KME Germany AG, KME France SAS and KME Italy SpA v European Commission.
Date: 2011-12-08
34. The appellants submit that the General Court gave an illogical and inadequate statement of reasons for the judgment under appeal and erred in law in holding that the Commission was permitted, in determining the starting amount of the fine imposed on them, having regard to the gravity of the infringement, to take account of the impact of the cartel on the relevant market without being required to demonstrate that the arrangements actually had such an impact and, in any event, by inferring such an impact from mere indicators. Moreover, by holding that the Commission had demonstrated to the requisite legal standard that the arrangements had an impact on the market, the General Court manifestly distorted the facts and economic evidence which the KME group put before it.
44. Thus the General Court was not contradicting itself when, on the one hand, it recalled the principle that the actual impact of the infringement on the market is not a decisive factor for determining the level of fines and, on the other, it reviewed the evidence of that impact.
46. With regard to the claim that the General Court distorted the economic evidence adduced by the appellants, it is not alleged that the General Court construed those economic reports in a manner manifestly at odds with their wording (see, to that effect, Case C‑260/09 P Activision Blizzard Germany  v Commission  [2011] ECR I‑0000, paragraph 57), rather that the General Court erred in its assessment of the content of those reports. In any event, the appellants do not indicate precisely which parts of those reports the General Court misconstrued as to their real meaning. Accordingly that argument is inadmissible.
53. Lastly, the appellants challenge the case-law on which the General Court relied, which is based on the Commission’s discretion. They take the view that the General Court failed to examine whether the criteria used by the Commission to establish the gravity of the cartel were pertinent and adequate.
58. It has consistently been held that, in assessing the gravity of an infringement, regard must be had to a large number of factors, the nature and importance of which vary according to the type of infringement in question and the particular circumstances of the case. Those factors may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking and, consequently, the influence which the undertaking was able to exert on the market (see, to that effect, Musique Diffusion française and Others v Commission , paragraph 120).
59. While the Court of Justice has concluded from this that it is permissible, for the determination of the fine, to take into account both the undertaking’s overall turnover, which is an indication of the size of the undertaking and its economic strength, and that part of the turnover which derives from the goods which are the subject of the infringement and which therefore is capable of giving an indication of the scale of the infringement, it has nevertheless recognised that the overall turnover of an undertaking gives only an approximate and imperfect indication of the size of that undertaking ( Musique Diffusion française and Others  v Commission , paragraph 121; Case C‑185/95 P Baustahlgewebe  v Commission  [1998] ECR I‑8417, paragraph 139; 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, paragraph 243; Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients  v Commission  [2006] ECR I‑4429, paragraph 100; and Case C‑510/06 P Archer Daniels Midland  v Commission  [2009] ECR I‑1843, paragraph 74).
60. It has also pointed out on a number of occasions that it is important not to confer on one or the other of those figures an importance which is disproportionate in relation to the other factors to be assessed in relation to the gravity of the infringement ( Musique Diffusion française and Others  v Commission , paragraph 121; Dansk Rørindustri and Others  v Commission , paragraph 243; Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients  v Commission , paragraph 100; and Case C‑510/06 P Archer Daniels Midland  v Commission , paragraph 74).
75. For the purpose of applying Article 81(1) EC, there is no need to take account of the concrete effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition (see, to that effect, Joined Cases 56/64 and 58/64 Consten and Grundig  v Commission  [1966] ECR 299). That applies in particular in the case, as in this instance, of obvious restrictions of competition such as price-fixing and market-sharing. If a cartel determines the state of the market at the moment it is agreed, its lengthy duration can make the structures of that market more rigid, reducing cartel participants’ incentive for innovation and development. A return to free competition will be all the more difficult and protracted, the longer the cartel continues.
97. As regards the second argument, it is sufficient to note that, as a general rule, cartels come into being when an economic sector is experiencing difficulties and that such difficulties cannot, in principle, constitute an attenuating circumstance.
103. The General Court did not err in law in observing, in paragraph 165 of the judgment under appeal that the Commission is not required to take account of the undertaking’s financial losses since recognition of such an obligation would have the effect of conferring an unfair competitive advantage on the undertakings least well adapted to the conditions of the market (see Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others v Commission  [1983] ECR 3369, paragraphs 54 and 55; Dansk Rørindustri and Others  v Commission , paragraph 327; Case C‑308/04 P SGL Carbon  v Commission , paragraph 105; and Case C‑328/05 P SGL Carbon  v Commission , paragraph 100).
119. The principle of effective judicial protection is a general principle of European Union law to which expression is now given by Article 47 of the Charter (see Case C‑279/09 DEB  [2010] ECR I‑0000, paragraphs 30 and 31; order in Case C‑457/09 Chartry [2011] ECR I‑0000, paragraph 25; and Case C‑69/10 Samba Diouf  [2011] ECR I‑0000, paragraph 49).
121. As regards the review of legality, the Court of Justice has held that whilst, in areas giving rise to complex economic assessments, the Commission has a margin of discretion with regard to economic matters, that does not mean that the Courts of the European Union must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must those Courts establish, among other things, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see Case C‑12/03 P Commission  v Tetra Laval  [2005] ECR I‑987, paragraph 39, and Case C‑525/04 P Spain  v Lenzing [2007] ECR I‑9947, paragraphs 56 and 57).
123. The Court of Justice has held that, in order to determine the amount of a fine, it is necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the European Community ( Musique Diffusion française and Others  v Commission , paragraph 129; Dansk Rørindustri and Others  v Commission , paragraph 242; and Case C‑534/07 P Prym and Prym Consumer  v Commission  [2009] ECR I‑7415, paragraph 96).
124. The Court has also stated that objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements (Joined Cases 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 Aalborg Portland and Others  v Commission  [2004] ECR I‑123, paragraph 91).
126. In the interests of transparency the Commission adopted the Guidelines, in which it indicates the basis on which it will take account of one or other aspect of the infringement and what this will imply as regards the amount of the fine.
128. It is important to bear in mind the obligation to state reasons for acts of the European Union. That is a particularly important obligation in the present case. It is for the Commission to state the reasons for its decision and, in particular, to explain the weighting and assessment of the factors taken into account (see, to that effect, Prym and Prym Consumer  v Commission , paragraph 87). The Courts must establish of their own motion that there is a statement of reasons.
129. Furthermore, the Courts must carry out the review of legality incumbent upon them on the basis of the evidence adduced by the applicant in support of the pleas in law put forward. In carrying out such a review, the Courts cannot use the Commission’s margin of discretion – either as regards the choice of factors taken into account in the application of the criteria mentioned in the Guidelines or as regards the assessment of those factors – as a basis for dispensing with the conduct of an in-depth review of the law and of the facts.
130. The review of legality is supplemented by the unlimited jurisdiction which the Courts of the European Union were afforded by Article 17 of Regulation No 17 and which is now recognised by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see, to that effect, Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others  v Commission  [2002] ECR I‑8375, paragraph 692).
131. It must, however, be pointed out that the exercise of unlimited jurisdiction 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, such as the failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas.