Mamoli Robinetteria SpA v European Commission.
Date: 2017-01-26
31


Moreover, it is clear from the established case-law that, in accordance with Article 44(1)(c) of the Rules of Procedure of the General Court, the subject matter of the proceedings and a summary of the pleas in law on which the application is based constitute two essential elements which must be included in the application initiating proceedings (judgment of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 38). The forms of order of such an application must be set out unambiguously so that that court does not rule ultra petita or indeed fail to rule on a complaint (see, by analogy, judgment of 12 February 2009, Commission v Poland, C‑475/07, not published, EU:C:2009:86, paragraph 43).
38


Accordingly, that complaint must be rejected as ineffective (see, by analogy, judgment of 2 October 2003, Thyssen Stahl v Commission, C‑194/99 P, EU:C:2003:527, paragraphs 46 and 47).
42


It should be noted that it follows from Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 43 and the case-law cited).
43


It should also be noted that an appeal is inadmissible in so far as it merely repeats the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by it, without even including an argument specifically identifying the error of law allegedly vitiating the judgment of the General Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake on appeal (judgments 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 51 and the case-law cited, and of 30 May 2013, Quinn Barlo and Others v Commission, C‑70/12 P, not published, EU:C:2013:351, paragraph 26).
51


Next, as regards the complaint criticising paragraphs 55 and 56 of the judgment under appeal, according to which the General Court erroneously held that the Commission had the power to adopt the 2002 Leniency Notice in the light of Article 15(2) of Regulation No 17, now Article 23(2) of Regulation No 1/2003, it must be pointed out, in the first place, that the Court of Justice has, on many occasions, recognised that the Commission can adopt rules of practice, such as those contained in the 2002 Leniency Notice, by which that institution imposes a limit on the exercise of its discretion under those articles (see, to that effect, judgments 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, paragraphs 209, 211, 213 and 250, and of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraphs 58 and 67 to 69).
52


In the second place, it is clear from the case-law of the Court that Article 101 TFEU does not preclude the Commission, in the exercise of its competence in competition law matters, from finding that there has been an infringement of that article without imposing a fine, although such treatment can be accorded in strictly exceptional situations only, such as where an undertaking’s cooperation has been decisive in detecting and actually suppressing the cartel (see, to that effect, judgment of 18 June 2013, Schenker & Co. and Others, C‑681/11, EU:C:2013:404, paragraphs 48 and 49).
53


In the third place, it also follows from established case-law that leniency programmes are useful tools if efforts to uncover and bring to an end infringements of competition rules are to be effective and serve, therefore, the objective of effective application of Articles 101 and 102 TFEU (see, inter alia, judgments of 14 June 2011, Pfleiderer, C‑360/09, EU:C:2011:389, paragraph 25, and of 6 June 2013, Donau Chemie and Others, C‑536/11, EU:C:2013:366, paragraph 42).
63


In particular, the second part of that ground of appeal, in so far as it criticises the General Court’s assessment of the appellant’s participation in the infringement committed on the Italian market for taps and fittings, seeks to obtain a fresh assessment of the facts and the evidence, which, according to settled case-law, the Court of Justice does not have jurisdiction to undertake except where the facts or evidence have been distorted, which has not been alleged in the present case (see, inter alia, judgments of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 40, and of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 23 and the case-law cited).
65


However, as regards the complaint that the General Court’s examination was deficient and insufficient and that there was therefore a failure to state adequate reasons, it must be borne in mind that the question whether the grounds of a judgment of the General Court are adequate is a question of law which is amenable, as such, to judicial review on appeal (see, inter alia, judgment of 14 October 2010, Deutsche Telekom v Commission, C‑280/08 P, EU:C:2010:603, paragraph 123).
66


In that regard, it must be recalled that, according to well-established case-law, that obligation to state reasons does not however 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. The reasoning may therefore be implicit, provided that it enables the persons concerned to know the reasons 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, to that effect, inter alia, judgments of 2 April 2009, Bouygues and Bouygues Télécom v Commission, C‑431/07 P, EU:C:2009:223, paragraph 42, and of 22 May 2014, Armando Álvarez v Commission, C‑36/12 P, EU:C:2014:349, paragraph 31).
77


As a preliminary point, it should be pointed out, as follows from the settled case-law recalled in paragraphs 42 and 43 of the present judgment, that a ground of appeal supported by an argument which either is not sufficiently precise and substantiated to enable the Court to exercise its powers of judicial review or merely repeats arguments previously submitted to the General Court, including those based on facts expressly rejected by it, must be declared inadmissible (see, to that effect, inter alia, judgments of 30 May 2013, Quinn Barlo and Others v Commission, C‑70/12 P, not published, EU:C:2013:351, paragraph 26, and of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 44).
83


In that regard, it should be noted that it is clear from settled case-law of the Court that the limit of 10% of turnover provided for in the second subparagraph of Article 23(2) of Regulation No 1/2003 seeks to prevent fines being imposed which it is foreseeable that the undertakings, owing to their size, as determined, albeit approximately and imperfectly, by their total turnover, will not be able to pay (judgments 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 280, and of 12 July 2012, Cetarsa v Commission, C‑181/11 P, not published, EU:C:2012:455, paragraph 82).
84


The limit is therefore one which is uniformly applicable to all undertakings and arrived at according to the size of each of them, and seeks to ensure that the fines are not excessive or disproportionate. That upper limit thus has a distinct and autonomous objective by comparison with the criteria of gravity and duration of the infringement (judgments 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, paragraphs 281 and 282, and of 12 July 2012, Cetarsa v Commission, C‑181/11 P, not published, EU:C:2012:455, paragraph 83).
90


