Ziegler SA v European Commission.
Date: 2013-07-11
42. Second, according to the Court’s settled case-law, for a request for substitution of grounds to be admissible, the appellant must have an interest in bringing proceedings, in so far as the request must be capable, if successful, of procuring an advantage to the party making it. That may be the case where the request for substitution of grounds amounts to a defence to one of the applicant’s pleas (see, to that effect, Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others  v Commission  [2009] ECR I‑9291, paragraph 23, and the judgment of 21 December 2011 in Case C‑329/09 P Iride  v Commission , paragraphs 48 to 51).
45. The assessment of appreciability depends on the circumstances of each individual case, in particular the nature of the agreement and practice, the nature of the products covered and the market position of the undertakings concerned. … The stronger the market position of the undertakings concerned, the more likely it is that an agreement or practice capable of affecting trade between Member States can be held to do so appreciably …
…
50. … the Commission considers it appropriate to set out general principles indicating when trade is normally not capable of being appreciably affected …. When applying Article 81 [EC], the Commission will consider this standard as a negative rebuttable presumption applying to all agreements within the meaning of Article 81(1) [EC] …
…
52. The Commission holds the view that in principle agreements are not capable of appreciably affecting trade between Member States when the following cumulative conditions are met:
(a) The aggregate market share of the parties on any relevant market within the Community affected by the agreement does not exceed 5%, and
(b) in the case of horizontal agreements, the aggregate annual Community turnover of the undertakings concerned … in the products covered by the agreement does not exceed 40 million euro. …
…
53. The Commission will also hold the view that where an agreement by its very nature is capable of affecting trade between Member States, for example, because it concerns imports and exports or covers several Member States, there is a rebuttable positive presumption that such effects on trade are appreciable when the turnover of the parties in the products covered by the agreement calculated as indicated in paragraphs 52 and 54 exceeds 40 million euro. In the case of agreements that by their very nature are capable of affecting trade between Member States it can also often be presumed that such effects are appreciable when the market share of the parties exceeds the 5% threshold …. However, this presumption does not apply where the agreement covers only part of a Member State …
54. With regard to the threshold of 40 million euro … the turnover is calculated on the basis of total Community sales excluding tax during the previous financial year by the undertakings concerned, of the products covered by the agreement …. Sales between entities that form part of the same undertaking are excluded …
55. In order to apply the market share threshold, it is necessary to determine the relevant market (41). This consists of the relevant product market and the relevant geographic market. The market shares are to be calculated on the basis of sales value data or, where appropriate, purchase value data. If value data are not available, estimates based on other reliable market information, including volume data, may be used.’
3. Footnote 41 to point 55 of the Guidelines on the effect on trade states that, when defining the relevant market, reference should be made to the Notice on the definition of the relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5) (‘the Notice on the definition of the market’).
4. The Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2) (‘the Guidelines on the method of setting fines’) provide, under the heading ‘Basic amount of the fine’, as follows:
‘…
A. Calculation of the value of sales
13. In determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly … relates in the relevant geographic area within the [European Economic Area (EEA)]. It will normally take the sales made by the undertaking during the last full business year of its participation in the infringement (hereafter “value of sales”).
…
B. Determination of the basic amount of the fine
19. The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement.
…
21. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales.
22. In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented.
23. Horizontal price-fixing, market-sharing and output-limitation agreements [7], which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.
…
25. In addition, irrespective of the duration of the undertaking’s participation in the infringement, the Commission will include in the basic amount a sum of between 15% and 25% of the value of sales … in order to deter undertakings from even entering into horizontal price-fixing … agreements. … For the purpose of deciding the proportion of the value of sales to be considered in a given case, the Commission will have regard to a number of factors, in particular those referred in point 22.
…’
5. Footnote 2 to point 23 of the Guidelines on the method of setting fines states that such agreements include concerted practices and decisions by associations of undertakings within the meaning of Article 81 EC.
6. Under the heading ‘Adjustments to the basic amount’, the Guidelines on the method of setting fines provide as follows:
‘F. Ability to pay
35. In exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. It will not base any reduction granted for this reason in the fine on the mere finding of an adverse or loss-making financial situation. A reduction could be granted solely on the basis of objective evidence that imposition of the fine as provided for in these Guidelines would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value.’
7. Under the heading ‘Final considerations’, point 37 of the Guidelines on the method of setting fines provides as follows:
‘Although 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 or from the limits specified in point 21.’
II – Background to the dispute and the contested decision
8. The facts giving rise to the dispute and the contested decision, as set out in paragraphs 1 to 21 of the judgment under appeal, may be summarised as follows.
