Pilkington Group Ltd and Others v European Commission.
Date: 2016-09-07
16


With regard to the imposition of a fine pursuant to Article 23(2) of Regulation No 1/2003, the Court has held that the Commission must assess, in each specific case and having regard to both the context and the objectives pursued by the scheme of penalties created by that regulation, the intended impact on the undertaking concerned, in particular by taking into account a turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed (judgment of 9 July 2015, InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraph 46 and the case-law cited).
17


In that context, it is permissible, for the purpose of setting the amount of the fine, to have regard both to the overall turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of its size and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement (judgment of 9 July 2015 in InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraph 47 and the case-law cited).
18


As provided in point 13 of the 2006 Guidelines: ‘in determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly ... relates in the relevant geographic area within the EEA’. In the introductory section of the 2006 Guidelines, point 6 specifies that ‘the combination of the value of sales to which the infringement relates and of the duration of the infringement is regarded as providing an appropriate proxy to reflect the economic importance of the infringement as well as the relative weight of each undertaking in the infringement’.
19


It follows that point 13 of the 2006 Guidelines pursues the objective of adopting, as the starting point for the calculation of the fine imposed on an undertaking, an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it. Consequently, while the concept of the ‘value of sales’ referred to in point 13 of the Guidelines admittedly cannot extend to encompassing sales made by the undertaking in question which do not come within the scope of the alleged cartel, it would, however, be contrary to the goal pursued by that provision if that concept were to be understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel (judgments of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 76, and of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 57).
37


As is apparent from the case-law of the Court, the amount of the fine that may be imposed on an undertaking is subject to a quantifiable and absolute ceiling, with the result that the maximum amount of the fine that can be imposed on a given undertaking can be determined in advance (see, to that effect, judgment of 9 July 2015, InnoLux v Commission, C‑231/14 P, EU:C:2015:451, paragraph 48 and the case-law cited).
42


In that regard, contrary to the assertions of the appellants, it cannot be inferred from the case-law of the Court that, with regard to the conversion of the maximum amount of the fine, it has held it necessary to refer to the exchange rate applicable at the time when the decision imposing the fine was adopted. On the contrary, the Court notes that that line of case-law confirms the finding of the General Court, in paragraph 415 of the judgment under appeal, that, in essence, where the economic reality is to be assessed as it appeared at a given time, it is reasonable to refer to the exchange rates applicable during that period. Otherwise, the assessment of the economic reality would necessarily be distorted by extrinsic and uncertain factors, such as the changes in exchange rates over a period subsequent to that business year (see, by analogy, judgement of 16 November 2000, Sarrió v Commission, C‑291/98 P, EU:C:2000:631, paragraphs 86 and 88).
45


As the Advocate General observed in point 55 of her Opinion, such protection is not an independent purpose of the statutory ceiling of the fine, but rather a feature of the protection offered by that ceiling against excessive and disproportionate fines (see, by analogy, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 281). Thus, as regards the purpose of the statutory ceiling of the fine, the appellants cannot rely on the case-law cited in paragraph 28 above to support their claim. While that case-law relating to the conversion of the value of sales in the context of determining the basic amount of the fine acknowledges that the statutory ceiling limits the possible harmful consequences of monetary fluctuations, it does not follow from that line of authority that that ceiling constitutes an absolute protection against such fluctuations, nor that the relevant exchange rate for determining that ceiling is that applicable at the time when the decision imposing the fine is adopted.
62


While it is indeed true that the appellants implicitly invoked a distortion of that evidence, in particular by claiming that the General Court misinterpreted the purpose of that report, a mere allusion to such a distortion does not satisfy the requirements laid down by the case-law of the Court under which an appellant must indicate precisely the evidence alleged to have been distorted and must show the errors of appraisal which, in that appellant’s view, led the General Court to make that distortion (see, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, 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, EU:C:2004:6, paragraph 50).
64


In particular, the General Court was fully entitled to hold, in paragraph 398 of the judgment under appeal, that it is not contrary to the principles of proportionality and equal treatment that, through the application of the method of calculation of the basic amount of fines set out in point 13 of the 2006 Guidelines, an undertaking, the activities of which are more focused than others on the sale of goods or services connected directly or indirectly to the infringement, may receive a fine which represents a proportion of its overall turnover that is greater than that represented by the fines imposed respectively on each of the other undertakings. The General Court found that it is inherent in that method of calculation, which is not based on the overall turnover of the undertakings concerned, that disparities may appear between those undertakings as to the relationship between their overall turnover and the amount of the fines imposed on them.
65


As the General Court found in paragraph 397 of the judgment under appeal, it is apparent from the case-law of the Court that the Commission is not required, when determining the amount of fines, to ensure, where such fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines reflect any distinction between the undertakings concerned in terms of their overall turnover (judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 312).
66


With regard to the alleged infringement of the principle of equal treatment invoked by the appellants, on the assumption that this ground of appeal seeks to demonstrate that the Commission ought to have departed from that method by deciding, as regards the appellants, to reduce the amount of the fine because of the less diversified nature of their activity, the Court notes, as did the Advocate General in point 100 of her Opinion, that the difference in the proportion represented by the fine in relation to the total turnover of the undertakings concerned does not, as such, constitute a sufficient justification for departing from the method of calculation that the Commission imposed on itself. That would be tantamount to conferring an advantage on the least diversified undertakings on the basis of criteria that are irrelevant in the light of the gravity and the duration of the infringement. When the amount of the fine is determined, there cannot, by the application of different methods of calculation, be any discrimination between the undertakings which have participated in an agreement or a concerted practice contrary to Article 101(1) TFEU (see, to that effect, judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 58 and the case-law cited).
67


With regard to the appellants’ argument based on the alleged impact that a large fine would have on their financial situation, it must be noted that the Court has repeatedly held that the Commission is not required, when determining the amount of the fine, to take account of the economic situation of the undertaking concerned, and, in particular, of its financial capacity, since recognition of such an obligation would be tantamount to conferring unfair competitive advantages on the undertakings least well adapted to market conditions (judgment of 10 May 2007, SGL Carbon v Commission, C‑328/05 P, EU:C:2007:277, paragraph 100 and the case-law cited).
68


Lastly, the appellants cannot reasonably argue that account was taken of such considerations in other decisions of the Commission, given that, according to the Court’s settled case-law, the Commission’s practice in previous decisions does not serve as a legal framework for the fines imposed in competition matters (judgement of 23 April 2015, LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 67 and the case-law cited).
71


It must be borne in mind that, in accordance with the provisions referred to in the previous paragraph, the General Court is empowered, in addition to the mere review of the legality of the fines imposed by the Commission, to substitute its own assessment for that of the Commission, and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 75 and the case-law cited).
72


By contrast, 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 General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of EU law (judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 164 and the case-law cited).
73


It is only in so far as the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, that it would have to find that the General Court erred in law, due to the inappropriateness of the amount of a fine (judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 165 and the case-law cited).