ThyssenKrupp Nirosta GmbH v European Commission.
Date: 2011-03-29
37. Under Article 61 of the Rules of Procedure, the Court may of its own motion, or on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure if it considers that it lacks sufficient information or that the case must be dealt with on the basis of a point which has not been argued by the parties (see Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International  [2009] ECR I‑7633, paragraph 31 and the case-law cited).
52. The appellant submits that it follows from the case-law that a penalty may not be imposed unless it rests on a clear and unambiguous legal basis which expressly provides for the imposition of a penalty for the acts in question. It concludes that the Court of Justice has, in the field of the law concerning penalties, rejected any extensive systematic or teleological interpretation going beyond the literal meaning of the provisions in question. The General Court adopted a prohibited interpretation by analogy.
53. Thirdly, the appellant submits that the conditio ns for the application by analogy of Article 23 of Regulation No 1/2003 to an infringement of Article 65(1) CS are not satisfied. The facts must be analogous to those falling under Article 23 and there must be a legal vacuum contrary to the objective pursued by the legislature.
73. Those findings are not vitiated by any error of law. It follows from the case-law that, in accordance with a principle common to the legal systems of the Member States whose origins may be traced back to Roman law, when legislation is amended, unless the legislature expresses a contrary intention, the continuity of the legal system must be ensured, and that that principle applies to amendments to the primary law of the European Union (see, to that effect, Case 23/68 Klomp  [1969] ECR 43, paragraph 13).
78. In those circumstances, it would be contrary to the objectives and the coherence of the Treaties and irreconcilable with the continuity of the legal order of the European Union if the Commission did not have jurisdiction to ensure the uniform application of the rules deriving from the ECSC Treaty which continue to produce effects even after the expiry of that treaty (see, to that effect, Case C‑119/05 Lucchini  [2007] ECR I‑6199, paragraph 41).
80. In particular, in so far as the appellant submits that the contested decision breaches the principle nulla poena sine lege  and a supposed ‘principle of precision’, in particular in that neither Regulation No 1/2003 nor Article 83 EC refers to Article 65 CS, it must be recalled that the principle of the legality of criminal offences and penalties ( nullum crimen, nullum poena sine lege ), as enshrined in particular in Article 49(1) of the Charter of Fundamental Rights of the European Union, requires that European Union rules define offences and penalties clearly (see, to that effect, Case C‑303/05 Advocaten voor de Wereld  [2007] ECR I‑3633, paragraphs 49 and 50).
81. Moreover, the principle of legal certainty requires that such rules enable those concerned to know precisely the extent of the obligations which are imposed on them, and that those persons must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (Case C‑345/06 Heinrich  [2009] ECR I‑1659, paragraph 44 and the case-law cited).
88. It follows from the case-law that the provision which forms the legal basis of an act and empowers the Union institution to adopt the act in question must be in force at the time when the act is adopted (see, to that effect, Case C‑269/97 Commission  v Council  [2000] ECR I‑2257, paragraph 45) and that procedural rules are generally held to apply from the time of their entry into force (see, to that effect, Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others  [1981] ECR 2735, paragraph 9, and Case C‑201/04 Molenbergnatie  [2006] ECR I‑2049, paragraph 31).
90. It follows that the General Court did not err in law in concluding, in paragraphs 87 and 88 of the judgment under appeal, first, that the Commission’s power to impose the fine at issue by the contested decision derived from Article 23(2) of Regulation No 1/2003 and that the procedure had to be conducted in accordance with that regulation and, secondly, that the substantive law laying down the penalty applicable was Article 65(1) and (5) CS.
95. The Court held in paragraph 88 of ThyssenKrupp  v Commission  that, as regards the alleged exceptional circumstances relied on by the Commission and mentioned in paragraph 79 of that judgment, it merely had to be pointed out that the appellant was not the economic successor of Thyssen Stahl, the latter having continued to exist as a separate legal person until the date of adoption of the contested decision, and that such unity of action as might have characterised the conduct of Thyssen Stahl and the appellant after 1 January 1995 did not suffice to justify attributing to the appellant conduct engaged in by Thyssen Stahl before that date, by reason of the principle referred to in paragraph 82 of that judgment according to which a legal person may be penalised only for acts alleged against it individually. The Court added that, as regards the statements allegedly made by the appellant during the administrative procedure concerning Thyssen Stahl’s business, it had already been stated in paragraphs 85 and 86 of the judgment that they did not enable liability for Thyssen Krupp’s conduct before that date to be attributed to the appellant.
