Galp Energía España SA and Others v European Commission.
Date: 2016-01-21
43


As a preliminary point, it should be noted that, according to settled case-law, it is apparent from 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 that an appeal must indicate precisely the contested elements of the judgment under appeal and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (see, inter alia, judgment in Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 29 and the case-law cited).
44


Accordingly, a ground of appeal supported by an argument that is not sufficiently precise and substantiated to enable the Court to exercise its powers of judicial review does not satisfy those conditions and must be declared inadmissible (see, to that effect, judgment in Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 30 and the case-law cited).
46


With regard to the first and third parts of the present ground of appeal, in so far as the appellants complain that the General Court, first, failed to take account of two items of evidence in order to find that the Commission had demonstrated the appellants’ participation in the price-coordination activities between 1995 and 2002 and, secondly, found that the exchange of the appellants’ internal e-mails of 18 and 19 October 2000 constitutes contemporaneous evidence demonstrating their participation in the price coordination, suffice it to note that, in accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on a point of law only. The General Court, consequently, has exclusive jurisdiction to find and appraise the relevant facts and the evidence submitted to it. The appraisal of those facts and the assessment of that evidence thus do not, save where they distort the facts or evidence — this being a matter merely mentioned imprecisely and not substantiated by the appellants in the present case — constitute a point of law subject, as such, to review by the Court on appeal (see, inter alia, to that effect, judgment in Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 84).
55


It should be recalled 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. Accordingly, a claim for compensation for the damage caused by the failure on the part of 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 (judgments in Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 66; ICF v Commission, C‑467/13 P, EU:C:2014:2274, paragraph 57; and Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraphs 17 and 18).
56


Where a claim for damages is brought before the General Court, which has jurisdiction under Article 256(1) TFEU, it must determine such a claim sitting in a different composition from that which heard the dispute giving rise to the procedure the duration of which is criticised (see, to that effect, judgments in Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 67; ICF v Commission, C‑467/13 P, EU:C:2014:2274, paragraph 58; and Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 19).
57


None the less, where it is evident, without it being necessary for the parties to adduce evidence in that regard, that the General Court has breached, in a sufficiently serious manner, its duty to adjudicate within a reasonable period, the Court of Justice can find accordingly (see, to that effect, judgments in Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 90; ICF v Commission, C‑467/13 P, EU:C:2014:2274, paragraph 59; and Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 20).
71


It should also be noted that the system of judicial review of Commission decisions relating to proceedings under Articles 101 TFEU and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of applicants, by the General Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission (judgment in Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 42).
72


[Rectified by order of 28 April 2016] In that regard, as the Court has stated on many occasions, the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings applying Articles 101 TFEU and 102 TFEU which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the appellants (see, to that effect, judgments in KME Germany and Others v Commission, C‑272/09 P, EU:C:2011:810, paragraphs 102 and 109; Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraphs 62 and 82; and Telefónica and Telefónica de España v Commission, C-295/12 P, EU:C:2014:2062, paragraphs 56 and 59) and taking into account all the elements submitted by the latter, whether those elements pre-date or post-date the contested decision, whether they were submitted previously in the context of the administrative procedure or, for the first time, in the context of the proceedings before the General Court, in so far as those elements are relevant to the review of the legality of the Commission decision (see, to that effect, judgment in Knauf Gips v Commission, C-407/08 P, EU:C:2010:389, paragraphs 87 to 92).
73


It should be noted, however, that the EU Courts cannot, in the context of the review of legality referred to in Article 263 TFEU, substitute their own reasoning for that of the author of the contested act (see, to that effect, judgment in Frucona Košice v Commission, C‑73/11 P, EU:C:2013:32, paragraph 89 and the case-law cited).
74


Moreover, Article 261 TFEU provides that ‘[r]egulations adopted jointly by the European Parliament and the Council, and by the Council, pursuant to the provisions of the Treaties, may give the Court of Justice of the European Union unlimited jurisdiction with regard to the penalties provided for in such regulations’. Making use of the power granted by that provision, the EU legislature stated, in Article 31 of Regulation No 1/2003, that ‘the Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment [and that] it may cancel, reduce or increase the fine or periodic penalty payment imposed’.
75


