Team Relocations NV and Others v European Commission.
Date: 2013-07-11
33. Admittedly, 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 mean allowing that party 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 jurisdiction of the Court of Justice is confined to review the findings of law on the pleas argued before the General Court (see, inter alia, Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others v API and Commission [2010] ECR I‑8533, paragraph 126 and case-law cited).
34. However, since a party must be able to challenge all the grounds for a judgment adversely affecting it, where the General Court has joined two cases and given a single judgment which answers all the pleas submitted by the parties to the proceedings before the Court, each of those parties may criticise the reasoning concerning pleas which, before the General Court, were raised only by the applicant in the other joined case, provided that that reasoning adversely affects it (see, to that effect, Case C‑369/09 P ISD Polska and Others  v Commission  [2011] ECR I‑2011, paragraph 85 and case-law cited).
49. In the first place, to the extent that, pursuant to the present ground of appeal, the appellants argue that the General Court infringed Article 81 EC by erroneously interpreting the criteria according to which responsibility may be imputed to an undertaking for a serious and continuous infringement, it should be recalled that, according to the settled case-law of the Court, an infringement of Article 81 EC can result not only from an isolated act but also from a series of acts or from continuous conduct, even where one or several elements of that series of acts or continuous conduct could also constitute in themselves and taken in isolation an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’, because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole ( Commission  v Anic Partecipazioni , paragraph 81, and 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 258).
50. An undertaking which has participated in such a single and complex infringement through its own conduct, which fell within the definition of an agreement or concerted practice having an anti-competitive object within the meaning of Article 81(1) EC and was intended to help bring about the infringement as a whole, may thus be responsible also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the case where it can be shown that that undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk ( Commission  v Anic Partecipazioni , paragraphs 83, 87 and 203, and Aalborg Portland and Others  v Commission , paragraph 83).
55. On the contrary, by making clear that the responsibility of an undertaking which participated in a single and continuous infringement is limited, with regard to the conduct planned or put into effect by the other participants and of which it was, or should have been aware, to the actions which occurred during the period of participation of that undertaking in that infringement, the case-law referred to in paragraph 50 of this judgment necessarily accepts that an undertaking may be held responsible for a single and continuous infringement even if it did not participate in all of the offending conduct of which it is made up (see, to that effect, Case C‑441/11 P Commission  v Verhuizingen Coppens  [2012] ECR I‑0000, paragraphs 43 to 45).
59. It is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice 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).
60. The Court of Justice thus 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 that evidence has been distorted, that appraisal does not there constitute a point of law which is subject, as such, to review by the Court of Justice ( Baustahlgewebe  v Commission , paragraph 24 and case-law cited, and General Química and Others  v Commission , paragraph 72 and case-law cited).
62. In the third place, the allegations of distortion of the clear sense of the evidence put forward by the appellants also cannot succeed. The Court has repeatedly held that, where the appellant alleges distortion of the evidence by the General Court, he must, under Article 256 TFUE, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 169(2) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by that Court and show the errors of appraisal which, in his view, led to that distortion (see Aalborg Portland and Others  v Commission , paragraph 50, and Case C‑445/11 P Bavaria  v Commission  [2012] ECR I‑0000, paragraph 27).
64. Finally, with regard to the allegedly deficient reasoning of the judgment under appeal arising from the fact that the General Court, in infringement of the obligation to state reasons, failed to justify why it considered that Team Relocations could be held responsible for the single and continuous infringement, but the company Verhuizingen Coppens could not, it should be noted that, in line with 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] ECR I‑2915, paragraphs 32 and 33, and General Química and Others v Commission , paragraph 59).
65. The obligation to state reasons does not however require the General Court to provide an account which responds exhaustively and one by one all 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 with sufficient material for it to exercise its power of review (see, inter alia, Aalborg Portland and Others  v Commission , paragraph 372).
66. In addition, the appellants cannot derive any useful argument from the judgment of the General Court in Verhuizingen Coppens  v Commission , which in any case has since been set aside in Commission  v Verhuizingen Coppens , in order to show that the judgment under appeal was insufficiently reasoned. The obligation on the General Court to state the reasons for its judgments cannot in principle extend to imposing on it an obligation to justify the solution arrived at in one case in the light of that found in another, even if it concerned the same decision. The Court has also held that, if an addressee of a decision decides to bring an action for annulment, the matter to be tried by the European Union judicature relates only to those aspects of the decision which concern that addressee. Unchallenged aspects concerning other addressees, on the other hand, do not form part of the matter to be tried by the Union judicature (see Case C‑310/97 P Commission  v AssiDomän Kraft Products and Others  [1999] ECR I‑5363, paragraph 53, and Joined Cases C‑201/09 P and C‑216/09 P ArcelorMittal Luxembourg  v Commission and Commission  v ArcelorMittal Luxembourg and Others  [2011] ECR I‑2239, paragraph 142), without prejudice to special circumstances (see, to that effect, Case C‑286/11 Commission  v Tomkins [2013] ECR I‑0000, paragraphs 43 and 49), which however are neither alleged not submitted in the present case.
