NKT Verwaltungs GmbH and NKT A/S v European Commission.
Date: 2020-05-14
The second sentence of Article 27(1) of Regulation No 1/2003 provides that ‘the Commission shall base its decisions only on objections on which the parties concerned have been able to comment’. That provision enshrines the Court’s case-law on Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [101 and 102 TFEU] (OJ, English Special Edition 1959-62, p. 87), according to which the statement of objections constitutes the procedural safeguard applying the fundamental principle of EU law which requires observance of the rights of defence in all proceedings (judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraph 35 and the case-law cited).
That principle requires, in particular, that the statement of objections contain the essential elements used against the undertaking concerned, such as the facts, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it. It follows from that principle that a competition decision in which the Commission imposes a fine on an undertaking without first having informed it of the objections relied on against it cannot be held to be lawful (judgment of 3 September 2009, Papierfabrik August Koehler and Others v Commission, C‑322/07 P, C‑327/07 P and C‑338/07 P, EU:C:2009:500, paragraphs 36 and 37 and the case-law cited).
Admittedly, it is apparent from the case-law of the Court that an infringement of the rights of the defence results in the annulment of the contested measure only if, without such an irregularity, the outcome of the procedure might have been different, which it is for the undertaking concerned to show (judgment of 16 June 2016, SKW Stahl-Metallurgie and SKW Stahl-Metallurgie Holding v Commission, C‑154/14 P, EU:C:2016:445, paragraph 69 and the case-law cited).
That case-law cannot, however, be applied to the infringement of the second sentence of Article 27(1) of Regulation No 1/2003 which, while relating to protection of the rights of the defence, states in binding terms that the Commission is to base its decisions only on objections on which the parties concerned have been able to comment. Where the party concerned was not afforded the opportunity to conduct its defence properly during the administrative procedure with regard to a particular objection, an infringement of the rights of the defence capable of leading to the judgment under appeal being set aside must be found (see, to that effect, judgment of 27 March 2014, Ballast Nedam v Commission, C‑612/12 P, EU:C:2014:193, paragraphs 25 to 31 and 38).
It must be recalled that it follows, inter alia, from Article 168(1)(d) and Article 169(2) 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 the legal arguments specifically advanced in support of the appeal (judgment of 20 December 2017, Trioplast Industrier v Commission, C‑364/16 P, not published, EU:C:2017:1008, paragraph 21).
Third, as regards the General Court’s conclusion in paragraph 123 of the judgment under appeal that compensation could operate between underground power cable projects and submarine power cable projects and that there was therefore a link between the arrangements for both types of project, it should be recalled that, in accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and that evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 40 and the case-law cited).
Second, as regards the appellants’ argument that the General Court failed to take into account the arguments they put forward at the hearing and the documents to which they referred on that occasion in order to demonstrate that the meetings that took place in the context of the cartel’s A/R configuration consisted of different sessions for, on the one hand, underground power cable projects and, on the other, submarine power cable projects, it must be noted that, according to settled case-law, the General Court is not required to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case, provided that the reasoning enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (judgment of 26 January 2017, Villeroy & Boch v Commission, C‑625/13 P, EU:C:2017:52, paragraph 72 and the case-law cited).
As the General Court pointed out in paragraph 148 of the judgment under appeal, it is apparent from the case-law of this Court that an undertaking which has participated in a single and complex infringement by its own conduct, which fell within the definition of ‘agreement’ or ‘concerted practice’ having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may also be liable in respect of the conduct of other undertakings in the context of that infringement throughout the entire period of its participation in that infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 172 and the case-law cited).
Contrary to what the Commission argued at the hearing, that conclusion is not contradicted by the judgment of 26 September 2018, Philips and Philips France v Commission (C‑98/17 P, not published, EU:C:2018:774). It must be noted in that regard that paragraphs 84 and 86 of that judgment, to which the Commission made reference, must be read in conjunction with paragraph 83 thereof, in which the Court recalled, in particular, that an undertaking may be held responsible for the conduct of other undertakings within the context of a single and complex infringement only if it was aware or could reasonably have foreseen that conduct.
It is apparent from the case-law that, in the context of the judicial review provided for in Article 263 TFEU concerning Commission decisions relating to proceedings under Articles 101 and 102 TFEU, the Courts of the European Union may in no circumstances substitute their own reasoning for that of the author of the contested act (judgment of 25 July 2018, Orange Polska v Commission, C‑123/16 P, EU:C:2018:590, paragraph 105 and the case-law cited).
