European Commission v Icap Management Services Ltd and Icap New Zealand Ltd.
Date: 2019-07-10
15


It argues that the General Court, in paragraphs 287 to 291 of the judgment under appeal, relied on a misinterpretation of the duty to state reasons. In its view, the General Court failed to have regard to the case-law resulting from the judgments of 8 December 2011, Chalkor v Commission (C‑386/10 P, EU:C:2011:815, paragraph 61), and of 22 October 2015, AC-Treuhand v Commission (C‑194/14 P, EU:C:2015:717, paragraphs 66 to 68), according to which the Commission fulfils that obligation when it indicates to an undertaking held liable for an infringement of Article 101 TFEU, for its role as facilitator, the factors which enabled it to determine the gravity of the infringement and its duration, and it is not required to indicate all the figures and calculations made to determine the amount of the fine.
16


Moreover, the General Court, in paragraphs 295 and 296 of the judgment under appeal, did not take into account the judgment of 28 January 2016, Quimitécnica.comand de Mello v Commission (C‑415/14 P, not published, EU:C:2016:58, paragraph 53), from which it follows however that the statement of reasons of a measure of the Commission must be assessed with regard to its context, which includes the exchanges between the Commission and the interested parties, which may have taken place before and after the adoption of the measure in question.
23


As the General Court recalled in paragraphs 287 and 288 of the judgment under appeal, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court of the European Union to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question of whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, inter alia, judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63, and of 8 May 2019, Landeskreditbank Baden-Württemberg v ECB, C‑450/17 P, EU:C:2019:372, paragraph 87).
24


As regards the decisions imposing the fines on the undertakings for the infringement of Article 101 TFEU, the obligation to state reasons is of particular importance. It is for the Commission to state the reasons for its decisions and, in particular, to explain the weighting and assessment of the factors taken into account. The Courts must establish of their own motion that there is a statement of reasons (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 61).
25


Admittedly, the Commission enjoys a broad discretion as regards the calculation of fines in relation to infringement of the EU competition rules (judgment of 19 December 2012, Heineken Nederland and Heineken v Commission, C‑452/11 P, not published, EU:C:2012:829, paragraph 92 and the case-law cited), it has nevertheless adopted, in the interests of transparency, the 2006 Guidelines, in which it indicates the basis on which it will take account of one or other aspect of the infringement and what this will imply as regards the amount of the fine (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 59).
27


However, that method may sometimes prove unsuited to the particular circumstances of a case. That is particularly the case when an undertaking found liable for an infringement of Article 101 TFEU for facilitating an agreement does not generate any turnover in the relevant product markets. In such a situation, the Court found that the Commission was justified in using a calculation method other than that described in the 2006 Guidelines and, in accordance with paragraph 37 of those Guidelines, in setting a lump sum basic amount of the fine imposed on the undertaking which, through its consulting activity, had facilitated an agreement (see, to that effect, judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraphs 65 to 67).
28


As regards determining the scope of the Commission’s obligation to state reasons when it sets aside the general methodology laid down by the 2006 Guidelines, it should be borne in mind that, according to settled case-law, although a decision of the Commission which fits into a well-established line of decisions may be reasoned in a summary manner (for example by a reference to those decisions), the Commission must, if a decision goes appreciably further than the previous decisions, provide a fuller account of its reasoning (see, inter alia, judgment of 26 November 1975, Groupement des fabricants de papiers peints de Belgique and Others v Commission, 73/74, EU:C:1975:160, paragraph 31, and of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 155).
29


It is appropriate also to refer to the settled case-law to the effect that those Guidelines lay down a rule of conduct indicating the approach to be adopted from which the Commission cannot depart, in an individual case, without giving reasons which are compatible with, inter alia, the principle of equal treatment (see, to that effect, judgments of 30 May 2013, Quinn Barlo and Others v Commission, C‑70/12 P, not published, EU:C:2013:351, paragraph 53, and of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraph 60 and the case-law cited).
31


Furthermore, the Commission fulfils its obligation to state reasons when it sets out, in its decision, the factors which enabled it to determine the gravity of the infringement and its duration (judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraph 68). Although it is not required to provide all of the figures relating to each of the intermediate steps relating to the method of calculation, it is nevertheless incumbent on it, as the General Court found in paragraph 291 of the judgment under appeal, to explain the weighting and assessment of the factors taken into account (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 61).
33


Admittedly, in a case in which the Commission had set as a lump sum the basic amount of the fine imposed on the undertaking which had facilitated the cartel, the Court has found that it was sufficient that the reasoning solely stated that account had been taken of the gravity and duration of the infringements when determining that amount (see, to that effect, judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraphs 68 and 69). However, it cannot be inferred from that judgment that such reasoning is always sufficient, irrespective of the particularities of the situation in question.
34


Moreover, where the Commission departs from the 2006 Guidelines and applies another methodology specifically adapted to the particularities of the situation of undertakings that have facilitated a cartel, it is necessary, in view of the rights of the defence, that that methodology be disclosed to the interested parties, so that they can be put in a position to make their views known on the factors on which the Commission intends to base its decision (see, by analogy, judgment of 22 October 2013, Sabou, C‑276/12, EU:C:2013:678, paragraph 38 and the case-law cited). That disclosure contributes to the fairness, impartiality and quality of the Commission’s decisions which, ultimately, is the basis of the trust that the public and business place in the legitimacy of the Commission’s action in competition matters (see, to that effect, judgment of 16 January 2019, Commission v United Parcel Service, C‑265/17 P, EU:C:2019:23, paragraphs 31, 33, 34 and 53).
37


In the light of the points of law set out in paragraphs 28 to 34 of the present judgment, the General Court was right to agree with the assessment, in paragraph 294 of the judgment under appeal, according to which, first, ‘drafted in that manner, recital 287 of the contested decision does not enable the applicants to understand the justification for the methodology favoured by the Commission, or the Court to verify that justification’ and, second, ‘that insufficient reasoning is also to be found in recitals 290 to 296 of that decision, which do not provide the minimum information which might have made it possible to understand and ascertain the relevance and weighting of the factors taken into consideration by the Commission in the determination of the basic amount of the fines, in breach of the case-law’ (see, to that effect, judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 61).