nature and, therefore, of the gravity of the infringement) are not properly examined (24) by the General Court, which may not merely undertake a review of conformity with the Guidelines, but must itself review the adequacy of the penalty in question. (25)

106. In the judgment in Intel Corporation v Commission (C‑413/14 P, EU:C:2017:632) the Court of Justice made it very clear that even conduct that may be thought to raise competition concerns, is not per se to becondemned.

107. That said, it is possible that the Commission might ultimately be successful in the present case, but not before the General Court has examined the arguments put forward by Orange in the context of the second part of the third plea at first instance.

108. Therefore, the second ground of appeal appears to me to be well founded. The judgment under appeal must therefore be set aside and the case referred back to the General Court in order for it to examine the arguments put forward by Orange.
C.      Third ground of appeal: errors of law and distortion of evidence because of failure to take investments made by Orange into account as mitigating circumstances
1.      Summary of the arguments of the parties

109. Orange claims that, in dismissing its argument that the Commission ought to have regarded as mitigating circumstances the investments made by Orange to improve the fixed broadband network in Poland, the General Court distorted evidence and made a series of errors in law and/or manifest errors of assessment, every one of which ought to have led to a reduction in the amount of the fine.

110. First, at the end of paragraph 208 of the judgment under appeal the General Court correctly rejected the argument the Commission put forward in recital 915 of the decision at issue, holding that it is irrelevant, as regards their characterisation as a mitigating circumstance, that those investments do not change the nature of the infringement. However, in paragraphs 192 to 209 of the judgment under appeal, it departed from the reasoning adopted in the decision at issue in order not to treat those investments as mitigating circumstances, and substituted its own reasoning. In so doing, the General Court infringed the rule that, in the context of the review of legality referred to in Article 263 TFEU, it may not substitute its own reasoning for that of the author of the contested act.

111. Second, the General Court erred in law and/or committed a manifest error of assessment in determining that the investments concerned could not be regarded as compensatory measures. On the one hand, contrary to what was held in paragraphs 199 to 201 of the judgment under appeal, it could be inferred from the judgment of 30 April 2009, Nintendo and Nintendo of Europe v Commission (T‑13/03, EU:T:2009:131) and from decisions of national competition authorities, that the concept of compensation can include benefits in kind rather than money, even if they are indirect. Article 18(3) of Directive 2014/104 confirms this. On the other hand, it would have been impossible in the circumstances to quantify and allocate direct compensation accurately or effectively. Thus, if Orange had not unilaterally made the investments in question, the importance and benefits of which were recognised by the UKE and the AOs, few people would have obtained any redress. In addition, in paragraphs 204 to 206 of the judgment under appeal, the General Court wrongly described those beneficial effects as deriving from the agreement with the UKE and not from the investments.

112. Third, the General Court is alleged to have erred in law and distorted the evidence by stating, in paragraph 202 of the judgment under appeal that the investments were motivated by Orange’s desire to avoid the functional separation envisaged by the UKE. No argument concerning the reasons that led Orange to conclude the agreement with the UKE appears in the pleadings or in the decision at issue and, the General Court could not have substituted its own reasoning for that of the Commission without effecting an unlawful substitution of grounds and a breach of the principle of fairness and of the rights of the defence. Moreover, those investments were indeed voluntary, as the Commission itself acknowledged in paragraph 140 of the decision at issue.

113. Fourth, the General Court was wrong to state, in paragraph 203 of the judgment under appeal, that the investments in question were merely ‘a normal part of business life’. That statement contradicts the finding made in paragraph 202 of that judgment, because the investments could not simultaneously be due to the threat of regulatory intervention and also an incident of normal business life. At all events, they were not made with a view to a return, some of them not being economically viable, but in order to remedy the harm suffered by those adversely affected by the conduct found to constitute an infringement.

114. Moreover, the category of mitigating circumstances is not closed and the lack of judicial precedent is no bar to recognition of a mitigating circumstance.