75. Thus, the case-law preceding the adoption by the Commission of the 2006 Guidelines which aim to provide a framework for the exercise of its power of discretion concerning the fixing of fines already showed in a consistent manner that, with regard to the fixing of the fine, it is open to the Commission to take into account not only the undertaking’s global turnover, which constitutes an indication, albeit an approximate and imperfect one, of the undertaking’s size and its economic power, but also the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which thus gives an indication of the scale of the infringement (see, inter alia, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others  v Commission  [1983] ECR 1825, paragraphs 120 and 121, and Commission  v Anic Partecipazioni , paragraph 164).
76. It follows that point 13 of the 2006 Guidelines pursues the objective of adopting as the starting point for the calculation of the fine imposed on an undertaking an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it. Consequently, while the concept of the value of sales referred to in point 13 of those guidelines admittedly cannot, extend to encompassing sales made by the undertaking in question which do not fall within the scope of the alleged cartel, it would however be contrary to the goal pursued by that provision if that concept were understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel.
77. Such a limitation would, in addition, have the effect of artificially minimising the economic significance of the infringement committed by a particular undertaking since the mere fact that a limited amount of direct evidence of sales actually affected by the cartel had been found would lead to the imposition of a fine which bore no actual relation to the scope of application of the cartel in question. Such a reward for being secretive would also adversely affect the objective of the effective investigation and sanctioning of infringements of Article 81 EC and, therefore, cannot be permitted.
78. In the present case, the General Court therefore correctly held, in paragraph 62 of the judgment under appeal, that ‘it does not follow from [that point 13] that only the value of sales for removals actually affected by the infringement may be taken into account in order to determine the relevant value of sales’. In that regard, it could therefore rely, without erring in law, in paragraph 64 of that judgment on the objective of the European Union rules on competition, in paragraph 65 of that judgment on the need to take into account the secret character of cartels, which in the present case would make it ‘impossible to find evidence in relation to each of the removals affected’ and, in paragraph 66 of that judgment on the case-law resulting from Musique Diffusion française and Others  v Commission .
81. However, first, it must be held that, as stated by the General Court in paragraph 63 of the judgment under appeal, the German language version of point 6 refers in a ‘very clear’ way to ‘sales in the markets concerned by the infringement’ (‘Umsatz auf den vom Verstoß betroffenen Märkten’). Second, according to settled case-law, although the other language versions of point 6 do not make it possible to justify clearly that literal interpretation of point 13 of the 2006 Guidelines, as the appellants claim, the need for a uniform interpretation of the various language versions of a provision of European Union law requires, in the case of divergence between them, that the provision in question be interpreted by reference to the purpose and general scheme of the rules of which it forms part (Case C‑72/95 Kraaijeveld and Others [1996] ECR I‑5403, paragraph 28, and Case C‑63/06 Profisa  [2007] ECR I‑3239, paragraph 14). It is apparent from paragraph 76 above that the literal interpretation adopted by the General Court in paragraph 63 of the judgment under appeal is fully consistent with the objective pursued by that provision and, more generally, with the objective of EU rules on competition, as the General Court also stated in paragraph 64 of the judgment under appeal.
82. With regard to paragraph 67 of the judgment under appeal, it is sufficient to note that, pursuant to settled case-law, the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters (Case C‑167/04 P JCB Service v Commission  [2006] ECR I‑8935, paragraph 205, and Case C‑549/10 P Tomra Systems and Others  v Commission  [2012] ECR I‑0000, paragraph 104). Thus, although the General Court erroneously held, in paragraph 67 of the judgment under appeal, that the Commission’s decision of 12 November 2008, referred to in paragraph 70 above, confirmed the interpretation of point 13 of the 2006 Guidelines adopted in paragraph 62 of the judgment under appeal, the appellants may not deduce any decisive argument in their favour from that decision. The complaint directed against paragraph 67 of the judgment under appeal must therefore be rejected as ineffective.
