Tomra Systems ASA and Others v European Commission.
Date: 2012-04-19
17. The contested decision states that the assessment of the gravity of [Tomra’s] infringement must take account of the fact that they had deliberately employed the practices in question in the context of their exclusionary strategy and also of the geographic scope of the infringement, namely the fact that it encompassed five EEA States: Germany, the Netherlands, Austria, Sweden and Norway. Conversely, account must also be taken, in the Commission’s view, of the fact that the infringement did not cover the whole of the reference period on all the national markets under consideration and that within each of those markets its intensity could well have varied over time.
25. As regards the argument that the General Court misinterpreted a number of items of correspondence between persons within the Tomra group in its reasoning in relation to Tomra’s commercial strategy, it must further be observed that, in accordance with settled case‑law, it follows from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court 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 General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them (see Case C‑535/06 P Moser Baer India  v Council [2009] ECR I‑7051, paragraph 31 and case‑law cited).
26. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, 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. 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 (see Moser Baer India  v Council , paragraph 32 and case‑law cited).
27. Further, a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see Moser Baer India  v Council , paragraph 33 and case‑law cited).
38. As regards the level of domination of a specific market by the undertaking concerned necessary to establish the existence of abuse by that undertaking, it is clear from paragraph 79 of TeliaSonera that the dominant position referred to in Article 102 TFEU relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors and its customers.
47. Lastly, as regards the appellants’ argument that the statement of reasons by the General Court in relation to the total demand which the agreements at issue had to cover before they could be regarded as abusive was inadequate, it must be borne in mind that the duty to state reasons does not require the General Court 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 General Court 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, Case C‑385/07 P Der Grüne Punkt — Duales System Deutschland  v Commission [2009] ECR I‑6155, paragraph 114 and case‑law cited).
69. As regards rebates granted by a dominant undertaking to its customers, the Court has stated that those may infringe Article 102 TFEU, even where they do not correspond to any of the examples mentioned in the second paragraph of that Article 102 (see, to that effect, British Airways v Commission , paragraph 58 and case‑law cited).
70. In the event that an undertaking in a dominant position makes use of a system of rebates, the Court has ruled that that undertaking abuses that position where, without tying the purchasers by a formal obligation, it applies, either under the terms of agreements concluded with these purchasers or unilaterally, a system of loyalty rebates, that is to say, discounts conditional on the customer’s obtaining — whether the quantity of its purchases is large or small — all or most of its requirements from the undertaking in a dominant position (see Case 85/76 Hoffman‑La Roche  [1979] ECR 461, paragraph 89, and Case 322/81 Nederlandsche Banden-Industrie-Michelin  v Commission  [1983] ECR 3461, paragraph 71).
71. In that regard, it is necessary to consider all the circumstances, particularly the criteria and rules governing the grant of the rebate, and to investigate whether, in providing an advantage not based on any economic service justifying it, the rebates tend to remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to the market, or to strengthen the dominant position by distorting competition (see Nederlandsche Banden-Industrie-Michelin  v Commission , paragraph 73).
72. As regards the present case, it is clear from paragraph 213 of the judgment under appeal that a rebate system must be regarded as infringing Article 102 TFEU if it tends to prevent customers of the dominant undertaking from obtaining their supplies from competing producers.
73. Contrary to what is claimed by the appellants, the invoicing of ‘negative prices’, in other words prices below cost prices, to customers is not a prerequisite of a finding that a retroactive rebates scheme operated by a dominant undertaking is abusive.
80. That being the case, the alleged absence, in the judgment under appeal, of an examination of the arguments raised by the applicants at first instance, on the need to compare the prices charged by them with their costs, which underlies both the complaint of a procedural irregularity and that of an error of law, cannot mean that the judgment under appeal is vitiated by an error of law. The Commission established the existence of an abuse of a dominant position by relying on the other considerations set out in paragraphs 260 to 264 of the judgment under appeal, and the General Court correctly found that that analysis was adequate and sufficient to establish the existence of that abuse. Accordingly, neither the Commission nor the General Court was obliged to examine the question of whether the prices charged by the Tomra group were or were not lower than their long-run average incremental costs, and accordingly this ground of appeal must fail in the context of the present appeal.
94. However, the General Court has exclusive jurisdiction to make findings of fact, save where a substantive inaccuracy in its findings is attributable to the documents submitted to it, and to appraise those facts. The appraisal of the facts thus does not, save where the clear sense of the evidence before it has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see Joined Cases C‑280/99 P to C‑282/99 P Moccia Irme and Others  v Commission [2001] ECR I‑4717, paragraph 78, and 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, paragraphs 48 and 49).
99. According to the Court’s case‑law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court would be to authorise it to bring before the Court of Justice, the appellate jurisdiction of which 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 a review of the findings of law on the pleas argued before the General Court (see Case C‑136/92 P Commission  v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraph 59).
104. It must be recalled that the Court has repeatedly held that the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters and that decisions in other cases can give only an indication for the purpose of determining whether there is discrimination (see Case C‑167/04 P JCB Service  v Commission  [2006] ECR I‑8935, paragraph 205, and Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others  v Commission [2009] ECR I‑8681, paragraph 233).
105. Accordingly the fact that the Commission has, in the past, imposed fines set at a specific level for certain categories of infringements cannot prevent it from setting fines at a higher level, if raising of penalties is deemed necessary in order to ensure the implementation of European Union competition policy, that policy continuing to be defined solely by Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 EC (OJ 2003 L 1, p. 1) (see, to that effect, 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 227).
107. It should be added that the gravity of infringements has to be determined by reference to numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, and no binding or exhaustive list of the criteria which must be applied has been drawn up (see Case C‑219/95 P Ferriere Nord  v Commission  [1997] ECR I‑4411, paragraph 33).