115. The Commission submits that the present ground should be rejected as being ineffective and/or inadmissible.

116. In addition, it contends that this ground of appeal is unfounded, Orange not having demonstrated that, given the relevant legal framework, the General Court was bound to treat the investments in question as a compensatory measure.

117. First, the Commission has a certain latitude in determining the extent of any reduction of the amount of a fine having regard to mitigating circumstances.

118. In the second place, the General Court did not base its decision on ‘new grounds for the Commission’s refusal’ to reduce the amount of the fine.

119. Third, the General Court’s assertion that the investments were motivated by the desire to avoid regulatory penalties arose from its review of evidence of the threat of functional separation relied upon by the Commission in the decision at issue. It neither concluded that the risk of functional separation was the sole reason for Orange signing the agreement with the UKE nor held that the investments were not voluntary.

120. Fourth, the General Court committed no error in regarding the investments, and their potential beneficial effects, as part of the agreement concluded with the UKE.

121. The PIIT contends, as does Orange, that the investments in question are by their nature compensatory, as is clear from the facts set out in the observations the PIIT submitted to the General Court. Consequently, the General Court erred in law by failing to take them into account as mitigating circumstances. In addition, it erred in its assessment of the evidence submitted by the PIIT and distorted its content, in particular by stating in paragraph 204 of the judgment under appeal that the arguments put forward by the PIIT in its intervention were contradicted by the documents annexed to that statement. It was also wrong to consider in paragraph 206 of the judgment under appeal that any beneficial effects conferred on AOs and end-users should be attributed solely to the UKE Agreement and not to the investments.

122. The ECTA puts forward, in essence, similar arguments to those put forward by the Commission.
2.      Assessment

123. I consider that this ground of appeal is inadmissible inasmuch as, in reality, Orange is challenging the General Court’s assessment of the facts and calling on the Court of Justice to carry out a review of the facts established by the General Court.

124. As a matter of fact, Orange disputes the General Court’s finding with regard to Orange’s motives for making the investments in question, their nature and their possible consequences. These are all factual matters. In accordance with the case-law of the Court of Justice, ‘a factual conclusion … falls within the exclusive jurisdiction of the General Court, whose role may not be assumed by the Court of Justice in the review it carries out’ (order of 15 June 2012, Otis Luxembourg and Others v Commission, C‑494/11 P, not published, EU:C:2012:356, paragraph 48).

125. What is more, this ground of appeal appears to me to be unfounded.

126. If, in reviewing the legality of acts under Article 263 TFEU, the General Court is entitled to examine and use evidence which is submitted to it by the parties, (26) it is settled case-law that, in the context of the review the EU Courts may in no circumstances substitute their own reasoning for that of the author of the contested act. (27)

127. In contrast, when they exercise their unlimited jurisdiction the EU Courts are empowered, in addition to merely reviewing the legality of the penalty, to substitute their own assessment in relation to the determination of the amount of that penalty for that of the author of the measure in which that amount was initially fixed, the scope of that unlimited jurisdiction being strictly limited, however, to determining the amount of the fine. (28)

128. Taking those principles as a starting-point, I agree with the findings of the General Court.

129. The General Court based its findings here on its own assessment of the decision at issue and on the observations submitted by the parties in the course of the proceedings. (29) Those findings were made in answer to the arguments put forward by Orange specifically citing those cases. Orange cannot therefore maintain that the General Court substituted its own reasoning for that of the Commission in that regard.

130. Next, the General Court’s conclusion that the investments were motivated by a desire to avoid penalties such as functional separation is clearly based upon certain items of evidence contained in the decision at issue. (30) Orange was aware of that evidence but never challenged it.