88. Second, on the one hand, it is apparent from paragraph 76 above that the concept of the value of sales referred to in point 13 of the 2006 Guidelines cannot be interpreted as referring only to the sales actually affected by that cartel. On the other hand, the appellants have not contested before the General Court the Commission’s finding in the contested decision that the cartel in question related not only to removals for undertakings but also to removals for individuals.
95. With regard to the first limb of this ground of appeal, it must be borne in mind that the General Court alone has jurisdiction to examine how in each particular case the Commission appraised the gravity of unlawful conduct. In the context of an appeal, the purpose of review by the Court is, first, to examine to what extent the General Court 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 23 of Regulation No 1/2003 and, second, to consider whether the General Court responded to a sufficient legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced (see, inter alia, Baustahlgewebe  v Commission , paragraph 128, and 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 244).
96. In addition, while the Commission enjoys a broad discretion and while the method for calculating fines set out in the 2006 Guidelines displays flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with Article 23 of Regulation No 1/2003, it is nevertheless for the Court to verify whether the General Court has correctly assessed the Commission’s exercise of that discretion (see, to that effect, Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P August Koehler and Others v Commission [2009] ECR I‑7191, paragraphs 112 and 113 and case-law cited).
97. On the other hand, it is not for the Court, when ruling on questions of law in the context of 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 fines imposed on undertakings for infringements of EU law (see, in particular, Baustahlgewebe  v Commission , paragraph 129, and Dansk Rørindustri and Others  v Commission , paragraph 245).
98. Furthermore, it should also be noted that, according to the settled case-law of the Court of Justice, in setting the amount of fines, regard must be had to the duration of the infringements and to all the factors capable of affecting the assessment of the gravity of those infringements (see Musique Diffusion française and Others  v Commission , paragraph 129, and Dansk Rørindustri and Others  v Commission , paragraph 240).
99. In that regard, according to the settled case-law of the Court, the gravity of infringements of EU competition law must be determined by reference to numerous factors such as, in particular, the specific circumstances and context of the case and the deterrent effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (see, inter alia, Dansk Rørindustri and Others  v Commission , paragraph 241, and Case C‑534/07 P Prym and Prym Consumer  v Commission [2009] ECR I‑7415, paragraph 54).
100. The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the EU (see, to that effect, Musique Diffusion française and Others  v Commission , paragraph 129, and Dansk Rørindustri and Others  v Commission , paragraph 242).
102. The General Court correctly noted, in paragraphs 84 and 85 of the judgment under appeal that, in accordance with EU case-law, the gravity of the infringement must be assessed on an individual basis.
104. In addition, the General Court rightly pointed out, in paragraph 92 of the judgment under appeal that, applying the 2006 Guidelines, it was open to the Commission to take into account the relative gravity of the participation of an undertaking in an infringement and the particular circumstances of the case when assessing the gravity of the infringement or when adjusting the basic amount according to the mitigating and/or aggravating circumstances. It added, correctly, that ‘[w]here the Commission follows the latter approach, the assessment of mitigating and aggravating circumstances must, however, enable sufficient account to be taken of the relative gravity of the participation in a single infringement, and any variation in that gravity over time’.
105. That option is not only consistent with the case-law referred to in paragraphs 99 and 100 above, since the undertaking’s individual conduct must, in any event, be taken into account when the amount of the fine is determined, but also because it is foreseen by the Commission in the 2006 Guidelines. While, under point 20 of those guidelines, the gravity of the infringement must be assessed on a case-by-case basis for all types of infringement, taking account of all relevant circumstances of the case, point 27 thereof also provides that, in setting the fine, the Commission may take into account circumstances that result in an increase or decrease in the basic amount of that , on the basis of an overall assessment which takes account of all the relevant circumstances, a list of examples of aggravating and mitigating circumstances being indicated in points 28 and 29 of those guidelines.
117. 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, Order of 25 March 1996 in Case C‑137/95 P SPO and Others  v Commission  [1996] ECR I‑1611, paragraph 47 and case-law cited, and Case C‑182/99 P Salzgitter v Commission  [2003] ECR I‑10761, paragraphs 54 and 55).
118. With regard to the appellants’ arguments, since they rely, in essence, both on the infringement of the General Court’s duty to review the Commission’s obligation to state reasons and of its own obligation to state reasons, it should, first, be borne in mind that the obligation to state reasons laid down in Article 253 EC 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 case-law cited).
119. In that regard, first, the statement of reasons required under Article 253 EC must be appropriate to the measure in question 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 the measure and to enable the competent Court of the European Union to exercise its jurisdiction to review legality. With regard, in particular, to the reasons given for individual decisions, the purpose of the obligation to state reasons for an individual decision is, 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 contested ( Elf Aquitaine  v Commission , paragraphs 147 and 148 and case-law cited).
