SGL Carbon AG v Commission of the European Communities.
Date: 2007-05-10
24. It must be borne in mind, as a preliminary issue, that in Showa Denko  v Commission  and SGL Carbon  v Commission  the Court has already considered whether the principle non bis in idem , which is enshrined in Article 4 of Protocol No 7 to the Convention on the Protection of Human Rights and Fundamental Freedoms, may be applied to situations in which the authorities of a non-member State have taken action under their power to impose penalties in the sphere of competition law applicable on the territory of that State.
25. On that question, the Court observed at paragraphs 28 and 52, respectively, of SGL Carbon  v Commission  and Showa Denko  v Commission  that a cartel operating in an international context is characterised, in particular, by the action of legal systems of non-member States on their respective territories.
26. In that regard, the Court held, at paragraphs 29 and 53 respectively of SGL Carbon  v Commission  and Showa Denko  v Commission , that the exercise of powers by the authorities of those non-member States responsible for protecting free competition under their territorial jurisdiction meets requirements specific to those States. The elements forming the basis of other States’ legal systems in the sphere of competition not only include specific aims and objectives but also result in the adoption of specific substantive rules and a wide variety of legal consequences, whether administrative, criminal or civil, when the authorities of those States have established that there have been infringements of the applicable competition rules.
27. The Court further held that it follows that, when the Commission imposes sanctions on the unlawful conduct of an undertaking, even conduct originating in an international cartel, it seeks to safeguard the free competition within the common market which constitutes a fundamental objective of the Community under Article 3(1)(g) EC. On account of the specific nature of the legal interests protected at Community level, the Commission’s assessments pursuant to its relevant powers may diverge considerably from those by authorities of non-member States (see SGL Carbon  v Commission , paragraph 312, and Showa Denko  v Commission , paragraph 55).
28. Accordingly, the Court concluded that the principle non bis in idem  does not apply to situations in which the legal systems and competition authorities of non-member States intervene within their own jurisdiction (see SGL Carbon  v Commission , paragraph 32, and Showa Denko  v Commission , paragraph 56).
29. As regards the present appeal, it must be observed that the Court of First Instance, essentially following the same reasoning, held at paragraphs 112 to 116 of the judgment under appeal that the principle non bis in idem  does not apply where the Commission is called upon to exercise its powers under Community law, even though penalties have already been imposed on the undertaking concerned by the authorities of a non-member State for infringement of the competition rules applicable in that State.
30. In those circumstances, the argument put forward in its appeal alleging breach of the principle non bis in idem cannot be accepted.
31. As regards the argument put forward by the appellant at the hearing that the judgments in SGL Carbon  v Commission  and Showa Denko  v Commission  should be taken to mean that the Commission’s discretion as to whether or not it is required to take into account the penalties imposed on the undertaking concerned by the authorities of a non-member State for infringement of the competition rules applicable in that State might in appropriate cases be ‘reduced’ in the sense that the Commission might none the less be required to take such penalties into consideration, it is sufficient to observe that such an interpretation of those judgments rests on a misreading of them and, in particular, paragraphs 36 and 60 respectively thereof.
32. In effect, at paragraphs 36 and 60 of those judgments, the Court did not make a determination as to the applicability of the principle non bis in idem  but answered a subsidiary argument whereby the appellants sought to establish that the Court of First Instance had failed to have regard to the principles of proportionality and fairness.
33. In that regard, the Court of Justice merely recalled that the determination of the fines imposed for infringements of Community competition law falls within the discretion which the Commission enjoys in such matters.
34. It follows that, in holding at paragraph 128 of the judgment under appeal that the Commission was not required to take the penalties which had been imposed on SGL Carbon by the authorities in the United States into consideration, the Court of First Instance did not err in law.
35. Accordingly, the first plea put forward by SGL Carbon in support of its appeal must be rejected.
Second plea, alleging that the increase in the amount of the fine imposed on the appellant because of its role as ringleader of the cartel is unlawful
41. It must be borne in mind, as a preliminary point, that it is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance 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 Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance 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 Court of First Instance 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 Case C‑551/03 P General Motors  v Commission  [2006] ECR I‑3173, paragraphs 51 and 52 and the case-law there cited).
43. As regards such a circumstance, it must be observed that, in accordance with a consistent line of cases (see, in particular, Case C‑189/02 P Dansk Rørindustri and Others  v Commission  [2005] ECR I‑5425, paragraphs 240 to 242), the gravity of an infringement is assessed in the light of numerous factors, in respect of which the Commission has a margin of discretion. In taking into consideration, in accordance with the Guidelines referred to above, when determining the amount of the fine, the fact that there are aggravating circumstances, the Commission is merely carrying out its task of ensuring compliance with the Community competition rules.
44. For the purpose of determining the gravity of the infringement, it is necessary to take into consideration, in particular, the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel and the profit which they were able to derive from it (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others  v Commission  [1983] ECR 1825, paragraph 129).
55. It must be borne in mind that it is the statement of objections, on the one hand, and access to the file, on the other, that allow the undertakings under investigation to acquaint themselves with the evidence which the Commission has at its disposal and to render the rights of the defence fully effective (see Joined Cases C 238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others  v Commission  [2002] ECR I‑8375, paragraphs 315 and 316, and also 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 66 and 67).