131. In addition, as regards the General Court’s finding too that the investments in question were ‘a … part of business life’ and ‘[were] carried out with a view to a return’, it cannot be maintained that the General Court substituted its own reasoning for that of the Commission. In the course of the review it carried out in order to ascertain whether the Commission had committed an error, the General Court on the contrary answered the arguments put forward by Orange, in the light also of the evidence submitted by the parties. Both the Commission’s reply (paragraph 133) and the rejoinder (paragraph 64) contain evidence that entitled the General Court to reject the applicant’s arguments and to find that Orange’s investments were in reality made for its own benefit. Furthermore, the decision at issue contains certain items of evidence showing the scope of sustained investment in the telecommunications sector (recital 807 of the decision at issue) and Orange’s general incentives to invest (economies of scale) (recital 661 of that decision).

132. Last, I (like the Commission) consider that the General Court did not base its decision on ‘new grounds for the Commission’s refusal’ to reduce the amount of the fine. All the evidence examined by the General Court and all the reasons given for not treating the investments in question as a mitigating circumstance came from the pleadings that were submitted to it and from the decision at issue. Furthermore, in deciding to leave the amount of the fine unchanged the General Court merely exercised its unlimited jurisdiction.

133. Furthermore, contrary to what is claimed by Orange, the General Court did not find, in paragraphs 204 to 206 of the judgment under appeal, that there were no beneficial effects attributable to the investments in question. On the basis of its own analysis of the documents used by the Commission, the General Court found that some of them confirmed that both the AOs and the UKE had acknowledged the beneficial effects of the investments. The General Court also acknowledged, in paragraph 203 of the judgment under appeal, the possible existence of some indirect benefits for end-users and AOs. However, it held that those beneficial effects were not such as to render incorrect the Commission’s assessment regarding the refusal to grant Orange the benefit of mitigating circumstances or, in any case, to warrant a reduction in the amount of the fine on that account, which is fundamentally different from failure to acknowledge beneficial effects.

134. According to Orange (appeal, paragraph 64), the error of law and the manifest error of assessment in the assessment of mitigating circumstances are connected to the finding that: first, only direct financial compensation can constitute a compensatory measure and, second, the investments in question were not intended to compensate third parties.

135. I cannot agree with that view. First, according to settled EU case-law, the Guidelines do not set out in mandatory terms the mitigating circumstances that the Commission has to take into account. Consequently, the Commission retains a certain latitude when making an overall assessment of the size of any reduction in the fines made because of mitigating circumstances. (31) Therefore, the 2006 Guidelines contain a non-exhaustive list of factors that the Commission may decide to take into consideration by way of mitigating circumstances.

136. It may be observed, moreover, that it is more and more exceptionally that the Commission takes mitigating circumstances into account for purposes of reducing the basic amount of a fine, especially since the adoption of the 2006 Guidelines. (32)

137. Second, the EU courts and the Commission have never accepted that investments such as those concerned in the present case may be regarded as mitigating circumstances warranting the level of the amount of a fine being lowered.

138. In its only judgment concerning the possibility of granting a reduction in the amount of a fine due to the compensation paid, (33) the General Court accepted, in view of the exceptional circumstances, that account should be taken of ‘the financial compensation offered by [the] undertaking [in question] to third parties harmed by the [infringement] who had been identified in the statement of objections’.

139. In that case, the Commission reduced the amount of the fine imposed on Nintendo by EUR 300 000 in order to take into account the compensation, totalling EUR 375 000, which it had offered to third parties identified in the statement of objections as having suffered financial harm as a result of the unlawful conduct. (34) Another case that is relevant in that regard is Independent Schools (decision of the United Kingdom competition authority of 20 November 2006, Case CA 98/05/2006) cited by the General Court in paragraph 201 of the judgment under appeal.

140. Moreover, to this day, in the Commission’s decision-making practice there is no sign of a more lenient approach. For example, in its decision concerning the Pre-Insulated Pipes case, (35) the Commission decided to reduce the fine of one of the participants in the cartel due to the ‘substantial compensation’ paid by that participant to the undertaking identified in the statement of objections as being the one against which the offenders had taken concerted steps to damage its business, confine its activity to the territory of a Member State or force it out of business altogether.