120. 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 (see Elf Aquitaine  v Commission , paragraph 150 and case‑law cited).
125. Second, since the 17% rate was markedly lower than the upper limit of the scale mentioned by the Commission in those guidelines for the most serious infringements, the General Court, correctly, stated that that rate was extremely favourable to Team Relocations. Therefore, in accordance with the case-law referred to in paragraph 120 above, the General Court was justified in holding that Team Relocations did not have the right to receive a specific explanation regarding the choice to apply that percentage and that the Commission was therefore not bound to provide a specific statement of reasons in the contested decision on that point.
157. In addition, the conduct of a subsidiary may be imputed to the parent company in particular when, although having a separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links which tie those two legal entities. That is the case because, in such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of EU case-law (Case C‑97/08 P Akzo Nobel and Others  v Commission  [2009] ECR I‑8237, paragraphs 58 and 59, and 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, paragraphs 43 and 44).
158. According to the Court’s settled case-law, the concept of an undertaking covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed ( Dansk Rørindustri and Others  v Commission , paragraph 112, and Akzo Nobel and Others  v Commission , paragraph 54). That concept must be understood as designating an economic unit even if in law that economic unit consists of several persons, natural or legal (Case 170/83 Hydrotherm Gerätebau  [1984] ECR 2999, paragraph 11, and Akzo Nobel and Others  v Commission , paragraph 55).
159. It thus follows both from Article 23(2)(a) of Regulation No 1/2003 2004 and from the case-law referred to in the preceding paragraphs that, while the Commission may impose fines on undertakings which infringe Article 81 EC and may, where the necessary conditions are satisfied, impute responsibility for the offending conduct of a subsidiary to its parent, these are mere options (see also, to that effect, Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission  [2009] ECR I‑8681, paragraph 82). Neither that provision nor the case-law, in so far as they employ the verb ‘may’ and refer to the concept of an undertaking, lay down which legal or natural person the Commission is obliged to hold responsible for the infringement or to sanction by the imposition of a fine.
160. Considering the discretion which it enjoys in that regard, the fact that the Commission holds a parent company responsible for the conduct of its subsidiary which participated directly in the infringement does not imply in any way that it is also under the obligation to hold the earlier parent company of that subsidiary responsible or jointly responsible. In that regard, it may also be recalled that, where an undertaking has acted in breach of Article 81 EC, it cannot escape being penalised altogether on the ground that another trader has not been fined (see, to that effect, Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others  v Commission [1993] ECR I‑1307, paragraph 197).
162. In the second place, it should be noted that, in the exercise of the discretion which is thus conferred upon it, the Commission is bound to comply with the general principles of EU law and the fundamental rights guaranteed at European Union level, including the principle of equal treatment (see, to that effect, Alliance One International and Standard Commercial Tobacco  v Commission  and Commission  v Alliance One International and Others , paragraphs 58 and 59 and case-law cited).
164. In the third place it is true that it falls, in principle, to the natural or legal person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, when the decision finding the infringement was adopted, another person had assumed responsibility for operating the undertaking (Case C‑279/98 P Cascades  v Commission  [2000] ECR I‑9693, paragraph 78, and Case C‑286/98 P Stora Kopparbergs Bergslags  v Commission [2000] ECR I‑9925, paragraph 37).
171. On the other hand, according to Article 23(2) of Regulation No 1/2003, the fines which the Commission may impose on undertakings which infringe Article 81 EC are not to infringe, for each undertaking participating in the infringement, 10% of its total turnover in the business year preceding the adoption of the decision imposing the fine (Case C‑291/98 P Sarrió  v Commission [2000] ECR I‑9991, paragraph 85).
172. According to settled case-law, that maximum limit relates to the overall turnover of the undertaking concerned, which alone gives an indication of that undertaking’s size and influence on the market (Case C‑308/04 P SGL Carbon  v Commission  [1986] ECR I‑5977, paragraph 81 and case-law cited).
173. It follows from the above that the undertaking to be taken into account for the purposes of the application of that provision is the undertaking, within the meaning of EU competition law, which is held responsible for the infringement, and not, if that is constituted by a number of entities, only one of the natural or legal persons which constitute it.
186. Furthermore, it must be recalled that the principle of equal treatment is a general principle of European Union law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. The Court has consistently held that the principle of equal treatment 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 (see Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals  v Commission and Others  [2010] ECR I‑8301, paragraphs 54 and 55 and case-law cited).
187. A 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 (see Case C‑127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I‑9895, paragraphs 25 and 26 and case-law cited).