Deutsche Telekom AG v European Commission.
Date: 2010-10-14
6. Under Article 3 of the decision at issue, the Commission imposed a fine of EUR 12.6 million on the appellant for that infringement.
II – The proceedings before the General Court and the judgment under appeal
24. In that regard, it should be borne in mind that it is apparent from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) 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. That requirement is not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the contested judgment, merely reproduces the pleas in law and arguments previously submitted to 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 (see, in particular, Case C‑352/98 P Bergaderm and Goupil  v Commission  [2000] ECR I‑5291, paragraphs 34 and 35, and Case C‑76/01 P Eurocoton and Others  v Council  [2003] ECR I‑10091, paragraphs 46 and 47).
25. However, provided that the appellant challenges the interpretation or application of European Union law (‘EU law’) by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (see, in particular, Case C‑321/99 P ARAP and Others  v Commission  [2002] ECR I‑4287, paragraph 49).
34. In order to consider the substance of the appellant’s grounds of appeal against that judgment, it should, in the first place, be pointed out that, according to Article 113(2) of the Rules of Procedure of the Court of Justice, the subject-matter of the proceedings before the General Court may not be changed in the appeal. The Court’s jurisdiction in an appeal is confined to a review of the findings of law on the pleas argued before the General Court. A party may not, therefore, put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court, since to do so would be to allow it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court (see, to that effect, in particular Case C‑136/92 P Commission  v Brazzelli Lualdi and Others  [1994] ECR I‑1981, paragraph 59; Case C‑68/05 P Koninklijke Coöperatie Cosun  v Commission  [2006] ECR I‑10367, paragraph 96; and Case C‑564/08 P SGL Carbon  v Commission [2009] ECR I‑0000, paragraph 22).
45. Admittedly, according to the case-law of the Court, it is for each Member State to take all appropriate measures, whether general or particular, to ensure the fulfilment by the national regulatory authorities of the obligations which are binding under EU law (see, to that effect, Case C‑268/06 Impact  [2008] ECR I‑2483, paragraph 85). Furthermore, Articles 81 EC and 82 EC, in conjunction with Article 10 EC, require the Member States not to introduce or maintain in force measures, even of a legislative or regulatory nature, which may render ineffective the competition rules applicable to undertakings (see, in particular, Case 13/77 GB-Inno-BM  [1977] ECR 2115, paragraph 31, and Case C‑96/94 Centro Servizi Spediporto  [1995] ECR I‑2883, paragraph 20).
47. Consequently, as the General Court itself found in substance, inter alia, in paragraphs 265 and 271 of the judgment under appeal, even if it is not inconceivable that the national regulatory authorities infringed EU law in this instance, and the Commission could indeed therefore have chosen to bring an action for failure to fulfil obligations against the Federal Republic of Germany under Article 226 EC, such possibilities are irrelevant at the stage of the present appeal, not least because, according to the case-law of the Court, under the system laid down by Article 226 EC, the Commission has a discretion to bring an action for failure to fulfil obligations, and it is not for the Courts of the European Union (‘Courts of the Union’) to assess whether it was appropriate to do so (see, in particular, Case C‑233/00 Commission  v France  [2003] ECR I‑6625, paragraph 31).
49. Consequently, the Court cannot, in the present appeal, review complaints which challenge the lawfulness of wholesale prices for local loop access services, particularly on the basis of their allegedly excessive nature as compared with the costs incurred by the appellant in supplying them (see, on that point, Case C‑55/06 Arcor  [2008] ECR I‑2931, paragraph 69). Such complaints go beyond the pleas argued at first instance and are, therefore, in accordance with the case-law cited in paragraph 34 of the present judgment, inadmissible in this appeal.
53. In the second place, it should be recalled, concerning specifically the assessment of market data and the competitive situation, that it is not for the Court of Justice, on an appeal, to substitute its own assessment for that of the General Court. In accordance with Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice, the appeal must be limited to questions of law. Assessment of the facts does not, save where there may have been distortion of the facts or evidence, which has not been pleaded here, constitute a question of law which is subject, as such, to review by the Court of Justice (see Case C‑95/04 P British Airways  v Commission  [2007] ECR I‑2331, paragraph 78 and the case-law cited).
80. According to the case-law of the Court of Justice, it is only if anti-competitive conduct is required of undertakings by national legislation, or if the latter creates a legal framework which itself eliminates any possibility of competitive activity on their part, that Articles 81 EC and 82 EC do not apply. In such a situation, the restriction of competition is not attributable, as those provisions implicitly require, to the autonomous conduct of the undertakings. Articles 81 EC and 82 EC may apply, however, if it is found that the national legislation leaves open the possibility of competition which may be prevented, restricted or distorted by the autonomous conduct of undertakings (Joined Cases C‑359/95 P and C‑379/95 P Commission and France  v Ladbroke Racing  [1997] ECR I‑6265, paragraphs 33 and 34 and the case-law cited).