The General Court’s conclusion in paragraph 174 of the judgment under appeal is not undermined by the fact that the General Court relied on a single document. Admittedly, it is apparent from the case-law of the Court of Justice that, in order to establish that there has been an infringement of Article 101(1) TFEU, the Commission must produce firm, precise and consistent evidence. However, it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by that institution, viewed as a whole, meets that requirement (judgment of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraph 52).
As the Court of Justice held in its judgment of 6 July 2017, Toshiba v Commission (C‑180/16 P, EU:C:2017:520, paragraph 81), with regard to a similarly structured single and continuous infringement, the Asian undertakings’ participation in those activities was their contribution to the infringement and that contribution was comparable to that of European undertakings. Consequently, their conduct was not less serious than that of the European producers.
Suffice it to note in that regard that, by the finding in paragraph 161 of the judgment under appeal, the General Court did not rule out the possibility that an agreement regarding the ‘export territories’ might exist without a corresponding ‘home territories’ agreement. It is apparent from the case-law of the Court that, in view of the presumption of innocence which applies to the procedures relating to infringements of the competition rules that may result in the imposition of fines or periodic penalty payments, the benefit of the doubt must be given to the undertaking to which the decision finding an infringement is addressed (see, to that effect, judgment of 16 February 2017, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, C‑90/15 P, not published, EU:C:2017:123, paragraph 18 and the case-law cited).
First, it is apparent from the case-law that access to the file in competition cases is intended in particular to enable the addressees of the statement of objections to acquaint themselves with the evidence in the Commission’s file, so that they can express their views effectively on the conclusions reached by the Commission in its statement of objections, on the basis of that evidence (judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, 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, EU:C:2002:582, paragraph 315, and of 2 October 2003, Corus UK v Commission, C‑199/99 P, EU:C:2003:531, paragraph 125).
Second, it is apparent from the case-law of the Court that if a procedural document which may be categorised — since it is capable of exonerating an undertaking which is accused of having participated in a cartel — as ‘exculpatory evidence’ is not communicated to that undertaking, the latter’s rights of the defence are infringed if that undertaking shows that the document at issue could have been useful for its defence (judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 367). However, it cannot be concluded that merely because it did not provide full and automatic access to other cartel participants’ replies to the statement of objections, the Commission infringed an undertaking’s rights of defence.
That conclusion is not called in question by the fact that the Court has held that the rights of the defence are infringed where the Commission does not provide access to the replies to requests for information which it sent to the undertakings concerned during its investigation, on the ground that it could not be excluded that the undertaking concerned could have found in those documents evidence originating from other undertakings which would have enabled it to offer an interpretation of the facts different from the interpretation adopted by the Commission, which could have been of use for its defence (judgment of 25 October 2011, Solvay v Commission, C‑109/10 P, EU:C:2011:686, paragraph 62).
It must be noted that, in paragraphs 56 to 60 of the judgment under appeal, the General Court recalled the case-law of the Court of Justice according to which evidence that information contained in a document could have been useful to an undertaking’s defence may be furnished by showing that the non-disclosure was capable of influencing, to the detriment of the undertaking at issue, the course of the proceedings and the content of the Commission’s decision, or that it could have harmed or rendered more difficult the defence of that undertaking’s interests during the administrative procedure (judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 368).
By this part, the appellants claim, in essence, that the General Court failed to adopt a measure of inquiry requiring the Commission to provide, on a confidential basis, all the replies from the other addressees of the statement of objections. It is sufficient in that regard to recall that, according to settled case-law, it is for the Courts of the European Union to decide, in the light of the circumstances of the case and in accordance with the provisions of the rules of procedure on measures of inquiry, whether it is necessary for a document to be produced (judgment of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraph 38 and the case-law cited).
Admittedly, it is apparent from the case-law of the Court that partial annulment of an act of EU law is possible only if the elements which it is sought to have annulled can be severed from the remainder of the act (judgment of 4 July 2013, Commission v Aalberts Industries and Others, C‑287/11 P, EU:C:2013:445, paragraph 64) and such annulment would not cause the substance of that measure to be altered (judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 38).
With regard, first, to the appellants’ liability for the infringement at issue to the extent that it concerns conduct related to sales in countries that are not members of the Union or the EEA, it should be noted that, as the appellants were not afforded the opportunity to conduct their defence properly during the administrative procedure as regards that aspect of the infringement at issue, the decision at issue must be annulled in so far as it imposes such liability on the appellants (see, to that effect, judgment of 27 March 2014, Ballast Nedam v Commission, C‑612/12 P, EU:C:2014:193, paragraph 38).