Groupe Gascogne SA v European Commission.
Date: 2013-11-26
35. As regards the second ground of appeal on which the appellant relies – and to the extent that the appellant complains that the General Court infringed the presumption of innocence guaranteed by Article 48 of the Charter in holding that it could be held liable for the infringement committed by its subsidiary, Sachsa, since it held all the shares in it – it is sufficient to note 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, although it could have done so, would in effect allow that party to bring before the Court a wider case than that heard by the General Court. In an appeal, the Court’s jurisdiction is, as a general rule, confined to a review of the assessment by the General Court of the pleas argued before it.
37. To the extent that the appellant submits, in the second ground of appeal, that the General Court breached its obligation to state the reasons in not responding to the arguments which it had put forward in order to show that the presumption of the actual exercise of a decisive influence functions in practice as a non-rebuttable presumption, it should be noted that, according the settled case-law of the Court of Justice, the obligation on the General Court, under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice, to state reasons for its judgments 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, on condition that it enables the persons concerned to know the grounds on which the judgment under appeal is based and provides the Court of Justice with sufficient material for it to exercise its powers of review on appeal.
38. In that regard, the General Court correctly recalled first, in paragraphs 69 and 70 of the judgment under appeal, the settled case-law of the Court of Justice, confirmed by the latter since the entry into force of the Lisbon Treaty (see, in particular, Case C-501/11 P Schindler Holding and Others  v Commission  [2013] ECR I-0000, paragraphs 107 to 111), that, when a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules, there is a simple presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary. According to that case-law, the Commission will then be able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see, in particular, Joined Cases C-628/10 P and C-14/11 P Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others [2012] ECR I-0000,  paragraph 47).
41. As the Court of Justice has held, the mere fact that an entity does not, in a given case, produce evidence capable of rebutting the presumption of actual exercise of decisive influence by a parent company over its subsidiary does not mean that that presumption cannot be rebutted in any circumstances (Case C-521/09 P Elf Aquitaine v Commission [2011] ECR I-8947, paragraph 66).
42. In those circumstances, to the extent that the appellant submits that solely by virtue of the conclusion reached by the General Court in its assessment of its arguments – a negative conclusion from the appellant’s perspective – the existence of a non-rebuttable presumption is demonstrated, such a line of argument must be rejected (see, to that effect, Elf Aquitaine  v Commission , paragraph 67).
48. That upper limit of the amount of the fine seeks to prevent fines being imposed which it is foreseeable that the undertakings will not be able to pay, having regard to their size, as determined, albeit approximately and imperfectly, by their total turnover. That limit is therefore one which is uniformly applicable to all undertakings, arrived at by reference to the size of each of them and seeks to ensure that the fines are not excessive or disproportionate (see, in particular, 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 280 and 281).
49. That objective must, however, be combined with the aim of ensuring that the fine has sufficient deterrent effect, which justifies taking into consideration the size and the economic power of the undertaking concerned, namely the global resources of the infringer (see, to that effect, Case C-413/08 P Lafarge  v Commission  [2010] ECR I-5361, paragraph 102 and the case-law cited).
50. The taking into consideration of the size and global resources of the undertaking in question is justified by the impact sought on the undertaking concerned, in order to ensure that the fine has sufficient deterrent effect, as the sanction must not be negligible in the light, particularly, of its financial capacity ( Lafarge  v Commission , paragraph 104).
52. In particular, when the undertaking to which the infringement is attributed heads a group which constitutes an economic unit, the turnover of the group as a whole must be taken into account when calculating the upper limit of the amount of the fine referred to in Article 23(2) of Regulation No 1/2003.
53. That turnover is the best indicator of the ability of the undertaking concerned to mobilise the funds needed to pay the fine.
56. In those circumstances, the General Court did not err in law in holding, in paragraphs 108 and 110 of the judgment under appeal, that the Commission had been fully entitled to calculate the upper limit of the amount of the fine imposed on the appellant on the basis of the combined turnover of all the companies belonging to the group headed by it.
57. Contrary to what the appellant contends, the Commission cannot be required, after establishing that the parent company must be held liable for the infringement of its subsidiary, to demonstrate that each subsidiary in the group does not determine its conduct on the market independently. As the General Court held in paragraph 112 of the judgment under appeal, attributing a subsidiary’s infringement to the parent company and prohibiting a fine being imposed in excess of 10% of the turnover of the undertaking concerned are two separate issues serving different purposes. If the case arises, it is for the company which considers that the consolidated turnover does not reflect the economic reality to submit evidence capable of refuting the existence of a power of control by the parent company.
66. As is apparent from the first paragraph of Article 58 of the Statute of the Court and from its case-law, the Court has jurisdiction, in an appeal, to verify whether a breach of procedure adversely affecting the appellant’s interests was committed by the General Court (see, in particular, Case C-385/07 P Der Grüne Punkt – Duales System Deutschland  v Commission  [2009] ECR I-6155, paragraph 176).
67. As regards the breach of procedure relied on in the present ground, it should be borne in mind that the second paragraph of Article 47 of the Charter provides that ‘[e]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law’. As the Court of Justice has held on several occasions, that article relates to the principle of effective judicial protection (see, in particular, Der Grüne Punkt – Duales System Deutschland  v Commission , paragraph 179 and the case-law cited).
68. On that basis, such a right, which was affirmed as a general principle of EU law before the Charter entered into force, is applicable in the context of proceedings brought against a Commission decision (see, in particular, Der Grüne Punkt – Duales System Deutschland  v Commission , paragraph 178 and the case-law cited).