81. The possibility of excluding anti-competitive conduct from the scope of Articles 81 EC and 82 EC on the ground that it has been required of the undertakings in question by existing national legislation or that the legislation has precluded all scope for any competitive conduct on their part has thus been accepted only to a limited extent by the Court of Justice (see Case 41/83 Italy v Commission [1985] ECR 873, paragraph 19; Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 and 269/82 Stichting Sigarettenindustrie and Others v Commission  [1985] ECR 3831, paragraphs 27 to 29; and Case C‑198/01 CIF  [2003] ECR I‑8055, paragraph 67).
82. Thus, the Court has held that if a national law merely encourages or makes it easier for undertakings to engage in autonomous anti-competitive conduct, those undertakings remain subject to Articles 81 EC and 82 EC (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others  v Commission  [1975] ECR 1663, paragraphs 36 to 73, and CIF , paragraph 56).
83. According to the case-law of the Court, dominant undertakings have a special responsibility not to allow their conduct to impair genuine undistorted competition on the common market (Case 322/81 Nederlandsche Banden-Industrie-Michelin  v Commission  [1983] ECR 3461, paragraph 57).
84. It follows from this that the mere fact that the appellant was encouraged by the intervention of a national regulatory authority such as RegTP to maintain the pricing practices which led to the margin squeeze of competitors who are at least as efficient as the appellant cannot, as such, in any way absolve the appellant from responsibility under Article 82 EC (see, to that effect, Case 123/83 Clair  [1985] ECR 391, paragraphs 21 to 23).
85. Since, notwithstanding such interventions, the appellant had scope to adjust its retail prices for end-user access services, the General Court was entitled to find, on that ground alone, that the margin squeeze at issue was attributable to the appellant.
90. Moreover, as the General Court held in paragraph 120 of the judgment under appeal, the Commission cannot, in any event, be bound by a decision taken by a national body pursuant to Article 82 EC (see, to that effect, Case C‑344/98 Masterfoods and HB  [2000] ECR I‑11369, paragraph 48). In the present case, the appellant does not, indeed, deny that RegTP’s decisions are not binding on the Commission.
108. Finally, in so far as the third complaint seeks to call into question the relevance of the judgment delivered by the Bundesgerichtshof on 10 February 2004, it must be rejected as ineffective since it concerns a ground that was included in the judgment purely for the sake of completeness in support of other findings made by the General Court (see, to that effect, Case C‑431/07 P Bouygues and Bouygues Télécom  v Commission  [2009] ECR I‑2665, paragraph 148 and the case-law cited).
123. As a preliminary point, it must be noted that the present complaints, while repeating in part the arguments put before the General Court, are admissible in accordance with the case-law cited in paragraph 25 of the present judgment, because they criticise the General Court for having adopted an incorrect legal test in relation to the application of the condition that an infringement be negligent or intentional, and in relation to the review of the Commission’s observance of that condition in the light of its obligation to state reasons. Furthermore, 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, in particular, Joined Cases C‑120/06 P and C‑121/06 P FIAMM and FIAMM Technologies  v Council and Commission  [2008] ECR I‑6513, paragraph 90).
124. As regards, in the first place, the complaints as to whether the General Court’s findings are well founded, it must be borne in mind, in relation to the question whether the infringements were committed intentionally or negligently and are, therefore, liable to be punished by a fine in accordance with the first subparagraph of Article 15(2) of Regulation No 17, that it follows from the case-law of the Court that that condition is satisfied where the undertaking concerned cannot be unaware of the anti-competitive nature of its conduct, whether or not it is aware that it is infringing the competition rules of the Treaty (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, paragraph 45, and Nederlandsche Banden-Industrie-Michelin  v Commission , paragraph 107).
130. As regards, in the second place, the complaints concerning the General Court’s review of the statement of reasons for the decision at issue in relation to the intentional or negligent nature of the infringement, it must be noted that the obligation to provide a statement of reasons laid down in Article 253 EC is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. To that end, the statement of reasons required by Article 253 EC 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 that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent European Union judicature to exercise its power of re view (Case C‑17/99 France  v Commission  [2001] ECR I‑2481, paragraph 35).
131. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC 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, in particular, Case C‑367/95 P Commission  v Sytraval and Brink’s France  [1998] ECR I‑1719, paragraph 63, and Case C‑413/06 P Bertelsmann and Sony Corporation of America  v Impala  [2008] ECR I‑4951, paragraph 166).
135. As regards, in the third place, the grounds of the judgment under appeal, it must be observed that the obligation to state the reasons on which a judgment is based arises under Article 36 of the Statute of the Court of Justice, which applies to the General Court by virtue of the first paragraph of Article 53 of the Statute, and Article 81 of the Rules of Procedure of the General Court (see judgment of 4 October 2007 in Case C‑311/05 P Naipes Heraclio Fournier  v OHIM , paragraph 51 and the case-law cited).
136. It has consistently been held that the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (see, in particular, Case C‑259/96 P Council v de Nil and Impens [1998] ECR I‑2915, paragraphs 32 and 33, and Case C‑449/98 P IECC  v Commission  [2001] ECR I‑3875, paragraph 70).
167. Furthermore, in so far as the appellant submits that the appropriateness of the margin squeeze test depends on the level of wholesale prices for local loop access services set by the national regulatory authority, it must be stated that, as is apparent from paragraphs 166 to 168 of the judgment under appeal, the abusive nature for the purpose of Article 82 EC of the appellant’s pricing practices at issue in that judgment arises from the unfairness of the spread – resulting in a margin squeeze of its equally efficient competitors – between the wholesale prices in question and its retail prices for end-user access services. As the General Court explained in paragraph 223 of its judgment, which has not been challenged in the present appeal, the unfairness for the purpose of Article 82 EC of the appellant’s pricing practices is therefore linked to the very existence of the margin squeeze and not to its precise spread.
170. In that regard, it has consistently been held that Article 82 EC is an application of the general objective of European Community action, namely the institution of a system ensuring that competition in the common market is not distorted. Thus, the dominant position referred to in Article 82 EC relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of consumers (see Case 85/76 Hoffmann-La Roche  v Commission  [1979] ECR 461, paragraph 38, and Case C‑202/07 P France Télécom  v Commission  [2009] ECR I‑2369, paragraph 103).
173. Furthermore, the list of abusive practices contained in Article 82 EC is not exhaustive, so that the practices there mentioned are merely examples of abuses of a dominant position. The list of abusive practices contained in that provision does not exhaust the methods of abusing a dominant position prohibited by the Treaty (see British Airways  v Commission , paragraph 57 and the case-law cited).
174. In that regard, it must be borne in mind that, in prohibiting the abuse of a dominant position in so far as trade between Member States is capable of being affected, Article 82 EC refers to the conduct of a dominant undertaking which, on a market where the degree of competition is already weakened precisely because of the presence of the undertaking concerned, through recourse to methods different from those governing normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition (see, to that effect, Hoffman-La Roche  v Commission , paragraph 91; Nederlandsche Banden-Industrie-Michelin  v Commission , paragraph 70; Case C‑62/86 AKZO  v Commission  [1991] ECR I‑3359, paragraph 69; British Airways  v Commission , paragraph 66; and France Télécom  v Commission , paragraph 104).
175. It is apparent from the case-law of the Court that, in order to determine whether the undertaking in a dominant position has abused such a position by its pricing practices, it is necessary to consider all the circumstances and to investigate whether the practice tends to remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, or to strengthen the dominant position by distorting competition (see, to that effect, Nederlandsche Banden-Industrie-Michelin  v Commission , paragraph 73, and British Airways  v Commission , paragraph 67).
176. Since Article 82 EC thus refers not only to practices which may cause damage to consumers directly, but also to those which are detrimental to them through their impact on competition, a dominant undertaking, as has already been observed in paragraph 83 of the present judgment, has a special responsibility not to allow its conduct to impair genuine undistorted competition on the common market (see, to that effect, France Télécom v Commission , paragraph 105 and the case-law cited).
177. It follows from this that Article 82 EC prohibits a dominant undertaking from, inter alia, adopting pricing practices which have an exclusionary effect on its equally efficient actual or potential competitors, that is to say practices which are capable of making market entry very difficult or impossible for such competitors, and of making it more difficult or impossible for its co-contractors to choose between various sources of supply or commercial partners, thereby strengthening its dominant position by using methods other than those which come within the scope of competition on the merits. From that point of view, therefore, not all competition by means of price can be regarded as legitimate (see, to that effect, Nederlandsche Banden-Industrie-Michelin  v Commission , paragraph 73; AKZO  v Commission , paragraph 70; and British Airways  v Commission , paragraph 68).
