AC-Treuhand AG v European Commission.
Date: 2015-10-22
28. It should also be noted that, according to the Court’s case-law, in order for there to be an ‘agreement’, there must be the expression of the concurrence of wills of at least two parties, the form in which that concurrence is expressed not being by itself decisive (see, to that effect, judgment in Commission  v Volkswagen , C‑74/04 P, EU:C:2006:460, paragraph 37).
29. As regards the term ‘concerted practice’, it is apparent from the Court’s case-law that Articled 81(1) EC makes a distinction between that term and, in particular, the terms ‘agreement’ and ‘decision by an association of undertakings’, with the sole intention of catching various forms of collusion between undertakings which, from a subjective point of view, have the same nature and are distinguishable from each other only by their intensity and the forms in which they manifest themselves (see, to that effect, judgment Commission  v Anic Partecipazioni , C‑49/92 P, EU:C:1999:356, paragraph 112, and T-Mobile Netherlands and Others , C‑8/08, EU:C:2009:343, paragraph 23).
30. When, as in the present case, the infringement involves anti-competitive agreements and concerted practices, it is apparent from the Court’s case-law that the Commission must demonstrate, in order to be able to find that an undertaking participated in an infringement and was liable for all the various elements comprising the infringement, that the undertaking concerned intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk (see, to that effect, judgments in Commission  v Anic Partecipazioni , C‑49/92 P, EU:C:1999:356, paragraphs 86 and 87, and Aalborg Portland and Others  v Commission , 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, EU:C:2004:6, paragraph 83).
31. In that connection, the Court has held in particular that passive modes of participation in the infringement, such as the presence of an undertaking in meetings at which anti-competitive agreements were concluded, without that undertaking clearly opposing them, are indicative of collusion capable of rendering the undertaking liable under Article 81(1) EC, since a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, encourages the continuation of the infringement and compromises its discovery (see, to that effect, judgment in Dansk Rørindustri and Others  v Commission , C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 142 and 143 and the case-law cited).
32. It is true that the Court has stated, when called upon to determine whether there was an ‘agreement’ within the meaning of Article 81(1) EC, that the issue was whether the parties had expressed their concurrent intention to conduct themselves on the market in a particular manner (see, to that effect, inter alia, judgment in ACF Chemiefarma  v Commission , 41/69, EU:C:1970:71, paragraph 112). The Court has also held that the criteria of coordination and cooperation which are constituent elements of a ‘concerted practice’ within the meaning of that provision must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition, to the effect that each economic operator must determine independently the policy which he intends to adopt on the common market (see, inter alia, judgment in Commission  v Anic Partecipazioni , C‑49/92 P, EU:C:1999:356, paragraph 116)
34. Moreover, it cannot be inferred from the Court’s case-law that Article 81(1) EC concerns only either (i) the undertakings operating on the market affected by the restrictions of competition or indeed the markets upstream or downstream of that market or neighbouring markets or (ii) undertakings which restrict their freedom of action on a particular market under an agreement or as a result of a concerted practice.
35. Indeed, it is apparent from the Court’s well established case-law that the text of Article 81(1) EC refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the common market, irrespective of the market on which the parties operate, and that only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question (see, to that effect, judgments in LTM , 56/65, EU:C:1966:38, p. 358; Consten and Grundig  v Commission , 56/64 and 58/64, EU:C:1966:41, p.p. 492 and 493; Musique Diffusion française and Others  v Commission , 100/80 to 103/80, EU:C:1983:158, paragraphs 72 to 80; Binon , 243/83, EU:C:1985:284, paragraphs 39 to 47; and Javico , C‑306/96, EU:C:1998:173, paragraphs 10 to 14).
40. With regard, in the second place, to General Court’s alleged infringement of the principle that offences and penalties must be defined by law, it should be observed that, according to the Court’s case-law, that principle requires the law to give a clear definition of offences and the penalties which they attract. That requirement is satisfied where the individual concerned is in a position to ascertain from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable (judgment in Evonik Degussa  v Commission , C‑266/06 P, EU:C:2008:295, paragraph 39 and the case-law cited).
41. The principle that offences and penalties must be defined by law cannot therefore be interpreted as precluding the gradual, case-by-case clarification of the rules on criminal liability by judicial interpretation, provided that the result was reasonably foreseeable at the time the offence was committed, especially in the light of the interpretation put on the provision in the case-law at the material time (see, to that effect, judgment in Dansk Rørindustri and Others v Commission , C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 217 and 218).
42. The scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it covers and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. Such persons can therefore be expected to take special care in evaluating the risk that such an activity entails (judgment in Dansk Rørindustri and Othe rs v Commission , C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 219 and the case-law cited).
54. In that regard, according to settled case-law, to allow a party to put forward for the first time before the Court of Justice pleas and arguments which it did not raise before the General Court would be to authorise 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. In an appeal, the Court’s jurisdiction is thus confined to examining the assessment by the General Court of the pleas and arguments aired before it. It follows that those grounds of complaint must be rejected as inadmissible.