97. In paragraphs 119 to 121 of its judgment, the General Court observed that, in reply to that appeal, the Commission had brought a cross-appeal alleging inter alia distortion of certain documentary evidence and error of law in the assessment of the transfer of liability. The General Court stated that it was the interpretation of the Court of Justice’s response in paragraph 88 of ThyssenKrupp  v Commission  to that ground of the cross-appeal which was disputed between the parties. It said that that interpretation was connected to the scope of that ground of appeal and to the precise terms of the argument expounded by the Commission in support of it.
98. In paragraph 122 of its judgment, the General Court stated that it followed from paragraphs 73 to 79 of ThyssenKrupp  v Commission  that, by that ground of the cross-appeal, the Commission had not intended to call into question the General Court’s recognition of the transfer of liability on the basis of the statement of 23 July 1997 but only the General Court’s subsequent conclusion that that statement could not be interpreted as also implying that the appellant had waived its right to be heard regarding the acts of which Thyssen Stahl was accused.
99. In paragraphs 126 to 128 of the judgment under appeal, the General Court found that, in paragraphs 81 and 82 of ThyssenKrupp  v Commission , the Court of Justice had recalled and confirmed the General Court’s conclusion that the statement of 23 July 1997 did not imply a waiver by the appellant of its right to be heard, and that, in paragraphs 83 to 86 of that judgment, it had considered and rejected the Commission’s argument as to the General Court’s failure to take account of other evidence relating to that statement and the subsequent distortion of that evidence. The General Court considered that, in paragraph 87 of that judgment, the Court of Justice had therefore concluded that there had been no distortion by the General Court either of the statement of 23 July 1997 or of that other evidence.
100. In paragraph 129 of its judgment, the General Court emphasised that the sole object of paragraph 88 of ThyssenKrupp  v Commission  had been the examination and rejection by the Court of Justice of ‘another argument of the Commission relating to the existence of exceptional circumstances, based on the alleged economic succession of Thyssen [Stahl] by [the appellant], on the manifest unity of action between those two operators and on statements made by [the appellant] on behalf of Thyssen [Stahl] during the administrative procedure’.
101. In paragraphs 131 to 135 of the judgment under appeal, the General Court found that, in the light of the object of the first ground of the Commission’s cross-appeal, it followed from a reading of the third sentence of paragraph 88 of ThyssenKrupp  v Commission  that that sentence merely referred to the analysis carried out in paragraphs 85 and 86 of that judgment of the statements made by the appellant during the administrative procedure on the activities of Thyssen Stahl other than the statement of 23 July 1997, namely the appellant’s replies to the two statements of objections and its letter of 17 December 1996.
103. Those considerations in the judgment under appeal are not vitiated by any error of law. First, contrary to the appellant’s submissions, the General Court did not find in the judgment under appeal that the Court of Justice had accepted, in paragraph 88 of ThyssenKrupp  v Commission , that liability for the infringements committed by Thyssen Stahl should be attributed to the appellant. On the contrary, it was stated in paragraphs 118 and 122 of the judgment under appeal that the appellant’s appeal in ThyssenKrupp  v Commission  did not relate to the General Court’s assessment of the transfer to the appellant of liability for the unlawful conduct of which Thyssen Stahl had been accused, and that paragraph 88 of ThyssenKrupp  v Commission  related to the cross-appeal by the Commission which also did not call into question that transfer of liability.
104. Second, as the General Court rightly observed, in paragraph 88 of ThyssenKrupp  v Commission  the Court replied specifically to the Commission’s arguments set out in paragraph 79 of that judgment. That paragraph merely summarised the arguments in points 84 to 87 of the cross-appeal, which refer to points 60 to 64 of the cross-appeal.
110. The appellant had clearly put forward that plea in law in case the General Court rejected the interpretation of paragraph 88 of ThyssenKrupp  v Commission  it had put forward in its third plea in law, and no force of res judicata  was attached in that respect either to that judgment or to the judgment in Krupp Thyssen Stainless and Acciai speciali Terni  v Commission .
123. The Court has on various occasions recalled the importance, in both the legal order of the European Union and the national legal systems, of the principle of res judicata  (Case C‑224/01 Köbler  [2003] ECR I‑10239, paragraph 38; Case C‑234/04 Kapferer  [2006] ECR I‑2585, paragraph 20; and Case C‑526/08 Commission  v Luxembourg  [2010] ECR I‑0000, paragraph 26) and the fact that res judicata  attaches only to matters of fact and law actually or necessarily settled by the judicial decision in question ( Commission  v Luxembourg , paragraph 27 and the case-law cited).
129. In those circumstances, it is clear that the lawfulness of the transfer of liability by means of the statement of 23 July 1997 was not the subject of the dispute in which the Krupp Thyssen Stahl and Acciai speciali Terni  v Commission  judgment was delivered.