141. Lastly, as the Commission points out, the investments at issue had no bearing on the infringement and were not intended to compensate AOs and end-users for any damage they might have suffered.

142. I consider that this hypothesis cannot be categorically excluded, but the fact remains that if investments made by an undertaking occupying a dominant position in its own infrastructure, after the infringement, were to be ‘automatically’ regarded as a mitigating circumstance, the deterrent effect of fines would be compromised.

143. As the Commission points out, Article 18(3) of Directive 2014/104 confirms merely that competition authorities enjoy discretion as regards taking into account direct payments to injured parties as mitigating circumstances and that, in principle, the only compensation that may be taken into account is direct pecuniary compensation paid to the injured party.

144. Lastly, the General Court did not err in considering that the investments and their potential beneficial effects were part of the agreement with the UKE. Furthermore, in the light of the evidence submitted to it, the General Court could rightly conclude that, even if the investments in question did have the additional positive effects claimed by Orange, they did not constitute compensation that the Commission could have taken into account.

145. The third ground of appeal must, therefore, be rejected as inadmissible and, in any case, unfounded.
IV.    Costs

146. As the case is to be referred back to the General Court, it is appropriate to reserve the costs relating to the present appeal proceedings.
V.      Conclusion

147. For those reasons, I propose that the Court of Justice should:
–        set aside the judgment of the General Court of the European Union of 17 December 2015, Orange Polska v Commission (T‑486/11, EU:T:2015:1002), inasmuch as the General Court erred in law by failing to examine the arguments put forward by Orange Polska S.A. in the context of the second part of the third plea at first instance, alleging the existence of errors vitiating the Commission’s conclusions on the effect of the infringement on the relevant markets, thus breaching the principles of effective judicial protection and of the proportionality of the fine,
–        dismiss the remainder of the appeal, and
–        refer the case back to the General Court for a fresh examination of the arguments underlying the second ground of the appeal and reserve the costs.

1      Original language: French.

2      Decision of 22 June 2011 relating to a proceeding under Article 102 TFEU (Case COMP/39.525 — Telekomunikacja Polska) (‘the decision at issue’).

3      Although the decision at issue refers to Telekomunikacja Polska and its conversion to Orange took place after the close of the written part of the procedure before the General Court, it is sufficient for the present Opinion, for the purposes of the appeal and in the interests of simplification, to refer only to Orange.

4      The authority initially put in place was replaced, with effect from 16 January 2006, by the Urząd Komunikacji Elektronicznej (Office for Electronic Communications, Poland, ‘the UKE’).

5      Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1).

6      Directive of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014, L 349, p. 1).

7      Council Regulation No 17 of 21 February 1962, First Regulation implementing Articles [101 and 102 TFEU] (OJ, English Special Edition 1959-1962, p. 87).

8      Judgment of 2 March 1983, GVL v Commission (7/82, EU:C:1983:52).

9      See, to that effect, judgment of 15 July 1970, ACF Chemiefarma v Commission (41/69, EU:C:1970:71, paragraphs 171 to 175).

10      See judgment of 2 March 1983, GVL v Commission (7/82, EU:C:1983:52, paragraphs 22 and 23). See, also, judgment of 6 October 2005, Sumitomo Chemical and Sumika Fine Chemicals v Commission (T‑22/02 and T‑23/02, EU:T:2005:349, paragraphs 61 and 131).

11      Whatever the reason may be, in particular because the five-year limitation period has passed, or because the Commission considers that the conduct in question does not justify imposing a fine.

12      Judgments of 6 October 2005, Sumitomo Chemical and Sumika Fine Chemicals v Commission (T‑22/02 and T‑23/02, EU:T:2005:349, paragraphs 131 and 132), and of 16 November 2006, Peróxidos Orgánicos v Commission (T‑120/04, EU:T:2006:350, paragraph 18).

