Duravit AG and Others v European Commission.
Date: 2017-01-26
30


According to settled case-law, the review of legality provided for in Article 263 TFEU entails the EU judicature conducting a review, in respect of both the law and the facts, of the contested decision in the light of the arguments relied on by the applicant, which means that it has the power to assess the evidence, annul the decision and alter the amount of the fine (see judgment of 10 July 2014, Telefónica and Telefónica de España v Commission , C‑295/12 P, EU:C:2014:2062, paragraph 53 and the case-law cited).
31


The review of legality is supplemented by the unlimited jurisdiction conferred on the EU judicature by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the competent Court, in addition to carrying out a mere review of legality with regard to the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see judgment of 8 December 2011, Chalkor v Commission , C‑386/10 P, EU:C:2011:815, paragraph 63 and the case-law cited).
32


However, the exercise of unlimited jurisdiction is not equivalent to an own-motion review, and proceedings are inter partes. It is, in principle, for the applicant to raise pleas in law against the contested decision and to adduce evidence in support of those pleas (see judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin , C‑434/13 P, EU:C:2014:2456, paragraph 76 and the case-law cited).
33


It should be noted in that regard that the absence of an own-motion review of the whole of the contested decision does not contravene the principle of effective judicial protection. Compliance with that principle does not require that the General Court — which is indeed obliged to respond to the pleas in law raised and to carry out a review of both the law and the facts — should be obliged to undertake of its own motion a new and comprehensive investigation of the file (see judgment of 8 December 2011, Chalkor v Commission , C‑386/10 P, EU:C:2011:815, paragraph 66).
40


It is not disputed that the General Court is empowered, in addition to carrying out a mere review of legality with regard to fines imposed by the Commission, to substitute its own appraisal for that of the Commission and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see judgment of 22 November 2012, E.ON Energie v Commission , C‑89/11 P, EU:C:2012:738, paragraph 124 and the case-law cited).
41


In order to satisfy the requirements of Article 47 of the Charter when conducting a review in the exercise of its powers of unlimited jurisdiction with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 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 judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin , C‑434/13 P, EU:C:2014:2456, paragraph 75 and the case-law cited).
47


In that regard, it is settled case-law that the obligation to state reasons does not require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, provided that it enables the persons concerned to ascertain 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 (see judgment of 11 July 2013, Gosselin Group v Commission , C‑429/11 P, not published, EU:C:2013:463, paragraph 53 and the case-law cited).
49


Moreover, it is the task of the General Court to examine whether the amount of a fine is appropriate and, as a general rule, it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for their infringement of EU law (see, to that effect, judgment of 4 September 2014, YKK and Others v Commission , C‑408/12 P, EU:C:2014:2153, paragraph 29 and the case-law cited).
56


It is settled case-law that it is for the party or the authority alleging an infringement of the competition rules to prove it and that it is for the undertaking or association of undertakings raising a defence against a finding of an infringement of those rules to demonstrate that the conditions for applying the rule on which such defence is based are satisfied, so that the authority will then have to resort to other evidence (see judgment of 17 June 2010, Lafarge v Commission , C‑413/08 P, EU:C:2010:346, paragraph 29 and the case-law cited).
57


Even if the burden of proof rests, according to those principles, on the Commission or on the undertaking or association concerned, the factual elements on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the rules on the burden of proof have been satisfied (see judgment of 17 June 2010, Lafarge v Commission , C‑413/08 P, EU:C:2010:346, paragraph 30 and the case-law cited).
58


Moreover, what the applicant is required to do in the context of a legal challenge is to identify the impugned elements of the contested decision, to formulate grounds of challenge in that regard and to adduce evidence — direct or circumstantial — to demonstrate that its objections are well founded (see, to that effect, judgment of 8 December 2011, KME Germany and Others v Commission , C‑272/09 P, EU:C:2011:810, paragraph 105).
68


Furthermore, the concepts of ‘agreement’ and ‘concerted practice’ within the meaning of Article 101(1) TFEU are intended, from a subjective point of view, to catch forms of collusion having the same nature which are distinguishable from each other only by their intensity and the forms in which they manifest themselves. It is therefore sufficient that proof of the constituent elements of either of those forms of infringement referred to in Article 101(1) TFEU has been established in order in any event for that provision to apply (see, to that effect, judgment of 5 December 2013, Solvay Solexis v Commission , C‑449/11 P, not published, EU:C:2013:802, paragraph 52 and the case-law cited).
70


Finally, as regards the appellants’ argument that the General Court erred in finding, in paragraphs 235, 239 and 298 of the judgment under appeal, that an attempt to reach an agreement already constitutes an infringement of Article 101 TFEU, it should be borne in mind that a ‘concerted practice’, within the meaning of Article 101(1) TFEU, refers to a form of coordination between undertakings which, without having been taken to a stage where an agreement properly so called has been concluded, knowingly substitutes for the risk of competition practical cooperation between them (see, to that effect, judgment of 8 July 1999, Commission v Anic Partecipazioni , C‑49/92 P, EU:C:1999:356, paragraph 115 and the case-law cited).
71