9. In the contested decision, the Commission found that the addressees of that decision – one of which was Ziegler (whose consolidated turnover in the financial year ending 31 December 2006 was EUR 244 420 326) – had participated in a cartel in the international removal services sector in Belgium by fixing prices, sharing customers and manipulating the procedure for the submission of tenders and thereby committed a single and continuous infringement of Article 81 EC, or must be held liable for such an infringement, for part or the whole of the period from October 1984 to September 2003.
10. The services concerned by the infringement include removals of goods from or to Belgium, both for natural persons and for undertakings or public institutions. In view of the fact that the international removal companies in question are all located in Belgium and that the activities of the cartel took place there, Belgium was considered to be the geographic centre of the cartel. The combined turnover of the cartel members for those international removal services was estimated by the Commission at EUR 41 million for 2002. Since the size of the sector was estimated at approximately EUR 83 million, the combined market share held by the undertakings involved was therefore considered to account for approximately 50% of the sector concerned.
11. The Commission stated in the contested decision that one of the aims of the cartel was to establish and maintain high prices and to share the market, and the cartel itself took various forms: agreements on prices, agreements on sharing the market by means of a system of false quotes known as ‘cover quotes’, and agreements on a system of financial compensation, known as ‘commissions’, for rejected offers or for not quoting at all.
12. In the contested decision, the Commission found that, between 1984 and the early 1990s, the cartel had operated, inter alia, on the basis of written price-fixing agreements, the ‘commission’ and ‘cover quote’ practices being introduced at the same time. According to that decision, as was stated in the judgment under appeal, the ‘commissions’ practice was to be treated as the indirect fixing of prices for international removal services in Belgium, since the cartel members issued invoices to each other for commissions on rejected offers or offers not made, referring to fictitious services, and the amount represented by those commissions was, moreover, invoiced to the customers.
13. As regards ‘cover quotes’, the Commission stated in the contested decision that, through the submission of such quotes, the removal company which wanted the contract ensured that the customer paying for the removal received several quotes. To that end, that company indicated to its competitors the total price that they were to quote for the planned removal, which was higher than the price quoted by the company itself. Thus the system in operation was one of fictitious quotes submitted by companies which did not intend to carry out the removal. The Commission took the view that that practice constituted a manipulation of the tendering procedure to ensure that the price quoted for a removal was higher than it would have been in a competitive environment.
14. The Commission found in the contested decision that those arrangements were in place until 2003 and that those complex activities had the same object: price-fixing and market-sharing and, thereby, the distortion of competition.
15. In the light of those factors, the Commission adopted the contested decision, Article 1 of which is worded as follows:
‘By directly and indirectly fixing prices for international removal services in Belgium, sharing part of the market, and manipulating the procedure for the submission of tenders, the following undertakings have infringed Article 81(1) [EC] and Article 53(1) of the [Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3)] in the periods indicated:
…
(j) [Ziegler], from 4 October 1984 to 8 September 2003.’
16. Consequently, under Article 2(l) of the contested decision, the Commission imposed a fine of EUR 9.2 million on Ziegler, calculated in accordance with the methodology set out in the Guidelines on the method of setting fines.
17. On 24 July 2009, the Commission adopted Decision C(2009) 5810 final amending the contested decision by reducing by approximately EUR 600 000 the value of the sales of another addressee of the contested decision. As that value had been taken as the basis of the calculation of the fine imposed on that addressee, the Commission reduced the amount of that fine.
III – The proceedings before the General Court and the judgment under appeal
18. By application lodged at the Registry of the General Court on 3 June 2008, Ziegler brought an action for annulment of the contested decision or, in the alternative, annulment of the fine imposed on it or, in the further alternative, a substantial reduction of that fine. Ziegler also requested the General Court to order that the full administrative file be lodged at the Court Registry, pending judgment.
19. In parallel with that action, Ziegler filed an application for interim measures, seeking, inter alia, a stay of execution of Article 2 of the contested decision, in so far as it imposed a fine on it. That application was refused by order of the President of the General Court of 15 January 2009 in Case T‑199/08 R Ziegler v Commission , the appeal lodged against that decision subsequently being dismissed by order of the President of the Court of Justice of 30 April 2010 in Case C‑113/09 P(R) Ziegler  v Commission .
20. Ziegler relied on nine pleas in law in support of its action, namely five principal pleas, seeking annulment of the contested decision, and four pleas in the alternative, seeking the annulment or reduction of the fine.