13      Namely, the one in which the Commission presented its comments on the likely effects of the infringement.

14      See, also, Coates, K., The Intel CJ Ruling: More Than A Nudge Towards Economic Analysis, Competition Policy International, October 2017, p. 4.

15      See Lianos, I., and Geradin, D., Handbook on European Competition Law — Enforcement and Procedure, Edward Elgar, Cheltenham, 2013, p. 359. See also Al-Ameen, A., ‘Antitrust Fines-Seeking Justice’, Competition Law Review, 2010, No 7, pp. 83 and 88.

16      See, inter alia, judgment of 20 March 2002, LR AF 1998 v Commission (T‑23/99, EU:T:2002:75, paragraph 231).

17      See point 31 of the Guidelines (‘the Commission will also take into account the need to increase the fine in order to exceed the amount of gains improperly made as a result of the infringement where it is possible to estimate that amount’). The approach I advocate is similar to the approach taken in the judgments of 20 June 1978, Tepea v Commission (28/77, EU:C:1978:133, paragraphs 66 and 67); of 11 March 1999, Thyssen Stahl v Commission (T‑141/94, EU:T:1999:48, paragraph 646); of 9 July 2009, Peugeot and Peugeot Nederland v Commission (T‑450/05, EU:T:2009:262, paragraphs 301 to 305 and 328 to 329); and of 1 July 2010, AstraZeneca v Commission (T‑321/05, EU:T:2010:266, paragraph 905); and, as regards the consideration of mitigating circumstances, the judgments of 6 April 1995, Martinelli v Commission (T‑150/89, EU:T:1995:70, paragraph 60), and of 11 March 1999, Cockerill-Sambre v Commission (T‑138/94, EU:T:1999:47, paragraph 572).

18      The approach I advocate is already applied in the case-law and practice of some Member States: see an important judgment of the United Kingdom Competition Appeal Tribunal in Construction Bid Rigging, Case Nos 1114-1119-1127-1129-1132-1133/1/1/09 [2011] CAT 3, paragraph 102; see also the Draft revised [United Kingdom] Competition and Markets Authority guidance on the appropriate amount of a penalty draft, which takes effects into account when setting a fine (https://www.gov.uk/government/consultations/ca98-penalties-guidance). Guidance may also be given, by analogy, by the principles applied in criminal law, in which effect, or lack of effect, plays an important part (see, for example, the ‘Guideline – Overarching Principles: Seriousness’ of the British Sentencing Guidelines Council, 2004, p. 3). See also Lianos and Geradin, op. cit., pp. 359 and 360.

19      Opinion of Advocate General Wahl in Intel Corporation v Commission (C‑413/14 P, EU:C:2016:788, point 118).

20      See, also, Meo — Serviços de Comunicações e Multimédia (C‑525/16), currently pending, and the Opinion of Advocate General Wahl in that case (EU:C:2017:1020), which is already available.

21      As stated in legal literature (Venit, J.S., ‘The judgment of the European Court of Justice in Intel v Commission: a procedural answer to a substantive question?’, European Competition Journal, p. 11), ‘The Court’s ruling, which decisively rejects the position advocated by the Commission and supported by the General Court, establishes that, whether or not the rebate is conditioned on exclusivity, facts do matter in competition cases and that it would be a grave error not to consider all the relevant facts, at least in cases where there is a plausible claim, based on these facts, that the dominant firm’s conduct may not have been capable of foreclosing its rivals. … the Court came down squarely against the Commission and the General Court by rejecting the “facts are irrelevant approach” at least where the defendant, with supporting evidence, submits that its conduct was not capable of producing the alleged foreclosure effects’ and ‘the General Court is required to examine all of the defendant’s arguments concerning the application of the test’ (emphasis added).

22      Point 19 of the Guidelines reads: ‘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’ and point 22 states ‘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      Judgment of 8 December 2011, KME Germany and Others v Commission (C‑272/09 P, EU:C:2011:810, paragraphs 129 to 133).

