Baustahlgewebe GmbH v Commission of the European Communities.
Date: 1998-12-17
19 Thus, the Court of Justice has jurisdiction to verify whether a breach of procedure adversely affecting the appellant's interests was committed before the Court of First Instance and must satisfy itself that the general principles of Community law and the Rules of Procedure applicable to the burden of proof and the taking of evidence have been complied with (see, in particular, the order in Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 40).
20 It should be noted that Article 6(1) of the EHRC provides that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
21 The general principle of Community law that everyone is entitled to fair legal process, which is inspired by those fundamental rights (see in particular Opinion 2/94 [1996] ECR I-1759, paragraph 33, and judgment in Case C-299/95 Kremzow [1997] ECR I-2629, paragraph 14), 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.
23 As regards, next, an allegedly incorrect examination of the facts, it is clear from Article 168a of the Treaty and the first paragraph of Article 51 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 168a of the Treaty to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them (see, in particular, the order in San Marco v Commission, cited above, paragraph 39).
24 The Court of Justice thus 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 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 (see, in particular, the order in San Marco v Commission, cited above, paragraph 40). 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 (Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42).
25 However, 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 (see, in particular, Case C-283/90 P Vidrányi v Commission [1991] ECR I-4339, paragraph 29; Case C-188/96 P Commission v V [1997] ECR I-6561, paragraph 24, and Case C-401/96 P Somaco v Commission [1998] ECR I-2587, paragraph 53).
The pleas alleging procedural irregularities
Breach of the principle that proceedings must be disposed of within a reasonable time
29 It must first be stated that such a duration is, at first sight, considerable. However, the reasonableness of such a period must 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 (see, by analogy, the judgments of the European Court of Human Rights in the cases of Erkner and Hofauer of 23 April 1987, Series A No 117, § 66; Kemmache of 27 November 1991, Series A No 218, § 60; Phocas v France of 23 April 1996, Recueil des arrêts et décisions 1996-II, p. 546, § 71, and Garyfallou AEBE v Greece of 27 September 1997, Recueil des arrêts et décisions 1997-V, p. 1821, § 39).
30 As regards the importance of the proceedings to the appellant, it must be emphasised that its economic survival was not directly endangered by the proceedings. The fact nevertheless remains that, in the case of proceedings concerning infringement of competition rules, the fundamental requirement of legal certainty on which economic operators must be able to rely and the aim of ensuring that competition is not distorted in the internal market are of considerable importance not only for an applicant himself and his competitors but also for third parties in view of the large number of persons concerned and the financial interests involved.
47 In the light of the foregoing considerations, it must be held, notwithstanding the relative complexity of the case, that the proceedings before the Court of First Instance did not satisfy the requirements concerning completion within a reasonable time.
48 For reasons of economy of procedure and in order to ensure an immediate and effective remedy regarding a procedural irregularity of that kind, it must be held that the plea alleging excessive duration of the proceedings is well founded for the purposes of setting aside the contested judgment in so far as it set the amount of the fine imposed on the appellant at ECU 3 million.
49 However, in the absence of any indication that the length of the proceedings affected their outcome in any way, that plea cannot result in the contested judgment being set aside in its entirety.
Breach of the principle of promptitude
58 In so far as this complaint does not relate to the findings of fact made by the Court of First Instance, it must be pointed out that, where there is a dispute as to the existence of an infringement of the competition rules, it is incumbent on the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement.
70 Where a request for the examination of witnesses, made in the application, states precisely about what facts and for what reasons the witness or witnesses should be examined, it then falls to the Court of First Instance to assess the relevance of the application to the subject-matter of the dispute and the need to examine the witnesses named.
76 Furthermore, the appellant's argument that the Court of First Instance was in breach of a duty of investigation incumbent upon it must be rejected, since it is common ground that it adopted measures of organisation of procedure to facilitate the taking of evidence and to clarify the arguments of the parties, in accordance with Article 64(2) of its Rules of Procedure.
89 In that regard, it must be observed that access to the file in competition cases is intended in particular to enable the addressees of a statement of objections to acquaint themselves with the evidence in the Commission's file so that they can express their views effectively on the basis of that evidence on the conclusions reached by the Commission in its statement of objections (Case 322/81 Michelin v Commission [1983] ECR 3461, paragraph 7; Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraphs 9 and 11; and Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, paragraph 21).
92 Under Article 64(2)(a) and (b) of the Rules of Procedure of the Court of First Instance, the purpose of measures of organisation of procedure is in particular to ensure efficient conduct of the written and oral procedure and to facilitate the taking of evidence, and also to determine the points on which the parties must present further argument or which call for measures of inquiry. Under Article 64(3)(d) and (4), those measures may be proposed by the parties at any stage of the procedure and may consist in requesting the production of documents or any papers relating to the case.
93 It follows that the appellant was entitled to ask the Court of First Instance to order the opposite party to produce documents which were in its possession. Nevertheless, to enable the Court of First Instance to determine whether it was conducive to proper conduct of the procedure to order the production of certain documents, the party requesting production must identify the documents requested and provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings.
94 It must be held that it is clear from the contested judgment and from the documents before the Court of First Instance that, although the Commission submitted to it a list of all the documents in the file concerning it, the appellant did not sufficiently identify, in its request to the Court of First Instance, the documents in the file of which it sought production. As regards the documents concerning the German structural crisis cartel, although the appellant criticised the Commission for deciding that its participation in the cartel was an aggravating factor, it nevertheless did not give any information as to how the documents asked for might be useful to it.
128 In the first place, it must be borne in mind that the Court of First Instance alone has jurisdiction to examine how in each particular case the Commission appraised the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the Court of First Instance took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 85 of the Treaty and Article 15 of Regulation No 17 and, second, to consider whether the Court of First Instance responded to a sufficient legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced (see, on the latter point, Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 31).
129 As regards the allegedly disproportionate nature of the fine, it must be borne in mind that 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 Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law (BPB Industries and British Gypsum v Commission, cited above, paragraph 34, and Ferriere Nord v Commission, cited above, paragraph 31). This complaint must therefore be declared inadmissible in so far as it seeks a general re-examination of the fines or, in the alternative, to have the fine reduced to a reasonable amount. The same applies to the complaint, not made by the appellant before the Court of First Instance, concerning its alleged ignorance of the illicit nature of the conduct designed to defend the German structural crisis cartel, as pointed out by the Advocate General in point 286 of his Opinion.
138 In that connection, it must be pointed out that the factors on the basis of which the gravity of an infringement may be assessed may include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking and, consequently, the influence which the undertaking was able to exert on the market (see Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 120).
139 It follows that it is permissible, for the purpose of determining the fine, to have regard both to the total turnover of the undertaking, which constitutes an indication, albeit approximate and imperfect, of the size of the undertaking and of its economic power, and to the proportion of that turnover accounted for by the goods in respect of which the infringement was committed, which gives an indication of the scale of the infringement (Musique Diffusion française and Others v Commission, cited above, paragraph 121). Although an undertaking's market shares cannot be a decisive factor in concluding that an undertaking belongs to a powerful economic entity, they are nevertheless relevant in determining the influence which it may exert on the market.
141 Having regard to all the circumstances of the case, the Court considers that a sum of ECU 50 000 constitutes reasonable satisfaction for the excessive duration of the proceedings.