Orange Polska SA v European Commission.
Date: 2018-07-25
49


In that regard, the Court noted that the provisions of Regulation No 17 had to be interpreted within the framework of the rules on competition contained in the EEC Treaty and that the purpose of that regulation was to ensure compliance with the rules on competition by undertakings and, to that end, to enable the Commission to require undertakings to bring to an end any infringement which it establishes and to impose fines and periodic penalty payments in respect of an infringement. The Court held that the power to take decisions of such a type necessarily implies a power to make a finding that the infringement in question exists (see, to that effect, judgment of 2 March 1983, GVL v Commission, 7/82, EU:C:1983:52, paragraphs 18, 22 and 23).
50


The Court therefore found that in reality the relevant question in the case before it was not whether the Commission had the power to declare, by means of a decision, that the rules on competition had been infringed, but whether the Commission had, in that case, a legitimate interest in adopting a decision finding an infringement which had already been ended by the undertaking concerned, even though no fine had been imposed (judgment of 2 March 1983, GVL v Commission, 7/82, EU:C:1983:52, paragraph 24). It found that, in the case in question, the Commission had sufficiently established such an interest in the decision which was at issue (see, to that effect, judgment of 2 March 1983, GVL v Commission, 7/82, EU:C:1983:52, paragraphs 25 to 28).
57


Those considerations, inasmuch as they refer, in essence, to the Commission’s implied power to find an infringement, stemming from its explicit power to impose fines, were furthermore sufficient to reject the plea put forward before the General Court. Pursuant to Article 23(2)(a) of Regulation No 1/2003, the Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently, they infringe Article 101 or 102 TFEU. As recalled in paragraph 49 above, the Court of Justice has already held that the Commission’s power to impose fines where there is an infringement and to take decisions to that effect necessarily implies a power to make a finding that the infringement in question exists (see, to that effect, judgment of 2 March 1983, GVL v Commission, 7/82, EU:C:1983:52, paragraph 23). The Court of Justice has also already held that the Commission’s power to impose penalties under Article 15 of Regulation No 17, to which, in essence, Article 23 of Regulation No 1/2003 corresponds, is in no way affected by the fact that the conduct constituting the infringement has ceased (judgment of 15 July 1970, ACFChemiefarma v Commission, 41/69, EU:C:1970:71, paragraph 175).
59


It may also be noted that, according to the first sentence of Article 7(1) of Regulation No 1/2003, where the Commission finds that there is an infringement of Article 101 or 102 TFEU, it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end. The Commission’s use of its power to order the infringement to be brought to an end in accordance with that provision, a power which the Commission moreover exercised in Article 3 of the decision at issue in so far as that cessation had not already taken place, and which Orange does not contest, therefore necessarily implies a power to make a finding of that infringement and, accordingly, also does not require the Commission to establish a legitimate interest in doing so (see, to that effect, judgment of 2 March 1983, GVL v Commission, 7/82, EU:C:1983:52, paragraphs 22 to 24).
75


According to the settled case-law of the Court, a distortion must be obvious from the documents in the Court’s file, without any need for a new assessment of the facts and evidence (judgments of 6 April 2006, General Motors v Commission, C‑551/03 P, EU:C:2006:229, paragraph 54, and of 19 April 2012, Tomra Systems and Others v Commission, C‑549/10 P, EU:C:2012:221, paragraph 27).
85


Orange also cannot derive any useful argument from the fact that the Commission, in its pleadings submitted before the General Court, recognised that that sentence referred to the actual or likely effects of an infringement, while asserting that it was a clerical error. Even assuming that those pleadings had the content which Orange attributes to them, it is sufficient to note, first, that it is apparent from the very wording of Article 263 TFEU that the review of legality under that provision cannot concern the content of the pleadings lodged by the defendant before a Court of the European Union responsible for carrying out that review and, second, that an appeal relates only to the judgment under appeal (judgment of 2 October 2003, Ensidesa v Commission, C‑198/99 P, EU:C:2003:530, paragraph 32 and the case-law cited).
104


