Qualcomm, Inc. and Qualcomm Europe, Inc. v European Commission.
Date: 2021-01-28
32


As regards, in the second place, the error of law in the interpretation and the application of the case-law arising from the judgment of the General Court of 18 June 2008, Hoechst v Commission (T‑410/03, EU:T:2008:211, paragraph 227), it is sufficient to note that, as the Court of Justice has consistently held, infringement of the principle of observance of a reasonable period is capable of justifying the annulment only of a decision making a finding of infringement following an administrative procedure based on Article 101 or 102 TFEU, where it has been proved that that infringement had adversely affected the rights of defence of the undertakings concerned (see, to that effect, judgments of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraphs 42 and 43; of 9 June 2016, CEPSA v Commission, C‑608/13 P, EU:C:2016:414, paragraph 61; and of 9 June 2016, PROAS v Commission, C‑616/13 P, EU:C:2016:415, paragraph 74).
42


It should be recalled, as a preliminary point, that according to settled case-law, first of all, where the General Court has established or assessed the facts, the Court of Justice has jurisdiction, under Article 256 TFEU, solely to review their legal characterisation and the legal conclusions which were drawn from them. The appraisal of the facts by the General Court does not therefore constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (judgment of 20 September 2018, Spain v Commission, C‑114/17 P, EU:C:2018:753, paragraph 75 and the case-law cited).
43


Next, where an appellant alleges distortion of the evidence by the General Court, that person must, under Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in that person’s view, led to such distortion. In addition, that distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new appraisal of the facts and the evidence (judgment of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 105).
44


Furthermore, although distortion of the evidence may consist of an interpretation of a document contrary to the content of that document, it must be obvious from the file before the Court of Justice, and it presupposes that the General Court has manifestly exceeded the limits of a reasonable assessment of that evidence. In that regard, it is not sufficient to show that a document could be interpreted differently from the interpretation adopted by the General Court (judgment of 30 January 2020, České dráhy v Commission, C‑538/18 P and C‑539/18 P, not published, EU:C:2020:53, paragraph 60 and the case-law cited).
45


In accordance with the case-law referred to in paragraph 43 above, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside as well as the legal arguments specifically advanced in support of the appeal. Where, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly disregarded by that Court, it fails to satisfy the requirements under the above provisions. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (judgment of 20 December 2017, Comunidad Autónoma de Galicia and Retegal v Commission, C‑70/16 P, EU:C:2017:1002, paragraph 48 and the case-law cited).
66


In that regard, it must be borne in mind, as a preliminary point, that the Court of Justice has held that the statement of objections is a procedural and preparatory document which, in order to ensure that the rights of defence may be exercised effectively, delimits the scope of the administrative procedure initiated by the Commission, thereby preventing it from relying on other objections in its decision terminating the procedure in question. It is therefore inherent in the nature of that statement that it is provisional and liable to be changed during the assessment subsequently undertaken by the Commission on the basis of the observations submitted to it by the parties and other findings of fact. The Commission must take into account the factors emerging from the whole of the administrative procedure, in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, in support of the objections which it maintains (judgment of 24 September 2009, Erste Group Bank and Others v Commission, C‑125/07 P, C‑133/07 P and C‑137/07 P, EU:C:2009:576, paragraphs 310 and 311).
67


It follows that the Commission is not bound by the assessments of facts or of law set out in the statement of objections. On the contrary, it must give as reasons for its ultimate decision its final assessments based on the results of the whole of its investigation as they stand at the time when the formal procedure is closed, and it is not obliged to explain any differences in relation to its provisional assessments contained in the statement of objections (see, to that effect, order of 18 June 1986, British American Tobacco and Reynolds Industries v Commission, 142/84, not published, EU:C:1986:250, paragraph 15, and judgment of 17 November 1987, British American Tobacco and Reynolds Industries v Commission, 142/84 and 156/84, EU:C:1987:490, paragraph 70).
68


The Court of Justice has also stated that the Commission is entitled to require the disclosure only of information which may enable it to investigate presumed infringements which justify the conduct of the investigation and are set out in the request for information (judgment of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraph 23).
69