56. It also follows from a consistent line of decisions that, provided that the Commission sets out in the statement of objections the main elements of fact and of law capable of leading to the imposition of a fine, such as the gravity and the duration of the alleged infringement and also the circumstance that the infringement was committed deliberately or negligently, the Commission satisfies its obligation to observe the undertakings’ right to be heard (see, to that effect, Case 322/81 Michelin  v Commission  [1983] ECR 3461, paragraphs 19 and 20, and Dansk Rørindustri and Others  v Commission , paragraph 428).
58. Subsequently, the Court of First Instance correctly considered, at paragraphs 144 and 145 of the judgment under appeal, that the rights of the defence had been observed because SGL Carbon had been given the opportunity to comment on the duration, the gravity and the nature of the infringement. The Court of First Instance was also correct to state, at paragraph 146 of the judgment, that the Commission was not required to explain in the statement of objections the way in which it might make use of each of those elements in determining the amount of the fine (see, to that effect, Dansk Rørindustri and Others  v Commission , paragraphs 434, 435 and 439).
62. In those circumstances, as the Advocate General observed at point 59 of his Opinion, the fact that in the contested decision SGL Carbon was considered by the Commission to be the sole ringleader of the cartel did not alter, vis-à-vis the Commission, that undertaking’s position to the point of breaching the rights of the defence, since it is inherent in the nature of the statement of objections that it is provisional and subject to amendments to be made by the Commission in its subsequent assessment on the basis of the observations submitted to it by the parties and other findings of fact.
70. It should be recalled by way of preliminary point that in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with even if the proceedings in question are administrative proceedings (see, in particular, Case C‑194/99 P Thyssen Stahl v Commission  [2003] ECR I‑10821, paragraph 30).
71. Observance of the rights of the defence requires, in particular, that the undertaking under investigation is put in a position during the administrative procedure to put forward its point of view on the reality and the relevance of the alleged facts and also on the documents used by the Commission (see Case C‑310/93 P BPB Industries and British Gypsum  v Commission  [1995] ECR I‑865, paragraph 21).
83. With respect to the cooperation which an undertaking provides to the Commission, it is settled case-law that such a contribution may justify a reduction in the fine under the Leniency Notice only if it actually allows the Commission to achieve its task of establishing the existence of an infringement and putting an end to it (see, to that effect, Case C‑297/98 P SCA Holding  v Commission  [2000] ECR I‑10101, paragraph 36, and Dansk Rørindustri and Others  v Commission , paragraph 399).
86. Consequently, the Court of First Instance held, at paragraph 367 of the judgment under appeal, that SGL Carbon, as ringleader of the cartel, did not satisfy the conditions set out in the Leniency Notice and could not claim a significant reduction in the fine imposed on it. Such an assessment, based on fact, cannot be challenged in an appeal.
88. As regards, finally, SGL Carbon’s claim that the cooperation provided by it was undervalued by comparison with that of the other members of the cartel, it should be noted, as the Court of First Instance rightly pointed out at paragraph 371 of the judgment under appeal, that the Commission enjoys a wide discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings.
98. Nor is it open to the Court of Justice, when determining an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law (see Case C‑219/95 P Ferriere Nord  v Commission  [1997] ECR I‑4411, paragraph 31, and Case C‑407/04 P Dalmine  v Commission  [2007] ECR I‑0000, paragraph 152).
99. In so far as SGL Carbon disputes the proportionality of the fine imposed on it, the plea must be declared inadmissible, since it attempts to secure a reconsideration of findings of fact for which the Court of Justice does not have jurisdiction in an appeal (see also Case C‑359/01 P British Sugar  v Commission  [2004] ECR I‑4933, paragraphs 47 and 48, and Dansk Rørindustri and Others  v Commission , paragraphs 245 and 246).
100. As regards the argument that the Court of First Instance failed to take account of SGL Carbon’s financial capacity, it must be observed that, according to settled case‑law which rightly provides inspiration for paragraph 333 of the judgment under appeal, the Commission is not required, when determining the amount of the fine, to take into account the financial situation of an undertaking, since recognition of such an obligation would be tantamount to giving unjustified competitive advantages to undertakings least well adapted to the market conditions (see Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others  v Commission  [1983] ECR 3369, paragraphs 54 and 55, and SGL Carbon  v Commission , paragraphs 105 and 106).
110. If the Commission did not have such a power, undertakings might be able to take advantage of late payments, thereby weakening the effect of penalties ( SGL Carbon  v Commission , paragraph 114).
111. Accordingly, the Court of First Instance was right to hold that the Commission was entitled to adopt a point of reference higher than the applicable market rate offered to the average borrower, to an extent necessary to discourage dilatory behaviour in relation to payment of the fine ( SGL Carbon  v Commission , paragraph 115).
113. Such a line of argument falls outside the scope of the Court’s power of review in an appeal (see Case C‑113/04 P Technische Unie  v Commission  [2006] ECR I‑8831, paragraphs 81 to 83). On that point, the plea must therefore be declared inadmissible.