SGL Carbon AG v Commission of the European Communities.
Date: 2006-06-29
15. As regards SGL Carbon’s argument, it is noteworthy that the Court may, of its own motion, on a proposal from the Advocate General or at the request of the parties, order the reopening of the oral procedure under Article 61 of its Rules of Procedure, if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see, in particular, Case C-209/01 Schilling and Fleck-Schilling  [2003] ECR I‑13389, paragraph 19, and Case C‑30/02 Recheio – Cash & Carry  [2004] ECR I-6051, paragraph 12).
26. It should be noted, first of all, that the principle of non bis in idem , also enshrined in Article 4 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, constitutes a fundamental principle of Community law the observance of which is guaranteed by the judicature (see, inter alia, Joined Cases 18/65 and 35/65 Gutmann v Commission of the EAEC  [1966] ECR 103, 119, and 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 59).
28. As regards the scope of application of the principle of non bis in idem  in situations in which the authorities of a non-member State have taken action pursuant to their power to impose penalties in the field of competition law applicable in that State, it should be borne in mind that the context of the cartel at issue is an international one, characterised in particular by action of legal systems of non-member States within their respective territories.
29. In that regard, the exercise of powers by the authorities of those States responsible for protecting free competition under their territorial jurisdiction meets requirements specific to those States. The elements forming the basis of other States’ legal systems in the field of competition not only include specific aims and objectives but also result in the adoption of specific substantive rules and a wide variety of legal consequences, whether administrative, criminal or civil, when the authorities of those States have established that there have been infringements of the applicable competition rules.
30. On the other hand, the legal situation is completely different where an undertaking is caught exclusively – in competition matters – by the application of Community law and the law of one or more Member States on competition, that is to say, where a cartel is confined exclusively to the territorial scope of application of the legal system of the European Community.
31. It follows that, when the Commission imposes sanctions on the unlawful conduct of an undertaking, even conduct originating in an international cartel, it seeks to safeguard the free competition within the common market which constitutes a fundamental objective of the Community under Article 3(1)(g) EC. On account of the specific nature of the legal interests protected at Community level, the Commission’s assessments pursuant to its relevant powers may diverge considerably from those of authorities of non-member States.
32. Accordingly, the Court of First Instance was fully entitled to hold in paragraph 134 of the judgment under appeal that the principle of non bis in idem  does not apply to situations in which the legal systems and competition authorities of non-member States intervene within their own jurisdiction.
33. Moreover, the Court of First Instance was also fully entitled to hold that there is no principle of law obliging the Commission to take account of proceedings and penalties to which the appellant has been subject in non-member States.
34. In that respect, it should be stated, as the Court of First Instance correctly observed in paragraph 136 of the judgment under appeal, that there is no principle of public international law that prevents the public authorities, including the courts, of different States from trying and convicting the same natural or legal person on the basis of the same facts as those for which that person has already been tried in another State. In addition, there is no public international law convention under which the Commission could be obliged, upon setting a fine under Article 15(2) of Regulation No 17, to take account of fines imposed by the authorities of non-member States pursuant to their competition law powers.
37. The objective of deterrence which the Commission is entitled to pursue when setting the amount of a fine is to ensure compliance by undertakings with the competition rules laid down by the EC Treaty for the conduct of their activities within the common market (see, to that effect, Case 41/69 ACF Chemiefarma v Commission  [1970] ECR 661, paragraphs 173 to 176). Consequently, when assessing the deterrent nature of a fine to be imposed for infringement of those rules, the Commission is not required to take into account any penalties imposed on an undertaking for infringement of the competition rules of non-member States.
46. It has been consistently held (see, in particular, 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, paragraphs 240 to 243, and the case‑law cited) that the Commission enjoys a wide discretion as regards the method used for calculating fines and that it can, in this respect, take account of numerous factors, whilst complying with the ceiling on turnover laid down in Article 15(2) of Regulation No 17.
