Papierfabrik August Koehler AG (C-322/07 P), Bolloré SA (C-327/07 P) and Distribuidora Vizcaína de Papeles SL (C-338/07 P) v Commission of the European Communities.
Date: 2009-09-03
34. It is settled case-law that in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with even if the proceedings in question are administrative proceedings (Case 85/76 Hoffman‑La Roche  v Commission [1979] ECR 461, paragraph 9, and ARBED  v Commission , paragraph 19).
35. To that end, Regulation No 17 provides that the parties are to receive a statement of objections which must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure. That statement of objections constitutes the procedural safeguard applying the fundamental principle of Community law which requires observance of the rights of defence in all proceedings (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others  v Commission  [1983] ECR 1825, paragraph 10).
36. That principle requires, in particular, that the statement of objections which the Commission sends to an undertaking on which it envisages imposing a penalty for an infringement of the competition rules contain the essential elements used against it, such as the facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it (see, to that effect, Case 41/69 ACF Chemiefarma  v Commission  [1970] ECR 661, paragraph 26; Case C‑62/86 AKZO  v Commission  [1991] ECR I‑3359, paragraph 29; Ahlström Osakeyhtiö and Others v Commission , paragraph 135; and ARBED  v Commission , paragraph 20).
37. It follows from that principle that a competition decision in which the Commission imposes a fine on an undertaking without first having informed it of the objections relied on against it cannot be held to be lawful.
38. Given its importance, the statement of objections must specify unequivocally the legal person on whom fines may be imposed and be addressed to that person ( Compagnie maritime belge transports and Others v Commission , paragraphs 143 and 146, and ARBED v Commission , paragraph 21).
52. In this connection it should be recalled that the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance 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 Court of First Instance alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, inter alia, Case C‑551/03 P General Motors v Commission [2006] ECR I‑3173, paragraph 52; Case C‑266/06 P Evonik Degussa v Commission and Council [2008] ECR I‑0000, paragraph 73; and Joined Cases C‑101/07 P and C‑110/07 P Coop de France bétail et viande and Others v Commission [2008] ECR I‑0000, paragraph 59).
53. A distortion of the facts and evidence before the Court of First Instance must be obvious from the documents on the Court’s file without there being any need to carry out a new assessment of those elements (see, inter alia, General Motors  v Commission , paragraph 54, Evonik Degussa  v Commission and Council , paragraph 74, and Coop de France bétail et viande and Others  v Commission, paragraph 60).
101. With regard to the meeting of 17 February 1992, it is not apparent from paragraph 321 of the judgment under appeal that the Court of First Instance infringed the obligation incumbent upon it under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice to state reasons (see Case C‑431/07 P Bouygues and Bouygues Télécom  v Commission [2009] ECR II‑0000, paragraph 42). The Court of First Instance states in that paragraph that, in order to find that Koehler had participated in the meeting of 17 February 1992, the Commission relied on Sappi’s internal note of the same date, describing a meeting of the ‘interested parties’ and that that reference – read in conjunction with those contained in that same note relating to the uncertainties caused by the conduct of, among others, Koehler on the Spanish market – enabled the Commission to conclude that Koehler was among the ‘interested parties’ attending that meeting, the purpose of which was to examine the problems connected with the failure of Koehler and another undertaking to comply with the agreement to which it was party, as is clear from the note of the Sappi employee of 9 March 1992. The Court of First Instance thus sets out sufficiently clearly the reasoning which the Commission followed in order to conclude from the various items of evidence available to it that Koehler had participated in the meeting of 17 February 1992.
112. In that regard, it is the case, as is clear from settled case-law, that the Commission enjoys a broad discretion as regards the method for calculating fines. That method, set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3), displays flexibility in a number of ways, enabling the Commission to exercise its discretion in accordance with Article 15(2) of Regulation No 17 (see, to that effect, Case C‑308/04 P SGL Carbon  v Commission [2006] ECR I‑5977, paragraphs 46 and 47, and Case C‑407/04 P Dalmine  v Commission [2007] ECR I‑829, paragraph 133).
113. Within that framework, it is for the Court of Justice to verify whether the Court of First Instance has correctly assessed the Commission’s exercise of that discretion ( SGL Carbon  v Commission , paragraph 48, and Dalmine  v Commission , paragraph 134).
114. It should be added that it is permissible, for the purpose of fixing the fine, to have regard both to the total turnover of the undertaking, which gives an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement. It follows that it is important not to confer on one or the other of those figures an importance disproportionate in relation to the other factors and, consequently, that the fixing of an appropriate fine cannot be the result of a simple calculation based on the total turnover. That is particularly the case where the goods concerned account for only a small part of that figure (see Musique Diffusion française and Others v Commission , paragraph 121; Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 111; 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 243).
119. Indeed, it is settled case-law that the Court of Justice rejects outright such complaints, since a challenge directed solely against grounds included purely for the sake of completeness cannot result in the judgment under appeal being set aside (see, to that effect, order in Case C-137/95 P SPO and Others  v Commission  [1996] ECR I-1611, paragraph 47, and judgments in Case C-362/95 P Blackspur DIY and Others  v Council and Commission [1997] ECR I-4775, paragraph 23, and Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel  v Commission [2007] ECR I‑729, paragraph 106).
125. In that regard, it must be observed that in the context of an appeal the purpose of review by the Court of Justice is, first, to examine to what extent the Court of First Instance 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 15 of Regulation No 17 and, second, to consider whether the Court of First Instance 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, in particular, Case C‑185/95 P Baustahlgewebe  v Commission [1998] ECR I‑8417, paragraph 128; Case C-359/01 P British Sugar  v Commission  [2004] ECR I-4933, paragraph 47; and Dansk Rørindustri and Others v Commission , paragraph 244).
128. With regard to Divipa, the Court of First Instance rightly took into consideration its participation in the various cartels and no infringement of the principle of proportionality can be established in that connection. Furthermore, Divipa’s argument concerning the failure to take into account its financial capacity is not admissible since it is raised for the first time before the Court of Justice (see, to that effect, Case C‑167/04 P JCB Service  v Commission [2006] ECR I‑8935, paragraph 114 and case-law cited).
143. It must be borne in mind that the general principle of Community law that everyone is entitled to a fair hearing, which is inspired by Article 6(1) of the ECHR, and in particular the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law ( Baustahlgewebe v Commission , paragraphs 20 and 21; Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission  [2003] ECR I‑8375, paragraph 179; Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 154; and Sumitomo Metal Industries and Nippon Steel  v Commission , paragraph 115).
144. The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities ( Baustahlgewebe v Commission , paragraph 29; Thyssen Stahl v Commission , paragraph 155; and Sumitomo Metal Industries and Nippon Steel  v Commission , paragraph 116).