24      See my Opinion in Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2013:619, point 107 et seq.). As stated in legal literature (Forrester, I.S., ‘A challenge for Europe’s judges: the review of fines in competition cases’, European Law Review, Vol. 36, No 2, 2011, pp. 185 and 197), ‘review [of fines should ask] whether the punishment imposed on an undertaking corresponded to the individual gravity of misconduct’.

25      See, to that effect, the judgment of 8 December 2011, Chalkor v Commission (C‑386/10 P, EU:C:2011:815, paragraph 78). Moreover, a system of fine setting which takes into account the effect or the impact of the infringement is more consistent with the principle of proportionality, which requires that ‘penalties should come as a direct response to an infringer’s wrongdoing’ (see Fish, M., ‘An Eye for an Eye: Proportionality as a Moral Principle of Punishment’, Oxford Journal of Legal Studies, 2008, pp. 28 and 57).

26      See, inter alia, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38, paragraph 72 and the case-law cited).

27      Judgments of 24 January 2013, Frucona Košice v Commission (C‑73/11 P, EU:C:2013:32, paragraph 89 and the case-law cited), and of 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38, paragraph 73).

28      See judgment 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38, paragraphs 75 and 76 and the case-law cited); see, also, judgment of 8 December 2011, KME Germany and Others v Commission (C‑389/10 P, EU:C:2011:816, paragraphs 129 to 133). See also my Opinion in Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2013:619), in which I analysed these issues in detail.

29      See paragraphs 193, 194, 196 and 197 of the judgment under appeal and the General Court’s finding in paragraphs 200 and 201.

30      See the judgment under appeal (paragraph 215); the risk of functional separation was also referred to in paragraph 17 of that judgment and a detailed analysis appears in paragraph 197 of that judgment.

31      Judgments of 8 July 2004, Dalmine v Commission (T‑50/00, EU:T:2004:220, paragraph 326); of 16 June 2011, FMC Foret v Commission (T‑191/06, EU:T:2011:277, paragraph 333); of 3 March 2011, Siemens and VA Tech v Commission (T‑122/07 to T‑124/07, EU:T:2011:70, paragraph 208); of 14 December 2006, Raiffeisen Zentralbank Österreich v Commission (T‑259/02 to T‑264/02 and T‑271/02, EU:T:2006:396, paragraph 473); of 6 May 2009, KME Germany and Others v Commission (T‑127/04, EU:T:2009:142, paragraph 115); and of 8 September 2010, Deltafina v Commission (T‑29/05, EU:T:2010:355, paragraph 348).

32      See Bernardeau, L., and Christienne, J.-P., Les amendes en droit de la concurrence, Larcier, Brussels, 2013, p. 166 (in the first 10 decisions in which the Commission applied the 2006 Guidelines no mitigating circumstance was acknowledged).

33      Judgment of 30 April 2009, Nintendo and Nintendo of Europe v Commission (T‑13/03, EU:T:2009:131, paragraph 23).

34      Judgment of 30 April 2009, Nintendo and Nintendo of Europe v Commission (T-13/03, EU:T:2009:131, paragraph 204) and Commission Decision of 30 October 2002 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (COMP/35.587 PO Video Games, COMP/35.706 PO Nintendo Distribution and COMP/36.321 Omega — Nintendo (OJ 2003 L 255, p. 33, recitals 440 and 441).

35      Commission Decision 1999/60/EC of 21 October 1998 relating to a proceeding under Article 85 of the EC Treaty (IV/35.691/E-4: — Pre-Insulated Pipe Cartel) (OJ 1999 L 24, p. 1, recitals 25 and 172). See, also, Commission Decision 75/75/EEC of 19 December 1974 relating to a proceeding under Article 86 of the EEC Treaty (IV/28.851 — General Motors Continental) (OJ 1975 L 29, p. 14).