ABB Ltd and ABB AB v European Commission.
Date: 2019-11-28
Second, with regard to the appellants’ argument that the General Court reversed the burden of proof by considering, in paragraphs 76, 78, 95 and 141 of the judgment under appeal, that it was sufficient,  in order to find that all such projects were covered by the infringement at issue, that the underground power cable projects with voltages from 110 kV and below 220 kV were not specifically excluded in certain documents, it is clear from the Court of Justice’s case-law that an alleged failure to have regard to the rules of evidence is a question of law which is admissible in an appeal (judgment of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraph 58 and the case-law cited).
Third, in so far as the appellants submit that the General Court could not have reached the finding, as set out  in paragraph 49 of the judgment under appeal, on the basis of the evidence examined in paragraphs 41 to 48 of that judgment, that argument must be rejected as inadmissible. It should be pointed out in that regard that, in an appeal, the Court of Justice has no jurisdiction to find the facts or, as a rule, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence adduced before the General Court has been distorted, that assessment does not therefore constitute a point of law which is, as such, subject to review by the Court of Justice (judgment of 12 January 2017, Timab Industries and CFPR v Commission, C411/15 P, EU:C:2017:11, paragraph 153 and the case-law cited). However, the appellants have neither alleged nor established such distortion in that regard.
In any event, according to settled case-law of the Court of Justice, there is such distortion where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect (judgment of 26 January 2017, Masco and Others v Commission, C‑614/13 P, EU:C:2017:63, paragraph 36 and the case-law cited). However, that does not apply in the present case, since the General Court’s assessment that there was a difference between the appellants’ reply to the statement of objections and the application initiating the proceedings cannot, having regard to the content of that reply and of that application, be regarded as manifestly incorrect.
As far as substance is concerned, it should be borne in mind that, according to the case-law of the Court of Justice, in the field of competition law, where there is a dispute as to the existence of an infringement, it is for the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (judgment of 16 February 2017, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, C‑90/15 P, not published, EU:C:2017:123, paragraph 17 and the case-law cited).
In that regard, it should be borne in mind that, according to the case-law of the Court of Justice, an undertaking which has participated in a single and complex infringement, by its own conduct, which meets the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may also be responsible for the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 172 and the case-law cited).
It must be recalled from the outset that the obligation to state reasons provided for in Article 296 TFEU constitutes an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgment of 14 September 2016, Trafilerie Meridionali v Commission, C‑519/15 P, EU:C:2016:682, paragraph 40 and the case-law cited).
As regards the appellants’ argument that they did not have the opportunity to be heard in relation to the finding, in the decision at issue, that  Nexans France’s participation in the infringement at issue began on  13 November 2000, it should be noted that, contrary to what the appellants claim in their reply, that argument was not raised before the General Court. According to settled case-law, since, in an appeal, the jurisdiction of the Court of Justice is confined to a review of the findings of law on the pleas and arguments debated before the General Court, a party cannot raise for the first time before the Court of Justice an argument that it did not put forward before the General Court (judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 42 and the case-law cited). It follows that the appellants’ arguments concerning their right to be heard must be rejected as inadmissible. In any event, as the Commission correctly observes, an undertaking involved in an infringement of EU competition law is not entitled to request a hearing on the determination of the date on which another undertaking is deemed to have begun to participate in that infringement.
As regards the second part of the second ground of appeal, which must be examined in the first place and which alleges that the General Court disregarded the presumption of innocence in so far as the latter adopted 1 April 2000 as the date on which the appellants’ participation in the infringement at issue began, as a preliminary remark, it should be noted, as the General Court did in paragraph 202 of the judgment under appeal, that the appellants confirmed in their reply to the statement of objections that the latter accurately reflected the information they had provided. In that regard, it should be noted that, according to that statement of objections, the appellants had participated in the infringement at issue from 1 April 2000. It should, however, be noted that it is clear from the case-law of the Court of Justice that, although an undertaking’s express or implicit acknowledgement of matters of fact or of law during the administrative procedure before the Commission may constitute additional evidence when determining whether an action is well founded, it cannot restrict the actual exercise of a natural or legal person’s right to bring proceedings before the General Court under the fourth paragraph of Article 263 TFEU (judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 90 and the case-law cited). Given that the appellants dispute that they had begun to participate in the infringement at issue on 1 April 2000, their reply to the statement of objections is insufficient to show that the General Court was entitled to adopt that date.
In paragraph 183 of the judgment under appeal, the General Court noted that, according to settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 51 and the case-law cited).
In paragraph 184 of the judgment under appeal, the General Court stated that, in paragraphs 37 and 38 of its judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission (C‑615/15 P,  not published, EU:C:2017:190), the Court of Justice held that, when an undertaking has, by its conduct, infringed Article 101 TFEU, it cannot escape being penalised on the ground that another economic operator has not been fined and that an undertaking on which a fine has been imposed for its participation in a cartel in breach of the competition rules cannot request the annulment or reduction of that fine on the ground that another participant in the same cartel was not penalised in respect of a part, or all, of its participation in that cartel. In paragraph 185 of the judgment under appeal, the General Court held that, in that judgment, the Court of Justice confirmed the case-law according to which observance of the principle of equal treatment, relied on by the appellants, must be reconciled with the principle of legality, according to which a person may not rely, to his benefit, on an unlawful act committed in favour of a third party (judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 58 and the case-law cited).
In those circumstances, that evidence is capable of raising  doubts as to whether the collective refusal to supply power cable accessories covered accessories for underground power cables with  voltages from 110 kV and below 220 kV.  According to the case-law of the Court of Justice, having regard to the presumption of innocence which applies to procedures relating to infringements of the competition rules that may result in the imposition of fines or periodic penalty payments, the benefit of any doubt must be given to the undertaking to which the decision finding an infringement was addressed (see, that effect, judgment of 16 February 2017, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, C‑90/15 P, not published, EU:C:2017:123, paragraph 18 and the case-law cited).