Villeroy & Boch AG v European Commission.
Date: 2017-01-26
38


In order to address the first ground of appeal, it must be recalled that the assessment by the General Court of the evidential value of a document may not, as a rule, be subject to review by the Court of Justice in appeal proceedings. As is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court therefore has sole jurisdiction to find and appraise the relevant facts and to assess the evidence, except where those facts and that evidence have been distorted (see, inter alia, judgment of 2 October 2003, Salzgitter v Commission, C‑182/99 P, EU:C:2003:526, paragraph 43 and the case-law cited), an allegation that has not been made in the present case.
39


On the other hand, it is settled case-law that the question whether the grounds of a judgment of the General Court are contradictory or sufficient is a question of law which is amenable, as such, to review on appeal (see, inter alia, judgment of 21 September 2006, Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraph 71 and the case-law cited).
42


It must be recalled, however, that, in accordance with settled case-law, the General Court’s obligation to state the reasons for its judgments does not in principle extend to requiring it to justify the approach taken in one case as against that taken in another case, even if the latter concerns the same decision (see judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 66 and the case-law cited).
55


As regards the second part of the second ground of appeal, it should be recalled that, according to settled case-law, an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’ because their identical object distorts competition in the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (see judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 156 and the case-law cited).
56


An undertaking which has participated in a single and complex infringement of that kind by its own conduct, which fell within the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may thus be responsible also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (see judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 157 and the case-law cited).
57


An undertaking may thus have participated directly in all the forms of anticompetitive conduct comprising the single and continuous infringement, in which case the Commission is entitled to attribute liability to it in relation to that conduct as a whole and, therefore, in relation to the infringement as a whole. Equally, the undertaking may have participated directly in only some of the forms of anticompetitive conduct comprising the single and continuous infringement, but have been aware of all the other unlawful conduct planned or put into effect by the other participants in the cartel in pursuit of the same objectives, or could reasonably have foreseen that conduct and have been prepared to take the risk. In such cases, the Commission is also entitled to attribute liability to that undertaking in relation to all the forms of anticompetitive conduct comprising such an infringement and, accordingly, in relation to the infringement as a whole (see judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 158 and the case-law cited).
58


Moreover, for the purpose of characterising various instances of conduct as a single and continuous infringement, it is not necessary to ascertain whether they present a link of complementarity, in the sense that each of them is intended to deal with one or more consequences of the normal pattern of competition, and, through interaction, contribute to the attainment of the set of anticompetitive effects desired by those responsible, within the framework of a global plan having a single objective. By contrast, the condition relating to a single objective requires that it be ascertained whether there are any elements characterising the various instances of conduct forming part of the infringement which are capable of indicating that the instances of conduct in fact implemented by other participating undertakings do not have an identical object or identical anticompetitive effect and, consequently, do not form part of an ‘overall plan’ as a result of their identical object distorting the normal pattern of competition within the internal market (see, to that effect, judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraphs 247 and 248).
59


Furthermore, it cannot be inferred from the Court’s case-law that Article 101(1) TFEU concerns only either (i) the undertakings operating on the market affected by the restrictions of competition or indeed on the markets upstream or downstream of that market or neighbouring markets or (ii) undertakings which restrict their freedom of action on a particular market under an agreement or as a result of a concerted practice. Indeed, it follows from well-established case-law of the Court that the text of Article 101(1) TFEU refers generally to all agreements and concerted practices which, in either horizontal or vertical relationships, distort competition on the internal market, irrespective of the market on which the parties operate, and that only the commercial conduct of one of the parties need be affected by the terms of the arrangements in question (see, to that effect, judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraphs 34 and 35 and the case-law cited).
69


In order to address the first part of the third ground of appeal, it should be recalled, as regards, in the first place, Villeroy & Boch’s argument concerning an infringement of Article 263 TFEU, that, according to settled case-law, it follows from Article 256 TFEU, Article 58, first paragraph, of the Statute of the Court of Justice of the European Union and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. Where an appeal merely reproduces the pleas in law and arguments previously submitted to the General Court, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, it fails to satisfy that requirement. Such an appeal amounts in reality to no more than a request for a re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake (see, to that effect, judgments of 30 June 2005, Eurocermex v OHIM, C‑286/04 P, EU:C:2005:422, paragraphs 49 and 50, and of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraphs 49 and 50).
72


As regards, in the second place, Villeroy & Boch’s argument concerning an infringement of the obligation to state reasons, it must be recalled that, according to settled case-law, the General Court is not required to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case, provided that the reasoning enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, inter alia, judgments of 2 April 2009, Bouygues and Bouygues Télécom v Commission, C‑431/07 P, EU:C:2009:223, paragraph 42, and of 22 May 2014, Armando Álvarez v Commission, C‑36/12 P, EU:C:2014:349, paragraph 31).
87