21. By the judgment under appeal, the General Court granted in part Ziegler’s request that it order that the administrative file be lodged at the Court Registry. However, it dismissed all the pleas relied on by Ziegler and, as a consequence, rejected the action in its entirety, ordering Ziegler to pay the costs. The Court’s decision was based, inter alia, on the following considerations.
22. In its analysis of the first plea seeking annulment of the contested decision, alleging manifest errors of assessment and errors of law in the assessment of the conditions necessary for the application of Article 81(1) EC, the General Court first of all dismissed, at paragraphs 41 to 46 of the judgment under appeal, the Commission’s arguments that it was not necessary to define the relevant market in the case of obvious restrictions of competition. The General Court stated that the Commission is under an obligation to define the market in particular where it is impossible, without such a definition, to determine whether the agreement at issue is liable to affect trade between Member States and that, in the present case, Ziegler was entitled to call into question the Commission’s assessment of that condition for the application of Article 81 EC.
23. Next, at paragraphs 56 to 63 of the judgment under appeal, the General Court found that the Commission had failed to prove that the EUR 40 million threshold set out at point 53 of the Guidelines on the effect on trade had been reached. According to the General Court, it was necessary, when estimating the size of the market for the purposes of ascertaining whether there was an appreciable effect on trade between Member States, for the turnover achieved as a subcontractor to be deducted from the turnover achieved from the services in question. That court found that once the turnover achieved as a subcontractor was deducted, the EUR 40 million threshold was no longer reached.
24. Lastly, after finding, at paragraph 48 of the judgment under appeal, that the argument put forward by Ziegler by way of response, concerning the 5% market share threshold set out at point 53 of the Guidelines on the effect on trade, simply supplemented the plea calling into question the evidence of any appreciable effect on trade between Member States and was therefore admissible, the General Court went on to analyse that argument at paragraphs 64 to 74 of the judgment under appeal. It stated in that regard, inter alia, that the Commission had failed to comply with the obligation to define the relevant market, as it was required to by point 55 of those guidelines. However, it took the view that, in the circumstances of the case, the Commission had established to the requisite legal standard that the 5% market share threshold had been exceeded, since it had provided a sufficiently detailed description of the relevant sector for it to be possible to ascertain whether that threshold had been reached. It therefore held, at paragraph 72 of the judgment under appeal, that, ‘exceptionally’, the Commission was entitled to base its decision on that threshold without expressly determining the market within the meaning of point 55 of those guidelines.
25. In its analysis of the first part of the third plea seeking annulment of the contested decision, alleging breach of the obligation to state reasons with regard to the calculation of the basic amount of the fine, the General Court stated, inter alia, at paragraphs 88 to 94 of the judgment under appeal, that it was desirable for the Commission to augment its reasoning as to the calculation of fines, that the Guidelines on the method of setting fines adopted in 2006 had brought about a fundamental change in the method of setting fines and that, in those circumstances, it was no longer possible for the Commission, in principle, to state reasons only for the classification of an infringement as ‘very serious’ and to omit to justify the choice of the proportion of the value of sales taken into account. It pointed out that, in the present case, the Commission had set that percentage at 17%, the only reasons given for that choice being the ‘very serious’ nature of the infringement. In that regard, that court stated, at paragraph 93 of the judgment under appeal, that ‘[t]hat reasoning can be sufficient only where the Commission applies a percentage very close to the lower end of the scale laid down for the most serious restrictions’ and that ‘had the Commission wished to apply a higher percentage, it would have had to provide more detailed reasons’. The General Court added, at paragraph 94 of that judgment, that those considerations were also valid as regards the additional amount applied as a deterrent.
26. With regard to the fourth plea seeking annulment of the contested decision, alleging infringement of the right to fair legal process and the general principle of good administration, the General Court stated, at paragraphs 103 to 107 of the judgment under appeal, that Ziegler had not called into question the Commission’s competence, in the present case, to adopt a decision in relation to a proceeding under Article 81 EC. It also stated that the lack of objectivity allegedly shown by the Commission did not constitute an infringement of the rights of the defence capable of leading to annulment of the contested decision but must be placed in the context of the review of the assessment of the evidence or of the statement of reasons for the decision. It therefore held that the plea in question was ineffective as a plea for annulment. Nevertheless, the General Court pointed out, for the sake of completeness, that that plea was also unfounded. Indeed, in its view, the matters raised by Ziegler were not of such a kind as to demonstrate that the alleged bias of the Commission or of one of its officials was reflected in the contested decision or that the Commission was biased in investigating the case or how the conduct which certain Commission officials were accused of, even if proved, could have infringed the right to fair legal process.