55. With regard to AC‑Treuhand’s complaint that the General Court failed to state reasons in connection with the requirements attaching to the principle of equal treatment, it is sufficient to point out the General Court cannot be criticised for not adjudicating on a plea that was not raised before it (see, to that effect, inter alia, judgment in Chalkor v Commission , C‑386/10 P, EU:C:2011:815, paragraph 70). That ground of complaint must therefore be rejected as unfounded.
61. As regards the argument that the General Court was incorrect to consider that AC‑Treuhand cannot plead infringement of the 2006 Guidelines, it is sufficient to note that, at paragraphs 298 and 299 of the judgment under appeal, in accordance with the Court’s case-law on the legal effects of guidelines adopted by the Commission for the calculation of fines (see, inter alia, judgment in Dansk Rørindustri and Others v Commission , C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 209 to 213), the General Court verified, in the light of the complaints raised by AC‑Treuhand in that regard, whether the Commission was entitled to depart from the 2006 Guidelines in the particular circumstances of the present case.
62. In so far as AC‑Treuhand maintains that the General Court erred in law in taking the view that the Commission was not required to fix the fines imposed on the basis of the fees which it charged, it should be noted that it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement (see, inter alia, judgment in LG Display and LG Display Taiwan  v Commission , C‑227/14 P, EU:C:2015:258, paragraph 50).
64. It follows that point 13 of the 2006 Guidelines pursues the objective of adopting, in principle, as the starting point for the setting of the fine imposed on an undertaking, an amount which reflects the economic significance of the infringement and the relative size of the undertaking’s contribution to it (judgment in LG Display and LG Display Taiwan  v Commission , C‑227/14 P, EU:C:2015:258, paragraph 53).
65. However, point 37 of the 2006 Guidelines states that ‘[a]lthough these Guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology.’
66. In the present case, it is common ground that the only markets affected by the infringements established are the tin stabilisers market and the ESBO/esters market, on which AC‑Treuhand, as a consultancy firm, was not present. As a consequence, no portion of that firm’s turnover may be accounted for by the goods in respect of which the infringements were committed. Accordingly, to determine the fines imposed on the basis of the fees charged by AC‑Treuhand for the services provided to producers would amount to taking account of a sum which, while providing an indication of the amount of profit it made as a result of the infringements, would accurately reflect neither the economic importance of the infringements in question nor the extent of AC‑Treuhand’s individual participation in those infringements, contrary to the objective of point 13 of the 2006 Guidelines.
67. As a consequence, the General Court did not err in law in finding, at paragraphs 302 to 305 of the judgment under appeal, that the Commission was entitled to depart from the method of calculating fines set out in the 2006 Guidelines by fixing, on the basis of point 37 of those guidelines, the basic amount of the fines imposed as a lump sum. AC‑Treuhand’s complaint alleging infringement of the 2006 Guidelines in that regard must therefore be rejected as unfounded.
68. In so far as AC‑Treuhand claims that the General Court was wrong to take the view that the Commission gave adequate reasons for its decision as regards the criteria adopted in setting the fines imposed, it should be observed that, in the determination of the amount of the fine in a case of infringement of the competition rules, the Commission fulfils its obligation to state reasons when it indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration, and it is not required to indicate the figures relating to the method of calculating the fines (see, to that effect, inter alia, judgment in Telefónica and Telefónica de España  v Commission , C‑295/12 P, EU:C:2014:2062, paragraph 181).
69. In the present case, it should be noted, in particular, that paragraphs 747 to 750 of the contested decision set out the factors relating to the gravity and duration of the infringements committed by AC‑Treuhand which were taken into account by the Commission in order to calculate the amount of the fines to be imposed on that firm. It follows that the General Court cannot be criticised for finding, at paragraphs 306 and 307 of the judgment under appeal, that the Commission had fulfilled the requirements pertaining to its duty to state reasons. It follows that the complaint under consideration is unfounded.
74. With regard to judicial review of decisions made by the Commission imposing a fine or periodic penalty payment for infringement of the competition rules, in addition to the review of legality provided for by Article 263 TFEU, the European Union judicature has the unlimited jurisdiction which it is afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU, and which empowers it to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (see, to that effect, judgment in Schindler Holding and Others  v Commission , C‑501/11 P, EU:C:2013:522, paragraph 36 and the case‑law cited).
75. However, it should be noted in that regard that the exercise of powers of unlimited jurisdiction provided for in Articles 261 TFEU and Regulation No 1/2003 does not amount to a review of the Court’s own motion and that proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy, which the Courts are required to raise of their own motion, it is therefore for the applicant to raise pleas in law against the contested decision and to adduce evidence in support of those pleas (see judgment in Telefónica and Telefónica de España  v Commission , C-295/12 P, EU:C:2014:2062, paragraph 213 and the case-law cited).
76. On the other hand, in order to satisfy the requirements of the principle of effective judicial protection enshrined in the first paragraph of Article 47 of the Charter and bearing in mind that Article 23(3) of Regulation No 1/2003 provides that the amount of the fine must be fixed by reference to the gravity and duration of the infringement, the courts of the European Union are bound, in the exercise of the powers conferred by Articles 261 TFEU and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (see, to that effect, judgment in Commission  v Parker Hannifin Manufacturing and Parker-Hannifin , C‑434/13 P, EU:C:2014:2456, paragraph 75 and the case-law cited).