Finally, as regards the complaint that the General Court, in paragraphs 192 to 195 of the judgment under appeal, drew no conclusions, in terms of reducing the amount of fine, from the finding in paragraph 172 of the judgment under appeal that there was an error of assessment of the facts relating to the Member States and product subgroups covered by the infringement, it must first of all be recalled that the General Court alone has jurisdiction to examine how in each particular case the Commission assessed the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the General Court took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 101 TFEU and Article 23 of Regulation No 1/2003 and, second, to consider whether the General Court responded to a sufficient legal standard to all the arguments raised in support of the claim for cancellation or reduction of the fine (see, inter alia, judgments of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 128; 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 244; and of 5 December 2013, Solvay Solexis v Commission, C‑449/11 P, not published, EU:C:2013:802, paragraph 74).
91


On the other hand, it must be borne in mind that 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 for infringements of EU law (judgments 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 245, and of 11 July 2013, Gosselin Group v Commission, C‑429/11 P, not published, EU:C:2013:463, paragraph 87).
92


It should also be recalled that, in setting the amount of fines, regard must be had to the duration of the infringement and to all the factors capable of affecting the assessment of the gravity of that infringement (judgments 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 240, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 98).
93


The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from the cartel, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (judgments 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 242, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 100).
98


In that regard, it should be pointed out, first, that the cartel in question, since its purpose was price coordination, falls within the category of infringements referred to in points 23 and 25 of the 2006 Guidelines, and is, on that basis, among the most harmful infringements. Second, as the General Court stated in paragraph 171 of the judgment under appeal, that rate is the lowest rate on the 15% to 25% scale of the value of sales, laid down for such infringements in point 25 of the 2006 Guidelines (see judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 124).
101


As regards the determination of the multiplier for the ‘additional amount’, it is apparent from point 25 of the 2006 Guidelines that account must be taken of a number of factors, in particular those identified in point 22 of those guidelines. Although, in assessing the gravity of an infringement and subsequently setting the fine to be imposed, account may be taken, inter alia, of the geographic extent of an infringement and of the number of product subgroups covered by it, the fact that an infringement covers a larger geographical area and a larger number of products by comparison with another does not, on its own, necessarily mean that the first infringement, considered as a whole, must be classified as more serious than the second and as therefore justifying the setting of a multiplier for the ‘additional amount’ which is higher than that used for calculating the fine imposed in relation to the second infringement (see, to that effect, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 178).
102


Nonetheless, in so far as the appellant complains, in essence, that the Commission and then the General Court infringed the principle of equal treatment, first, in failing to make the fine imposed specific to the appellant by taking into account the gravity of the infringement relative to the appellant’s participation in it as compared with the participation of the other undertakings concerned and, second, in applying to the appellant, in paragraphs 192 to 195 of the judgment under appeal, the same multiplier for the ‘additional amount’ of 15% as applied to the undertakings which participated in the single infringement covering three product subgroups in six Member States, it must be recalled that the principle of equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. According to settled case-law, that principle requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 51)
103


Observance of that principle is binding, in particular, on the General Court in the exercise of its unlimited jurisdiction. When the amount of the fines imposed is determined, the exercise of such jurisdiction cannot result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 101(1) TFEU (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 77).
104


It follows from the case-law of the Court of Justice, however, that the taking into account of differences between the undertakings that have participated in a single cartel (in particular with regard to the geographic scope of their respective involvement) for the purpose of assessing the gravity of an infringement need not necessarily occur when the multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ are set but may occur at another stage in the setting of the fine, such as when the basic amount of the fine is adjusted in the light of mitigating and aggravating circumstances under points 28 and 29 of the 2006 Guidelines (see, to that effect, judgments of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraphs 104 and 105, and of 11 July 2013, Gosselin Group v Commission, C‑429/11 P, not published, EU:C:2013:463, paragraphs 96 to 100).
105


As the Commission has observed, such differences may also be reflected by means of the value of sales that is used in calculating the basic amount of the fine, inasmuch as that value reflects, for each participating undertaking, the scale of its involvement in the infringement in question, in accordance with point 13 of the 2006 Guidelines, under which it is possible to take as a starting point for the calculation of the fines an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 76).
107


In the light of the foregoing considerations, from which it follows that the reasoning of the General Court in paragraphs 174, 176 and 192 to 195 of the judgment under appeal is vitiated by errors of law, it must be recalled that, if the grounds of a decision of the General Court contain an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not one that should cause that decision to be set aside, and a substitution of grounds must be made (see, to that effect, judgments of 9 June 1992, Lestelle v Commission, C‑30/91 P, EU:C:1992:252, paragraph 28, and of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 187 and the case-law cited).
117


As regards the assessment by the General Court of applications made by a party for measures of organisation of procedure or measures of inquiry, it must be recalled that the General Court is the sole judge of any need to supplement the information available to it in respect of the cases before it (see judgments 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 67, and of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 77). The sufficiency of the evidence before it 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 inaccuracy of the findings of the General Court is apparent from the documents in the case-file (see, inter alia, judgment of 7 October 2004, Mag Instrument v OHIM, C‑136/02 P, EU:C:2004:592, paragraph 76).
118


Accordingly, it is clear from the case-law of the Court that, even where a request for the examination of witnesses, made in the application, states precisely about what facts and for what reasons the witness or witnesses should be examined, it falls to the General Court to assess the relevance of the application to the subject matter of the dispute and the need to examine the witnesses named (judgment of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 70; order of 15 September 2005, Marlines v Commission, C‑112/04 P, not published, EU:C:2005:554, paragraph 38; and judgment of 22 November 2007, Sniace v Commission, C‑260/05 P, EU:C:2007:700, paragraph 78)