Silec Cable and General Cable Corp. v European Commission.
Date: 2019-11-14
It must be observed in respect of the third part of the first ground of appeal, which it is appropriate to examine first, that, inasmuch as the appellants take issue with the General Court for misapplying the rules relating to evidence, that part raises a question of law and is therefore admissible (judgment of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraph 58 and the case-law cited).  That part of the first ground of appeal is also admissible in so far as the appellants claim that the General Court failed to comply with its obligation to state sufficient reasons.
Concerning the appellants’ arguments criticising the assessment by the General Court of the emails of December 2005 and November 2006, it is important to recall that the Court of Justice in an appeal 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 adduced before the General Court has been distorted, that appraisal does not therefore constitute a point of law which is subject to review by the Court of Justice (judgment of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraph 153 and the case-law cited).
In addition, according to settled case-law of the Court of Justice, there is such distortion where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect. However, such distortion must be obvious from the documents in the case, without it being necessary to undertake a fresh assessment of the facts and the evidence. Moreover, where an appellant alleges distortion of the evidence by the General Court, he must indicate precisely the evidence alleged to have been distorted by that Court and show the errors of appraisal which, in his view, led to that distortion (judgment of 26 January 2017, Masco and Others v Commission, C‑614/13 P, EU:C:2017:63, paragraph 36 and the case-law cited).
As regards the substance, as the General Court observed in paragraphs 150 to 152 of the judgment under appeal, it is apparent from the Court of Justice’s case-law that two situations must be distinguished so far as public distancing from a cartel is concerned. First, a public distancing is necessary in order that an undertaking which participated in collusive meetings can prove that its participation was without any anti-competitive intention. Secondly, with regard to participation in a cartel which operated over several years rather than in individual anti-competitive meetings, the absence of public distancing forms only one factor amongst others to take into consideration with a view to establishing whether an undertaking has actually continued to participate in a cartel or has, on the contrary, ceased to do so (see, to that effect, judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraphs 20 to 23).
Lastly, nor are the appellants well founded in arguing that the General Court incorrectly applied the rules relating to the burden of proof and taking of evidence by making Silec bear the burden of proof that it had not participated in the cartel on the ground that the other participants had a subjective perception to the contrary of that situation, even though the Commission had not established the date at which its alleged participation in the cartel began and ended or, more specifically, proven its presence at a particular meeting during that period. First, according to the case-law of the Court of Justice, the apportionment of the burden of proof is likely to vary inasmuch as 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 burden of proof has been discharged (see, to that effect, judgment 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 79). In that context, in a case such as that which gave rise to the judgment under appeal, the possibility for the General Court to make an undertaking participate in the taking of evidence cannot be rendered conditional on the fact that it must have been previously proven that that undertaking took part in a collusive meeting in connection with the cartel. Secondly, as is apparent from paragraphs 153 and 154 of the judgment under appeal, the General Court did not in any event rely upon that case-law of the Court of Justice, which it in fact reiterates in paragraph 164 of that judgment for the sake of completeness, as a basis for its decision that the Commission had proven Silec’s participation in the cartel.
In that regard, it is true that the concept of an ‘undertaking’, within the meaning of EU competition law, designates an economic entity even if in law that economic entity consists of several natural or legal persons (judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 103 and the case-law cited). Such a definition does not, however, entail that, in order to set the penalties to be imposed on one of the companies involved in an infringement, the Commission may take account of the conduct of the economic entity constituted by those companies as a whole where, as in the present case, the liability of the company in question was upheld  only so far as concerns its own participation in the cartel.
Lastly, so far as concerns the appellants’ argument alleging the infringement of point 29 of the 2006 Guidelines, that argument is based on a misreading of the judgment under appeal. That judgment does not show that the General Court held that LS Cable was to be regarded as a fringe player in the cartel on the grounds of the limited duration of its participation in that cartel. In any event, and as the General Court correctly observed in paragraph 188 of the judgment under appeal, an undertaking on which a fine has been imposed for its participation in a cartel, in breach of the competition rules, cannot request the annulment or reduction of that fine on the ground that another participant in the same cartel was not penalised in respect of a part, or all, of its participation in that cartel (judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission, C‑615/15 P, not published, EU:C:2017:190, paragraph 38 and the case-law cited).