FSL Holdings and Others v European Commission.
Date: 2017-04-27
32


As regards the first aspect of the line of argument developed in support of the first ground of appeal, the General Court was correct in stating, in paragraphs 45 and 80 of the judgment under appeal, first, that the lawfulness of the transmission to the Commission by a prosecutor or the authorities competent in competition matters of information obtained in application of national criminal law is a question governed by national law and, second, that the Courts of the European Union (‘Courts of the Union’) have no jurisdiction to rule on the lawfulness, as a matter of national law, of a measure adopted by a national authority (judgment of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraph 62).
38


As regards the appellants’ argument that the use of those documents for purposes other than those for which they were obtained could irremediably compromise the rights of the defence, it should be recalled that the prevailing principle in EU law is that evidence may be freely adduced and that the only relevant criterion for the purpose of assessing the evidence adduced is its credibility (see judgment of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraph 63).
40


In that regard, the Court recalls that respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement (see, inter alia, judgment of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraph 44 and the case-law cited).
41


In proceedings under Article 101 TFEU, it is therefore appropriate to draw a distinction between two stages, that preceding the statement of objections and that following it (see, inter alia, judgment of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 27).
42


It has thus been held by the Court that the Commission was not under an obligation to inform the undertaking concerned before the notification of the statement of objections that it was in possession of evidence since it is the notification of the statement of objections, on the one hand, and access to the file enabling the addressee of the statement of objections to peruse the evidence in the Commission’s file, on the other, that ensure that the rights of the defence are observed and that the undertaking concerned is able to rely in full on its rights of defence after that notification (see, inter alia, judgment of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraphs 58 and 59).
43


However, the Court has also made clear that the Commission must ensure that the rights of the defence are not impaired during the stage of the investigation procedure which precedes the notification of the statement of objections (see, inter alia, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 63).
45


In addition, the General Court found, in paragraph 99 of the judgment under appeal, that the appellants did not put forward any reasons as to why the fact of not having known about those documents during the investigation stage might have had an impact on their subsequent ability to defend themselves during the stage which followed the notification of the statement of objections (see, by analogy, judgment of 25 January 2007, Dalmine v Commission, C‑407/04 P, EU:C:2007:53, paragraph 61).
47


Lastly, as regards the General Court’s alleged distortion of the evidence, it must be borne in mind that there is distortion where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect (see, inter alia, judgment of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraph 17).
48


As the Advocate General stated in point 65 of her Opinion, an appellant must also indicate precisely the evidence which has been distorted and show the errors of appraisal which have allegedly been made (see, inter alia, judgment of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraph 16).
63


They submit that it is for the Courts of the Union to carry out the review of legality on the basis of the evidence adduced by an applicant in support of the pleas in law put forward and they lay emphasis on the fact that the Courts cannot, in carrying out that review, use the Commission’s margin of discretion in the matter. They refer in particular in that regard to the judgment of 8 December 2011, KME Germany and Others v Commission (C‑389/10 P, EU:C:2011:816, paragraph 129).
66


They also claim that the General Court erred in law by stating, in paragraph 532 of the judgment under appeal, that it was not necessary for the Commission to take into account additional facts or circumstances when, in accordance with the judgment of 7 January 2004, Aalborg Portland and Others v Commission (C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 91), it should have had regard to objective factors such as the content and duration of the anticompetitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order, the relative importance and market share of the undertakings responsible and also any repeated infringements, even though the appellants had specifically referred to these factors.
73


As regards the judicial review of fines imposed by the Commission where competition law is infringed, it must be borne in mind that the Courts of the Union must carry out the review of legality on the basis of the evidence adduced by the applicant in support of the pleas in law put forward. In carrying out that review, the Courts cannot use the Commission’s margin of discretion — either as regards the choice of factors taken into account in the application of the criteria mentioned in the guidelines or as regards the assessment of those factors — as a basis for dispensing with an in-depth review of the law and of the facts (see, inter alia, judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 62).
74


The review of legality is supplemented by the unlimited jurisdiction conferred on the Courts of the Union by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts, beyond carrying out a mere review of legality with regard to the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see, inter alia, judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 63).
75


