William Prym GmbH & Co. KG and Prym Consumer GmbH & Co. KG v Commission of the European Communities.
Date: 2009-09-03
26. It is true that observance of the rights of the defence in the conduct of administrative procedures relating to competition policy constitutes a general principle of Community law whose observance the Court ensures (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, paragraphs 167 to 171; Joined Cases C‑65/02 P and C‑73/02 P ThyssenKrupp  v Commission  [2005] ECR I‑6773, paragraph 92; and Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission  [2006] ECR I‑8725, paragraph 35).
27. As regards proceedings under Article 81 EC, it is nevertheless appropriate to draw a distinction between the two phases of the administrative procedure, namely the investigation phase preceding the statement of objections and the phase corresponding to the remainder of the administrative procedure. Each of these successive stages has its own internal logic; the first stage must enable the Commission to adopt a position on the course which the procedure is to follow, and the second must enable the Commission to reach a final decision on the infringement concerned (see Limburgse Vinyl Maatschappij and Others  v Commission , paragraphs 181 to 183, and Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied  v Commission , paragraph 38).
28. The assessments made in the statement of objections provided for under Community rules are intended to define the scope of the administrative procedure vis-à-vis the undertakings in respect of which it was initiated (see, in particular, Joined Cases 142/84 and 156/84 British American Tobacco and Reynolds Industries  v Commission  [1987] ECR 4487, paragraph 70). To that end, the statement of objections must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure. It has consistently been held that that may be done summarily, since the statement of objections is a preparatory document containing assessments of fact and of law which are purely provisional in nature (see, in particular, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others  v Commission  [1983] ECR 1825, paragraph 14, 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 67).
40. As has been observed at paragraph 28 of this judgment, the statement of objections is merely a preparatory document containing assessments of fact and of law which are purely provisional in nature. The subsequent decision does not necessarily need to be a copy of the statement of objections, since the Commission must take into account the factors emerging from the administrative procedure, in order either to abandon such objections as have been shown to be unfounded or to amend and supplement its arguments, both in fact and in law, in support of the objections which it maintains (see, in particular, Musique Diffusion française and Others  v Commission , paragraph 14, and Aalborg Portland and Others  v Commission , paragraph 67).
54. It has consistently been held that the gravity of infringements of Community competition law must be assessed in the light of numerous factors, such as, inter alia, 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 (see, in particular, Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 465; 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; and Case C‑407/04 P Dalmine  v Commission  [2007] ECR I-829, paragraph 129).
55. In consequence, contrary to the appellants’ assertion, the size of the relevant market is not as a rule a factor which must be taken into account, but 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 (see, to that effect, Dalmine  v Commission , paragraph 132).
62. Admittedly, the Court of Justice has held that, for the purposes of setting the amount of the fine, the market shares held by an undertaking are relevant in order to determine what influence it may exert on the market (Case C‑185/95 P Baustahlgewebe  v Commission  [1998] ECR I‑8417, paragraph 139).
64. Furthermore, in the case of an infringement such as that at issue in this case, which consists of market sharing, an interpretation of Baustahlgewebe  v Commission  as formalistic as that contended for by the appellants would result in an obligation being imposed on the Commission in respect of the method of calculating fines, and it has consistently been held that the Commission is not subject to such an obligation for the purposes of applying Article 81 EC where the infringement in question has an anti-competitive object (see, in particular, Aalborg Portland and Others  v Commission , paragraph 261, and Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission , paragraph 125).
72. According to settled case-law, if the grounds of a judgment of the Court of First Instance disclose an infringement of Community law but its operative part is shown to be well founded on other legal grounds, the appeal must be dismissed (see, in particular, Case C‑30/91 P Lestelle  v Commission  [1992] ECR I‑3755, paragraph 28, and Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others  v Council and Commission  [2008] ECR I‑0000, paragraph 187).
74. As regards, in the first place, the question whether or not the Commission is obliged, for the purposes of setting the fine, to establish that there has been an actual impact of the infringement on the market, it must be borne in mind that, while such impact is a factor to be taken into account in assessing the gravity of the infringement, it is one of a number of criteria, such as the nature of the infringement and the size of the geographic market. Likewise, it is apparent from the first paragraph of Section 1A of the Guidelines that that impact is to be taken into account only where this can be measured (Case C‑511/06 P Archer Daniels Midland  v Commission  [2009] ECR I‑0000, paragraph 125).
75. As regards horizontal price or market sharing agreements, it is also apparent from the Guidelines that the Commission may classify these agreements as very serious infringements solely on account of their nature, without being required to demonstrate an actual impact of the infringement on the market. In that case, the actual impact of the infringement is only one among a number of factors which, if it can be measured, may allow the Commission to increase the starting amount of the fine beyond the minimum likely amount of EUR 20 million.
86. As regards the review carried out by the Community judicature in respect of Commission decisions on competition matters, it should be borne in mind that, more than a simple review of legality, which merely permits dismissal of the action for annulment or annulment of the contested measure, the unlimited jurisdiction conferred on the Court of First Instance by Article 31 of Regulation No 1/2003 in accordance with Article 229 EC authorises that court to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend, for example, the amount of the fine ( Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 692).
87. In its review of legality, the Court of First Instance held, first of all, at paragraph 112 of the judgment under appeal, that there was an inadequate statement of reasons in respect of one of the criteria used by the Commission to determine the gravity of an infringement of Article 81 EC for the purposes of calculating the fine, namely the criterion of the actual impact of the infringement on the market. Given the number of criteria which, as observed at paragraph 54 of the present judgment, the Commission may use to determine the gravity of an infringement of competition rules for the purposes of setting the fine, the Court of First Instance did not err in law in holding that its finding in relation to just one of those criteria did not automatically entail the annulment – even in part – of the decision at issue.
96. As regards the first error of law invoked by the appellants, alleging that the Court of First Instance classified the infringement in the abstract without regard to the erroneous determination of its actual impact on the market, it must be noted that, in order to determine the amount of a fine, it is necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Community (see Musique Diffusion française and Others v Commission , paragraph 129, and Dansk Rørindustri and Others  v Commission , paragraph 242). It follows from this that the effect of an anti‑competitive practice is not, in itself, a conclusive criterion for assessing the proper amount of a fine. In particular, factors relating to the intentional aspect may be more significant than those relating to the effects, particularly where they relate to infringements which are intrinsically serious, such as market sharing, a factor which is present in this case (see Case C‑194/99 P Thyssen Stahl  v Commission  [2003] ECR I‑10821, paragraph 118).
98. As regards the appellants’ argument concerning the Commission’s practice in previous decisions, suffice it to note that this does not serve as a legal framework for setting fines in competition matters, since the Commission enjoys a wide discretion in that area and, when exercising that discretion, is not bound by its past assessments (see, in particular, Dansk Rørindustri and Others  v Commission , paragraphs 209 to 213, and Archer Daniels Midland v Commission , paragraph 82).
105. At paragraph 158 of the judgment in Dalmine  v Commission , the Court of Justice confirmed the Court of First Instance’s assessment that the benefit of an attenuating circumstance cannot be granted under the third indent of Section 3 of the Guidelines 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.
112. With regard to the second argument, it essentially asks the Court of Justice to re‑examine the amount of the fine set by the Court of First Instance. However, it has been consistently held that it is not for the Court of Justice, when ruling 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 a fine imposed on an undertaking for its infringement of Community law (see, in particular, Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 614, and Dansk Rørindustri and Others  v Commission , paragraph 245).