Dalmine SpA v Commission of the European Communities.
Date: 2007-01-25
34. According to that case-law, the Commission is entitled, if necessary by adopting a decision, to compel an undertaking to provide all necessary information concerning such facts as may be known to it but may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove (Case 374/87 Orkem  v Commission  [1989] ECR 3283, paragraphs 34 and 35; 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, paragraphs 61 and 65; and Joined Cases C‑65/02 P and C‑73/02 P ThyssenKrupp  v Commission  [2005] ECR I‑6773, paragraph 49).
35. In the present case, as the Advocate General observed at point 29 of his Opinion, it follows from the operative part of the decision of 6 October 1997 that Dalmine was not compelled to answer part (d) of the first question, cited at paragraph 31 of this judgment. In those circumstances, as the Court of First Instance found at paragraphs 45 and 46 of the judgment under appeal, Dalmine cannot effectively rely on its right not to be compelled by the Commission to admit having participated in an infringement.
44. 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 (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others  v Commission  [1983] ECR 1825, paragraph 10; Case C‑310/93 P BPB Industries and British Gypsum  v Commission  [1995] ECR I-865, paragraph 21; and Aalborg Portland and Others  v Commission , paragraph 66).
58. As regards whether the Commission ought to have informed Dalmine earlier, and indeed even before the notification of the statement of objections, of the fact that it was in possession of the minutes in issue, it must be borne in mind that it is precisely 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 the rights of the defence and the right to a fair legal process, which the appellant invokes in the context of the present plea.
59. It is by the statement of objections that the undertaking concerned is informed of all the essential evidence on which the Commission relies at that stage of the procedure (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  [2002] ECR I‑8375, paragraphs 315 and 316, and Aalborg Portland and Others  v Commission , paragraphs 66 and 67). Consequently, it is only after notification of the statement of objections that the undertaking is able to rely in full on the rights of the defence (Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied  v Commission  [2006] ECR I‑0000, paragraphs 47 and 50).
60. As the Court of First Instance correctly stated at paragraph 83 of the judgment under appeal, if the rights in question were, in the sense proposed by the appellant, extended to the period preceding the notification of the statement of objections, the effectiveness of the Commission’s investigation would be prejudiced, since the undertaking would already be able, at the first stage of the Commission’s investigation, to identify the information known to the Commission and therefore the information that could still be concealed from it.
61. Nor is there any indication that the fact that the Commission did not inform Dalmine during the investigation stage that it was in possession of the minutes might have an impact on Dalmine’s subsequent possibilities of defending itself during the administrative procedure initiated by the notification of the statement of objections (see, by analogy, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied  v Commission , paragraphs 48 to 50 and 56).
62. As regards, next, the admissibility of those minutes as evidence, it must be held, as the Court of First Instance held at paragraph 86 of the judgment under appeal, that the lawfulness of the transmission to the Commission by a national prosecutor or the authorities competent in competition matters of information obtained in application of national criminal law is a question governed by national law. Furthermore, as the Court of First Instance observed at the same paragraph, the Community judicature has no jurisdiction to rule on the lawfulness, as a matter of national law, of a measure adopted by a national authority (Case C-97/91 Oleificio Borelli  v Commission  [1992] ECR I-6313, paragraph 9).
63. As regards the use of that information by the Commission, the Court of First Instance correctly observed at paragraph 90 of the judgment under appeal that Dalmine’s arguments could affect only ‘the reliability and therefore the probative value of its managers’ statements and not the admissibility of that evidence in the present proceedings’. As stated in the context of the assessment of the first part of this plea, the principle which prevails in Community law is that of the unfettered evaluation of evidence and the only relevant criterion for the purpose of assessing the evidence adduced relates to its credibility. Accordingly, as the transmission of the minutes in issue was not declared unlawful by an Italian court, those documents cannot be considered to have been inadmissible evidence which ought to have been removed from the file.
