Sumitomo Metal Industries Ltd (C-403/04 P) and Nippon Steel Corp. (C-405/04 P) v Commission of the European Communities.
Date: 2007-01-25
38. It must be borne in mind that, in an appeal, the Court of Justice has no jurisdiction to establish the facts or, in principle, 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 the 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 (Case C-7/95 P John Deere  v Commission  [1998] ECR I-3111, paragraph 22). Save where the evidence adduced before the Court of First Instance has been distorted, the appraisal therefore does not constitute a point of law which is subject to review by the Court of Justice (Case C-53/92 P Hilti  v Commission  [1994] ECR I-667, paragraph 42, and Joined Cases 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 Aalborg Portland and Others  v Commission  [2004] ECR I‑123, paragraph 49).
39. The jurisdiction of the Court of Justice to review the findings of fact by the Court of First Instance therefore extends, inter alia, to the substantive inaccuracy of those findings as apparent from the documents in the file, the distortion of the evidence, the legal characterisation of that evidence and the question whether the rules relating to the burden of proof and the taking of evidence have been observed ( ( Joined Cases C-2/01 P and C‑3/01 P BAI and Commission  v Bayer  [2004] ECR I-23, paragraphs 47, 61 and 117, and Case C-551/03 P General Motors  v Commission  [2006] ECR I-3173, paragraphs 51 and 52).
40. The first part of the plea concerns essentially the question whether the alleged absence of commercial interests in committing the alleged infringement ought to have led the Court of First Instance to evaluate the evidence according to different criteria from those which it used. Contrary to the Commission’s contention, this part of the plea is admissible. The question whether the Court of First Instance applied the correct legal standard when examining the evidence is a question of law.
45. As the Advocate General observed at point 190 et seq. of his Opinion, that reasoning by the Court of First Instance is in accordance with the law. It is in keeping with a consistent line of decisions of the Court (see, in particular, Joined Cases 29/83 and 30/83 CRAM and Rheinzink  v Commission  [1984] ECR 1679, paragraph 20; Case C-49/92 P Commission  v Anic Partecipazioni  [1999] ECR I-4125, paragraph 123; and 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 P Limburgse Vinyl Maatschappij and Others  v Commission  [1999] ECR I-8375, paragraph 508). Nippon Steel’s argument that the existence of a plausible alternative explanation for the conduct complained of, namely the absence of a commercial interest, should have led the Court of First Instance to impose stricter requirements as to the evidence to be adduced is contrary to that case-law.
47. As regards, in particular, agreements of an anti-competitive nature reached, as in the present case, at meetings of competing undertakings, the Court has already held that an infringement of Article 81(1) EC is constituted when those meetings have as their object the restriction, prevention or distortion of competition and are thus intended to organise artificially the operation of the market ( Limburgse Vinyl Maatschappij and Others  v Commission , paragraphs 508 and 509). In such a case, it is sufficient for the Commission to establish that the undertaking concerned participated in meetings during which agreements of an anti-competitive nature were concluded in order to prove that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward indicia to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (Case C-199/2 P Hüls  v Commission  [1999] ECR I‑4287, paragraph 155, and Aalborg Portland and Others  v Commission , paragraph 81).
48. The reason underlying that rule is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking has given the other participants to believe that it subscribed to what was decided there and would comply with it ( Aalborg Portland and Others  v Commission , paragraph 82).
51. That appraisal of the evidence is consistent with well-established case-law. As the Court has already held in other cases, it is normal for the activities which anti-competitive practices and agreements entail to take place in a clandestine fashion, for meetings to be held in secret, and for the associated documentation to be reduced to a minimum. It follows that, even if the Commission discovers evidence explicitly showing unlawful contact between traders, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction. Accordingly, in most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules ( Aalborg Portland and Others  v Commission , paragraphs 55 to 57).
56. The second part of the plea rests on the premiss that the evidence is ambiguous. However, as already observed in the context of the examination of the first part of the plea, the appraisal by the Court of First Instance of the probative force of the documents submitted to it cannot, save where the rules on the burden of proof and the taking of evidence have not been observed or the evidence has been distorted, be challenged before the Court of Justice (see also Case C‑136/92 P Commission  v Brazzelli Lualdi and Others  [1994] ECR I‑1981, paragraphs 49 and 66, and Case C‑182/99 P Salzgitter  v Commission  [2003] ECR I‑10761, paragraph 43). In the present case, that applies to the Court of First Instance’s finding that the evidence was not ambiguous but, on the contrary, was precise and consistent and thus founded the conviction that the infringement had been committed.
77. As regards the fourth part of the plea, it must be borne in mind at the outset that the question whether the grounds of a judgment of the Court of First Instance are contradictory or inadequate is a question of law which is amenable, as such, to judicial review on appeal (Case C‑401/96 P Somaco  v Commission  [1998] ECR I‑2587, paragraph 53, and Case C‑185/95 P Baustahlgewebe  [1998] ECR I‑8417, paragraph 25). This part of the plea is therefore admissible.
106. As the Advocate General observed at points 130 to 132 of his Opinion, it is clear from the beginning of paragraph 336 of the judgment under appeal, which is worded as follows: ‘… even if it is assumed that … – which has not been demonstrated – …’, that this ground is included purely for the sake of completeness and is autonomous by reference to the conclusions which the Court of First Instance drew at paragraphs 332 to 335, cited at paragraph 72 of this judgment. According to settled case-law, the Court rejects outright complaints directed against grounds of a judgment of the Court of First Instance which are included purely for the sake of completeness, since they cannot lead to its being set aside (order in Case C-137/95 P SPO and Others  v Commission  [1996] ECR I‑1611, paragraph 47, and judgment in Case C‑362/95 P Blackspur DIY and Others  v Council and Commission  [1997] ECR I‑4775, paragraph 23).
115. It must be borne in mind that the general principle of Community law that everyone is entitled to a fair hearing, which is inspired by Article 6(1) of the ECHR, and in particular the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law ( Baustahlgewebe  v Commission , paragraphs 20 and 21; Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 179; and Case C‑194/99 P Thyssen Stahl  v Commission  [2003] ECR I‑10821, paragraph 154).
116. The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities ( Baustahlgewebe  v Commission , paragraph 29, and Thyssen Stahl  v Commi ssion , paragraph 155).
117. The Court has held in that regard that that list of criteria is not exhaustive and that the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of the case may be deemed to justify a duration which is prima facie too long. Conversely, the time taken may be regarded as longer than is reasonable ( Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 188, and Thyssen Stahl  v Commission , paragraph 156).