Guardian Industries Corp. and Guardian Europe Sàrl v European Commission.
Date: 2014-11-12
17. The Court notes that the sanction for a breach, by a Court of the European Union, of its obligation under the second paragraph of Article 47 of the Charter to adjudicate on the cases before it within a reasonable time must be an action for damages brought before the General Court, since such an action constitutes an effective remedy ( Gascogne Sack Deutschland  v Commission , EU:C:2013:768, paragraph 89).
18. It follows that a claim for compensation in respect of the damage caused by the General Court’s failure to adjudicate within a reasonable time may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself ( Gascogne Sack Deutschland v Commission , EU:C:2013:768, paragraph 90).
19. It is therefore for the General Court, which has jurisdiction under Article 256(1) TFEU, to determine such claims for damages, sitting in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticised and applying the criteria set out in paragraphs 91 to 95 of the judgment in Gascogne Sack Deutschland  v Commission  (EU:C:2013:768).
20. That being so, where it is clear in the case before it, without there being any need for the parties to adduce evidence in that regard, that the General Court breached, in a sufficiently serious manner, its obligation to adjudicate on the case within a reasonable time, the Court of Justice may note that fact. In the present case, the duration of the proceedings before the General Court, amounting to almost four years and seven months, including, in particular, a period of more than three years and five months which elapsed between the end of the written procedure, which occurred after the Commission had lodged its statement in defence, and the opening of the oral procedure, cannot be justified by any of the circumstances specific to the case which gave rise to the present dispute.
31. The principle of equality of arms, which is a corollary of the very concept of a fair hearing and the aim of which is to ensure a balance between the parties to proceedings, guaranteeing that any document submitted to the court may be examined and challenged by any party to the proceedings, implies that each party must be afforded a reasonable opportunity to present his case, including his evidence, under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent ( Otis and Others , C‑199/11, EU:C:2012:684, paragraphs 71 and 72).
51. 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. According to settled case-law, that principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, inter alia, Akzo Nobel Chemicals and Akcros Chemicals  v Commission , C‑550/07 P, EU:C:2010:512, paragraphs 54 and 55 and the case-law cited).
53. The Commission must assess, in each specific case and having regard both to the context and the objectives pursued by the scheme of penalties created by Regulation No 1/2003, the intended impact on the undertaking in question, taking into account in particular a turnover which reflects the undertaking’s real economic situation during the period in which the infringement was committed ( Britannia Alloys & Chemicals  v Commission , C‑76/06 P, EU:C:2007:326, paragraph 25).
54. According to the settled case-law of the Court, it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement ( Musique Diffusion française and Others  v Commission , 100/80 to 103/80, EU:C:1983:158, paragraph 121; 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 243; and Archer Daniels Midland and Archer Daniels Midland Ingredients  v Commission , EU:C:2006:328, paragraph 100).
55. It is apparent from the case-law of the Court that, although Article 23(2) of Regulation No 1/2003 leaves the Commission a 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 on an undertaking is subject to a quantifiable and absolute ceiling, with the result that the maximum amount of the fine that can be imposed on a given undertaking can be determined in advance. Secondly, the exercise of that discretion is also limited by rules of conduct which the Commission imposed on itself, in particular in the 2006 Guidelines (see, to that effect, Schindler Holding and Others  v Commission , C‑501/11 P, EU:C:2013:522, paragraph 58).
57. It follows that point 13 of the 2006 Guidelines pursues the objective of adopting, as the starting point for the calculation of the fine imposed on an undertaking, an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it. Consequently, while the concept of the value of sales referred to in point 13 of those guidelines admittedly cannot extend to encompassing sales made by the undertaking in question which do not fall within the scope of the alleged cartel, it would, however, be contrary to the goal pursued by that provision if that concept were to be understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel ( Team Relocations and Others  v Commission , C‑444/11 P, EU:C:2013:464, paragraph 76).
58. Such a limitation would, in addition, have the effect of artificially minimising the economic significance of the infringement committed by a particular undertaking since the mere fact that a limited amount of direct evidence of sales actually affected by the cartel had been found would lead to the imposition of a fine which bore no actual relation to the scope of application of the cartel in question. Such a reward for being secretive would also adversely affect the objective of the effective investigation and sanctioning of infringements of Article 81 EC and, therefore, cannot be permitted ( Team Relocations and Others  v Commission , EU:C:2013:464, paragraph 77).
59. In any event, the Court notes that the proportion of the overall turnover deriving from the sale of products in respect of which the infringement was committed is best able to reflect the economic importance of that infringement. A distinction must not therefore be drawn between those sales depending on whether they are to independent third parties or to entities belonging to the same undertaking. To ignore the value of the sales belonging to that latter category would inevitably give an unjustified advantage to vertically integrated companies by allowing them to avoid the imposition of a fine proportionate to their importance on the product market to which the infringement relates (see, to that effect, KNP BT  v Commission , EU:C:2000:625, paragraph 62).
60. In addition to the anticipated benefit from a horizontal price-fixing agreement when sales are made to independent third parties, vertically integrated undertakings may also benefit from such an agreement on the downstream market in processed goods made up of, inter alia, the goods which are the subject of the infringement. This is so for two different reasons: either those undertakings pass on the price increases in the inputs as a result of the infringement in the price of the processed goods, or they do not pass those increases on, which thus effectively grants them a cost advantage in relation to their competitors which obtain those same inputs on the market for the goods which are the subject of the infringement.