47. The Court of Justice has also stated that the calculation method set out in the Guidelines contains various flexible elements, enabling the Commission to exercise its discretion in accordance with Article 15 of Regulation No 17, as interpreted by the Court of Justice (see Dansk Rørindustri and Others v Commission , paragraph 267).
48. 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.
62. The Commission observes that the appellant’s argument that the Court of First Instance assumed the existence of motives unfavourable to SGL Carbon is irrelevant. When setting fines, the Commission has a wide discretion without being bound by a precise mathematical formula.
68. In this respect, it must be recalled that, in accordance with settled case-law, the Court of First Instance has exclusive jurisdiction to find the facts, save where a substantive inaccuracy in those findings is attributable to the documents submitted to it, and to appraise those facts. That appraisal thus does not, save where the clear sense of the evidence has been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice in an appeal (see, inter alia, Case C‑470/00 P Parliament v Ripa di Meana and Others [2004] ECR I‑4167, paragraph 40, and the case‑law cited).
71. It follows from the case‑law (see, in particular, Dansk Rørindustri and Others v Commission , paragraphs 240 to 242) 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. To take into account aggravating circumstances when setting the fine is consistent with the Commission’s task of ensuring compliance with the competition rules.
81. In accordance with settled case‑law (see, inter alia, Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission  [1983] ECR 1825, paragraphs 117 to 119, and Dansk Rørindustri and Others v Commission , paragraph 257), the maximum limit of 10% referred to in Article 15(2) of Regulation No 17 relates to the overall turnover of the undertaking concerned, which alone gives an indication of that undertaking’s size and influence on the market.
82. Furthermore, it follows from the case‑law (see, inter alia, Limburgse Vinyl Maatschappij and Others v Commission , paragraphs 592 and 593, and Dansk Rørindustri and Others v Commission , paragraph 278) that it is only the final amount of the fine imposed which must comply with that 10% limit. Consequently, Article 15(2) of Regulation No 17 does not prohibit the Commission from arriving, during the various stages of calculation, at an intermediate amount higher than that limit, provided that the final amount of the fine imposed does not exceed it.
94. It should be recalled 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 must be complied with even if the proceedings in question are administrative proceedings (see, inter alia, Case C‑194/99 P Thyssen Stahl v Commission  [2003] ECR I‑10821, paragraph 30). (
97. It follows from settled case‑law that the mere failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned is able to show, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, second, that the objection could be proved only by reference to that document (see, inter alia, Case 107/82 AEG v Commission  [1983] ECR 3151, paragraphs 24 to 30, and Case 322/81 Michelin v Commission , paragraphs 7 to 9).
98. The Court of Justice has also stated in this respect that it is for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence (see 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 73).
100. The fifth plea must therefore be rejected.
Sixth plea: failure to take into consideration the appellant’s ability to pay
Arguments of the parties
105. According to settled case‑law, the Commission is not required, when determining the amount of the fine, to take into account the poor financial situation of an undertaking, since recognition of such an obligation would be tantamount to giving unjustified competitive advantages to undertakings least well adapted to the market conditions (see Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others v Commission  [1983] ECR 3369, paragraphs 54 and 55, and Dansk Rørindustri and Others v Commission , paragraph 327).
106. That case-law is in no way called in question by Section 5(b) of the Guidelines, which states that an undertaking’s real ability to pay must be taken into consideration. That ability can be relevant only in a ‘specific social context’, namely the consequences which payment of a fine could have, in particular, by leading to an increase in unemployment or deterioration in the economic sectors upstream and downstream of the undertaking concerned.
114. If the Commission did not have such a power, undertakings might be able to take advantage of late payments, thereby weakening the effect of penalties.
115. Accordingly, the Court of First Instance was right to hold that the Commission was entitled to adopt a point of reference higher than the applicable market rate offered to the average borrower, to an extent necessary to discourage dilatory behaviour in relation to payment of the fine.