Der Grüne Punkt - Duales System Deutschland GmbH v Commission of the European Communities.
Date: 2009-07-16
71. According to settled case-law, the question whether the grounds of a judgment of the Court of First Instance are contradictory or inadequate is a question of law which is amenable, as such, to judicial review on appeal (see, inter alia, Case C‑185/95 P Baustahlgewebe  v Commission  [1998] ECR I-8417, paragraph 25; Joined Cases C-403/04 P and C-405/04 P Sumitomo Metal Industries and Nippon Steel v Commission  [2007] ECR I-729, paragraph 77; and Joined Cases C‑120/06 P and C-121/06 P FIAMM and Others v Council and Commission [2008] ECR I‑0000, paragraph 90).
114. It should be noted in that regard that the duty to state reasons does not require the Court of First Instance to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and that the reasoning may therefore be implicit on condition that it enables the persons concerned to know why the Court of First Instance has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, inter alia, 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; judgment of 25 October 2007 in Case C-167/06 P Komninou and Others  v Commission , paragraph 22; and FIAMM and Others v Council and Commission , paragraph 96).
142. In the same paragraph of the judgment under appeal, the Court of First Instance noted the settled case-law, according to which an undertaking abuses its dominant position where it charges for its services fees which are disproportionate to the economic value of the service provided (see, inter alia, Case 226/84 British Leyland v Commission [1986] ECR 3263, paragraph 27, and Case C-340/99 TNT Traco  [2001] ECR I-4109, paragraph 46).
143. As the Court of First Instance held at paragraph 164 of the judgment under appeal, following its analysis set out at paragraphs 119 to 163 of that judgment, the conduct of DSD which is objected to in Article 1 of the decision at issue and which consists in requiring payment of a fee for all packaging bearing the DGP logo and put into circulation in Germany, even where customers of the company show that they do not use the DGP system for some or all of that packaging, must be considered to constitute an abuse of a dominant position within the meaning of the provision and the case-law referred to above. It is also apparent from paragraphs 107 to 117 and 126 to 133 of this judgment that the findings made by the Court of First Instance are sufficiently reasoned and are not vitiated by the errors of fact or law invoked by DSD as regards the exclusive rights attached to the DGP logo.
163. It must be recalled that the Court of First Instance is the sole judge of any need to supplement the information available to it in respect of the cases before it. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the substantive inaccuracy of the findings of the Court of First Instance is apparent from the documents in the case (see, inter alia, Case C-315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-5281, paragraph 19, and Joined Cases C-75/05 P and C-80/05 P Germany and Others v Kronofrance [2008] ECR  I-0000, paragraph 78).
176. As is apparent from the first paragraph of Article 58 of the Statute of the Court of Justice and from the case-law, the Court of Justice has jurisdiction to verify whether a breach of procedure adversely affecting the appellant’s interests was committed by the Court of First Instance and must satisfy itself that the general principles of Community law have been complied with ( Baustahlgewebe v Commission , paragraph 19, and Case C-13/99 P TEAM  v Commission  [2000] ECR I-4671, paragraph 36).
178. As a general principle of Community law, such a right is applicable in the context of proceedings brought against a Commission decision ( Baustahlgewebe v Commission , paragraph 21, and Joined Cases C-341/06 P and C-342/06 P Chronopost and La Poste v UFEX and Others [2008] ECR I-0000, paragraph 45).
179. That right has, moreover, been reaffirmed in Article 47 of the Charter of Fundamental Rights of the European Union. As the Court of Justice has held on several occasions, that article relates to the principle of effective judicial protection (Case C-432/05 Unibet  [2007] ECR I-2271, paragraph 37; Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission  [2008] ECR I-0000, paragraph 335; and Case C-47/07 P Masdar (UK)  v Commission  [2008] ECR I-0000, paragraph 50).
