Sarrió SA v Commission of the European Communities.
Date: 2000-11-16
50 Before dealing with the applicant's submission that the collusion did not relate to transaction prices, it is necessary to determine whether the Commission actually asserted in the Decision that the collusion related to those prices.
62 The Court of First Instance first of all referred, in paragraph 341 of the contested judgment, to the settled case-law to the effect that the purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged, the scope of that obligation being dependent on the nature of the act in question and on the context in which it was adopted (see, in particular, besides the case-law cited by the Court of First Instance, Case C-22/94 Irish Farmers Association and Others v Ministry for Agriculture, Food and Forestry, Ireland, and the Attorney General [1997] ECR I-1809, paragraph 39).
73 In those circumstances, in the light of the case-law referred to in paragraphs 341 and 342 of the contested judgment, the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration. If those factors are not stated, the decision is vitiated by failure to state adequate reasons.
74 The Court of First Instance correctly held in paragraph 348 of the contested judgment that the Commission had satisfied that requirement. It must be observed, as the Court of First Instance observed, that points 167 to 172 of the Decision set out the criteria used by the Commission in order to calculate the fines. First, point 167 concerns in particular the duration of the infringement. It also sets out, as does point 168, the considerations on which the Commission relied in assessing the gravity of the infringement and the general level of the fines. Point 169 contains the factors taken into account by the Commission in determining the amount to be imposed on each undertaking. Point 170 identifies the undertakings which were to be regarded as ringleaders of the cartel, and which should accordingly bear special responsibility in comparison with the other undertakings. Lastly, points 171 and 172 of the Decision set out the effect on the amount of the fines of the cooperation by various manufacturers with the Commission during its investigations in order to establish the facts or when they replied to the statement of objections.
75 The fact that more specific information, such as the turnover achieved by the undertakings or the rates of reduction applied by the Commission, were communicated subsequently, at a press conference or during the proceedings before the Court of First Instance, is not such as to call in question the finding in paragraph 348 of the contested judgment. Where the author of a contested decision provides explanations to supplement a statement of reasons which is already adequate in itself, that does not go to the question whether the duty to state reasons has been complied with, though it may serve a useful purpose in relation to review by the Community court of the adequacy of the grounds of the decision, since it enables the institution to explain the reasons underlying its decision.
76 Admittedly, the Commission cannot, by a mechanical recourse to arithmetical formulae alone, divest itself of its own power of assessment. However, it may in its decision give reasons going beyond the requirements set out in paragraph 73 of this judgment, inter alia by indicating the figures which, especially in regard to the desired deterrent effect, influenced the exercise of its discretion when setting the fines imposed on a number of undertakings which participated, in different degrees, in the infringement.
77 It may indeed be desirable for the Commission to make use of that possibility in order to enable undertakings to acquire a detailed knowledge of the method of calculating the fine imposed on them. More generally, such a course of action may serve to render the administrative act more transparent and facilitate the exercise by the Court of First Instance of its unlimited jurisdiction, which enables it to review not only the legality of the contested decision but also the appropriateness of the fine imposed. However, as the Commission has submitted, the availability of that possibility is not such as to alter the scope of the requirements resulting from the duty to state reasons.
85 As to the legality of taking into account two reference years, one in order to determine the maximum amount of the fine, the other in order to assess the size and economic power of the undertaking at the time of the infringement, it should be pointed out, first, that the ceiling set by Article 15(2) of Regulation No 17 in respect of fines amounting to more than one million units of account and which corresponds to 10% of the turnover in the preceding business year relates, as the Court of First Instance stated in paragraph 402 of the contested judgment, to the business year preceding the date of the decision. It is, moreover, logical to refer to that business year when determining the maximum amount of the fine which can be imposed on an undertaking that has infringed the competition rules.
86 Second, when the size and economic strength of an undertaking at the time of the infringement are being assessed, it is necessary to refer to the turnover achieved at that time and thus to use the exchange rates at that time and not those applicable at the time when the decision imposing the fine was adopted. In the contrary case, the respective size of the undertakings which took part in the infringement would be distorted by account being taken of extrinsic and uncertain factors, such as the changes in the value of national currencies during the subsequent period (see Case C-49/92 P Commission v Anic Partecipazioni [1999] I-4125, paragraph 165).
88 First, Regulation No 17 does not prohibit the use of the ecu in order to fix the fines. Next, as the Court of First Instance held in paragraphs 395 to 399 of the contested judgment, the Commission used one and the same method of calculating the fines imposed on undertakings for having participated in the same infringement and that method enabled it to assess the size and economic power of each undertaking and the scope of the infringement committed, in light of the economic reality as it appeared at the time the infringement was committed.
89 Lastly, as regards, in particular, monetary fluctuations, they are an element of chance which may produce advantages and disadvantages which the undertakings have to deal with regularly in the course of their business activities and whose very existence is not such as to render inappropriate the amount of a fine lawfully fixed by reference to the gravity of the infringement and the turnover achieved during the last year of the period over which it was committed. In any event, the maximum amount of the fine, determined by virtue of Article 15(2) of Regulation No 17 by reference to turnover in the business year preceding the adoption of the Decision, limits the possible harmful consequences of monetary fluctuations.
91 By its fifth plea the appellant submits that the reduction made by the Court of First Instance in the amount of the fine is inadequate in the light of its findings concerning the participation of the appellant's subsidiary, Prat Carton, in the cartel.
92 According to the appellant, taking into account the corrections it made in respect of the duration of the infringement by Prat Carton and the extent of its participation in the collusion, which was merely marginal, the Court of First Instance must, in fixing the amount of the fine at ECU 14 million, have adopted a different method of calculation than that of the Commission, and so discriminated between the undertakings involved in the cartel.
93 If the Court of First Instance had applied the Commission's method of calculation, taking into account the corrections made in respect of Prat Carton's involvement in the infringement, the amount of the fine would have been ECU 250 000 less.
94 The Commission does not dispute the amount of the additional reduction which would have resulted from application of its method of calculation, but contends that the fixing of the fine falls within the scope of the unlimited jurisdiction of the Court of First Instance.
95 In that regard it is clear from paragraph 250 of the contested judgment that the Court of First Instance considered that Prat Carton's participation in the infringement was proved only in regard to the collusion on prices and on downtime, but not on the freezing of market shares, and that it covered only the period from June 1990 to February 1991. Thus, the Court held:
411 Because Prat Carton participated in some only of the constituent elements of the infringement and for a much lesser period than that found by the Commission, the amount of the fine imposed on the applicant must be reduced.
412 In the present case, as none of the other pleas on which the applicant relies justifies reducing the fine, the Court, exercising its unlimited jurisdiction, sets the amount of that fine at ECU 14 million.
96 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 Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law (Ferriere Nord, cited above, paragraph 31).
97 However, when the amount of the fine to be imposed on them is determined, the exercise of unlimited jurisdiction cannot result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 85(1) of the Treaty.
98 In the present case, there is no dispute that the fines were fixed by the Commission, in regard to all the undertakings involved in the infringement, using a method of calculation which was not called in question by the Court of First Instance. If the Court of First Instance intended, in the case of the appellant, to depart specifically from that method or from some of the figures adopted by the Commission, it should have given reasons for doing so in the contested judgment.
99 It must therefore be found that in paragraph 412 of the contested judgment the Court of First Instance infringed the principle of equal treatment and the first two parts of the fifth plea must be upheld.
100 It follows from the foregoing that the appeal must be upheld in so far as concerns paragraph 412 of the contested judgment and paragraph 2 in the operative part thereof.