Lafarge SA v European Commission.
Date: 2010-06-17
15. It is settled case-law that the Court of Justice has no jurisdiction to establish the facts or, without exception, 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 (see Case C-122/01 P T.Port  v Commission  [2003] ECR I‑4261, paragraph 27, and Case C‑167/06 P Komninou and Others  v Commission  [2007] ECR I-141, paragraph 40). Save where that evidence has been distorted, its appraisal therefore does not constitute a point of law which is subject, as such, to review by the Court of Justice (see, in particular, Case C-8/95 P New Holland Ford  v Commission  [1998] ECR I-3175, paragraph 26).
16. Where an appellant alleges distortion of the evidence by the General Court, he must, pursuant to Article 225 EC, the first paragraph of Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of its Rules of Procedure, indicate precisely the evidence alleged to have been distorted and show the errors of appraisal which, in his view, led to such distortion (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 50).
17. Such distortion exists where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect (see Case C‑229/05 P PKK and KNK  v Council  [2007] ECR I‑439, paragraph 37).
22. In circumstances such as those of the present case, the question whether the clear sense of the evidence has been distorted must be examined in light of the fact that it is normal, given that the prohibition on participating in anti‑competitive practices and agreements and the penalties which offenders may incur are well known, that the activities which those practices and agreements entail take place in a clandestine fashion, for meetings to be held in secret, very often in a non‑member country, and for the associated documentation to be reduced to a minimum. Even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. 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 (see, to that effect, Aalborg Portland and Others  v Commission , paragraphs 55 to 57).
29. It is clear from the Court’s settled case-law that it is for the party or the authority alleging an infringement of the competition rules to prove it and that it is for the undertaking or association of undertakings raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying the rule on which such defence is based are satisfied, so that the authority will then have to resort to other evidence (see, to that effect, Aalborg Portland and Others  v Commission , paragraph 78).
30. Even if the burden of proof rests, according to those principles, on the Commission or on the undertaking or association concerned, the evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the rules on the burden of proof have been satisfied (see, Aalborg Portland and Others  v Commission , paragraph 79).
40. The principle of equal treatment precludes, in particular, comparable situations from being treated differently unless such treatment is objectively justified (see, to that effect, Case C-344/04 IATA and ELFAA  [2006] ECR I‑403, paragraph 95). Yet, as the Commission correctly contends, Lafarge has not even sought to show that its situation was comparable to that of Gyproc, which would have been all the more necessary given that the participation of those two undertakings in the infringement in question is characterised by significant factual differences. The scope of the allegation contained in the last sentence of paragraph 375 of the application at first instance is, consequently, hardly clear.
41. It is settled case-law that the requirement that the General Court give reasons for its judgments cannot be interpreted as meaning that it is obliged to respond in detail to every single argument submitted by the applicant, particularly if the argument was not sufficiently clear and precise and was not adequately supported by evidence (see Case C‑274/99 P Connolly  v Commission  [2001] ECR I‑1611, paragraph 121; Case C‑197/99 P Belgium  v Commission [2003] ECR I-8461, paragraph 81; and Case C‑404/04 P Technische Glaswerke Ilmenau  v Commission  [2007] ECR I‑1, paragraph 90).
52. To allow a party to put forward for the first time before the Court of Justice a plea in law and arguments which it has not raised before the General Court would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal the jurisdiction of the Court of Justice is thus confined to review of the findings of law on the pleas argued before the court below (see Case C‑266/97 P VBA  v VGB and Others  [2000] ECR I-2135, paragraph 79, and Case C‑167/04 P JCB Service  v Commission [2006] ECR I‑8935, paragraph 114). To that extent, this ground of appeal is inadmissible.
63. In that regard, as the General Court stated in paragraph 722 of the judgment under appeal, any repeated infringement is among the factors to be taken into consideration in the analysis of the gravity of the infringement in question (see Aalborg Portland and Others v Commission , paragraph 91, and Groupe Danone v Commission , paragraph 26).
64. It follows that Article 15(2) of Regulation No 17 constitutes the relevant legal basis for taking repeated infringement into consideration in calculating the fine (see, to that effect, Groupe Danone  v Commission , paragraphs 27 to 29).
67. The Court held in that regard, in paragraph 37 of its judgment in Groupe Danone  v Commission , that the absence of such a period does not infringe the principle of legal certainty.
69. Such a deduction, however, is based on an erroneous interpretation of that judgment. In fact, the Court there emphasised that the Commission may, in each individual case, take into consideration the indicia which confirm an undertaking’s tendency to infringe competition rules, including, for example, the time that has elapsed between the infringements in question ( Groupe Danone  v Commission , paragraph 39).
70. Moreover, the principle of proportionality requires that the time elapsed between the infringement in question and a previous breach of the competition rules be taken into account in assessing the undertaking’s tendency to infringe those rules. For the purposes of judical review of the Commission’s measures in matters of competition law, the General Court and, where appropriate, the Court of Justice may therefore be called upon to scrutinise whether the Commission has complied with that principle when it increased, for repeated infringement, the fine imposed, and, in particular, whether such increase was imposed in the light of, among other things, the time elapsed between the infringement in question and the previous breach of the competition rules.