It is true that the General Court did not expressly rule on whether that argument was admissible or well founded. However, in accordance with the case-law of the Court of Justice, the General Court cannot be required, every time that a party raises, in the course of the procedure, a new plea in law which clearly does not satisfy the requirements of Article 48(2) of its Rules of Procedure, either to explain in its judgment the reasons for which that plea is inadmissible, or to examine it in detail (see, inter alia, judgment of 20 March 2014, Rousse Industry v Commission, C‑271/13 P, not published, EU:C:2014:175, paragraph 22 and the case-law cited).
111


According to settled case-law of the Court, the existence of anticompetitive practices or agreements must, in most cases, be inferred from a number of coincidences or indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules. Thus, as regards, in particular, an infringement extending over a number of years, the fact that direct evidence of a company’s participation in that infringement during a specified period has not been produced does not preclude that participation from being regarded as established also during that period, provided that that finding is based on objective and consistent indicia; the lack of any public distancing on the part of that company may be taken into account in that regard (see, to that effect, judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraphs 26 to 28 and the case-law cited).
132


So far as the meeting on 15 October 1997 is concerned, the Court also rejects the appellant’s argument that the General Court relied on reasons which were not included in the Commission’s statement of objections. The General Court in fact relied, in paragraph 194 of the judgment under appeal, on the reasons set out in recitals 295 and 307 of the decision at issue. Villeroy & Boch, however, did not allege, before the General Court, that there was any inconsistency between that decision and the statement of objections on this point. Consequently, in accordance with settled case-law (see, inter alia, judgment of 22 October 2015, AC-Treuhand v Commission, C‑194/14 P, EU:C:2015:717, paragraph 54), it cannot put forward such an argument at the stage of the appeal before the Court of Justice.
145


It should be recalled that, according to settled case-law, which has not been called into question by the entry into force of the Charter, in certain circumstances, a legal person who is not the perpetrator of an infringement of competition law may nevertheless be penalised for the unlawful conduct of another legal person, if both those persons form part of the same economic entity and thus constitute an undertaking within the meaning of Article 101 TFEU (judgment of 10 April 2014, Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 45).
146


It is settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where, although having a separate legal personality, that subsidiary does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (judgment of 10 April 2014, Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 46 and the case-law cited).
147


In that regard, the Court has made clear that, in the particular case in which a parent company holds, directly or indirectly, all or almost all of the capital in a subsidiary which has committed an infringement of the EU competition rules, there is a rebuttable presumption that that parent company actually exercises a decisive influence over its subsidiary (judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 28 and the case-law cited).
148


In such a situation, it is sufficient for the Commission to prove that all or almost all of the capital in the subsidiary is held, directly or indirectly, by the parent company in order to take the view that that presumption takes effect. The parent company then has the burden of rebutting the presumption, by adducing sufficient evidence relating to the organisational, economic and legal links between itself and its subsidiary to show that its subsidiary acts independently on the market. If the parent company fails to rebut the presumption, the Commission will be able to consider the parent and its subsidiary to form part of the same economic unit and to consider the parent to be responsible for the subsidiary’s conduct and it will be able to hold the two companies jointly and severally liable for payment of a fine, without having to establish the personal involvement of the parent company in the infringement (see, to that effect, judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraphs 27 and 29 to 32 and the case-law cited).
149


It should also be made clear that, contrary to what is maintained by the appellant, the foregoing case-law does not infringe the right to be presumed innocent that is guaranteed by Article 48(1) of the Charter or the principles of in dubio pro reo and nullum crimen, nulla poena sine lege. The presumption that a parent company exercises decisive influence over its subsidiary when it holds all or almost all of the capital in the subsidiary does not lead to a presumption of guilt on the part of either one of those companies and therefore does not infringe either the right to be presumed innocent or the principle of in dubio pro reo. As regards the principle of nullum crimen, nulla poena sine lege, it requires that the law give a clear definition of offences and the penalties which they attract. That requirement is satisfied where the person concerned is in a position to ascertain from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable (judgment of 22 May 2008, Evonik Degussa v Commission, C‑266/06 P, not published, EU:C:2008:295, paragraph 39). The case-law of the Court of Justice set out in paragraphs 145 to 148 of the present judgment does not infringe that principle.
150


As regards the fact that the fines were not divided up between the companies concerned, it should be recalled that, inasmuch as it is merely the manifestation of an ipso jure effect of the concept of an ‘undertaking’, the EU law concept of joint and several liability for payment of a fine concerns only the undertaking itself and not the companies of which it is made up (judgment of 10 April 2014, Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 57).
151


While it follows from Article 23(2) of Regulation No 1/2003 that the Commission is entitled to hold a number of companies jointly and severally liable for payment of a fine, in so far as they formed part of the same undertaking, it is not possible to conclude on the basis of either the wording of that provision or the objective of the joint and several liability mechanism that that power to impose penalties extends, beyond the determination of joint and several liability from an external perspective, to the power to determine the shares to be paid by those held jointly and severally liable from the perspective of their internal relationship (judgment of 10 April 2014, Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 58).
152