In order to satisfy the requirements of the principle of effective judicial protection 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 (see, inter alia, judgment of 9 June 2016, Repsol Lubricantes y Especialidades and Others v Commission, C‑617/13 P, EU:C:2016:416, paragraph 86).
76


The role of the Court of Justice in an appeal is to establish whether the General Court erred in law in the manner in which it adjudicated on the action brought before it (see, inter alia, judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 46).
77


However, it is not for the Court of Justice, 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 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraph 72).
78


Only if the Court of Justice were to consider that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, would it have to find that the General Court erred in law, owing to the inappropriateness of the amount of a fine (see, inter alia, judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraph 73).
80


It should also be borne in mind that the exercise of unlimited jurisdiction is not equivalent to a review of the Court’s own motion and, with the exception of pleas involving matters of public policy, which the Courts of the Union are required to raise of their own motion, it is for the applicant to raise pleas in law against the contested decision and adduce evidence (see, inter alia, judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 64).
81


As regards the gravity of the infringement, the General Court was correct to find, in paragraph 525 of the judgment under appeal, that the Commission was entitled to apply, for the most harmful restrictions, such as the one in question, a rate of at least 15% of the value of sales, which is the minimum of the ‘higher end of the scale’, within the meaning of point 23 of the 2006 Guidelines, for that type of infringement (see, in that regard, judgment of 11 July 2013, Gosselin Group v Commission, C‑429/11 P, not published, EU:C:2013:463, paragraph 124).
83


Although the General Court’s statement, in paragraph 532 of the judgment under appeal, that where the Commission simply applies a rate equal or almost equal to the minimum rate of 15% of the value of sales laid down for the most harmful restrictions, it is not necessary to take into account additional factors, is prima facie erroneous, that statement does not, however, reflect the assessment actually undertaken by the General Court in that judgment: the Court examined the relevance of the circumstances relied on by the appellants in their application with regard to the analysis of the gravity of the infringement, in particular in paragraph 533 of the judgment under appeal (see, by analogy, judgment of 11 July 2013, Gosselin Group v Commission, C‑429/11 P, not published, EU:C:2013:463, paragraph 129). The point must also be made that since the General Court rightly found, in the judgment under appeal, that the infringement at issue fell within the category of the most harmful infringements, the individual conduct of the undertakings was certainly taken into account.
92


They claim that an analysis of the economic and legal context of which the agreement at issue forms part is needed to determine whether or not an infringement has as its object the restriction of competition (judgments of 14 March 2013, Allianz Hungária Biztosító and Others, C‑32/11, EU:C:2013:160, paragraphs 36 and 48, and of 26 November 2015, Maxima Latvija, C‑345/14, EU:C:2015:784, paragraph 16).
103


It must be recalled that the concept of restriction of competition ‘by object’ must be interpreted narrowly and can be applied only to certain types of coordination between undertakings which reveal a sufficient degree of harm to competition that it may be found that there is no need to examine their effects. Certain forms of coordination between undertakings can be regarded, by their very nature, as being harmful to the proper functioning of normal competition (see, inter alia, judgments of 26 November 2015, Maxima Latvija, C‑345/14, EU:C:2015:784, paragraph 17, and of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 26).
104


The essential legal criterion for ascertaining whether an agreement involves a restriction of competition ‘by object’ is the finding that such an agreement reveals in itself a sufficient degree of harm to competition for it to be considered that it is not appropriate to assess its effects (see, inter alia, judgment of 26 November 2015, Maxima Latvija, C‑345/14, EU:C:2015:784, paragraph 20).
105


In that connection, regard must be had to the content of the provisions of the agreement at issue, the objectives which it seeks to attain and the economic and legal context of which it forms part (see, inter alia, judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 27).
107


In respect of such agreements, which represent particularly serious restrictions of competition, the analysis of the economic and legal context of which the practice forms part may therefore be limited to what is strictly necessary in order to establish the existence of a restriction of competition by object (see, by analogy with market-sharing agreements, judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 29).