27. In its analysis of the last plea, seeking annulment of or a reduction in the fine on account of exceptional circumstances, the General Court examined the arguments by which Ziegler pleaded, in essence, its inability to pay the fine and unequal treatment vis‑à‑vis another undertaking to which the contested decision was addressed. It pointed out, inter alia, at paragraphs 165 to 169 of the judgment under appeal, that point 35 of the Guidelines on the method of setting fines imposed two cumulative conditions for its application and that the Commission’s assessment – that the fact that the fine imposed on Ziegler accounted for only 3.76% of its worldwide turnover in 2006 suggested that the fine is unlikely to irretrievably jeopardise its economic viability – was abstract and took no account of the company’s specific circumstances. It therefore found that that assessment could not form a basis on which Ziegler’s application for a reduction could be rejected. However, since Ziegler did not challenge the Commission’s finding in the contested decision that the second condition, relating to the presence of a specific social and economic context, was not met, the General Court considered that the Commission was justified in rejecting Ziegler’s arguments seeking a reduction of the fine on account of its economic and financial difficulties.
28. As regards the purported infringement of the principle of equal treatment in relation to another undertaking at which the contested decision was addressed, the General Court pointed out, at paragraphs 170 and 171 of the judgment under appeal, that the Commission had also refused the request made by that other company pursuant to point 35 of the Guidelines on the method of setting fines, on account of the lack of a specific social and economic context. It also considered that while the Commission had in fact granted that company a reduction in the fine in accordance with point 37 of those guidelines, it was apparent from the contested decision that that undertaking’s position and that of Ziegler were not comparable and it was sufficient to note in that connection that the fine imposed on Ziegler was considerably below the 10% threshold of its total turnover, whereas, before it was reduced, the fine imposed on the other undertaking far exceeded that threshold.
IV – Forms of order sought by the parties
29. By its appeal, Ziegler claims that the Court should:
– declare the present appeal admissible and well founded;
– set aside the judgment under appeal and give final judgment itself on the dispute;
– grant the form of order sought at first instance and, accordingly annul the contested decision or, in the alternative, annul the fine imposed on the appellant in that decision or, in the further alternative, substantially reduce that fine; and
– order the Commission to pay the costs both at first instance and on appeal.
30. In its reply, Ziegler also claims that the Commission’s request seeking the substitution of certain grounds should be rejected as inadmissible or, at the very least, unfounded.
31. The Commission contends that the Court should:
– dismiss the appeal and substitute certain grounds of the judgment of the General Court;
– in the alternative, dismiss the action for annulment; and
– order Ziegler to pay the costs.
V – The appeal
32. Ziegler relies on four grounds of appeal.
A – The first ground of appeal, alleging errors of law in the assessment of the evidence of an appreciable effect on trade between Member States
33. Ziegler divides its first ground of appeal into three parts, the first concerning the obligation to define the relevant market and the second and third concerning, in essence, the 5% market share threshold set out at point 53 of the Guidelines on the method of setting fines. However, the Commission has requested that the Court first of all grant leave for the substitution of certain grounds, which, in its view, will lead to the rejection of the first ground of appeal.
1. The Commission’s request for new grounds to be substituted
a) Arguments of the parties
34. First, the Commission submits that the purpose of the Guidelines on the effect on trade is not to render the standard of the requirement of proof of an appreciable effect on trade between Member States more stringent than that established by case‑law. Whereas it has a certain discretion concerning the calculation of fines, the Commission has no leeway to come to the view that a cartel which has an appreciable effect on trade between Member States might not be caught by the prohibition laid down in Article 81 EC. Therefore, the thresholds set out at points 52 and 53 of the Guidelines on the effect on trade are merely indicative. Similarly, no obligation to define the market may be inferred from point 55 of those guidelines in cases, such as those involving cartels, in which, as is clear from case‑law, such a definition is unnecessary. The grounds set out at paragraphs 64 to 74 of the judgment under appeal are therefore incorrect and should be replaced.
35. Second, the Commission is of the view that the General Court erred in law by confusing the term ‘turnover’ within the meaning of points 52 and 53 of the Guidelines on the effect on trade with the term ‘value of sales’ used in point 13 of the Guidelines on the method of setting fines, and by taking the view that turnover within the meaning of points 52 and 53 could not include the turnover achieved as sub‑contractors. Subcontracting is in fact a relevant economic activity for the purpose of determining whether trade between Member States may be regarded as being appreciably affected, even though it should not be taken into account in calculating the fine. The Commission therefore requests that new grounds be substituted for the grounds set out at paragraphs 56 to 63 of the judgment under appeal, in which the General Court concluded, incorrectly, that it had not been proven that the EUR 40 million threshold was exceeded.