70. While it is true that the Court of First Instance thus refrained from considering whether the Commission was entitled to disclose in the contested decision information relating to cartels affecting markets outside the Community and also to price-fixing, it must be held that, even on the assumption that the Commission’s disclosure of that information was contrary to its obligation to respect Dalmine’s business secrets, the fact remains that such an irregularity could lead to the annulment of the contested decision only if it had been established that in the absence of that irregularity the decision would have had a different content (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others  v Commission  [1975] ECR 1663, paragraph 91, and Case C‑338/00 P Volkswagen  v Commission  [2003] ECR I‑9189, paragraphs 163 and 164). As the findings in the contested decision relating to the cartels affecting the markets outside the Community and also price-fixing were characterised by the appellant as superfluous grounds, it cannot in any event maintain that in the absence of those findings the contested decision would have had an essentially different content.
84. According to a consistent body of case-law, for the purposes of applying Article 81(1) EC, there is no need to take account of the actual effects of an agreement once it appears that its object is to restrict, prevent or distort competition (Case C‑49/92 P Commission  v Anic Partecipazioni  [1999] ECR I‑4125, paragraphs 122 and 123, and also Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 491). As regards, in particular, agreements of an anti-competitive nature which, as in the present case, are reached at meetings of competing undertakings, the Court of Justice has already held that Article 81(1) EC is infringed where 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). For the reasons stated by the Advocate General at points 134 to 137 of his Opinion, it would be inappropriate to nuance that case-law in the sense proposed by the appellant.
89. In any event, it follows from well-established case-law that the interpretation and application of the condition relating to effects on trade between Member States contained in Articles 81 EC and 82 EC must be based on the purpose of that condition, which is to define, in the context of the law governing competition, the boundary between the areas respectively covered by Community law and the law of the Member States. Thus, Community law covers any agreement or any practice which is capable of constituting a threat to freedom of trade between Member States in a manner which might harm the attainment of the objectives of a single market between the Member States, in particular by sealing off domestic markets or by affecting the structure of competition within the common market (Case 22/78 Hugin  v Commission  [1979] ECR 1869, paragraph 17, and Case C‑475/99 Ambulanz Glöckner  [2001] ECR I‑8089, paragraph 47).
90. If an agreement, decision or practice is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States. Moreover, that effect must not be insignificant (Case C-306/96 Javico  [1998] ECR I‑1983, paragraph 16; Joined Cases C‑215/96 and C‑216/96 Bagnasco and Others  [1999] ECR I‑135, paragraph 47; and Ambulanz Glöckner , paragraph 48).
91. Accordingly, after finding that the agreement had as its object the sharing of domestic markets in the Community, the Court of First Instance correctly concluded at paragraph 157 of the judgment under appeal that the agreement had the potential effect of affecting trade between Member States. The Court of Justice has already held, moreover, that the sharing of domestic markets in the Community is capable of significantly affecting the pattern of trade between Member States (see Ambulanz Glöckner , paragraphs 48 and 49).
99. In so far as the appellant alleges that the Court of First Instance has misused its powers, it must be borne in mind that a misuse of powers exists when an institution exercises its powers with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (Case C-48/96 P Windpark Groothusen  v Commission  [1998] ECR I-2873, paragraph 52, and Case C-342/03 Spain  v Council  [2005] ECR I‑1975, paragraph 64).
121. In so far as the appellant invokes certain business interests and the bargaining power of one of the parties to those contracts, it should be observed, as the Advocate General observed at points 229 and 230 of his Opinion, that those complaints were not expressly raised before the Court of First Instance and must therefore be declared inadmissible in the present appeal (see, to that effect, Case C-136/92 P Commission  v Brazzelli Lualdi and Others  [1994] ECR I‑1981, paragraph 59, and Case C‑51/92 P Hercules Chemicals  v Commission  [1999] ECR I‑4235, paragraph 58). Furthermore, those complaints cannot be upheld in any event. The assessment of the conformity of conduct with Article 81(1) EC must, admittedly, be made in its economic context (see, to that effect, Case C‑551/03 P General Motors  v Commission  [2006] ECR I‑3173, paragraph 66, and Case C‑74/04 P Commission  v Volkswagen  [2006] ECR I‑0000, paragraph 45). However, even on the assumption that the appellant’s allegations were correct, they would not be capab le of proving that the economic context precluded any possibility of effective competition (see, by analogy, Case C‑235/92 P Montecatini  v Commission  [1999] ECR I‑4539, paragraph 127).
