JCB Service v Commission of the European Communities.
Date: 2006-09-21
60. It should be pointed out that the Court of First Instance, first of all, recalled, in paragraph 36 of the judgment under appeal, the settled case-law of the Court of Justice stating that the need to act within a reasonable time in conducting administrative proceedings relating to competition policy is a general principle of Community law whose observance is ensured by the Community judicature (see 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 Limburgse Vinyl Maatschappij and Others v Commission  [2002] ECR I-8375, paragraphs 167 to 171).
86. Such a claim must, in any event be dismissed. It should be pointed out that the use of that form A/B is mandatory and is an essential prior condition for the validity of the notification (see Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck and Others v Commission  [1980] ECR 3125, paragraphs 61 and 62).
90. The Court of First Instance recalled, in paragraph 50 of the judgment under appeal, that the principle of the presumption of innocence is part of the Community legal order and applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (Case C-199/92 P Hüls v Commission  [1999] ECR I-4287, paragraphs 149 and 150, and Case C-235/92 P Montecatini v Commission  [1999] ECR I-4539, paragraphs 175 and 176).
96. Finally, in respect of the transcript of an interview held on 6 November 1996 on the premises of the authorised distributor, Watling JCB, between its senior staff and staff of DG Competition, the Court of First Instance considered, in paragraph 58, that in the picture of relations between the JCB group and one of its distributors which emerges from that interview, no element can be clearly pinpointed as evidence as to whether or not the practices of the distribution network constitute infringements. According to the Court, it seems that it cannot be argued that the Commission excluded the document from its examination of the elements of the infringement in order to suppress exculpatory evidence.
106. According to settled case-law, it is clear from Article 225 EC and the first paragraph of Article 58 of the EC Statute of the Court of Justice that the Court of First Instance 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 Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them (see Case C-185/95 P Baustahlgewebe v Commission  [1998] ECR I-8417, paragraph 23, and Case C-551/03 P General Motors v Commission [2006] ECR I-0000, paragraph 51).
107. Further, according to case-law, the Court of Justice has no jurisdiction to find the facts or, as a rule, 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 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. That appraisal does not therefore constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice (see Baustahlgewebe v Commission , cited above, paragraph 24; Case C‑40/03 P Rica Foods v Commission [2005] ECR I-6811, paragraph 60; General Motors v Commission , cited above, paragraph 52; and Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients  v Commission  [2006] ECR I-0000, paragraph 85).
108. It should also be noted that such distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence ( General Motors  v Commission , paragraph 54).
114. In those circumstances, to allow a party to put forward for the first time before the Court of Justice a plea in law and arguments which it has not raised before the Court of First Instance would be to authorise it to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the jurisdiction of the Court of Justice is thus confined to review of the findings of law on the pleas argued before the Court of First Instance (see C-266/97 P VBA v VGB and Others  [2000] ECR I-2135, paragraph 79).
186. Nonetheless, according to case-law, if the grounds of a judgment of the Court of First Instance reveal an infringement of Community law but its operative part appears well founded on other legal grounds the appeal must be dismissed (Case C-226/03 P José Martí Peix v Commission [2004] ECR I-11421, paragraph 29).
201. Second, and in response to JCB Service’s claim that the fine imposed is disproportionate, particularly compared with those imposed under the same procedure on undertakings such as Volkswagen AG and Opel Nederland BV (Commission Decisions 98/273/EC of 28 January 1998 relating to a proceeding under Article [81] of the EC Treaty (Case IV/35.733 – VW) (OJ 1998 L 124, p. 60) and 2001/146/EC of 20 September 2000 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/36.653 — Opel) (OJ 2001 L 59, p. 1)), the Court stated, in paragraph 187 of the judgment under appeal, that regardless of the comparisons the Commission found useful in setting the amount of the fine imposed on JCB Service, such matters could only give an indication, since the facts of the cases, such as markets, products, the undertakings and periods concerned, were not the same.
205. Further, it should be noted that JCB Service’s arguments do not seek to question the settled case-law of the Court of Justice that the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters and that decisions in other cases can give only an indication for the purpose of determining whether there is discrimination.
207. It should be recalled first of all that, according to the case-law of the Court of Justice, although the Guidelines may not be regarded as rules of law which the administration is always bound to observe, they nevertheless form rules of practice from which the administration may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment (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 209).
208. In adopting such rules of conduct and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations ( Dansk Rørindustri and Others  v Commission , cited above, paragraph 211).
209. Further, it should be recalled that, according to that case-law, the Guidelines determine, generally and abstractly, the method which the Commission has bound itself to use in assessing the fines imposed under Article 15 of Regulation No 17. Those Guidelines, for the drafting of which the Commission used inter alia criteria defined in the case-law of the Court of Justice, consequently ensure legal certainty on the part of the undertakings (see, to that effect, Dansk Rørindustri and Others  v Commission , paragraph 213).