KME Germany AG, KME France SAS and KME Italy SpA v European Commission.
Date: 2011-12-08
34. In paragraphs 68 and 70 of the judgment under appeal, the General Court recalled the case-law relating to the standard of proof of the actual impact of a cartel on the market. In paragraphs 69 and 71 to 73 of its judgment it checked, moreover, that the Commission had demonstrated to the requisite legal standard the actual impact of the cartel on the relevant market. However, it did so for the sake of completeness, as indicated in paragraph 66 of that judgment, and after correctly observing, in paragraph 64, that the actual impact of cartels on the market is not a decisive factor for determining the level of fines. It follows from this that the appellants’ plea countering that part of the General Court’s reasoning is ineffective.
38. With regard to the claim that the General Court distorted the economic evidence adduced by the appellants, it is alleged not that the General Court construed those economic reports in a manner manifestly at odds with their wording (see, to that effect, Case C‑260/09 P Activision Blizzard Germany  v Commission  [2011] ECR I‑0000, paragraph 57), but that the General Court erred in its assessment of the content of those reports. In any event, the appellants do not indicate precisely which parts of those reports the General Court misconstrued as to their real meaning. Accordingly that argument is inadmissible.
49. It has consistently been held that, in assessing the gravity of an infringement, regard must be had to a large number of factors, the nature and importance of which vary according to the type of infringement in question and the particular circumstances of the case. Those factors may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking and, consequently, the influence which the undertaking was able to exert on the market (see, to that effect, Musique Diffusion française and Others  v Commission , paragraph 120).
50. While the Court of Justice has concluded from this that it is permissible, for the determination of the fine, to take into account both the undertaking’s overall turnover, which is an indication of the size of the undertaking and its economic strength, and that part of the turnover which derives from the goods which are the subject of the infringement and which therefore is capable of giving an indication of the scale of the infringement, it has nevertheless recognised that the overall turnover of an undertaking gives only an approximate and imperfect indication of the size of that undertaking ( Musique Diffusion française and Others  v Commission , paragraph 121; Case C‑185/95 P Baustahlgewebe  v Commission  [1998] ECR I‑8417, paragraph 139; Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others  v Commission  [2005] ECR I‑5425, paragraph 243; Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients  v Commission  [2006] ECR I‑4429, paragraph 100; and Case C‑510/06 P Archer Daniels Midland  v Commission  [2009] ECR I‑1843, paragraph 74).
51. It has also pointed out on a number of occasions that it is important not to confer on one or the other of those figures an importance which is disproportionate in relation to the other factors to be assessed in relation to the gravity of the infringement ( Musique Diffusion française and Others  v Commission , paragraph 121; Dansk Rørindustri and Others  v Commission , paragraph 243; Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients  v Commission , paragraph 100; and Case C‑510/06 P Archer Daniels Midland  v Commission , paragraph 74).
92. The principle of effective judicial protection is a general principle of European Union law to which expression is now given by Article 47 of the Charter (see Case C‑279/09 DEB  [2010] ECR I‑0000, paragraphs 30 and 31; order in Case C‑457/09 Chartry [2011] ECR I‑0000, paragraph 25; and Case C‑69/10 Samba Diouf  [2011] ECR I‑0000, paragraph 49).
93. The judicial review of the decisions of the institutions was arranged by the founding Treaties. In addition to the review of legality, now provided for under Article 263 TFEU, a review with unlimited jurisdiction was envisaged in regard to the penalties laid down by regulations.
94. As regards the review of legality, the Court of Justice has held that whilst, in areas giving rise to complex economic assessments, the Commission has a margin of discretion with regard to economic matters, that does not mean that the Courts of the European Union must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must those Courts establish, among other things, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see Case C‑12/03 P Commission  v Tetra Laval  [2005] ECR I‑987, paragraph 39, and Case C‑525/04 P Spain  v Lenzing  [2007] ECR I‑9947, paragraphs 56 and 57).
96. The Court of Justice has held that, in order to determine the amount of a fine, it is necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the European Community ( Musique Diffusion française and Others  v Commission , paragraph 129; Dansk Rørindustri and Others  v Commission , paragraph 242; and Case C‑534/07 P Prym and Prym Consumer  v Commission  [2009] ECR I‑7415, paragraph 96).
97. The Court has also stated that objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements (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 91).
100. The Guidelines, which, the Court has held, form rules of practice from which the administration may not depart in an individual case without giving reasons compatible with the principle of equal treatment (Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients  v Commission , paragraph 91), merely describe the method used by the Commission to examine infringements and the criteria that the Commission requires to be taken into account in setting the amount of a fine.
101. It is important to bear in mind the obligation to state reasons for Community acts. That is a particularly important obligation in the present case. It is for the Commission to state the reasons for its decision and, in particular, to explain the weighting and assessment of the factors taken into account (see, to that effect, Prym and Prym Consumer  v Commission , paragraph 87). The Courts must establish of their own motion that there is a statement of reasons.
102. Furthermore, the Courts must carry out the review of legality incumbent upon them on the basis of the evidence adduced by the applicant in support of the pleas in law put forward. In carrying out such a review, the Courts cannot use the Commission’s margin of discretion – either as regards the choice of factors taken into account in the application of the criteria mentioned in the Guidelines or as regards the assessment of those factors – as a basis for dispensing with the conduct of an in-depth review of the law and of the facts.
103. The review of legality is supplemented by the unlimited jurisdiction which the Courts of the European Union were afforded by Article 17 of Regulation No 17 and which is now recognised by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see, to that effect, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others  v Commission  [2002] ECR I‑8375, paragraph 692).
105. That requirement, which is procedural in nature, does not conflict with the rule that, in regard to infringements of the competition rules, 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. What the applicant is required to do in the context of a legal challenge is to identify the impugned elements of the contested decision, to formulate grounds of challenge in that regard and to adduce evidence – direct or circumstantial – to demonstrate that its objections are well founded.
106. The review provided for by the Treaties thus involves review by the Courts of the European Union of both the law and the facts, and means that they have the power to assess the evidence, to annul the contested decision and to alter the amount of a fine. The review of legality provided for under Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for under Article 31 of Regulation No 1/2003, is not therefore contrary to the requirements of the principle of effective judicial protection in Article 47 of the Charter.
109. It must be noted in that regard that although the General Court repeatedly referred to the ‘discretion’, the ‘substantial margin of discretion’ or the ‘wide discretion’ of the Commission, including in paragraphs 35 to 37, 92, 103, 115, 118, 129 and 141 of the judgment under appeal, such references did not prevent the General Court from carrying out the full and unrestricted review, in law and in fact, required of it.