CELEX: 62012CO0581
Language: en
Date: 2013-11-21 00:00:00
Title: Order of the Court (Tenth Chamber) of 21 November 2013. # Kuwait Petroleum Corp. and Others v European Commission. # Appeals - Agreements, decisions and concerted practices - Netherlands market in road pavement bitumen - Setting of the gross price of road pavement bitumen - Setting of a rebate for road builders - 2002 Leniency Notice - Last paragraph of point 23(b) - Partial immunity - Evidence relating to facts previously unknown to the Commission - Appeal manifestly inadmissible or manifestly unfounded. # Case C-581/12 P.

ORDER OF THE COURT (Tenth Chamber)
      21 November 2013 (*)
      
      (Appeals – Agreements, decisions and concerted practices – Netherlands market in road pavement bitumen – Setting of the gross price of road pavement bitumen – Setting of a rebate for road builders – 2002 Leniency Notice – Last paragraph of point 23(b) – Partial immunity – Evidence relating to facts previously unknown to the Commission – Appeal manifestly inadmissible or manifestly unfounded)
      In Case C‑581/12 P,
      APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 11 December 2012,
      Kuwait Petroleum Corp., established in Shuwaikh (Kuwait), 
      
      Kuwait Petroleum International Ltd, established in Woking (United Kingdom),
      
      Kuwait Petroleum (Nederland) BV, established in Rotterdam (Netherlands),
      
      represented by D. Hull, Solicitor, and G. Berrisch, Rechtsanwalt,
      appellants,
      the other party to the proceedings being:
      European Commission, represented by F. Ronkes Agerbeek and P. Van Nuffel, acting as Agents, with an address for service in Luxembourg,
      
      defendant at first instance,
      THE COURT (Tenth Chamber),
      composed of E. Juhász, President of the Chamber, A. Rosas and D. Šváby (Rapporteur), Judges,
      Advocate General: J. Kokott,
      Registrar: A. Calot Escobar,
      having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules
         of Procedure of the Court of Justice,
      
      makes the following
      Order
      1        By their appeal, Kuwait Petroleum Corp. (‘KPC’), Kuwait Petroleum International Ltd (‘KPI’) and Kuwait Petroleum (Nederland)
         BV (‘KPN’) seek to have set aside the judgment of the General Court of the European Union in Case T‑370/06 Kuwait Petroleum and Others v Commission [2012] ECR II‑0000 (‘the judgment under appeal’), by which the General Court dismissed their action for annulment of Commission
         Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 – Bitumen
         (Netherlands)(‘the contested decision’)) in so far as it concerns them, and, in the alternative, for reduction of the fine
         imposed on the appellants by that decision. 
      
       Legal context
      2        Points 21 and 23 of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p.
         3; ‘the 2002 Leniency Notice’) provide: 
      
      ‘21.      In order to qualify [for a reduction of the fine], an undertaking must provide the Commission with evidence of the suspected
         infringement which represents significant added value with respect to the evidence already in the Commission’s possession
         and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence.
      
      ...
      23.      The Commission will determine in any final decision adopted at the end of the administrative procedure:
      (a)      whether the evidence provided by an undertaking represented significant added value with respect to the evidence in the Commission’s
         possession at that same time; 
      
      (b)      the level of reduction an undertaking will benefit from, relative to the fine which would otherwise have been imposed, as
         follows. For the: 
      
      –        first undertaking to meet point 21: a reduction of 30-50%,
      
      –        second undertaking to meet point 21: a reduction of 20-30%,
      
      –        subsequent undertakings that meet point 21: a reduction of up to 20%.
      
      In order to determine the level of reduction within each of these bands, the Commission will take into account the time at
         which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value. It
         may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of
         its submission. 
      
      In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct
         bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when
         setting any fine to be imposed on the undertaking which provided this evidence.’ 
      
       Background to the dispute and the contested decision
      3        The background to the dispute was set out in paragraphs 1 to 15 of the judgment under appeal and may be summarised as follows.
         
      
      4        Following a request by British Petroleum for immunity from fines in accordance with the 2002 Leniency Notice with respect
         to a suspected cartel relating to the supply of road pavement bitumen in the Netherlands, the Commission, on 1 and 2 October
         2002, carried out surprise inspections, in particular at the premises of KPN and sent requests for information to several
         companies, including KPN, on 30 June 2003 and 5 April 2004. KPN replied to those requests on 16 September 2003 and 30 April
         2004. 
      
      5        On 12 September 2003 KPN submitted an application under the 2002 Leniency Notice. It provided additional written information
         on 16 September 2003 and certain employees of that company who were involved in the cartel were heard by the Commission on
         1 and 9 October 2003. During that procedure, Total, on 13 September 2003, and subsequently Nynas, on 2 October 2003, provided
         the Commission with a substantial amount of information by their replies to the first request for information. 
      