178. In the present case, it must be noted that the appellant does not deny that, even on the assumption that it does not have the scope to adjust its wholesale prices for local loop access services, the spread between those prices and its retail prices for end-user access services is capable of having an exclusionary effect on its equally efficient actual or potential competitors, since their access to the relevant service markets is, at the very least, made more difficult as a result of the margin squeeze which such a spread can entail for them.
180. It is true, as paragraphs 175 to 177 of the present judgment have already shown, that Article 82 EC aims, in particular, to protect consumers by means of undistorted competition (see Joined Cases C‑468/06 to C‑478/06 Sot. Lélos kai Sia and Others [2008] ECR I‑7139, paragraph 68).
182. By further reducing the degree of competition existing on a market – the end-user access services market – already weakened precisely because of the presence of the appellant, thereby strengthening its dominant position on that market, the margin squeeze also has the effect that consumers suffer detriment as a result of the limitation of the choices available to them and, therefore, of the prospect of a longer-term reduction of retail prices as a result of competition exerted by competitors who are at least as efficient in that market (see, to that effect, France Télécom  v Commission , paragraph 112).
183. In those circumstances, in so far as the appellant has scope to reduce or end such a margin squeeze, as observed in paragraphs 77 to 86 of the present judgment, by increasing its retail prices for end-user access services, the General Court correctly held in paragraphs 166 to 168 of the judgment under appeal that that margin squeeze is capable, in itself, of constituting an abuse within the meaning of Article 82 EC in view of the exclusionary effect that it can create for competitors who are at least as efficient as the appellant. The General Court was n ot, therefore, obliged to establish, additionally, that the wholesale prices for local loop access services or retail prices for end-user access services were in themselves abusive on account of their excessive or predatory nature, as the case may be.
198. In that regard, it must be borne in mind that the Court has already held that, in order to assess whether the pricing practices of a dominant undertaking are likely to eliminate a competitor contrary to Article 82 EC, it is necessary to adopt a test based on the costs and the strategy of the dominant undertaking itself (see AKZO  v Commission , paragraph 74, and France Télécom  v Commission , paragraph 108).
199. The Court pointed out, inter alia, in that regard that a dominant undertaking cannot drive from the market undertakings which are perhaps as efficient as the dominant undertaking but which, because of their smaller financial resources, are incapable of withstanding the competition waged against them (see AKZO  v Commission , paragraph 72).
201. As the General Court found, in essence, in paragraphs 187 and 194 of the judgment under appeal, since such a test can establish whether the appellant would itself have been able to offer its retail services to end-users otherwise than at a loss if it had first been obliged to pay its own wholesale prices for local loop access services, it was suitable for determining whether the appellant’s pricing practices had an exclusionary effect on competitors by squeezing their margins.
202. Such an approach is particularly justified because, as the General Court indicated, in essence, in paragraph 192 of the judgment under appeal, it is also consistent with the general principle of legal certainty in so far as the account taken of the costs of the dominant undertaking allows that undertaking, in the light of its special responsibility under Article 82 EC, to assess the lawfulness of its own conduct. While a dominant undertaking knows what its own costs and charges are, it does not, as a general rule, know what its competitors’ costs and charges are.
230. In the third place, in so far as the present complaint relates to the General Court’s findings as to equality of opportunity, it should be noted that the Court of Justice has consistently held that a system of undistorted competition can be guaranteed only if equality of opportunity is secured as between the various economic operators (see, in particular, Case C‑18/88 GB-Inno-BM  [1991] ECR I‑5941, paragraph 25; Case C‑462/99 Connect Austria  [2003] ECR I‑5197, paragraph 83; Joined Cases C‑327/03 and C‑328/03 ISIS Multimedia Net and Firma O2  [2005] ECR I‑8877, paragraph 39; and Case C‑49/07 MOTOE  [2008] ECR I‑4863, paragraph 51).
234. Since the retail market for end-user access services constitutes a separate market, and wholesale local loop access services are indispensable to enabling competitors who are at least as efficient as the appellant to enter into effective competition on that market with an undertaking which, as in the appellant’s case, has a dominant position largely as a result of the legal monopoly it enjoyed before the liberalisation of the telecommunications sector, the establishment of a system of undistorted competition requires that the dominant undertaking should not be able – by means of its pricing practices on that retail market – to impose on all its equally efficient competitors a competitive disadvantage such as to prevent or restrict their access to that market or the growth of their activities on it.