Accordingly, 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 FEU Treaty relating to competition, to the effect that each economic operator must determine independently the policy which he intends to adopt on the internal market (see, to that effect, judgment of 22 October 2015, AC-Treuhand v Commission , C‑194/14 P, EU:C:2015:717, paragraph 32 and the case-law cited).
72


Furthermore, although that requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contact between such operators, which is such as either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which the operator concerned himself has decided to adopt on the market or which he contemplates adopting, where the object or effect of such contact is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market (see judgment of 8 July 1999, Commission v Anic Partecipazioni , C‑49/92 P, EU:C:1999:356, paragraph 117 and the case-law cited).
73


It thus follows that contact, consisting in an attempt to reach an agreement on prices, constitutes a concerted practice prohibited by Article 101(1) TFEU (see, to that effect, judgment of 5 December 2013, Solvay v Commission , C‑455/11 P, not published, EU:C:2013:796, paragraph 40).
81


In the first place, as regards the parts of the third ground of appeal relating to the measures of inquiry, it is settled case-law that it is for the EU judicature 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. With regard to the General Court, it follows from Article 49 read in conjunction with Article 65(b) of its Rules of Procedure, in the version applicable when the judgment under appeal was delivered, that a request for production of any document relating to the case is a measure of inquiry which the General Court may order at any stage of the proceedings (see, to that effect, judgments of 2 October 2003, Salzgitter v Commission , C‑182/99 P, EU:C:2003:526, paragraph 41 and the case-law cited; of 2 October 2003, Aristrain v Commission , C‑196/99 P, EU:C:2003:529, paragraph 67 and the case-law cited; of 2 October 2003, Ensidesa v Commission , C‑198/99 P, EU:C:2003:530, paragraph 28 and the case-law cited; and of 2 October 2003, Corus UK v Commission, C‑199/99 P, EU:C:2003:531, paragraph 67 and the case-law cited).
84


It is sufficient to point out that, since the appellants do not claim that the General Court failed to examine the pleas in law relied on at first instance, the question whether the General Court erroneously summarised the appellants’ arguments is irrelevant to the result of the present proceedings and, accordingly, the fifth and tenth parts of the third ground of appeal, in their entirety, and the first and ninth parts of that ground of appeal, in so far as they concern distortions of the appellants’ arguments, must be rejected (see, to that effect, judgment of 1 July 2010, Knauf Gips v Commission , C‑407/08 P, EU:C:2010:389, paragraph 32).
86


In the fourth place, as regards the parts of the third ground of appeal relating to the distortion of evidence, it should be recalled that there is distortion where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect. However, such distortion must be obvious from the documents on the Court’s file, without it being necessary to undertake a fresh assessment of the facts and the evidence. Moreover, where an appellant alleges distortion of the evidence by the General Court, he must indicate precisely the evidence alleged to have been distorted by that Court and show the errors of appraisal which, in his view, led to that distortion (see, to that effect, judgment of 3 December 2015, Italy v Commission , C‑280/14 P, EU:C:2015:792, paragraph 52).
90


Third, as regards the twelfth part of the third ground of appeal, in the first place, as is clear from paragraph 69 of the present judgment, the General Court neither examined the IFS meeting of 14 November 2001 and the FSKI meetings of 23 January and 5 July 2002 nor based its findings concerning the alleged infringement on those meetings and, in the second place, as regards the argument as to the approach taken in the judgments of 16 September 2013, Villeroy & Boch Austria and Others v Commission (T‑373/10, T‑374/10, T‑382/10 and T‑402/10, not published, EU:T:2013:455), and of 16 September 2013, Keramag Keramische Werke and Others v Commission (T‑379/10 and T‑381/10, not published, EU:T:2013:457), which was raised also in the context of the seventh part of the third ground of appeal, it is settled case-law that the General Court’s obligation to state the reasons for its judgments does not in principle extend to requiring it to justify the approach taken in one case as against that taken in another case, even if the latter concerns the same decision (see judgment of 11 July 2013, Team Relocations and Others v Commission , C‑444/11 P, not published, EU:C:2013:464, paragraph 66 and the case-law cited). Consequently, the twelfth part of the third ground of appeal in its entirety and the seventh part of that ground of appeal, in so far as it concerns the argument relating to the approach taken by the General Court in the judgments of 16 September 2013, Villeroy & Boch Austria and Others v Commission (T‑373/10, T‑374/10, T‑382/10 and T‑402/10, not published, EU:T:2013:455), and of 16 September 2013, Keramag Keramische Werke and Others v Commission (T‑379/10 and T‑381/10, not published, EU:T:2013:457), are unfounded.
99


It is common ground that the right of access to the Commission’s file is designed to ensure effective exercise of the rights of the defence. Those rights are not only fundamental principles of EU law but are also enshrined in Article 6 of the ECHR. Moreover, failure to respect that right of access during the procedure prior to adoption of a contested decision can, in principle, cause the decision to be annulled if the rights of defence of the undertaking concerned have been infringed (see, to that effect, judgment of 2 October 2003, Corus UK v Commission , C‑199/99 P, EU:C:2003:531, paragraphs 126 and 127 and the case-law cited).
100


