Technische Unie BV v Commission of the European Communities.
Date: 2006-09-21
43. That approach is perfectly consistent with the case-law of the Court of Justice. Thus, at paragraphs 181 to 183 of the judgment in Limburgse Vinyl Maatschappij and Others  v Commission , the Court held, in particular, that the administrative procedure may involve an examination in two successive stages, each corresponding to its own internal logic. The first stage, covering the period up to notification of the statement of objections, begins on the date on which the Commission, exercising the powers conferred on it by the Community legislature, takes measures which imply an accusation of an infringement and must enable the Commission to adopt a position on the course which the procedure is to follow. The second stage covers the period from notification of the statement of objections to adoption of the final decision. It must enable the Commission to reach a final decision on the infringement concerned.
47. As a finding that the duration of the procedure was excessive and that responsibility for that duration could not be attributed to TU or to the FEG was not in itself a sufficient ground on which to conclude that there had been a breach of the ‘reasonable time’ principle, the Court of First Instance ev aluated the impact of such a duration on TU’s rights of defence. The premiss for such an approach may be seen at paragraph 74 of the judgment under appeal, where the Court of First Instance held that the fact that a reasonable time is exceeded can constitute a ground for annulment only in the case of a decision finding infringements, where it has been proved that breach of that principle has adversely affected the rights of defence of the undertakings concerned. Save in that specific case, failure to comply with the obligation to adopt a decision within a reasonable time cannot affect the validity of the administrative procedure under Regulation No 17.
48. It is perfectly lawful to make use of that criterion for the purpose of finding that there has been a breach of the ‘reasonable time’ principle. At paragraph 49 of the judgment in Baustahlgewebe  v Commission , the Court of Justice held, when evaluating the duration of the proceedings before the Court of First Instance, that an indication that the length of the proceedings affected their outcome may result in the judgment under appeal being set aside. The same approach is to be found in the reasoning followed by the Court of First Instance where it considered that the excessive duration of the procedure before the Commission must entail the annulment of the contested decision if TU’s rights of defence have been compromised, in which case there is necessarily a possible effect on the outcome of the procedure.
54. The excessive duration of the first phase of the administrative procedure may have an effect on the future ability of the undertakings concerned to defend themselves, in particular by reducing the effectiveness of the rights of the defence where they are relied on in the second phase of the procedure. In effect, as the Advocate General observes at point 123 of her Opinion, the more time that elapses between a measure of investigation such as, in the present case, the sending of the warning letter and the notification of the statement of objections, the more unlikely it becomes that exculpatory evidence relating to the infringements set out in the statement of objections can be obtained, owing, in particular, to the changes that may have come about in the composition of the managing boards of the undertakings concerned and to the movements affecting their other staff. In its analysis of the ‘reasonable time’ principle, the Court of First Instance did not have sufficient regard to that aspect of observance of the principle.
55. As respect for the rights of the defence, a principle whose fundamental nature has been emphasised on many occasions in the case-law of the Court (see, in particular, Case 322/81 Michelin  v Commission  [1983] ECR 3461, paragraph 7), is of crucial importance in procedures such as that followed in the present case, it is essential to prevent those rights from being irremediably compromised on account of the excessive duration of the investigation phase and to ensure that the duration of that phase does not impede the establishment of evidence designed to refute the existence of conduct susceptible of rendering the undertakings concerned liable. For that reason, examination of any interference with the exercise of the rights of the defence must not be confined to the actual phase in which those rights are fully effective, that is to say, the second phase of the administrative procedure. The assessment of the source of any undermining of the effectiveness of the rights of the defence must extend to the entire procedure and be carried out by reference to its total duration.
60. In its action before the Court of First Instance, TU maintains that the excessive duration of the administrative procedure had an impact on the exercise of its rights of defence and, accordingly, on the outcome of the procedure initiated against it. It claims that its defence was thus already impeded at the time when it received the statement of objections.