130. Having regard to the arguments raised before the General Court in that case, its task was limited to assessing whether or not the appellant, by making the statement of 23 July 1997, had waived its right to be heard specifically on the unlawful conduct of Thyssen Stahl.
131. While the General Court, in making that assessment, had to determine the content of that statement, and was thus able to find that the intention had been to effect that transfer of liability, it was not for it to judge the lawfulness of the transfer, and if it did it would be ruling ultra petita .
132. It follows that, since the lawfulness of the transfer of liability by the statement of 23 July 1997 had not been raised before the General Court, the finding in paragraph 62 of Krupp Thyssen Stainless and Acciai speciali Terni  v Commission  was an obiter dictum  which went beyond the bounds of the dispute before the General Court and did not thus actually or necessarily decide a point of law. It cannot therefore be res judicata .
136. It must be remembered, however, that if the reasoning in a judgment of the General Court discloses an infringement of European Union law but its operative part is well founded on other legal grounds, the appeal must be dismissed (Case C‑210/98 P Salzgitter  v Commission  [2000] ECR I‑5843, paragraph 58).
143. It is settled case-law that, in principle, it is for the natural or legal person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, at the date of the decision finding the infringement, the operation of the undertaking was no longer his responsibility (Case C‑248/98 P KNP BT  v Commission  [2000] ECR I‑9641, paragraph 71; Case C‑279/98 P Cascades  v Commission  [2000] ECR I‑9693, paragraph 78; Case C‑286/98 P Stora Kopparbergs Bergslags  v Commission  [2000] ECR I‑9925, paragraph 37; and Case C‑297/98 P SCA Holding  v Commission  [2000] ECR I‑10101, paragraph 27).
144. As to the circumstances in which an entity that has not committed the infringement may none the less be penalised for that infringement, the Court has stated that this situation arises if the entity that has committed the infringement has ceased to exist, either in law or economically, since a penalty imposed on an undertaking which is no longer economically active is likely to have no deterrent effect (Case C‑280/06 ETI and Others  [2007] ECR I‑10893, paragraph 40).
145. In the present case, it is not disputed that at the material time the entity to which the unlawful conduct at issue was attributed formed part of Thyssen Stahl and operated under Thyssen Stahl’s control. It is also not disputed that at the date of adoption of the contested decision Thyssen Stahl continued both to exist in law and to carry on economic activities. It follows that, in accordance with the case-law referred to in paragraphs 143 and 144 above, the Commission was in principle required to impose the fine in question on Thyssen Stahl.
155. In this respect, it must be noted that the subsequent irrevocability of the statement of 23 July 1997 does not prevent the appellant from contesting, by an action before the European Union judicature, the interpretation of the content of the statement, as set out in paragraphs 64 to 66 of Krupp Thyssen Stainless and Acciai speciali Terni  v Commission , or the express or implied acknowledgment of matters of fact or law during the administrative procedure before the Commission, since that cannot restrict the actual exercise of the right of a natural or legal person to bring proceedings before the General Court under the fourth paragraph of Article 230 EC (Case C‑407/08 P Knauf Gips  v Commission  [2010] ECR I‑0000, paragraph 90).
157. In those circumstances, since the reasoning of the judgment under appeal discloses an infringement of European Union law but the operative part of that judgment is well founded on other legal grounds, so that the appeal must be dismissed (see, to that effect, Salzgitter  v Commission , paragraph 58), the error of law committed by the General Court, found in paragraph 134 above, has no effect on the examination of the appeal.
C – Fourth ground of appeal: infringement of the rules on limitation periods
1. Arguments of the parties
166. Both Article 1(1) of Decision No 715/78 and Article 25(1) of Regulation No 1/2003 subject the Commission’s power to impose fines for infringements of competition law to a limitation period of five years running, in accordance with Article 1(2) of Decision No 715/78 and Article 25(2) of Regulation No 1/2003, from the day on which the infringement was committed or ceased, which may, under Articles 2 and 3 of Decision No 715/78 and Article 25(3) to (6) of Regulation No 1/2003, be interrupted or suspended.
176. In accordance with the case-law, a reduction of the fine on the basis of the cooperation notice can be justified only if the information provided and the conduct of the undertaking concerned may be regarded as demonstrating genuine cooperation on its part (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 395).
179. It should be recalled that it follows from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the General Court 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 General Court 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 General Court and the legal conclusions it has drawn from them (Case C‑551/03 P General Motors  v Commission  [2006] ECR I‑3173, paragraph 51, and order of 29 September 2010 in Joined Cases C‑74/10 P and C‑75/10 P EREF  v Commission , paragraph 41).
180. The Court has also stated that the appraisal of the facts by the General Court does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients  v Commission  [2006] ECR I‑4429, paragraph 85, and order in EREF  v Commission , paragraph 42).