In such a case, the infringement committed is not remedied by the mere fact that access to the file was made possible during the judicial proceedings relating to an action by which annulment of the contested decision is sought. Where access has been granted at that stage, the undertaking concerned must show not that, if it had had access to the non-disclosed documents, the Commission decision would have been different in content, but only that those documents could have been useful for its defence (see judgment of 2 October 2003, Corus UK v Commission , C‑199/99 P, EU:C:2003:531, paragraph 128 and the case-law cited).
108


First of all, it should be borne in mind that the General Court is the sole judge of any need to supplement the information available to it in respect of the cases before it. Whether or not the evidence before it is sufficient is a matter to be appraised by it alone and is not subject to review by the Court of Justice on appeal, except where that evidence has been distorted or the substantive inaccuracy of the findings of the General Court is apparent from the documents in the case (see judgment of 12 June 2014, Deltafina v Commission , C‑578/11 P, EU:C:2014:1742, paragraph 67 and the case-law cited).
109


Next, according to settled case-law, even where a request for the examination of witnesses, made in the application, states precisely about what facts and for what reasons the witness or witnesses should be examined, it falls to the General Court to assess the relevance of the request to the subject matter of the dispute and the need to examine the witnesses named (see 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 323 and the case-law cited).
110


Finally, the General Court’s discretion in that regard is compatible with the fundamental right to a fair hearing and, in particular, Article 6(3)(d) of the ECHR. It is apparent from the Court’s case-law that that provision does not confer on the accused an absolute right to obtain the attendance of witnesses before a court and that it is in principle for the court to determine whether it is necessary or appropriate to call a witness. Article 6(3) of the ECHR does not require that every witness be called but is aimed at full equality of arms, ensuring that the procedure in issue, considered in its entirety, gave the accused an adequate and proper opportunity to challenge the suspicions concerning him (see, to that effect, 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, paragraphs 324 and 325 and the case-law cited).
117


According to settled case-law, an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’ because their identical object distorts competition within the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see, to that effect, judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce , C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 156 and the case-law cited).
118


An undertaking which has participated in such a single and complex infringement of that kind by its own conduct, which fell within the definition of an ‘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 thus be responsible also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the 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 (see, to that effect, judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce , C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 157 and the case-law cited).
119


An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (see judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce , C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 158 and the case-law cited).
120


On the other hand, if an undertaking has directly taken part in one or more of the forms of anticompetitive conduct comprising a single and continuous infringement, but it has not been shown that that undertaking intended, through its own conduct, to contribute to all the common objectives pursued by the other participants in the cartel and that it was aware of all the other offending conduct planned or put into effect by those other participants in pursuit of the same objectives or that it could reasonably have foreseen all that conduct and was prepared to take the risk, the Commission is entitled to attribute to that undertaking liability only for the conduct in which it had participated directly and for the conduct planned or put into effect by the other participants, in pursuit of the same objectives as those pursued by the undertaking itself, where it has been shown that the undertaking was aware of that conduct or was able reasonably to foresee it and prepared to take the risk (see judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce , C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 159 and the case-law cited).
121


In that regard, the Court of Justice has already held that the General Court is not required, for the purpose of characterising various instances of conduct as a single and continuous infringement, to establish whether they present a link of complementarity, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of an overall plan having a single objective. By contrast, the condition relating to a ‘single objective’ requires that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the instances of conduct in fact implemented by other participating undertakings do not have an identical object or identical anticompetitive effect and, consequently, do not form part of an ‘overall plan’ as a result of their identical object distorting the normal pattern of competition within the internal market (see, to that effect, 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, paragraphs 247 and 248).
122


Moreover, it cannot be inferred from the Court’s case-law that Article 101(1) TFEU concerns only either (i) the undertakings operating on the market affected by the restrictions of competition or indeed on 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. Indeed, it follows from well-established case-law of the Court that the text of Article 101(1) TFEU refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the internal 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, judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraphs 34 and 35 and the case-law cited).
134


First of all, it is clear from settled case-law that the exchange of sensitive information infringes Article 101(1) TFEU, in particular where it underpins another anticompetitive arrangement (see, to that effect, judgment of 7 January 2004, 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 281).
135


Next, the exchange of commercial information between competitors in preparation for an anticompetitive agreement suffices to prove the existence of a concerted practice within the meaning of Article 101(1) TFEU. In that regard, it is not necessary to show that those competitors formally undertook to adopt a particular course of conduct or that the competitors colluded over their future conduct on the market (see, to that effect, judgment of 5 December 2013, Solvay v Commission , C‑455/11 P, not published, EU:C:2013:796, paragraph 40).
136


Finally, a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery. That complicity constitutes a passive mode of participation in the infringement which is therefore capable of rendering the undertaking liable in the context of a single agreement. Nor is the fact that an undertaking does not act on the outcome of a meeting having an anticompetitive object such as to relieve it of responsibility for the fact of its participation in a cartel, unless it has publicly distanced itself from what was agreed in the meeting (see, to that effect, judgment of 28 June 2005, 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 143 and 144).