FLSmidth & Co. A/S v European Commission.
Date: 2014-04-30
25. As regards, first of all, the alleged unlawfulness of the presumption, applied in European Union competition law, that a company holding directly or indirectly all or almost all of the capital of another company does in fact exercise decisive influence over the latter company, it should be pointed out that that presumption results from settled case-law (see, inter alia, Case C‑179/12 P Dow Chemical  v Commission  EU:C:2013:605, paragraph 56 and the case-law cited) and that it does not in any way infringe the rights conferred by Article 48 of the Charter and Article 6(2) of the ECHR.
28. So far as concerns, next, the argument that the specific application of that presumpti on by the Commission, and confirmed by the General Court, rendered the presumption irrebuttable, it need merely be recalled that the fact that it is difficult to prove the opposite in order to rebut a presumption does not in itself mean that it is in fact irrebuttable (see, in particular, Case C‑508/11 P ENI  v Commission  EU:C:2013:289, paragraph 68 and the case-law cited).
31. In those circumstances, it must therefore be found that, in submitting that it in fact adduced evidence capable of rebutting the presumption that it exercised decisive influence over Trioplast Wittenheim, FLSmidth is, in reality, simply asking the Court to conduct a fresh appraisal of the facts and the evidence provided, without asserting, however, that the General Court distorted them. Such an appraisal does not constitute a point of law which is subject, as such, to review by the Court of Justice (see, to that effect, inter alia, Case C‑551/03 P General Motors  v Commission  EU:C:2006:229, paragraphs 51 and 52, and Case C‑352/09 P ThyssenKrupp Nirosta  v Commission  EU:C:2011:191, paragraphs 179 and 180). This argument is therefore inadmissible.
42. It follows that, by the present plea, FLSmidth puts forward a new argument, which consists in disputing the adequacy of the statement of reasons in the decision at issue, and of the grounds of the judgment under appeal, regarding attribution to FLSmidth of liability for the infringement committed by Trioplast Wittenheim. Therefore, that argument must be considered inadmissible, since in an appeal, the jurisdiction of the Court of Justice is in principle confined to a review of the findings of law on the pleas argued at first instance (see, inter alia, Dow Chemical  v Commission  EU:C:2013:605, paragraph 82 and the case-law cited).
56. So far as concerns, in the first place, the argument to the effect that the General Court did not carry out an ‘independent’ review of the fine imposed on FLSmidth, it should be borne in mind that, in accordance with Article 261 TFEU and Article 31 of Regulation No 1/2003, the General Court has unlimited jurisdiction with regard to the fines imposed by the Commission. The General Court is therefore empowered, in addition to carrying out a mere review of the lawfulness of those fines, to substitute its own appraisal for that of the Commission and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see Case C‑89/11 P E.ON Energie  v Commission  EU:C:2012:738, paragraphs 123 and 124 and the case-law cited).
67. In so far as FLSmidth, instead of pleading breach of the principle of proportionality, seeks, by this line of argument, only a fresh appraisal of the amount for which it has been held jointly and severally liable, it is to be recalled that, in accordance with its settled case-law, 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 exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of European Union law (see, inter alia, Case C‑70/12 P Quinn Barlo and Others  v Commission  EU:C:2013:351, paragraph 57 and the case-law cited).
71. Since, in accordance with settled case-law, liability of a parent company for an infringement of the European Union competition rules committed directly by one of its subsidiaries is based on the fact that those companies formed part of a single economic entity during the infringement (see, to that effect, inter alia Case C‑50/12 P Kendrion  v Commission EU:C:2013:771, paragraphs 47 and 55 and the case-law cited), the requirement to take account of possible mitigating circumstances applies to the undertaking taken as a whole, at the time when the infringement was committed, and not to its constituent parts. This argument is therefore also unfounded and must, consequently, be rejected.
103. Finally, so far as concerns FLSmidth’s submission of failure to state grounds, it is clear from paragraph 97 of the judgment under appeal that the General Court, taking account of the broad discretion which the Commission enjoys in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings, considered that the matters put forward before it by FLSmidth to establish that its alleged abstention from substantially contesting the facts had helped the Commission to establish the infringement at issue were not sufficient (see, in particular, Case C‑328/05 P SGL Carbon  v Commission  EU:C:2007:277, paragraph 88). Whilst that reasoning of the General Court is admittedly very succinct, it is nevertheless sufficient to enable FLSmidth to understand the reasons why the General Court rejected the corresponding argument, raised by FLSmidth, and to enable the Court of Justice to carry out its judicial review. A failure to state grounds in the judgment under appeal therefore cannot be established. Consequently, this argument is unfounded.
111. As is apparent from the first paragraph of Article 58 of the Statute of the Court of Justice 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, inter alia, Case C‑385/07 P Der Grüne Punkt — Duales System Deutschland  v Commission  EU:C:2009:456, paragraph 176).
112. So far as concerns infringement of Article 47 of the Charter, pleaded by FLSmidth, it should be pointed out that, under the second paragraph of that provision, ‘[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 has repeatedly held, that article relates to the principle of effective judicial protection (see, inter alia, Der Grüne Punkt — Duales System Deutschland  v Commission  EU:C:2009:456, paragraph 179 and the case-law cited).
113. On that basis, such a right, which was affirmed as a general principle of European Union law before the Charter entered into force, is applicable in the context of proceedings brought against a Commission decision (see, inter alia, Der Grüne Punkt — Duales System Deutschland  v Commission  EU:C:2009:456, paragraph 178 and the case-law cited).
115. According to the case-law, however, having regard to the need to ensure that the competition rules of European Union law are complied with, the Court cannot allow an appellant to reopen the question of the amount of a fine which has been imposed upon it, 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 dismissed (see, in particular, Case C‑58/12 P Groupe Gascogne  v Commission  EU:C:2013:770, paragraph 78 and the case-law cited).
116. Indeed, the Court has also held 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. 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 (see, in particular, Groupe Gascogne  v Commission  EU:C:2013:770, paragraphs 83 and 84).
117. It is thus for the General Court, sitting in a different composition from that which heard the dispute giving rise to the proceedings whose duration is criticised, 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 at issue by examining the evidence submitted for that purpose (see, in particular, Groupe Gascogne  v Commission  EU:C:2013:770, paragraphs 88 and 90).
123. In the light of the foregoing, it must be found that the procedure in the General Court infringed the second paragraph of Article 47 of the Charter in that it did not comply with the requirement to adjudicate within a reasonable time, which constitutes a sufficiently serious breach of a rule of law intended to confer rights on individuals (see, to that effect, Case C‑352/98 P Bergaderm and Goupil  v Commission  EU:C:2000:361, paragraph 42).