In the first place, in so far as, by the third ground, Orange submits that the General Court erred in law by substituting its own reasoning for that of the Commission in the decision at issue in rejecting the classification of the investments in question as a mitigating circumstance, within the meaning of point 29 of the 2006 Guidelines, thus infringing the limits imposed upon it as regards its review of legality, it should be recalled that the system of judicial review of Commission decisions relating to proceedings under Articles 101 and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of applicants, by the General Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 71 and the case-law cited).
105


The scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings under Articles 101 and 102 TFEU, which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicant at first instance and taking into account all the elements submitted by the latter. However, in the context of that review, the EU Courts may in no circumstances substitute their own reasoning for that of the author of the contested act (see, to that effect, judgments of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 56, and of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraphs 72 and 73 and the case-law cited).
106


By contrast, when they exercise their unlimited jurisdiction laid down in Article 261 TFEU and Article 31 of Regulation No 1/2003, the EU Courts are empowered, in addition to merely reviewing the legality of the penalty, to substitute their own assessment in relation to the determination of the amount of that penalty for that of the Commission, the author of the act in which that amount was initially fixed. Consequently, the EU Courts may vary the contested act, even without annulling it, in order to cancel, reduce or increase the amount of the fine imposed, that jurisdiction being exercised by taking into account all the factual circumstances (see, to that effect, judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, 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, EU:C:2002:582, paragraph 692; of 8 February 2007, Groupe Danone v Commission, C‑3/06 P, EU:C:2007:88, paragraph 61; and of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 86).
112


Since Orange expressly presented that argument in order to obtain such an adjustment and the findings in question do indeed relate only to the assessment of the fine imposed by the Commission, in accordance with the limits placed on the General Court when exercising its unlimited jurisdiction (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraphs 76 and 77), the General Court was, in the present case, entitled to put forward the reasoning set out in paragraphs 196 to 207 of the judgment under appeal on the basis of its unlimited jurisdiction.
114


Consequently, the third ground of appeal, inasmuch as, by that ground, Orange claims that the General Court exceeded the limits of its power to review legality, must be dismissed, since the error identified in paragraph 111 above is not such as to lead to the judgment under appeal being set aside (see, by analogy, judgment of 12 November 1996, Ojha v Commission, C‑294/95 P, EU:C:1996:434, paragraph 52).
115


In the second place, inasmuch as, by the arguments set out in paragraphs 95 to 98 and 102 above, Orange and the PIIT challenge the merits of the General Court’s findings in paragraphs 196 to 207 of the judgment under appeal, it should be recalled 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 General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of EU law, and that it is only inasmuch as the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, that it would have to find that the General Court erred in law, on account of the inappropriateness of the amount of a fine (judgments of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraphs 125 and 126 and the case-law cited, and of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraphs 77 and 78 and the case-law cited). In the present case, it must however be stated that this is not so. That argument must therefore be rejected as inadmissible.
117


Moreover, inasmuch as, by their heads of claim, Orange and the PIIT ask the Court, in the alternative, to reduce the fine imposed by the decision at issue to the extent which the Court considers appropriate, it is sufficient to note that those claims are necessarily based on the same grounds as their main claims and must, consequently, also be rejected for the reasons set out in the present judgment (see, by analogy, judgment of 1 June 1978, Mulcahy v Commission, 110/77, EU:C:1978:118, paragraph 30).
118


Finally, inasmuch as, by their heads of claim in the further alternative, Orange and the PIIT ask the Court to remit the decision relating to the fine to the Commission and to order the Commission to adopt a new decision relating to the fine, it is sufficient to note that, in the context of an appeal, the Court has no power to issue directions to the institutions (see, to that effect, judgments of 8 July 1999, DSM v Commission, C‑5/93 P, EU:C:1999:364, paragraphs 34 to 37, and of 22 January 2004, Mattila v Council and Commission, C‑353/01 P, EU:C:2004:42, paragraphs 15 and 16), with the result that those heads of claim must be rejected as inadmissible.