61. The Court must therefore ascertain whether TU has demonstrated to the requisite legal standard that at the time of notification of the statement of objections, that is to say, on 3 July 1996, it experienced difficulties in defending itself which were the consequence of the excessive duration of the administrative procedure.
81. It is appropriate to bear in mind the limits of the Court’s powers of review in an appeal.
82. It is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first, to find the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and to review the legal conclusions it has drawn from them (see, in particular, Baustahlgewebe  v Commission , paragraph 23, and Case C-551/03 P General Motors  v Commission  [2006] ECR I‑0000, paragraph 51).
83. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance has 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 Court of First Instance alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice ( Baustahlgewebe  v Commission , paragraph 24, and General Motors  v Commission , paragraph 52).
84. Furthermore, it must be borne in mind that the question whether the grounds of a judgment of the Court of First Instance are contradictory or insufficient is a question of law which is amenable, as such, to judicial review on appeal (Case C‑401/96 P Somaco  v Commission  [1998] ECR I-2587, paragraph 53, and Case C‑446/00 P Cubero Vermurie  v Commission  [2001] ECR I-10315, paragraph 20).
85. As regards the obligation to state reasons, it is settled case-law that the Court of First Instance is not thereby required to provide an account that follows exhaustively and point by point all the reasoning articulated by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the measures in question were taken and provides the competent court with sufficient material for it to exercise its power of review (see, to that effect, Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C‑213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others  v Commission  [2004] ECR I-123, paragraph 372).
– Examination of the second plea
114. According to the consistent case-law of the Court, it is sufficient for the Commission to demonstrate that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded, without having manifestly opposed them, in order to prove to the requisite legal standard that the undertaking participated in the cartel. Where it is established that an undertaking took part in such meetings, it must put forward indicia of such a kind as to establish that its participation was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (see Case C-49/92 P Commission  v Anic Partecipazioni  [1999] ECR I-4125, paragraph 96, and Case C-199/92 P Hüls  v Commission  [1999] ECR I-4287, paragraph 155).
165. That argument cannot be accepted. The Court has already held that, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules ( Aalborg Portland and Others  v Commission , paragraph 57).
169. It must be pointed out in that regard that, at paragraph 406 of the judgment under appeal, the Court of First Instance held that the Commission had adduced evidence of the existence of a continuous infringement during the period 1986 to 1994. The fact that such evidence was not adduced for certain specific periods does not preclude the infringement from being regarded as having been established during a more extensive overall period than those periods, provided that such a finding is based on objective and consistent indicia. In the context of such an infringement, extending over a number of years, the fact that the infringement is demonstrated at different periods, which may be separated by more or less long periods, has no impact on the existence of that agreement, provided that the various actions which form part of the infringement pursue a single aim and come within the framework of a single and continuous infringement.
178. An infringement of Article 81(1) EC may result not only from an isolated act but also from a series of acts or from continuous conduct. That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute in themselves and taken in isolation an infringement of that provision. When the different actions form part of an ‘overall plan’, because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole ( Aalborg Portland and Others  v Commission , paragraph 258).
183. It should further be borne in mind that, for the purposes of the application of Article 81(1) EC, there is no need to take account of the actual effects of an agreement once it appears that its object is to restrict, prevent or distort competition within the common market ( Aalborg Portland and Others  v Commission , paragraph 261).
196. It must be borne in mind that the Court of First Instance alone has jurisdiction to examine how in each particular case the Commission appraised the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 81 EC and Article 15 of Regulation No 17 and, second, to consider whether the Court of First Instance responded to the requisite legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced (see, in particular, Baustahlgewebe  v Commission , paragraph 128).
210. As regards the allegedly disproportionate nature of the fine, it must be borne in mind that it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law (Case C-219/95 P Ferriere Nord  v Commission  [1997] ECR I-4411, paragraph 31, and Baustahlgewebe  v Commission , paragraph 129).
211. It follows that this part of the fifth plea must be declared inadmissible in so far as it seeks a general re-examination of the amount of the fines imposed by the Commission (see Baustahlgewebe  v Commission , paragraph 129).