Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission of the European Communities.
Date: 2006-09-21
35. Compliance with the reasonable time requirement in the conduct of administrative procedures relating to competition policy constitutes a general principle of Community law whose observance the Community judicature ensures (Case C-282/95 P Guérin automobiles  v Commission  [1997] ECR I-1503, paragraphs 36 and 37, and also Limburgse Vinyl Maatschappij and Others  v Commission , paragraphs 167 to 171).
38. That approach is perfectly consistent with the case-law of the Court of Justice. Thus, at paragraphs 181 to 183 of the judgment in Limburgse Vinyl Maatschappij and Others  v Commission , the Court held, in particular, that the administrative procedure may involve an examination in two successive stages, each corresponding to its own internal logic. The first stage, covering the period up to notification of the statement of objections, begins on the date on which the Commission, exercising the powers conferred on it by the Community legislature, takes measures which imply an accusation of an infringement and must enable the Commission to adopt a position on the course which the procedure is to follow. The second stage covers the period from notification of the statement of objections to adoption of the final decision. It must enable the Commission to reach a final decision on the infringement concerned.
42. As a finding that the duration of the procedure was excessive and that responsibility for that duration could not be attributed to the FEG or to TU was not in itself a sufficient ground on which to conclude that there had been a breach of the ‘reasonable time’ principle, the Court of First Instance evaluated the impact of such a duration on the FEG’s rights of defence. The premiss for such an approach may be seen in paragraph 74 of the judgment under appeal, where the Court of First Instance held that the fact that a reasonable time is exceeded can constitute a ground for annulment only in the case of a decision finding infringements, where it has been proved that breach of that principle has adversely affected the rights of defence of the undertakings concerned. Save in that specific case, failure to comply with the obligation to adopt a decision within a reasonable time cannot affect the validity of the administrative procedure under Regulation No 17.
43. It is perfectly lawful to make use of that criterion for the purpose of finding that there has been a breach of the ‘reasonable time’ principle. At paragraph 49 of the judgment in Baustahlgewebe  v Commission  the Court of Justice held, when evaluating the duration of the proceedings before the Court of First Instance, that an indication that the length of the proceedings affected their outcome may result in the judgment under appeal being set aside. The same approach is to be found in the reasoning followed by the Court of First Instance where it considered that the excessive duration of the procedure before the Commission must entail the annulment of the contested decision if the FEG’s rights of defence have been compromised, in which case there is necessarily a possible effect on the outcome of the procedure.
47. That conclusion is correct in so far as the Court of First Instance considered that it was only after notification of the statement of objections that the FEG and TU were officially informed of the infringements of which the Commission accused them after carrying out its own investigations. The notion underpinning the Court of First Instance’s reasoning is that it is only during the second phase of the administrative procedure that the undertakings concerned are able to rely in full on the rights of the defence, which they are unable to do during the phase preceding notification of the statement of objections because the Commission has not yet formulated the accusations relating to the alleged infringements found by it.
48. However, the finding made by the Court of First Instance at paragraph 79 of the contested decision ignores the possibility that the excessive duration of the investigation stage might have an effect on the FEG’s exercise of its rights of defence during the second phase of the administrative procedure, that is to say, after notification of the statement of objections.
49. The excessive duration of the first phase of the administrative procedure may have an effect on the future ability of the undertakings concerned to defend themselves, in particular by reducing the effectiveness of the rights of the defence in the second phase of the procedure. In effect, as the Advocate General observes at point 129 of her Opinion, the more time that elapses between a measure of investigation such as, in the present case, the sending of the warning letter and the notification of the statement of objections, the more unlikely it becomes that exculpatory evidence relating to the infringements set out in the statement of objections can be obtained, owing in particular to the changes that may have come about in the composition of the managing boards of the undertakings concerned and to the movements affecting their other staff. In its analysis of the reasonable time principle, the Court of First Instance did not have sufficient regard to that aspect of observance of the principle.
50. As respect for the rights of the defence, a principle whose fundamental nature has been emphasised on many occasions in the case-law of the Court (see, in particular, Case 322/81 Michelin  v Commission  [1983] ECR 3461, paragraph 7), is of crucial importance in procedures such as that followed in the present case, it is essential to prevent those rights from being irremediably compromised on account of the excessive duration of the investigation phase and to ensure that the duration of that phase does not impede the establishment of evidence designed to refute the existence of conduct susceptible of rendering the undertakings concerned liable. For that reason, examination of any interference with the exercise of the rights of the defence must not be confined to the actual phase in which those rights are fully effective, that is to say, the second phase of the administrative procedure. The assessment of the source of any undermining of the effectiveness of the rights of the defence must extend to the entire procedure and be carried out by reference to its total duration.
52. It follows that the FEG’s first plea in law must be upheld in so far as it is based on an error of law in the application of the ‘reasonable time’ principle. Consequently, the judgment under appeal must be set aside in part, in so far as it determined that the prolongation of the first phase of the administrative procedure was not in itself capable of adversely affecting the FEG’s rights of defence.
53. Under the first paragraph of Article 61 of the Statute of the Court of Justice, if the appeal is well founded, the Court is to quash the decision of the Court of First Instance. It may then itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment.
54. In the present case, as the question of the alleged breach of the rights of the defence, examined from the aspect of the excessive duration of the administrative procedure, was argued at first instance and as the FEG thus had the opportunity to state its case on that point, the Court is in a position to give judgment on the merits.