73. Although the appellant seeks to have the judgment under appeal set aside in its entirety or, alternatively, to have it set aside in so far as it upheld the fine imposed on the appellant or to have the fine reduced, the Court notes that it has held that, where there are no indications that the excessive length of the proceedings before the General Court affected their outcome, failure to deliver judgment within a reasonable time cannot lead to the setting aside of the judgment under appeal (see, to that effect, Der Grüne Punkt – Duales System Deutschland  v Commission , paragraphs 190 and 196 and the case-law cited).
74. That case-law is based, in particular, on the consideration that, where the failure to adjudicate within a reasonable time has no effect on the outcome of the dispute, the setting aside of the judgment under appeal would not remedy the infringement of the principle of effective legal protection committed by the General Court ( Der Grüne Punkt – Duales System Deutschland  v Commission , paragraph 193).
78. In that connection, having regard to the need to ensure that the competition rules of European Union law are complied with, the Court of Justice cannot allow an appellant to reopen the question of the validity or amount of a fine, on the sole ground that there was a failure to adjudicate within a reasonable time, where all of its pleas directed against the findings made by the General Court concerning the amount of that fine and the conduct that it penalises have been rejected (see, to that effect, Der Grüne Punkt – Duales System Deutschland  v Commission , paragraph 194).
80. In so far as the appellant seeks, in the alternative, a reduction in the fine for which it is jointly and severally liable as compensation for the financial damage which it claims to have sustained as a result of the excessive duration of the proceedings before the General Court, it must be borne in mind that, when first faced with a similar situation, the Court of Justice granted such an application, for reasons of economy of procedure and in order to ensure an immediate and effective remedy regarding a procedural irregularity of that kind and, accordingly, reduced the amount of the fine (Case C-185/95 P Baustahlgewebe  v Commission  [1998] ECR I-8417, paragraph 48).
81. In a later case concerning a Commission decision finding that there had been abuse of a dominant position yet not imposing a fine, the Court held that the failure on the part of the General Court to adjudicate within a reasonable time can give rise to a claim for damages ( Der Grüne Punkt – Duales System Deutschland  v Commission , paragraph 195).
82. Admittedly, the present case concerns a similar situation to that giving rise to the judgment in Baustahlgewebe  v Commission . However, a claim for damages brought against the European Union pursuant to Article 268 TFEU and the second paragraph of Article 340 TFEU constitutes an effective remedy of general application for asserting and penalising such a breach, since such a claim can cover all the situations where a reasonable period of time has been exceeded in proceedings.
83. It is therefore appropriate for the Court of Justice to rule that the sanction for a breach, by a Court of the European Union, of its obligation under the second paragraph of Article 47 of the Charter to adjudicate on the cases before it within a reasonable time must be an action for damages brought before the General Court, since such an action constitutes an effective remedy.
84. It follows that a claim for compensation for the damage caused by the failure by the General Court to adjudicate within a reasonable time may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself.
85. As regards the criteria for assessing whether the General Court has observed the reasonable time principle, it must be borne in mind that the reasonableness of the period for delivering judgment is to be appraised in the light of the circumstances specific to each case, such as the complexity of the case and the conduct of the parties (see, in particular, Der Grüne Punkt – Duales System Deutschland  v Commission , paragraph 181 and the case-law cited).
86. The Court has held in that regard that the list of relevant criteria is not exhaustive and that the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of the case or the dilatory conduct of the applicant may be deemed to justify a duration which is prima facie  too long (see, in particular, Der Grüne Punkt – Duales System Deutschland  v Commission , paragraph 182 and the case-law cited).
87. In examining those criteria, it must be borne in mind that, in the case of proceedings concerning infringement of competition rules, the fundamental requirement of legal certainty on which economic operators must be able to rely and the aim of ensuring that competition is not distorted in the internal market are of considerable importance not only for an applicant itself and its competitors but also for third parties, in view of the large number of persons concerned and the financial interests involved (see, in particular, Der Grüne Punkt – Duales System Deutschland  v Commission , paragraph 186 and the case-law cited).
88. It will also be for the General Court to assess both the actual existence of the harm alleged and the causal connection between that harm and the excessive length of the legal proceedings in dispute by examining the evidence submitted for that purpose.
90. It is therefore for the General Court, which has jurisdiction under Article 256(1) TFEU, to determine such claims for damages, sitting in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticised and applying the criteria set out in paragraphs 85 to 89 above.
96. In the light of the foregoing, it must be found that the procedure in the General Court breached the second paragraph of Article 47 of the Charter in that it failed to comply with the requirement that it adjudicate within a reasonable time, which constitutes a sufficiently serious breach of a rule of law that is intended to confer rights on individuals (Case C-352/98 P Bergaderm and Goupil  v Commission  [2000] ECR I-5291, paragraph 42).
101. Furthermore, it is not open to the Court, when determining 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 fine imposed on an undertaking for infringements of European Union law (see, in particular, Case C‑328/05 P SGL Carbon  v Commission  [2007] ECR I-3921, paragraph 98 and the case-law cited). In addition, it is settled case-law that the Commission is not required, when determining the amount of the fine, to take into account the financial situation of an undertaking, since recognition of such an obligation would be tantamount to giving unjustified competitive advantages to undertakings least well adapted to the market conditions (see, in particular, SGL Carbon  v Commission , paragraph 100 and the case-law cited).