129. According to a consistent line of decisions, the gravity of infringements of Community competition law must be assessed in the light of numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up ( Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 465, and 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 241).
130. The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the Community (see, to that effect, Musique Diffusion française and Others v Commission , paragraph 129, and Dansk Rørindustri and Others  v Commission , paragraph 242).
132. Contrary to the appellant’s assertion, therefore, the Court of First Instance was correct to observe, at paragraph 259 of the judgment under appeal, that the size of the relevant market was just one among a number of other factors to be taken into account in evaluating the gravity of the infringement and setting the amount of the fine.
133. As regards, next, Dalmine’s argument that the Court of First Instance incorrectly, and without stating adequate reasons, confirmed the Commission’s application of the Guidelines and the characterisation of the infringement as ‘very serious’, it must be borne in mind that the Commission has a wide discretion and that the method of calculation defined in the Guidelines contains various flexible elements (Case C‑308/04 P SGL Carbon  v Commission  [2006] ECR I‑0000, paragraphs 46 and 47).
134. It is none the less for the Court of Justice to verify whether the Court of First Instance has correctly assessed the Commission’s exercise of that discretion ( SGL Carbon  v Commission , paragraph 48).
141. As the Court of Justice has already held, the Commission is not required, when assessing fines in accordance with the gravity and duration of the infringement in question, to calculate the fines on the basis of the turnover of the undertaking concerned. It is permissible for the Commission to take account of the turnover of the undertaking concerned in order to assess the gravity of the infringement when determining the amount of the fine, but disproportionate importance must not be attributed to that turnover by comparison with other relevant factors ( Dansk Rørindustri and Others  v Commission , paragraphs 255 and 257).
146. In so far as, for the purposes of demonstrating that the fine is disproportionate, the appellant also relies on the fact that the basic amount of the fine is equivalent to 16% of its sales of the relevant products in 1998 on the world market, 38% of such sales on the Community market and 95% of such sales during the infringement period in Germany, France, Italy and the United Kingdom, it must be borne in mind that the maximum limit of 10% referred to in Article 15(2) of Regulation No 17 relates to the global turnover of the undertaking concerned, and that only the final amount of the fine must observe that limit ( Dansk Rørindustri and Others  v Commission , paragraph 278, and SGL Carbon  v Commission , paragraph 82). As Dalmine has not challenged the finding, at paragraph 287 of the judgment under appeal, that the amount of the fine imposed in the contested decision, namely EUR 10.8 million, represented only around 1.62% of its global turnover, which in 1998 was EUR 667 million, it cannot claim that the fine was manifestly disproportionate to the size of its undertaking.
152. As regards, first of all, the alleged discrimination between Dalmine and Vallourec in setting the fine, it must be borne in mind that while, in the context of an appeal, it is not open to the Court of Justice 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, the exercise of that jurisdiction in respect of the determination of those fines cannot result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 81(1) EC (Case C‑291/98 P Sarrió  v Commission  [2000] ECR I‑9991, paragraphs 96 and 97, and Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 617).
153. However, the appeal must indicate the legal arguments specifically advanced in support of the plea alleging breach of the principle of equal treatment, failing which the plea is inadmissible ( Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 618).
158. As regards, last, the alleged termination of the infringement as soon as the Commission intervened, the Court of First Instance correctly observed at paragraphs 328 and 329 of the judgment under appeal that ‘“termination of the infringement as soon as the Commission intervenes”, as stated in point 3 of the Guidelines, can logically constitute an attenuating circumstance only if there are reasons to suppose that the undertakings concerned were encouraged to cease their anti-competitive conduct by the interventions in question’ and that ‘the fine cannot be reduced on that basis where the infringement has already come to an end before the date on which the Commission first intervenes or where the undertakings concerned have already taken a firm decision to put an end to it before that date’.