36. Third, the Commission requests that new grounds be substituted for the grounds set out at paragraphs 40 to 50 of the judgment under appeal, in particular those set out at paragraph 48. It contends that the General Court was incorrect to conclude that Ziegler’s argument relating to the 5% market share threshold was admissible. It is not possible to infer that argument from the application initiating the proceedings, and it should therefore have been regarded not as supplementing a plea already raised but as a new limb of a plea and, as such, inadmissible.
37. Ziegler maintains that the requests for substitution of grounds are inadmissible, since they have no effect on the operative part of the judgment under appeal and are imprecise. They are, in any event, unfounded.
38. In first place, by establishing, in the Guidelines on the effect on trade, thresholds which are not to be found in case‑law, the Commission must have intended to limit the scope of its discretion as regards the application of the condition requiring there to be an appreciable effect on trade between Member States. It cannot therefore depart from those guidelines without providing adequate reasons. Moreover, where it chooses to apply them, as in the present case, the Commission is bound to adhere to them.
39. In second place, no support is to be found for the distinction which the Commission claims exists between the terms ‘value of sales’ and ‘turnover’ in the wording or the spirit of the provisions concerned or, a fortiori , in the case‑law.
40. In third place, Ziegler maintains that the argument presented before the General Court concerning the 5% market share threshold was admissible because it supplemented a plea claiming that there was no appreciable effect on trade between Member States.
b) Findings of the Court
41. With regard to the admissibility of the requests at issue, disputed by Ziegler, it should be noted, first, that they cannot be dismissed as inadmissible on the ground that they are imprecise. For each of the requests submitted, the Commission has identified precisely the passages of the judgment under appeal which it considers to be incorrect in law, the grounds on which it considers them to be so and the grounds which, in its view, the General Court should have established if it was not to err in law, namely those which the Commission raised before it in its defence.
42. Second, according to the Court’s settled case-law, for a request for substitution of grounds to be admissible, the appellant must have an interest in bringing proceedings, in so far as the request must be capable, if successful, of procuring an advantage to the party making it. That may be the case where the request for substitution of grounds amounts to a defence to one of the applicant’s pleas (see, to that effect, Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services and Others  v Commission  [2009] ECR I‑9291, paragraph 23, and the judgment of 21 December 2011 in Case C‑329/09 P Iride  v Commission , paragraphs 48 to 51).
43. In the present case, with regard to the first request, concerning the grounds relating to the concept of an ‘appreciable effect on trade between Member States’ and the obligation to define the relevant market, it should be noted that if the General Court erred in law in holding that, in view of the binding nature of the Guidelines on the effect on trade, the Commission was required to define the relevant market, the first part of the first ground of appeal relied on by Ziegler would be ineffective. Indeed, Ziegler would therefore no longer be in a position to claim that the General Court incorrectly exempted the Commission from its obligation to define the market. As a consequence, the Commission has an interest in making that request, which is therefore admissible.
44. As regards the second request, concerning the grounds relating to whether or not the EUR 40 million threshold was exceeded, if it were established that the General Court, in breach of the law, had confused the term ‘value of sales’ used in the Guidelines on the method of setting fines with the term ‘turnover’ within the meaning of the Guidelines on the effect on trade and as a result inferred, incorrectly, that that threshold had not been reached, it would have to be found that it had been established that that threshold was exceeded. In that case, the second and third parts of Ziegler’s first ground of appeal, relating solely to the assessment of the 5% market share threshold, would be ineffective. It follows that the Commission also has an interest in making that request, which is therefore also admissible.
45. With regard to the third request, concerning the grounds relating to the admissibility of Ziegler’s argument on the 5% market share threshold, it is sufficient to observe, without there being any need to rule on its admissibility, that it must in any event be rejected as unfounded (see, by analogy, Case C‑233/02 France  v Commission  [2004] ECR I‑2759, paragraph 26).
46. The first subparagraph of Article 48(2) of the Rules of Procedure of the General Court provides that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. However, a plea or an argument which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the original application and which is closely connected therewith must be declared admissible (see, to that effect, the order in Case C‑430/00 P Dürbeck  v Commission  [2001] ECR I‑8547, paragraph 17).