Having regard to the broad powers of investigation conferred on the Commission by Regulation No 1/2003, it is for the Commission to decide whether a particular item of information is necessary to enable it to bring to light an infringement of the competition rules. Even if it already has evidence, or indeed proof, of the existence of an infringement, the Commission may legitimately take the view that it is necessary to request further information enabling it better to define the scope of the infringement, determine its duration or identify the circle of undertakings involved (see, to that effect, judgments of 18 October 1989, Orkem v Commission, 374/87, EU:C:1989:387, paragraph 15, and of 22 October 2002, Roquette Frères, C‑94/00, EU:C:2002:603, paragraph 78).
70


As regards the judicial review exercised by the EU judicature of the Commission’s finding that an item of information is necessary, the Court of Justice has held that necessity must be judged in relation to the purpose stated in the request for information, namely the suspected infringement which the Commission intends to investigate (see, to that effect, judgment of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraphs 24 and 25). The requirement that a correlation must exist between the request for information and the suspected infringement is satisfied if the Commission could reasonably suppose, at the time of the request, that the information may help it to determine whether the infringement has taken place (see, to that effect, judgment of 19 May 1994, SEP v Commission, C‑36/92 P, EU:C:1994:205, paragraph 21).
82


In that regard, it is sufficient to note, first, as regards the alleged manifest error of assessment, that the appellants merely mention that error without in any way establishing it. Secondly, as regards the alleged error of law, it should be recalled that, according to settled case-law, the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when that measure was adopted, so that measures postdating the adoption of a decision cannot affect that decision’s validity (judgment of 17 October 2019, Alcogroup and Alcodis v Commission, C‑403/18 P, EU:C:2019:870, paragraph 45 and the case-law cited).
111


Consequently, given that the General Court’s findings referred to in paragraph 110 above were sufficient to reject the appellants’ argument that the imposition of a mandatory format for replying to the decision at issue was such as to demonstrate that the information requested by that decision went beyond what was necessary in the light of the purpose of the investigation, the error of law in interpreting the case-law relating to the concept of ‘information’ which could vitiate paragraph 131 of the judgment under appeal, even if it were established, would not, in any event, be capable of leading to the annulment of the judgment under appeal. The applicants’ criticisms in that regard are therefore ineffective and must be set aside accordingly (see, to that effect, judgments of 14 June 2018, Makhlouf v Council, C‑458/17 P, not published, EU:C:2018:441, paragraph 96 and the case-law cited, and of 14 March 2019, Meta Group v Commission, C‑428/17 P, not published, EU:C:2019:201, paragraph 44).
121


As the Court of Justice has held, the fixing of periodic penalty payments under Article 24 of Regulation No 1/2003 necessarily involves two stages. By its first decision, adopted on the basis of Article 24(1) of that regulation, the Commission imposes a periodic penalty payment. Since that decision does not determine the total amount of the periodic penalty payment, it cannot be enforced. This amount can be definitively fixed only in a new decision, subsequently adopted on the basis of Article 24(2) of that regulation (see, to that effect, judgment of 21 September 1989, Hoechst v Commission, 46/87 and 227/88, EU:C:1989:337, paragraph 55).
123


The General Court was therefore also entitled to conclude, finally, in paragraph 159 of that judgment, that the appellants’ argument that the amount of the periodic penalty payment provided for in that article was disproportionate did not concern a challengeable act and, therefore, was inadmissible. As the Court of Justice has consistently held, it is, in principle, acts which definitively determine the position of the institutions, bodies, offices or agencies of the European Union upon the conclusion of an administrative procedure, and which are intended to have legal effects capable of affecting the interests of the applicant, which are open to challenge, and not intermediate measures whose purpose is to prepare for the definitive decision (judgment of 25 June 2020, SatCen v KF, C‑14/19 P, EU:C:2020:492, paragraph 70 and the case-law cited).
143


That provision reproduces, in essence, the settled case-law of the Court of Justice, according to which the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to the Commission, if necessary, such documents relating thereto as are in its possession, even if the latter may be used to establish, against it or another undertaking, the existence of anticompetitive conduct. Although the Commission may not compel that undertaking to provide it with answers which might involve the admission on its part of the existence of an infringement which it was incumbent upon the Commission to prove, that undertaking cannot, however, evade requests for production of documents on the ground that, by complying with them, it would be required to give evidence against itself (see, to that effect, judgments of 18 October 1989, Orkem v Commission, 374/87, EU:C:1989:387, paragraphs 27, 34 and 35, and of 29 June 2006, Commission v SGL Carbon, C‑301/04 P, EU:C:2006:432, paragraphs 41 to 44 and 48).