55. In its action before the Court of First Instance, the FEG maintains that the breach of the ‘reasonable time’ principle entailed a breach of the rights of the defence. It claims that, owing to the lapse of time, it found it increasingly difficult to obtain information relating to the Commission’s objections. The great majority of the persons involved in the FEG’s management during the period covered by the Commission’s investigation have for a number of years no longer sat on its management boards and some former managers have since retired or have been posted abroad and can no longer be contacted for the purpose of obtaining detailed information.
56. In that regard, the Court observes that the arguments which the FEG puts forward in support of its claim that its rights of defence were breached are abstract and imprecise. In order to demonstrate that there has been a breach of those rights, including on account of the excessive duration of the investigation phase, it was for the FEG to establish that on the date of notification of the statement of objections, that is to say, 3 July 1996, its opportunities to refute the Commission’s objections were limited for reasons arising from the fact that the first phase of the administrative procedure had taken an unreasonably long time.
57. In the present case, in its action before the Court of First Instance, the FEG failed to specify the persons who had worked in that association and whose departure prevented it from obtaining further information about the events to which the Commission’s accusations related.
58. Nor does the FEG indicate either the date on which those persons left or the nature and the scope of the information or details which were necessary for its defence, or the circumstances which made it impossible to obtain the testimony of those persons, whose absence is alleged to have limited the effective exercise of the rights of the defence.
59. That general line of argument is not capable of establishing that there was in fact a breach of the rights of the defence, the existence of which must be examined by reference to the specific circumstances of each particular case.
60. It follows from all of the foregoing that the FEG’s arguments relating to the breach of the rights of the defence are not supported by convincing evidence capable of demonstrating that such a breach may have resulted from the excessive duration of the phase of the administrative procedure preceding notification of the statement of objections and that on the date of notification the FEG’s opportunities to defend itself were already thereby compromised.
61. Thus, the plea in law raised by the FEG in support of its action before the Court of First Instance, and alleging a breach of the ‘reasonable time’ principle, is unfounded and must, accordingly, be rejected.
69. It is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance 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 Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and to review the legal conclusions it has drawn from them (see, in particular, Baustahlgewebe  v Commission , paragraph 23, and Case C-551/03 P General Motors  v Commission  [2006] ECR I‑0000, paragraph 51).
70. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance has 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 Court of First Instance 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 General Motors  v Commission , paragraph 52).
71. Furthermore, it must be borne in mind that the question whether the grounds of a judgment of the Court of First Instance are contradictory or insufficient is a question of law which is amenable, as such, to judicial review on appeal (Case C‑401/96 P Somaco  v Commission  [1998] ECR I-2587, paragraph 53, and Case C‑446/00 P Cubero Vermurie  v Commission  [2001] ECR I-10315, paragraph 20).
72. As regards the obligation to state reasons, it is settled case-law that the Court of First Instance is not thereby required to provide an account that follows exhaustively and point by point all the reasoning articulated by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the measures in question were taken and provides the competent court with sufficient material for it to exercise its power of review (see, to that effect, 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 372).
– Examination of the second plea
94. That argument cannot be accepted. The Court has already held that in most cases the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules ( Aalborg Portland and Others  v Commission , paragraph 57).
95. As the Advocate General observes at point 38 of her Opinion, such indicia and coincidences may provide information not just about the mere existence of anti-competitive practices or agreements, but also about the duration of continuous anti-competitive practices or the period of application of anti-competitive agreements.
97. In the context of its third plea, the FEG also criticises the Court of First Instance for having ignored the absence of evidence of a collective exclusive dealing arrangement during certain specific periods.
98. In that regard, it must be stated that at paragraph 411 of the judgment under appeal the Court of First Instance held that the Commission had adduced evidence of the existence of a continuous infringement over the period from 1986 to 1994. The fact that such evidence was not produced for certain specific periods does not preclude the infringement from being regarded as established during a longer overall period than those periods provided that such a finding is supported by objective and consistent indicia. In the context of an infringement extending over a number of years, the fact that the agreement is shown to have applied during different periods, which may be separated by longer or shorter periods, has no effect on the existence of the agreement, provided that the various actions which form part of the infringement pursue a single purpose and fall within the framework of a single and continuous infringement.
110. An infringement of Article 81(1) EC may be the consequence not only of an isolated act but also of a series of acts or indeed of continuous conduct. That interpretation cannot be challenged on the ground that one or more elements of that series of acts or of that continuous conduct might also constitute in themselves, and taken in isolation, an infringement of that provision. Where the various actions form part of an ‘overall plan’, owing to their identical object, which distorts competition within the common market, the Commission is entitled to impute liability for those actions according to participation in the infringement considered as a whole (see Aalborg Portland and Others  v Commission , paragraph 258).
125. That paragraph of the judgment under appeal reveals no error of law on the part of the Court of First Instance, since, for the purposes of applying Article 81(1) EC, there is no need to take account of the actual effects of an agreement once it appears that its object is to prevent, restrict or distort competition within the common market ( Aalborg Portland and Others  v Commission , paragraph 261).
135. It is settled case-law that the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules ( Aalborg Portland and Others  v Commission , paragraph 57).
139. Next, although the very concept of a concerted practice presupposes conduct by the participating undertakings on the market, it does not necessarily mean that that conduct should produce the specific effect of restricting, preventing or distorting competition (Case C‑199/92 P Hüls  v Commission  [1999] ECR I-4287, paragraph 165).
217. It must be borne in mind that the Court of First Instance alone has jurisdiction to examine how in each particular case the Commission appraised the gravity of unlawful conduct. On appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 81 EC and Article 15 of Regulation No 17 and, second, to ascertain whether the Court of First Instance responded to the requisite legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced (see, in particular, Baustahlgewebe  v Commission , paragraph 128).