      6        On 14 October 2004, in accordance with the provisions of point 26 of the 2002 Leniency Notice, the Commission informed KPN
         that it intended to grant a reduction of 30% to 50% of the fine for which KPN should be liable, as the Commission had come
         to the provisional conclusion that the evidence which that company had provided constituted significant added value within
         the meaning of point 22 of that notice. Following a request from KPC and KPI, the Commission confirmed to them, by letter
         of 2 December 2004, that they would also benefit from the reduction of the fine granted to KPN under that notice.
      
      7        On 13 September 2006, the Commission adopted the contested decision in which it stated that the companies to which it was
         addressed had participated in a single and continuous infringement of Article 81 EC, by regularly fixing collectively, for
         the periods indicated, for sales and purchases of road pavement bitumen in the Netherlands, the gross price, a uniform rebate
         on the gross price for participating road builders and a smaller maximum rebate on the gross price for other road builders.
         
      
      8        The appellants were found guilty of that infringement, for the period from 1 April 1994 to 15 April 2002, and a fine of EUR
         16.632 million was imposed on them jointly and severally. 
      
      9        For the purposes of the calculation of the fine, the Commission did not find any aggravating circumstances with regard to
         the appellants. It agreed, rather, that they should benefit from the 2002 Leniency Notice and on that basis granted them a
         reduction of 30% in the amount of their fine. It considered that the information provided on 12 and 16 September 2003 and
         on 1 and 9 October 2003 had strengthened, by its level of detail, the Commission’s ability to establish the existence of the
         infringement. The Commission considered, however, that it had to take account of the fact, first, that the application for
         leniency was not submitted until 11 months after the unannounced visits had been carried out and after its request for information
         had been sent, second, that it already had certain evidence provided in the meantime by other companies on 13 September and
         2 October 2003, and, third, that KPN had revised some of its statements.
      
       The procedure before the General Court and the judgment under appeal
      10      By application lodged at the Registry of the General Court on 4 December 2006, the appellants sought the annulment of the
         contested decision and, in the alternative, the reduction of the fine imposed.
      
      11      In support of their application, the appellants put forward two pleas, alleging, first, infringement of the provisions of
         the last paragraph of point 23(b) of the 2002 Leniency Notice and, second, errors by the Commission in setting the percentage
         reduction of their fine. 
      
      12      By the judgment under appeal, the General Court rejected all those pleas.
      
       Forms of order sought
      13      KPC, KPI and KPN claim that the Court should:
      
      –        set aside the judgment under appeal; 
      –        itself give final judgment in the matter by annulling Article 2(i) of the contested decision in so far as it imposes a fine
         on the appellants or by reducing the amount of that fine; 
      
      –        in the alternative, refer the case back to the General Court; and 
      –        order the Commission to pay the costs of the appeal and of the proceedings before the General Court. 
      14      The Commission contends that the Court should: 
      
      –        dismiss the appeal; and 
      –        order the appellants to pay the costs. 
       The appeal 
      15      Under Article 181 of its Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly
         unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General,
         dismiss the appeal by reasoned order without opening the oral procedure. That provision must be applied in the context of
         the present appeal.
      
       The first ground of appeal, alleging an error of law in the interpretation of the last paragraph of point 23(b) of the 2002
            Leniency Notice 
       Arguments of the parties
      16      By their first ground of appeal, the appellants essentially complain that the General Court infringed the last paragraph of
         point 23(b) of the 2002 Leniency Notice by deciding, like the Commission, that that provision applies solely to a company
         party to a cartel which provides the Commission with new information relating to the gravity or the duration of the infringement
         and not to a company which has merely provided information which strengthens the evidence of the existence of the infringement.
      
      17      That ground of appeal relates to paragraphs 33 to 37 and 39 to 40 of the judgment under appeal. Paragraphs 33 and 36 of that
         judgment are worded as follows: 
      
      ‘33.      The Court takes the view that it is necessary to adopt a restrictive interpretation of the last paragraph of point 23(b) of
         the 2002 Leniency Notice, by limiting it to cases in which a company party to a cartel provides the Commission with new information
         relating to the gravity or the duration of the infringement, and by excluding cases in which a company has merely provided
         information which strengthens the evidence of the existence of the infringement.
      
      …
      36.      The interpretation advocated by the applicants, however, would deprive of all effect the distinction made by the Commission
         in the 2002 Leniency Notice between the sole undertaking which may benefit from immunity from a fine (Section A of the 2002
         Leniency Notice) and those undertakings which may qualify only for a reduction of a fine (Section B of the 2002 Leniency Notice),
         since that interpretation would amount to also granting those undertakings total immunity from a fine. The 2002 Leniency Notice
         thus draws a distinction between an undertaking which is the first to submit evidence which may enable the Commission to find
         an infringement or to adopt a decision to carry out an investigation, which is eligible for total immunity, and other undertakings,
         which do not meet those conditions and which are eligible only for a maximum reduction of the fine of 50%.’
      