180. In so far as the Commission and Vfw dispute the existence of a link between the length of the proceedings and the interests of DSD and thus raise the question whether this plea in law truly concerns a breach of procedure adversely affecting the interests of the appellant within the meaning of the first paragraph of Article 58 of the Statute of the Court of Justice, it must be held that an undertaking which brings proceedings for the annulment of a decision which has obliged it to adapt the standard form of contract which it enters into with its customers will have, on self-evident commercial policy grounds, a clear interest in having a line of argument, by which it submits that that decision is unlawful, adjudicated upon within a reasonable period. The fact that the Court of Justice has, in other cases, examined the question of the length of the proceedings in actions brought against Commission decisions imposing fines for the infringement of competition law (see, inter alia, Baustahlgewebe  v Commission , paragraph 21; Case C-194/99 P Thyssen Stahl  v Commission  [2003] ECR I-10821, paragraph 154; and Sumitomo Metal Industries and Nippon Steel v Commission , paragraph 115), whereas no such fine was imposed on DSD in the present case, is irrelevant in that regard.
181. It must also be borne in mind that the reasonableness of the period for delivering judgment is to be appraised in the light of the circumstances specific to each case, such as the complexity of the case and the conduct of the parties (see, to that effect, Sumitomo Metal Industries and Nippon Steel v Commission , paragraph 116 and the case-law cited, and order of 26 March 2009 in Case C-146/08 P Efkon  v Parliament and Council , paragraph 54).
182. The Court has held in that regard that the list of relevant criteria is not exhaustive and that the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of the case or the dilatory conduct of the applicant may be deemed to justify a duration which is prima facie too long (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 188, and Thyssen Stahl  v Commission , paragraph 156).
186. Moreover, as the Court of Justice has already held, in the case of proceedings concerning infringement of competition rules, the fundamental requirement of legal certainty on which economic operators must be able to rely and the aim of ensuring that competition is not distorted in the internal market are of considerable importance not only for an applicant himself and his competitors but also for third parties, in view of the large number of persons concerned and the financial interests involved ( Baustahlgewebe  v Commission , paragraph 30). In the present case, having regard to DSD’s dominant position, the size of the market for services on which DSD and its competitors were carrying on business, the possible effects of the outcome of the dispute on the practice to be followed and the fees to be paid by manufacturers and distributors of packaged products and the questions raised by the dispute as regards the extremely widespread use of the DGP logo, the period of time between the end of the written procedure and the next phase of the procedure was excessive.
190. By that argument, DSD proposes that the Court should reconsider its case-law, according to which failure to deliver judgment within a reasonable time will lead to the setting aside of the judgment under appeal only where there are indications that the excessive length of the proceedings affected their outcome (see, to that effect, Baustahlgewebe  v Commission , paragraph 49). In the present case, DSD has not established that such indications exist.
191. Admittedly, it is true, as DSD has pointed out, that failure to adjudicate within a reasonable time constitutes a procedural irregularity (see, to that effect, Baustahlgewebe  v Commission , paragraph 48).
193. In so far as there is nothing to suggest that the failure to adjudicate within a reasonable time may have had an effect on the outcome of the dispute, the setting aside of the judgment under appeal would not remedy the infringement of the principle of effective legal protection committed by the Court of First Instance.
194. In addition, as the Advocate General stated at points 305 and 306 of his Opinion, having regard to the need to ensure that Community competition law is complied with, the Court of Justice cannot allow an appellant to reopen the question of the existence of an infringement, on the sole ground that there was a failure to adjudicate within a reasonable time, where all of its pleas directed against the findings made by the Court of First Instance concerning that infringement and the administrative procedure relating to it have been rejected as unfounded.
195. Conversely, as the Advocate General stated at point 307 et seq. of his Opinion, the failure on the part of the Court of First Instance to adjudicate within a reasonable time can give rise to a claim for damages brought against the Community under Article 235 EC and the second paragraph of Article 288 EC.
196. Consequently, DSD’s argument that, where a reasonable period is exceeded, that fact must, in order for that procedural irregularity to be remedied, lead to the judgment under appeal being set aside, is unfounded. Consequently, the eighth plea in law must be rejected.