Therefore, when they exercise their unlimited jurisdiction provided for in Article 261 TFEU and Article 31 of Regulation No 1/2003, the EU Courts are empowered, in addition to the mere review of the legality of the penalty, to substitute their own assessment in relation to the determination of the amount of that penalty for that of the Commission, which adopted the measure in which that amount was initially fixed (see, to that effect, judgment in Groupe Danone v Commission, C‑3/06 P, EU:C:2007:88, paragraph 61).
76


By contrast, the scope of that unlimited jurisdiction is strictly limited, unlike the review of legality provided for in Article 263 TFEU, to determining the amount of the fine (see, to that effect, inter alia, judgments in Groupe Danone v Commission, C‑3/06 P, EU:C:2007:88, paragraph 62; Alliance One International v Commission, C‑679/11 P, EU:C:2013:606, paragraph 105; Commission and Others v Siemens Österreich and Others, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 126; and Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 45).
77


It follows from this that the unlimited jurisdiction enjoyed by the General Court on the basis of Article 31 of Regulation No 1/2003 concerns solely the assessment by that Court of the fine imposed by the Commission, to the exclusion of any alteration of the constituent elements of the infringement lawfully determined by the Commission in the decision under examination by the General Court.
86


The General Court’s finding that there is a lack of evidence of the appellants’ participation in the compensation mechanism and the monitoring system is not capable, in accordance with the first paragraph of Article 264 TFEU, of leading to the annulment of the contested decision in its entirety, since those elements were ancillary components of the infringement in question. The fact that the Commission failed to adduce evidence of such participation on the part of the appellants does not alter the substance of the contested decision, in so far as the single and continuous infringement established by the Commission consists, as is apparent from paragraphs 12 and 13 of the present judgment, essentially of two groups of principal infringements, namely market sharing and price coordination (see, to that effect, judgment in Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraphs 36 to 38).
87


In the light of the foregoing, the Court must rule, in accordance with the unlimited jurisdiction conferred on it by Article 261 TFEU and Article 31 of Regulation No 1/2003, on the amount of the fine to be imposed on the appellants (judgment in Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 73 and the case-law cited).
88


In this regard, it must be noted that the Court, when itself giving final judgment in the matter, in accordance with the second sentence of the first paragraph of Article 61 of its Statute, is empowered, in the exercise of its unlimited jurisdiction, to substitute its own appraisal for that of the Commission and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (see, inter alia, judgment in KME Germany and Others v Commission, C‑389/10 P, EU:C:2011:816, paragraph 130 and the case-law cited).
89


In order to determine the amount of the fine imposed, it is for the Court to assess for itself the circumstances of the case and the nature of the infringement in question (judgment in Nederlandsche Banden-Industrie-Michelin v Commission, 322/81, EU:C:1983:313, paragraph 111).
90


That exercise involves, in accordance with Article 23(3) of Regulation No 1/2003, taking into consideration, with respect to each undertaking sanctioned, the seriousness and duration of the infringement at issue, in compliance with the principles of, inter alia, adequate reasoning, proportionality, the individualisation of penalties and equal treatment (see, to that effect, judgments in Commission and Others v Siemens Österreich and Others, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraphs 53 and 56; Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 75; and Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 77), and without the Court being bound by the indicative rules defined by the Commission in its guidelines (see, by analogy, judgment in Italy v Commission, C‑310/99, EU:C:2002:143, paragraph 52), even where the latter may give guidance to the EU Courts when they exercise their unlimited jurisdiction (see, to that effect, judgment in Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 80 and the case-law cited).
91


In the present case, it must be stated that the appellants participated, within Spanish territory, in a single and continuous infringement consisting essentially in market sharing and price coordination, an infringement which is very serious by virtue of its intrinsic nature (see, to that effect, judgment in Versalis v Commission, C‑511/11 P, EU:C:2013:386, paragraph 83), during a significant period of seven years and eight months in the case of GALP Energía España and Petróleos de Portugal and of three years and five months in the case of GALP Energía SGPS.
94


In those circumstances, and given all the factual circumstances of the case (see judgment in Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 78 and the case-law cited), the amount of the joint and several fine imposed on GALP Energía España and Petróleos de Portugal is fixed at EUR 7.7 million, of which GALP Energía SGPS is held jointly and severally liable for EUR 5.72 million.