250. With regard to the third part of the second ground of appeal, it must be held at the outset that, in paragraphs 234 to 244 of the judgment under appeal, the General Court correctly rejected the Commission’s arguments to the effect that the very existence of a pricing practice of a dominant undertaking which leads to the margin squeeze of its equally efficient competitors constitutes an abuse within the meaning of Article 82 EC, and that it is not necessary for an anti-competitive effect to be demonstrated.
251. It should be borne in mind that, in accordance with the case-law cited in paragraph 174 of the present judgment, by prohibiting the abuse of a dominant position in so far as trade between Member States is capable of being affected, Article 82 EC refers to the conduct of a dominant undertaking which, through recourse to methods different from those governing normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition.
252. The General Court therefore held in paragraph 235 of the judgment under appeal, without any error of law, that the anti-competitive effect which the Commission is required to demonstrate, as regards pricing practices of a dominant undertaking resulting in a margin squeeze of its equally efficient competitors, relates to the possible barriers which the appellant’s pricing practices could have created for the growth of products on the retail market in end-user access services and, therefore, on the degree of competition in that market.
253. As is already apparent from paragraphs 177 and 178 of the present judgment, a pricing practice such as that at issue in the judgment under appeal that is adopted by a dominant undertaking such as the appellant constitutes an abuse within the meaning of Article 82 EC if it has an exclusionary effect on competitors who are at least as efficient as the dominant undertaking itself by squeezing their margins and is capable of making market entry more difficult or impossible for those competitors, and thus of strengthening its dominant position on that market to the detriment of consumers’ interests.
254. Admittedly, where a dominant undertaking actually implements a pricing practice resulting in a margin squeeze of its equally efficient competitors, with the purpose of driving them from the relevant market, the fact that the desired result is not ultimately achieved does not alter its categorisation as abuse within the meaning of Article 82 EC. However, in the absence of any effect on the competitive situation of competitors, a pricing practice such as that at issue cannot be classified as exclusionary if it does not make their market penetration any more difficult.
271. It must be borne in mind that, according to settled case-law, the Commission enjoys a broad discretion as regards the method for calculating fines. That method, set out in the Guidelines, displays flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with Article 15(2) of Regulation No 17 (see Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler and Others  v Commission  [2009] ECR I‑7191, paragraph 112 and the case-law cited).
272. Within that framework, it is for the Court of Justice to verify whether the General Court has correctly assessed the Commission’s exercise of that discretion (Case C‑308/04 P SGL Carbon  v Commission  [2006] ECR I‑5977, paragraph 48, and Case C‑407/04 P Dalmine  v Commission  [2007] ECR I‑829, paragraph 134).
273. It is apparent from settled case-law that the gravity of the infringements of EU competition law must be assessed in the light of numerous factors, such as, inter alia, the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (see, in particular, Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others  v Commission  [2005] ECR I-5425, paragraph 241; Dalmine  v Commission , paragraph 129; and Case C‑534/07 P Prym and Prym Consumer  v Commission  [2009] ECR I‑7415, paragraph 54).
274. The factors capable of affecting the assessment of the gravity of infringements include the conduct of the undertaking concerned, the role it played in the establishment of the practice in question, the profit which it was able to derive from that practice, its size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (see, by analogy, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others  v Commission [1983] ECR 1825, paragraph 129, and Dansk Rørindustri and Others  v Commission , paragraph 242).
275. In the present case, the General Court did not, therefore, commit any error of law in holding, in paragraph 310 of the judgment under appeal, that the Commission had been entitled to characterise the infringement committed by the appellant as serious for the period from 1 January 1998 to 31 December 2001, since, by strengthening the barriers to entry to the recently liberalised markets, the pricing practices at issue were jeopardising the proper functioning of the internal market. As is apparent from the case-law of the Court, exclusionary practices of dominant undertakings, such as the practice at issue in the present case, are particularly serious infringements of Article 82 EC (see, to that effect, Joined Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents  v Commission  [1974] ECR 223, paragraph 51, and AKZO  v Commission , paragraph 162).
277. The appellant’s small contribution to the purported infringement in the light of the regulation of its charges by RegTP cannot alter those findings, since the role played by the undertaking concerned in the infringement is, in principle, not a mandatory factor but just one of a number of other factors to be taken into account in assessing the gravity of the infringement (see, to that effect, Dalmine  v Commission , paragraph 132).
278. In addition, it is apparent from the case-law of the Court of Justice that, as the General Court noted in paragraph 311 of the judgment under appeal, when the level of the penalty is set, the conduct of the undertaking concerned may be assessed in the light of the national legal framework, which is a mitigating factor (see, to that effect, Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission  [1975] ECR 1663, paragraph 620, and CIF , paragraph 57).