61. It is for that reason, as the Advocate General observed in points 28 to 34 of his Opinion, that the Courts of the European Union have always rejected pleas by which vertically integrated producers have sought to have their internal sales excluded from the turnover figure used as a basis for calculating their fine ( KNP BT v Commission , EU:C:2000:625, paragraph 62; see also Europa Carton  v Commissio n, EU:T:1998:89, paragraph 128; KNP BT  v Commission , EU:T:1998:91, paragraph 112; Lögstör Rör  v Commission , EU:T:2002:72, paragraphs 360 to 363; and Tokai Carbon and Others  v Commission , EU:T:2005:220, paragraph 260).
62. Lastly, in accordance with the Court’s settled case-law, when the amount of the fine is determined, there cannot, by the application of different methods of calculation, be any discrimination between the undertakings which have participated in the same infringement of Article 81 EC ( Alliance One International and Standard Commercial Tobacco  v Commission  and Commission  v Alliance One International and Others , C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 58).
63. As noted in paragraph 59 above, for the purposes of assessing the proportion of the overall turnover deriving from the sale of products which are the subject of the infringement, a distinction must not be drawn between internal sales and sales to independent third parties. It follows that, in order to determine that turnover, vertically integrated undertakings are in a comparable situation to that of non-vertically integrated producers. Those two types of undertaking must therefore be treated equally. Excluding internal sales from the relevant turnover would effectively favour the first type of undertaking by reducing its relative weight in the infringement to the detriment of the other undertakings, on the basis of a criterion having no connection with the objective pursued when that turnover is determined, namely that of reflecting the economic importance of the infringement and the relative weight of each of the undertakings that took part in it.
70. In this regard, the Court notes that it was clear from point 41 of the statement of objections that, of the four undertakings to which the decision at issue was addressed, Guardian had the smallest share of the relevant market, assessed at between 10% and 20%, while Saint Gobain’s share of between 20% and 30% was the largest. By contrast, at the time of the decision at issue, that order had been reversed, Saint-Gobain then having the smallest market share of between 10% and 20% and Guardian the largest with 25%, the decision at issue, however, providing no explanation as to the reasons for such a significant change in the basis for calculating the fine. The exclusion of the internal sales therefore led to Saint Gobain’s relative weight in the infringement being reduced and that of Guardian being increased commensurately.
71. In that regard, the Commission’s argument that the amount of the fine imposed on Saint-Gobain was increased by 30% in order to reflect more effectively the fact that it was a vertically integrated producer cannot be upheld. According to recital 519 of the decision at issue, the increase at issue was imposed on Saint-Gobain for the purposes of providing the fine with a sufficiently deterrent effect, on account in particular of Saint-Gobain’s ‘far bigger presence in the glass sector’ and ‘its turnover [which] is, in absolute terms, much larger than that of the others’.
72. The second plea in law raised by Guardian before the General Court in order to obtain a reduction of the amount of the fine imposed on it by the Commission must therefore be declared well founded.
73. The Court must therefore rule, in accordance with the unlimited jurisdiction conferred on it by Article 31 of Regulation No 1/2003, on the amount of the fine to be imposed on Guardian ( Commission  v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778, paragraph 79, and Alliance One International  v Commission , C‑679/11 P, EU:C:2013:606, paragraph 104).
74. In this regard, it must be observed that Article 23(3) of Regulation No 1/2003 provides that, in fixing the amount of the fine, regard must be had both to the gravity and to the duration of the infringement. In addition, it is apparent from the second subparagraph of Article 23(2) that, for each undertaking participating in the infringement, the fine cannot exceed 10% of its total turnover in the preceding business year.
75. Although it is for the Court, in the exercise of its unlimited jurisdiction in this regard, to assess for itself the circumstances of the case and the nature of the infringement in question in order to determine the amount of the fine, the exercise of unlimited jurisdiction cannot result, when the amount of the fines to be imposed is determined, in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 81(1) EC ( Commission  v Verhuizingen Coppens , EU:C:2012:778, paragraph 80).
76. As regards the reduction of the amount of the fine, the parties disagree as to both the principle of a reduction itself and the extent of any reduction.
77. In the first place, the Commission takes the view that the fact that the inclusion of internal sales could have led to higher fines for other cartel participants does not justify a lowering of the fine imposed on Guardian, an argument which the latter disputes.
78. In this regard, suffice it to note that, having found that the decision at issue is unlawful, the Court may, in the exercise of its unlimited jurisdiction, substitute its own appraisal for the Commission’s and, consequently, cancel, reduce or increase the fine imposed (see Groupe Danone  v Commission , C‑3/06 P, EU:C:2007:88, paragraph 61, and Otis and Others , EU:C:2012:684, paragraph 62). That power is exercised by taking into account all of the factual circumstances (see, to that effect, Prym and Prym Consumer  v Commission , C‑534/07 P, EU:C:2009:505, paragraph 86 and the case-law cited). Consequently, the abovementioned argument of the Commission must be rejected.
79. In the second place, the parties disagree as to the rate of reduction to apply to the fine in order to remedy the unequal treatment resulting from the exclusion of the internal sales from the calculation of the fine. Guardian submits, by comparing the data set out in the decision at issue with those of the statement of objections, that the amount of the fine should be reduced by 37%. In its letter of 10 February 2012, the Commission takes the view that the reduction cannot go beyond 30%. It argues that the data on which Guardian bases its calculations include the sales of certain types of glass which were included in the statement of objections but not in the decision at issue.
80. In those circumstances, in the light of all the considerations of fact and law in the present case, the amount of the fine imposed on Guardian in Article 2 of the decision at issue must be reduced by 30% and set at EUR 103 600 000.
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