57. First, in so far as, by claiming that Ziegler did not dispute during the administrative procedure that the condition requiring an appreciable effect on trade between Member States had been met, the Commission seeks to challenge the admissibility of the present ground of appeal, it should be recalled, as regards in particular the application of Article 81 EC, that there is no requirement under the law of the European Union that the addressee of the statement of objections must challenge the various matters of fact or law set out in the statement during the administrative procedure, if it is not to be barred from doing so later at the stage of judicial proceedings. In the absence of a specific legal basis, such a restriction is contrary to the fundamental principles of the rule of law and of respect for the rights of the defence (Case C‑407/08 P Knauf Gips  v Commission  [2010] ECR I‑6375, paragraphs 89 and 91).
59. Ziegler maintains, as a principle argument, that the General Court erred in law in exempting the Commission from the obligation to define the relevant market as it was required to by point 55 of the Guidelines on the effect on trade, whereas the Commission argues, on the contrary, that the General Court was incorrect in finding that those guidelines are binding on the Commission. It should be noted in that regard, first, that, according to the settled case‑law of the Court of Justice, the Commission may adopt a policy as to how it will exercise its discretion in the form of measures such as guidelines, in so far as those measures contain rules indicating the approach which the institution is to take and do not depart from the rules of the FEU Treaty (see, to that effect, Case C‑313/90 CIRFS and Others  v Commission  [1993] ECR I‑1125, paragraphs 34 and 36, and Case C‑288/96 Germany  v Commission [2000] ECR I‑8237, paragraph 62).
60. Thus, while measures designed to produce external effects, such as guidelines directed at economic operators, cannot be regarded as rules of law which the administration is required in all cases to comply with, they nevertheless lay down rules of conduct indicating the approach to be adopted from which the administration cannot depart, in an individual case, without giving reasons which are compatible with the principle of equal treatment. By adopting such rules and announcing by publishing them that it will apply them to the cases to which they relate, the institution in question imposes a limit on the exercise of its own discretion and cannot depart from those rules, without being found, in some circumstances, in breach of general principles of law, such as the principles of equal treatment or of the protection of legitimate expectations. It cannot therefore be precluded that, on certain conditions and depending on their content, such rules of conduct of general application may produce legal effects (see, to that effect, 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, paragraphs 209 to 211).
71. Second, as regards Ziegler’s claim that, in adopting that approach, the General Court, at the very least, made an incorrect assessment of the legal requirements which the definition of the relevant market should have satisfied in the present case, it should be noted that, in the context of the application of Article 81 EC, the sole purpose of the definition of the relevant market is to determine whether the agreement in question is capable of affecting trade between Member States and has the object or effect of preventing, restricting or distorting competition within the common market (order in Adriatica di Navigazione  v Commission , paragraph 31) and that, in order to assess whether a cartel has an appreciable effect on trade between Member States, it is necessary to examine it in its economic and legal context (Case C‑238/05 Asnef-Equifax and Administración del Estado  [2006] ECR I‑11125, paragraph 35 and the case‑law cited, and Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erest Group Bank and Others  v Commission  [2009] ECR I‑8681, paragraph 37).
74. Third, in so far as Ziegler claims that the General Court gave its approval, wrongly, to the Commission’s definition of the market in the contested decision, it must be borne in mind that it is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. When the General Court has found or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review the legal characterisation of those facts and the legal conclusions which the General Court has drawn from them (see, inter alia, Case C‑185/95 P Baustahlgewebe v Commission  [1998] ECR I‑8417, paragraph 23, and Case C‑90/09 P General Química and Others  v Commission  [2011] ECR I‑1, paragraph 71 and the case‑law cited).
75. Thus, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice ( Baustahlgewebe  v Commission , paragraph 24 and the case‑law cited, and General Química and Others  v Commission , paragraph 72 and the case‑law cited).
81. According to settled case-law, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review (see, inter alia, Case C‑259/96 P Council  v de Nil and Impens [1998] I‑2915, paragraphs 32 and 33, and General Química and Others  v Commission , paragraph 59).
82. However, the obligation to state reasons does not require the General Court to provide an account which responds exhaustively and one by one all to the arguments put forward by the parties to the case. The reasoning may therefore be implicit on condition that it 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 (see, inter alia, Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/002 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others  v Commission  [2004] ECR I‑123, paragraph 372).
92. According to the Court’s case‑law, if an agreement, decision or concerted practice is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or fact, that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that it might hinder the attainment of a single market between Member States. Moreover, the effect must not be insignificant ( Asnef-Equifax and Administración del Estado , paragraph 34 and the case-law cited, and Erste Group Bank and Others  v Commission , paragraph 36).
