LS Cable & System Ltd v European Commission.
Date: 2019-11-28
According to the case-law of the Court that an undertaking’s participation in a meeting having an anticompetitive object creates a presumption of the illegality of its participation, which that undertaking must rebut through evidence of public distancing, which must be perceived as such by the other parties to the cartel (judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 71 and the case-law cited).
In any event, in so far as the appellant claims, by that ground of appeal, that the General Court erred in law in finding that the Commission had proved that it had participated in the infraction in question during the period from 15 November 2002, the date of the Tokyo meeting, until the second half of October 2003, it must be borne in mind that, under 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 is limited to questions of law. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of 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).
In that regard, it must, first, be stated that the appellant has not established that the General Court distorted the notes from the Tokyo meeting by considering that the observations recorded by its representatives during that meeting confirmed, in the light of the perception of the other participants present at that meeting, that the appellant had joined the cartel at that meeting. It is apparent from the Court’s case-law that the review carried out by it in order to assess a ground of appeal alleging a distortion of evidence is restricted to ascertaining whether or not, in relying on that evidence to find that an undertaking participated in a cartel, the General Court manifestly exceeded the limits of a reasonable assessment of that evidence. The task of the Court of Justice is not, therefore, to assess independently whether the Commission has established such participation to the requisite legal standard and thus discharged the burden of proof necessary to show that the rules of competition law were infringed, but to determine whether, in finding that that was actually so, the General Court misconstrued the evidence in a manner manifestly at odds with its wording (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 44 and the case-law cited). However, that is not the case here, since the terms used by those representatives during the Tokyo meeting do not preclude the General Court’s interpretation.
In that regard, it must be noted that the appellant did not argue before the General Court that public distancing was not the only way to avoid liability arising from participation in an unlawful meeting. It has consistently been held that a plea raised for the first time in an appeal before the Court of Justice must be rejected as inadmissible (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 99 and the case-law cited).
In any event, even if that ground of appeal were admissible, it would have to be rejected as unfounded. It is true that, with regard to participation in an infringement that took place over several years rather than in individual anticompetitive meetings, it can be concluded from the case-law of the Court that the absence of public distancing forms only one factor amongst others to take into consideration with a view to establishing whether an undertaking has actually continued to participate in an infringement or has, on the contrary, ceased to do so (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 23; also see, to that effect, judgment of 21 January 2016, Eturas and Others, C‑74/14, EU:C:2016:42, paragraph 46). However, that case-law is not relevant in the present case given that the infringement for which the appellant was held liable concerned participation in anticompetitive meetings. It is true that, in a case where, over the course of a significant period of time, several collusive meetings have taken place without the participation of the representatives of the undertaking at issue, the Commission may not merely establish the absence of public distancing, but must also base its findings on other evidence (judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraph 28). However, the appellant neither claimed nor established that over the course of a significant period of time several collusive meetings of the cartel took place in its absence. In that regard, the appellant merely claimed that the sales which it made in the EEA demonstrated that it had distanced itself from the infringement at issue.