On the contrary, the mechanism of joint and several liability is intended to constitute an additional legal device available to the Commission to strengthen the effectiveness of the action taken by it for the recovery of fines imposed for infringements of the competition rules, since that mechanism reduces for the Commission, as creditor of the debt represented by such fines, the risk of insolvency: that is part of the objective of deterrence pursued generally by competition law, as the General Court essentially observed, correctly, at paragraph 325 of the judgment under appeal (judgment of 10 April 2014, Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 59 and the case-law cited).
153


The determination, in the context of the internal relationship of those held jointly and severally liable for payment of a fine, of the shares each of them is required to pay does not pursue that dual objective. That is a contentious issue, to be resolved at a later stage, and, in principle, the Commission no longer has any interest in the matter, where the fine has been paid in full by one or more of those held liable. Accordingly, the Commission cannot be required to determine such shares (see, to that effect, judgment of 10 April 2014, Commission v Siemens Österreich and Others and Siemens Transmission & Distribution and Others v Commission, C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraphs 60 to 64).
178


According to settled case-law, the review of legality provided for in Article 263 TFEU entails the EU judicature conducting a review, in respect of both the law and the facts, of the contested decision in the light of the arguments relied on by an applicant, which means that it has the power to assess the evidence, annul the decision and to alter the amount of the fines (see judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 53 and the case-law cited).
179


The review of legality is supplemented by the unlimited jurisdiction conferred on the EU judicature by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the competent Court, in addition to carrying out a mere review of legality with regard to the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 63 and the case-law cited).
180


In order to satisfy the requirements of Article 47 of the Charter when conducting a review in the exercise of its unlimited jurisdiction with regard to the fine, the EU judicature 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 judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 75 and the case-law cited).
181


However, the exercise of unlimited jurisdiction is not equivalent to an own-motion review, and proceedings are inter partes. It is, in principle, for the applicant to raise pleas in law against the contested decision and to adduce evidence in support of those pleas (see judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 76 and the case-law cited).
182


It should be noted in that regard that the absence of an own-motion review of the whole of the contested decision does not contravene the principle of effective judicial protection. Compliance with that principle does not require that the General Court — which is indeed obliged to respond to the pleas in law raised and to carry out a review of both the law and the facts — should be obliged to undertake of its own motion a new and comprehensive investigation of the file (see judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 66).
183


Moreover, according to settled case-law of the Court of Justice, the General Court alone has jurisdiction to examine how in each particular case the Commission assessed 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 General Court took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 101 TFEU and Article 23 of Regulation No 1/2003 and, second, to consider whether the General Court responded to a sufficient legal standard to all the arguments raised in support of the claim for reduction of the fine. The gravity of infringements of EU competition law must be determined by reference to numerous factors such as, in particular, the deterrent effect of fines, the specific circumstances and context of the case, including 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 European Union (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraphs 95, 99 and 100).
184


Moreover, 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 their infringement of EU law. Accordingly, only where the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, does it have to find that the General Court erred in law, on account of the inappropriateness of the amount of a fine (see, inter alia, judgment of 30 May 2013, Quinn Barlo and Others v Commission, C‑70/12 P, not published, EU:C:2013:351, paragraph 57 and the case-law cited).
190


Concerning the assessment of the excessive duration of the administrative procedure, it should be recalled that, although an infringement by the Commission of the reasonable time principle can justify the annulment of a decision taken by it following an administrative procedure based on Article 101 or 102 TFEU inasmuch as it also entails an infringement of the rights of defence of the undertaking concerned, such an infringement of the reasonable time principle, if established, cannot lead to a reduction of the fine imposed (see, inter alia, judgments of 9 June 2016, CEPSA v Commission, C‑608/13 P, EU:C:2016:414, paragraph 61, and of 9 June 2016, PROAS v Commission, C‑616/13 P, EU:C:2016:415, paragraph 74 and the case-law cited). In the present case, as follows from paragraph 173 of the present judgment, it is clear that, with its argument that the General Court’s assessment of the excessive duration of the administrative procedure was incorrect, the appellant is seeking solely a reduction of the fine imposed on it.
192


Finally, as regards the proportionality of the fine imposed, the appellant has put forward no argument capable of demonstrating that the level of the fine imposed is inappropriate or excessive. In that regard, the Court rejects the argument that a fine of EUR 71.5 million is disproportionate in relation to the turnover concerned by the cartel (EUR 115 million). It is not disputed that, in the present case, the final amount of the fine imposed was reduced so as not to exceed 10% of the appellant’s total turnover in the preceding business year, in accordance with Article 23(2) of Regulation No 1/2003. That limit is already a guarantee that the fine is not disproportionate to the size of the undertaking, determined by reference to its worldwide turnover (see, to that effect, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02, EU:C:2005:408, paragraphs 280 to 282).