      18      In the appellants’ submission, the words ‘facts previously unknown to the Commission’ used in the provision in question must
         be interpreted as referring not to facts of which the Commission was not aware but, as in the present case, to facts of which
         it might previously have been aware but that it was unable to prove, without undermining the effectiveness of its leniency
         programme, by discouraging companies which seek to benefit under that programme from providing as much information as possible.
         The appellants rely, in support of their argument, inter alia on the difference in wording as regards the criteria for the
         grant of ‘partial immunity’ that may be seen between the last paragraph of point 23(b) of the 2002 Leniency Notice and the
         last paragraph of point 26 of the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006
         C 298, p. 17; ‘the 2006 Leniency Notice’).
      
       Findings of the Court
      19      It must be stated that the words ‘facts ... unknown to the Commission’ are unambiguous and allow the interpretation adopted
         by the General Court in paragraph 33 of the judgment under appeal.
      
      20      In that regard, the General Court did not err in law, in paragraph 36 of the judgment under appeal, where it replied to the
         appellants’ argument based on the purpose of the leniency programme and the loss of effectiveness of that programme if the
         last paragraph of point 23(b) of the 2002 Leniency Notice were interpreted in the manner advocated by the Commission.
      
      21      Moreover, the appellants’ argument that the difference in wording as regards the criteria for the grant of ‘partial immunity’
         that may be seen between the 2002 Leniency Notice and the 2006 Leniency Notice is irrelevant, since it is common ground that
         the 2006 Leniency Notice is not applicable ratione temporis to this case. 
      
      22      In the light of that interpretation of the last paragraph of point 23(b) of the 2002 Leniency Notice, the General Court did
         not, after making assessments of fact which do not fall to be reviewed by the Court of Justice, err in law by concluding,
         in paragraph 40 of the judgment under appeal, that KPN did not provide any evidence relating to facts previously unknown to
         the Commission which might have had a direct bearing on the gravity or duration of the infringement.
      
      23      Accordingly, the first ground of appeal relied on in support of this appeal must be rejected as manifestly unfounded. 
      
       The second ground of appeal, alleging infringement of the second paragraph of point 23(b) of the 2002 Leniency Notice
       Arguments of the parties
      24      By their second ground of appeal, the appellants complain that the General Court erred in law in holding, in paragraphs 65
         and 66 of the judgment under appeal, that the Commission did not commit an error of assessment in taking the view that it
         was entitled to limit the reduction of their fine to 30% of its basic amount on the ground that the added value of the evidence
         provided by KPN had been diluted by the added value of the evidence previously supplied by other undertakings. 
      
      25      In support of their ground of appeal, the appellants maintain that, in order to confirm the level of the reduction of the
         fine adopted by the Commission, the General Court only based its assessment on the antecedence of the supply of some of the
         evidence by those other undertakings, without taking into consideration the items of evidence submitted by KPN which, as such,
         show that the evidence adduced by those other undertakings did not contain any significant added value diluting the value
         of the evidence supplied subsequently by KPN. Accordingly, the General Court infringed the second paragraph of point 23(b)
         of the 2002 Leniency Notice.
      
       Findings of the Court
      26      It must be observed at the outset that this ground of appeal results from a manifest misreading of the judgment under appeal.
         It is apparent from paragraphs 60 to 62, 64 and 66 and 67 to 69 of that judgment that the General Court took into consideration
         not only the antecedence of the supply of evidence by undertakings other than KPN, but also the date on which KPN lodged its
         leniency application, the content of the evidence provided by that company and the fact that KPN changed its position as regards
         the participation in the cartel of an undertaking.
      
      27      In addition, it is apparent from paragraphs 64 and 66 of the judgment under appeal that the General Court undertook an assessment
         of both a quantitative and qualitative nature of the evidence provided by KPN and the other undertakings respectively, thus
         finding that the evidence provided by KPN in October 2003 did not provide decisive new information in view of the substantial
         amount of information provided previously by the other undertakings. 
      
      28      In any event, inasmuch as this ground of appeal contests the assessment of the evidence carried out by the General Court,
         it should be borne in mind that that assessment falls within the exclusive jurisdiction of the General Court, so that it is
         not subject to review by the Court of Justice, unless the appellants complained that the General Court had distorted the evidence
         before it. Under the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the
         Court of Justice of the European Union, an appeal lies on points of law only. The General Court thus has exclusive jurisdiction
         to assess the evidence. The appraisal of the facts and the assessment of the evidence thus do not, save where the facts or
         evidence have been distorted, constitute a point of law which is subject as such to review by the Court of Justice on appeal
         (order of 21 March 2013 in Case C‑393/12 P Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v OHIM, paragraph 38 and the case-law cited).
      
      29      Consequently, the second ground of appeal must be rejected as in part manifestly unfounded and in part manifestly inadmissible.
         
      
      30      The appeal must therefore be dismissed. 
      
       Costs
      31      Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the
         unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 
      
      32      Since the Commission has applied for costs and KPC, KPI and KPN have been unsuccessful, they must be ordered to pay the costs.
         
      
      On those grounds, the Court (Tenth Chamber) hereby:
      1.      Dismisses the appeal;
      2.      Orders Kuwait Petroleum Corp., Kuwait Petroleum International Ltd and Kuwait Petroleum (Nederland) BV to pay the costs.
      [Signatures]
      * Language of the case: English.