93. An effect on intra-Community trade is normally the result of a combination of several factors which, taken separately, are not necessarily decisive. In order to assess whether a cartel has an appreciable effect on trade between Member States, it is necessary to examine it in its economic and legal context ( Asnef-Equifax and Administración del Estado , paragraph 35 and the case-law cited, and Erste Group Bank and Others  v Commission , paragraph 37).
94. Thus, the Court has already held that a cartel extending over the whole of the territory of a Member State has, by its very nature, the effect of reinforcing the partitioning of markets on a national basis, thus impeding the economic interpenetration which the FEU Treaty is designed to bring about and is therefore capable of affecting trade between Member States within the meaning of Article 81(1) EC (see, to that effect, Case C‑35/99 Arduino  [2002] ECR I‑1529, paragraph 33; Asnef-Equifax and Administración del Estado , paragraph 37 and the case-law cited; and Erste Group Bank and Others  v Commission , paragraph 38) and that, where the services concerned have a cross‑border dimension, that is a relevant factor in determining whether trade between Member States is affected within the meaning of that provision (see, by analogy, Case 311/85 Vereniging van Vlaamse Reisbureaus  [1987] ECR 3801, paragraphs 18 and 21).
95. The question whether there may be an appreciable effect on trade between Member States must therefore be assessed taking into account all the relevant factors of the individual case. Accordingly, the possibility cannot be ruled out that, in a particular case, one of those factors alone, such as the fact that the thresholds laid down by the Commission at point 53 of the Guidelines on the effect on trade has been clearly exceeded, may, in itself, provide a sufficient indication that there is an appreciable effect on trade between Member States within the meaning of Article 81(1) EC (see, by analogy, Case 19/77 Miller International Schallplatten  v Commission  [1978] ECR 131, paragraph 9, and Joined Cases 100/80 to 103/80 Musique Diffusion française and Others  v Commission  [1983] ECR 1825, paragraphs 82, 83 and 86).
112. The Commission’s request must therefore be regarded as being directed against grounds included in the judgment under appeal purely for the sake of completeness and, consequently, as it is ineffective, it must in any event be rejected (see, to that effect, the order in Case C‑317/95 P SPO and Others  v Commission  [1996] ECR I‑1611, paragraph 47 and the case‑law cited, and the judgment in Case C‑182/99 P Salzgitter  v Commission  [2003] ECR I‑10761, paragraphs 54 and 55).
b) The merits of the second ground of appeal
i) Principal argument
114. It should be borne in mind that the obligation laid down in Article 253 EC to state adequate reasons is an essential procedural requirement that must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (Case C‑521/09 P Elf Aquitaine  v Commission [2011] ECR I‑8947, paragraph 146 and the case‑law cited).
115. In that vein, first, the statement of reasons required under Article 253 EC must be appropriate for 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 Court of the European Union to exercise its jurisdiction to review legality. As regards, in particular, the reasons given for individual decisions, the purpose of the obligation to state the reasons on which an individual decision is based is, therefore, in addition to permitting review by the Courts, to provide the person concerned with sufficient information to know whether the decision may be vitiated by an error enabling its validity to be challenged ( Elf Aquitaine  v Commission , paragraphs 147 and 148 and the case‑law cited).
116. Second, the requirement to state reasons must be assessed by reference to the circumstances of the 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 ( Elf Aquitaine  v Commission , paragraph 150 and the case‑law cited).
124. Fourth, with regard in particular to the percentage figure used to determine the additional amount applied as a deterrent, it is clear that, first, the cartel in question falls squarely within the category of infringements referred to at point 25 of the Guidelines on the method of calculating fines, which are also referred to at point 23, and, second, 17% is also at the lower end of the 15% – 25% scale mentioned at point 25. The General Court was therefore entitled to refer, at paragraph 94 of the judgment under appeal, to its analysis of the reasons given for the percentage figure used to determine the basic amount of the fine. Accordingly, the considerations set out at paragraphs 121 to 123 above are equally valid as regards the General Court’s analysis of the reasons given by the Commission in the contested decision concerning that percentage figure.
125. In those circumstances, Ziegler’s claim that the General Court infringed Article 253 EC by omitting to censure inadequate reasoning in the contested decision regarding the choice of the proportion of the value of sales used in determining the basic amount of the fine and the amount of the additional fine applied as a deterrent, or even by exempting the Commission from any obligation to state reasons in that regard, must be rejected as unfounded.
