Repsol Lubricantes y Especialidades, SA and Others v European Commission.
Date: 2016-06-09
47


Furthermore, it should be recalled that, according to the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, assessments of a factual nature fall outside the jurisdiction of the Court of Justice in the context of an appeal (see, to that effect, judgment of 11 September 2014 in MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, paragraph 113).
58


At the outset, it should be borne in mind that, under Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal. 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, to that effect, judgment of 22 May 2014 in ASPLA v Commission, C‑35/12 P, EU:C:2014:348, paragraph 39 and the case-law cited).
59


A party cannot, consequently, put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court since that would allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court (judgment of 3 September 2015 in Inuit Tapiriit Kanatami and Others v Commission, C‑398/13 P, EU:C:2015:535, paragraph 57 and the case-law cited).
63


In that regard, it should, in the first place, be recalled that, according to settled case-law of the Court of Justice, the General Court has exclusive jurisdiction to find and assess the facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that that 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 General Court alone to assess the value which should be attached to the evidence produced before it. Save where the clear sense of the evidence has been distorted, that assessment does not therefore constitute a point of law which is subject as such to review by the Court of Justice (judgment of 20 January 2016 in Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 40).
66


It follows from the very wording of that provision that the partial immunity provided for therein requires two conditions to be satisfied: first, the undertaking in question is the first to prove facts previously unknown to the Commission; and, second, those facts, which have a direct bearing on the gravity or the duration of the suspected cartel, enable the Commission to make new findings concerning the infringement (judgment 23 April 2015 in LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 78).
67


The Court has held that the wording ‘facts … unknown to the Commission’, is unambiguous and allows the adoption of a restrictive interpretation of the final paragraph of point 23(b) of the 2002 Leniency Notice, by limiting that provision to cases in which a company party to a cartel provides the Commission with new information relating to the gravity or the duration of the infringement (see, to that effect, judgment 23 April 2015 in LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 79 and the case-law cited).
68


The Court has also held that the meaning to be given to those words must be able to guarantee the objectives of the final paragraph of point 23(b) of that notice and, in particular, the effectiveness of the leniency programme (see, to that effect, judgment 23 April 2015 in LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 84 and the case-law cited). In that regard, as noted by the Advocate General in point 22 of his Opinion, the objective of leniency programmes is to obtain the termination of the infringement by those committing it, in order to end it quickly and completely.
69


It is thus necessary to ensure the effectiveness of that provision, which — where the undertaking which was the first to submit to the Commission, in order to obtain total immunity from a fine under the 2002 Leniency Notice, evidence enabling the Commission to find an infringement of Article 101 TFEU, but has chosen not to disclose information which demonstrates that the duration of the infringement at issue was longer than disclosed by that evidence — seeks to provide an incentive, by means of partial immunity from a fine, to any other undertaking having participated in that infringement to be the first to disclose such information (see, to that effect, judgment 23 April 2015 in LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 85).
81


At the outset, it should be borne in mind that it is not for the Court, when ruling on questions 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 EU law (see, inter alia, judgment of 22 November 2012 in E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 125).
82


It is only inasmuch as the Court considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, that it would have to find that the General Court erred in law, on account of the inappropriateness of the amount of a fine (see, inter alia, judgment of 30 May 2013 in Quinn Barlo and Others v Commission, C‑70/12 P, EU:C:2013:351, paragraph 57 and the case-law cited).
84


As to the remainder, it must be borne in mind that, with regard to judicial review of decisions whereby the Commission imposes a fine or periodic penalty payment for infringement of the competition rules, in addition to the review of legality provided for in Article 263 TFEU, the European Union judicature has the unlimited jurisdiction which it is afforded by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU, and which empowers it to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (judgment of 22 October 2015 in AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraph 74 and the case-law cited).
85


However, it is important to note that the exercise of powers of unlimited jurisdiction provided for in Article 261 TFEU and in Article 31 of Regulation No 1/2003 does not amount to a review of the Court’s own motion and that proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy, which the Courts are required to raise of their own motion, it is therefore for the applicant to raise pleas in law against the decision at issue and to adduce evidence in support of those pleas (judgment of 22 October 2015 in AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraph 75 and the case-law cited).
86


On the other hand, in order to satisfy the requirements of the principle of effective judicial protection enshrined in the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and bearing in mind that Article 23(3) of Regulation No 1/2003 provides that the amount of the fine must be fixed by reference to the gravity and duration of the infringement, the General Court is bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (judgment of 22 October 2015 in AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraph 76 and the case-law cited).
98


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 period 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 in respect of the damage caused by the General Court’s failure to adjudicate within a reasonable period 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 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).
99


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, to that effect, 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).
100


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, to that effect, 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).