81. The General Court held, in paragraph 734 of the judgment under appeal, that it is sufficient for the Commission to be entitled to take account of repeated infringement that the undertaking has previously been found guilty of an infringement of the same type, even if the decision concerned is still subject to review by the courts. In that regard, it noted correctly, in paragraph 736 of the judgment under appeal, that decisions of the Commission are presumed to be lawful until such time as they are annulled or withdrawn (see, to that effect, Case C‑137/92 P Commission  v BASF and Others  [1994] ECR I-2555, paragraph 48).
90. However, even assuming that the General Court erred in law, as both Lafarge and the Commission submit, in holding, in paragraph 737 of the judgment under appeal, that if an earlier decision, which served as the basis for an increased fine for repeated infringement in a later decision, is annulled after the latter decision has become definitive, there arises a new fact entailing the recommencement of the time-limit for bringing an action relating to the second decision, such error cannot give rise to the annulment of that judgment if the operative part of the judgment is shown to be well founded for other legal reasons (see, to that effect, Case C-210/98 P Salzgitter  v Commission  [2000] ECR I‑5843, paragraph 58 and the case‑law cited).
94. As regards the complaint of alleged breach of the general principle that offences and penalties be strictly defined, it is appropriate to recall that that principle requires the law to define clearly offences and the penalties sanctioning them ( Evonik Degussa  v Commission and Council , paragraph 39). According to the case-law of the European Court of Human Rights, the clarity of a law is assessed having regard not only to the wording of the relevant provision but also to the information provided by settled, published case-law (see, to that effect, its judgment of 27 September 1995 in G  v France , Series A No 325-B, § 25). In addition, the fact that a law confers a discretion is not in itself inconsistent with the requirement of foreseeability, provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference (see the judgment of 25 February 1992 in Margareta and Roger Andersson  v Sweden , Series A No 226, § 75).
95. It is important to note in that regard that, although Article 15(2) of Regulation No 17 leaves the Commission a wide discretion, it nevertheless limits the exercise of that discretion by establishing objective criteria to which the Commission must adhere. Thus, first, the amount of the fine that may be imposed is subject to a quantifiable and absolute ceiling, so that the maximum amount of the fine that can be imposed on a given undertaking can be determined in advance. Second, the exercise of that discretion is also limited by rules of conduct which the Commission has imposed on itself in the Leniency Notice and Guidelines. In addition, the Commission’s known and accessible administrative practice is fully subject to review by the Courts of the European Union, the settled and published case-law of which specifies the undefined concepts which Article 15(2) of Regulation No 17 could contain. A prudent trader, if need be by taking legal advice, can foresee in a sufficiently precise manner the method and order of magnitude of the fines which he incurs for a given line of conduct, and the fact that that trader cannot know in advance precisely the level of the fines which the Commission will impose in each individual case cannot constitute a breach of the principle that penalties must have a proper legal basis (see, to that effect, Evonik Degussa  v Commission and Council , paragraphs 50 to 55).
102. It should be noted that deterrence is one of the factors to be taken into account in calculating the amount of the fine. It is settled case-law that the fines imposed for infringements of Article 81 EC, as laid down in Article 15(2) of Regulation No 17, are designed to sanction the unlawful acts of the undertakings concerned and to deter both the undertakings in question and other economic operators from infringing, in future, the rules of European Union competition law. The link between, first, undertakings’ size and global resources and, second, the need to ensure that a fine has deterrent effect cannot be denied. Accordingly, when the Commission calculates the amount of the fine it may take into consideration, inter alia, the size and the economic power of the undertaking concerned (see, to that effect, Case C‑289/04 P Showa Denko  v Commission [2006] ECR I-5859, paragraph 16 and the case-law cited).
104. It must be emphasised in this regard that the size and global resources of the undertaking in question being taken into consideration in order to ensure that the fine has sufficient deterrent effect resides in the impact sought on that undertaking, and the sanction must not be negligible in the light, particularly, of its financial capacity.
105. The Court of Justice has thus held that the General Court was justified in taking the view that an undertaking, owing to its ‘enormous’ worldwide turnover by comparison with the turnovers of the other members of the cartel, could more readily raise the necessary funds to pay its fine, which, if the fine was to have a sufficiently deterrent effect, justified the application of a multiplier (see Showa Denko  v Commission , paragraph 18).
109. As to the remainder, the deterrence factor which the calculation of the fine imposed on an undertaking may include is assessed by taking into account a large number of matters and not merely the particular situation of the undertaking concerned (see, to that effect, Showa Denko  v Commission , paragraph 23). It cannot therefore be excluded that the stage of the calculation at which the deterrence factor is taken into consideration could be relevant in the light of the matters taken into account for assessing that factor other than the size and global resources of the undertaking concerned. The appellant has not however shown that that is so in the present case.