126. Furthermore, with regard to the alleged infringement of the fundamental right to fair legal process enshrined in Article 47 of the Charter and Article 6 of the ECHR, it should be noted, first, that the protection afforded in European Union law by Article 47 of the Charter is the same as that afforded by Article 6(1) of the ECHR. It is necessary, therefore, to refer only to Article 47 (see, to that effect, Case C‑386/10 P Chalkor  v Commission  [2011] ECR I‑0000, paragraph 51).
127. As Ziegler maintains that, in the present case, that provision of the Charter was infringed by both the Commission and the General Court, it must be recalled, first, that according to settled case‑law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court would be to allow it to bring before the Court, 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 therefore confined to reviewing the findings of law on the pleas argued before the General Court (Case C‑202/07 P France Télécom  v Commission  [2009] ECR I‑2369, paragraph 60 and the case‑law cited, and Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Standard Commercial Tobacc o v Commission  and Commission  v Alliance One International and Others  [2012] ECR I‑0000, paragraph 111).
132. First, the principle of equal treatment is a general principle of European Union law, enshrined in Articles 20 and 21 of the Charter. According to settled case‑law, that principle requires that comparable situations must not be treated differently, and different situations must not be treated in the same way, unless such treatment is objectively justified (Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals  v Commission  [2010] ECR I‑8301, paragraphs 54 and 55 and the case‑law cited).
133. It is also the Court’s settled case-law that, when the amount of the fine is determined, there cannot, by the application of different methods of calculation, be any discrimination between the undertakings which have participated in an agreement or a concerted practice contrary to Article 81(1) EC ( Alliance One International and Standard Commercial Tobacco  v Commission  and Commission  v Alliance One International and Others , paragraph 58 and the case‑law cited).
134. However, the Court has repeatedly held that the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters and that decisions in other cases can give only an indication for the purpose of determining whether there is discrimination (Case C‑167/04 P JCB Service  v Commission  [2006] ECR I‑8935, paragraph 205, and Erste Group Bank and Others  v Commission , paragraph 233).
154. As regards, second, the purported infringement of the fundamental right to fair legal process and the principle of good administration, it should be noted that, while the Commission may not be classified as a ‘tribunal’ within the meaning of Article 6 of the ECHR (see, to that effect, Joined Cases 209/78 to 215/78 and 218/78 Landewyck and Others  v Commission  [1980] ECR I‑3125, paragraph 81, and Musique Diffusion française and Others  v Commission , paragraph 7), it is nevertheless required during the administrative procedure to respect the fundamental rights of the European Union, which include the right to good administration enshrined in Article 41 of the Charter. In particular, it is that provision, not Article 47 of the Charter, which governs the administrative procedure relating to restrictive practices before the Commission (see, to that effect, Case C‑109/10 P Solvay  v Commission  [2011] ECR I‑0000, paragraph 53, and Case C‑110/10 P Solvay  v Commission [2011] ECR I‑0000, paragraph 48).
155. Article 41 of the Charter provides that every person has the right, inter alia, to have his or her affairs handled impartially by the institutions of the European Union. That requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned (see, by analogy, Joined Cases C 341/06 P and C‑342/06 P Chronopost and La Poste  v UFEX and Others  [2008] ECR I‑4777, paragraph 54, and Case C‑308/07 P Gorostiaga Atxalandabaso  v Parliament [2009] ECR I‑1059, paragraph 46).
158. Second, the fact that the Commission’s departments responsible for bringing proceedings for infringements of EU competition law and those responsible for the administration of removals of officials and agents of that institution belong to the same organisational structure cannot, of itself, call into question that institution’s objective impartiality, since those departments necessarily form part of the structure, to which they belong (see, by analogy, Case C‑199/11 Otis and Others  [2012] ECR I‑0000, paragraph 64).
159. Third, the Court has already held that Commission decisions may be subject to review by the European Union judicature and that European Union law lays down a system enabling the courts to review Commission decisions, including decisions relating to procedures under Article 81 EC, which provides all the guarantees required by Article 47 of the Charter ( Otis and Others , paragraph 56). The Commission cannot, therefore, in any event be regarded as both the victim of an infringement and the judge responsible for imposing penalties for the infringement.
167. Thus, breach of the principle of equal treatment as a result of different treatment presumes that the situations concerned are comparable, having regard to all the elements which characterise them. The elements which characterise different situations, and hence their comparability, must in particular be determined and assessed in the light of the subject-matter and purpose of the European Union act which makes the distinction in question. The principles and objectives of the field to which the act relates must also be taken into account (Case C‑127/07 Arcelor Atlantique et Lorraine and Others  [2008] ECR I‑9895, paragraphs 25 and 26 and the case‑law cited).