Compañía Española de Petróleos (CEPSA), SA v European Commission.
Date: 2016-06-09
35


The plea of inadmissibility raised by the Commission must be rejected. A party is entitled to raise before the Court of Justice grounds of appeal seeking to criticise, in law, the solution adopted by the General Court (see judgment of 29 November 2007 in Stadtwerke Schwäbisch Hall and Others v Commission, C‑176/06 P, not published, EU:C:2007:730, paragraph 17). In paragraphs 107 to 119 of the judgment under appeal, the General Court specifically answered the appellant’s claims alleging infringement of essential procedural requirements and of Regulation No 1. Therefore, the appellant is entitled to raise grounds criticising, in law, the part of the judgment under appeal which dismisses those pleas in law.
36


As regards the claims alleging infringement of essential procedural requirements and of Regulation No 1 and Article 3 TEU and Article 41(4) of the Charter, it is clear from the case-law of the Court of Justice, referred to by the General Court in paragraph 115 of the judgment under appeal, that the use of the language laid down in Article 3 of Regulation No 1 does not constitute an essential procedural requirement, within the meaning of Article 263 TFEU, the infringement of which necessarily affects the validity of any document addressed to a person in another language (see, to that effect, judgment of 15 July 1970 in ACF Chemiefarma v Commission, 41/69, EU:C:1970:71, paragraphs 47 to 52). According to that case-law, where an institution sends a person within the jurisdiction of a Member State a document which is not drawn up in the language of that State, such a process vitiates the procedure only if it gives rise to harmful consequences for that person in the course of the administrative procedure.
48


In so far as the appellant claims that the General Court committed an error of law by finding the amount of the fine to be proportionate, it should be borne in mind that it is not for the Court of Justice, when ruling on points of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court when ruling on the amount of fines imposed on undertakings for infringements of EU law. Accordingly, only inasmuch as the Court of Justice considers that the level of the fine is not merely inappropriate, but also excessive to the point of being disproportionate, would it have to find that the General Court erred in law, on account of the inappropriateness of the amount of a fine (judgment of 10 July 2014 in Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 205 and the case-law cited).
49


In that regard, it should be borne in mind, as the General Court correctly did in paragraph 328 of the judgment under appeal, that the maximum amount laid down in Article 23(2) of Regulation No 1/2003 must be calculated on the basis of the total turnover of all the companies constituting the single economic entity acting as an undertaking for the purposes of Article 81 EC, which now corresponds to Article 101 TFEU (see judgments of 8 May 2013 in Eni v Commission, C‑508/11 P, EU:C:2013:289, paragraph 109; of 11 July 2013 in Team Relocations and Others v Commission, C‑444/11 P, EU:C:2013:464, paragraphs 172 and 173; and of 26 November 2013 in Groupe Gascogne v Commission, C‑58/12 P, EU:C:2013:770, paragraph 56). The proportionality of a fine must in particular be assessed having regard to the objective of deterrence which is sought by its imposition and consideration of that total figure is therefore necessary for the purposes of that assessment in order to take into account the economic power of that entity (see, to that effect, judgment of 20 January 2016 in Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraphs 83 and 84).
61


As regards the third part of the fifth ground of appeal, by which the appellant criticises the General Court for having committed an error of law by finding that the administrative procedure had not exceeded a reasonable period, it should be noted that, although the infringement of the principle of observance of a reasonable period is capable of justifying the annulment of a decision taken following an administrative procedure based on Article 101 or 102 TFEU inasmuch as it also constitutes an infringement of the rights of defence of the undertaking concerned (see, to that effect, judgment of 21 September 2006 in Nederlandse Vereniging voor de Groothandel Federatieve op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraphs 42 and 43), the Commission’s infringement of a reasonable period for such an administrative procedure, if established, is not capable of leading to a reduction of the amount of the fine imposed (see, to that effect, judgment of 8 May 2014 in Bolloré v Commission, C‑414/12 P, EU:C:2014: 301, paragraph 109).
64


As regards the fourth ground of appeal and the first part of the fifth ground of appeal, alleging infringement by the General Court of a reasonable period for the judgment, it should be borne in mind 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, notwithstanding the unlimited jurisdiction of the General Court recognised under Article 261 TFEU and Article 31 of Regulation No 1/2003, be an action for damages brought before the General Court, since such an action constitutes an effective remedy. It follows that a claim for compensation in respect of the damage caused by the General Court’s failure 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 (see, inter alia, judgments of 10 July 2014 in Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 66; of 9 October 2014 in ICF v Commission, C‑467/13 P, EU:C:2014:2274, paragraph 57; and of 12 November 2014 in Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraphs 17 and 18).
65


The General Court, which has jurisdiction under Article 256(1) TFEU, hearing a claim for damages, is required to rule on such a claim sitting in a different composition from that which heard the dispute which gave rise to the procedure whose duration is criticised (see, inter alia, judgments of 10 July 2014 in Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 67; of 9 October 2014 in ICF v Commission, C‑467/13 P, EU:C:2014:2274, paragraph 58; and of 12 November 2014 in Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 19).
66


That said, where it is clear, without any need for the parties to adduce additional evidence in that regard, that the General Court infringed, in a sufficiently serious manner, its obligation to adjudicate on the case within a reasonable time, the Court of Justice may note that fact (see, inter alia, judgments of 9 October 2014 in ICF v Commission, C‑467/13 P, EU:C:2014:2274, paragraph 59, and of 12 November 2014 in Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 20).
71


Even assuming that, contrary to the General Court’s findings in the judgment under appeal, an infringement of the right to observance of a reasonable time limit may be found to exist due to the long duration of the administrative and judicial proceedings to which CEPSA has been subject, such an infringement cannot, by itself, lead the General Court, or the Court of Justice in the context of an appeal, to reduce the amount of the fine which has been imposed on that company in respect of the infringement at issue (see, to that effect, judgment of 8 May 2014 in Bolloré v Commission, C‑414/12 P, EU:C:2014:301, paragraph 107).
75


According to settled case-law, where all the other grounds put forward in an appeal have been rejected, any ground challenging the decision of the General Court on costs must be rejected as inadmissible by virtue of the second paragraph of Article 58 of the Statue of the Court of Justice of the European Union, under which no appeal lies regarding only the amount of the costs or the party ordered to pay them (see, to that effect, order of 13 January in Roujansky v Council, C‑253/94 P, EU:C:1995:4, paragraphs 13 and 14, and judgment of 2 October 2014 in Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 151).