Groupe Danone v Commission of the European Communities.
Date: 2007-02-08
23. It must be borne in mind at the outset that while it is true that the Court has held that the Guidelines do not constitute the legal basis of fining decisions adopted by the Commission (see 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 209, and Case C‑167/04 P JCB Service  v Commission  [2006] ECR I‑0000, paragraph 207), the Court has also held that the Guidelines ensure legal certainty on the part of the undertakings since they determine the method which the Commission has bound itself to use for the purposes of setting fines (see Dansk Rørindustri and Others  v Commission , paragraph 213, and JCB Service  v Commission , paragraph 209).
25. As regards gravity, the Court has held that, whereas the basic amount of the fine is set according to the infringement, its gravity is determined by reference to numerous other factors, in respect of which the Commission has a wide discretion. According to the Court, to take into account aggravating circumstances when setting the fine is consistent with the Commission’s task of ensuring compliance with the competition rules (see Case C‑308/04 P SGL Carbon  v Commission  [2006] ECR I‑0000, paragraph 71).
26. Furthermore, in 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 91, the Court made clear that any repeated infringement was among the factors to be taken into consideration in the analysis of the gravity of the infringement in question.
27. In those circumstances, Groupe Danone’s contention that before the entry into force of the Guidelines the Commission’s practice in setting fines lacked clarity and foreseeability misconstrues the legal relationship between Article 15(2) of Regulation No 17, which constitutes the legal basis of the contested decision, and the Guidelines.
28. The Guidelines do not constitute the legal basis for setting the amount of the fine but merely clarify the application of Article 15(2) of Regulation No 17 (see also Dansk Rørindustri and Others  v Commission , paragraphs 211, 213 and 214). In that context, as the Advocate General observed at point 24 of his Opinion, even in the absence of the Guidelines the applicant was still able to foresee the legal consequences of its conduct.
29. Accordingly, the Commission, in the exercise of its discretion, was entitled to regard the element associated with the repeated infringement as relating to the gravity of the infringement committed by Groupe Danone.
37. That appraisal by the Court of First Instance is consistent with the law. In accordance with settled case-law, the Commission has a particularly wide discretion as regards the choice of factors to be taken into account for the purposes of determining the amount of fines, such as, inter alia, the particular circumstances of the case, its context and the dissuasive effect of fines, without the need to refer to a binding or exhaustive list of the criteria which must be taken into account (see, inter alia, order in Case C-137/95 P SPO and Others  v Commission  [1996] ECR I-1611, paragraph 54, and judgment in Case C-219/95 P Ferriere Nord  v Commission  [1997] ECR I-4411, paragraph 33).
39. As the Advocate General observed at point 30 of his Opinion, repeated infringement is an important factor which the Commission must appraise, since the purpose of taking repeated infringement into account is to induce undertakings which have demonstrated a tendency towards infringing the competition rules to change their conduct. The Commission may therefore, in each individual case, take into consideration the indicia which confirm such a tendency, including, for example, the time that has elapsed between the infringements in question.
40. In that regard, the Court of First Instance established, at paragraphs 354 and 355 of the judgment under appeal, the history of the infringements of the competition rules found against Groupe Danone and stated that on each occasion a relatively short time, namely less than 10 years, had elapsed between infringements. In those circumstances, the Court of First Instance was entitled to conclude that the repetition of unlawful conduct by Groupe Danone showed a tendency on its part not to draw the appropriate conclusions from a finding that it had infringed those rules.
41. Furthermore, in regard to the characteristics of the appellant’s previous conduct, the Court of First Instance correctly noted, at paragraph 363 of the judgment under appeal, that the concept of repeated infringement does not necessarily imply that a fine has been imposed in the past, but merely that a finding of infringement of Community competition law has been made in the past.
45. 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 point of law which is amenable, as such, to judicial review on appeal (see Case C‑401/96 P Somaco  v Commission  [1998] ER I‑2587, paragraph 53, and Case C‑446/00 P Cubero Vermurie  v Commission  [2001] ECR I‑10315, paragraph 20).
46. As regards the obligation to state reasons, it is settled case-law that the Court of First Instance is not thereby required to provide an account that follows exhaustively and point by point all the reasoning articulated by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the measures in question were taken and provides the competent court with sufficient material for it to exercise its power of review (see, in particular, Case C-105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Electrotechnisch Gebied  v Commission  [2006] ECR I‑0000, paragraph 72).
61. Such jurisdiction was conferred on the Community judicature by Article 17 of Regulation No 17. The Community judicature is therefore empowered, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see, to that effect, 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, paragraph 692).
62. It follows that the Community judicature is empowered to exercise its unlimited jurisdiction where the question of the amount of the fine is before it and that that jurisdiction may be exercised to reduce that amount as well as to increase it.
68. It should be recalled at the outset that in all proceedings in which sanctions, especially fines or penalty payments, may be imposed observance of the rights of the defence is a fundamental principle of Community law which has been emphasised on numerous occasions in the case-law of the Court (see, inter alia, Case C‑194/99 P Thyssen Stahl  v Commission  [2003] ECR I‑10821, paragraph 30).
69. On 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 Articles 81 EC and 82 EC and Article 15 of Regulation No 17 and, second, to ascertain whether the Court of First Instance responded to the requisite legal standard to all the arguments raised by the appellant with a view to having the fine cancelled or reduced (see, in particular, Case C‑185/95 P Baustahlgewebe  v Commission  [1998] ECR I‑8417, paragraph 128).
82. Thus, in the exercise of its unlimited jurisdiction, the Court of First Instance relied exclusively on the provisions of the Guidelines and applied no other factors, circumstances or criteria which Groupe Danone could not foresee would be taken into account.
87. It must be borne in mind, first of all, that the principle that penal provisions may not have retroactive effect is one that is common to all the legal orders of the Member States and forms an integral part of the general principles of law whose observance is ensured by the Community judicature (see Case 63/83 Kirk  [1984] ECR 2689, paragraph 22).
88. In particular, Article 7(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which enshrines in particular the principle that offences and punishments are to be strictly defined by law ( nullum crimen, nulla poena sine lege ), may preclude the retroactive application of a new interpretation of a rule establishing an offence (see, to that effect, Dansk Rørindustri and Others  v Commission , paragraph 217).
89. That is particularly true of a judicial interpretation which produces a result which was not reasonably foreseeable at the time when the offence was committed, especially in the light of the interpretation put on the provision in the case-law at the material time (see Dansk Rørindustri and Others  v Commission , paragraph 218).
90. However, it follows from the case-law of the Court that the fact that the Commission, in the past, imposed fines of a certain level for certain types of infringement does not mean that it is estopped from raising that level within the limits indicated in Regulation No 17 if that is necessary to ensure the implementation of Community competition policy, but that, on the contrary, the proper application of the Community competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy (see Dansk Rørindustri and Others  v Commission , paragraph 227).
91. Undertakings involved in an administrative procedure in which fines may be imposed cannot therefore acquire a legitimate expectation that a particular method of calculating the fines will be used (see, to that effect, Dansk Rørindustri and Others  v Commission , paragraph 228).
92. It follows that a method of calculating fines, such as that applied by the Court of First Instance in the judgment under appeal, was reasonably foreseeable for an undertaking such as Groupe Danone at the time when the infringements concerned were committed (see, to that effect, Dansk Rørindustri and Others  v Commission , paragraph 231).