FLS Plast A/S v European Commission.
Date: 2014-06-19
25. Second, in submitting, in essence, on appeal that the General Court based its decision on an irrebuttable presumption, contrary to the presumption of innocence laid down in Article 48 of the Charter and Article 6(2) of the ECHR, FLS Plast criticises a ground relied upon by the General Court in support of the judgment under appeal, which it cannot be prohibited from doing simply because it did not expressly put forward that complaint in the course of the proceedings which gave rise to that judgment (see, to this effect, in particular, Joined Cases C‑465/09 P to C‑470/09 P Diputación Foral de Vizcaya  v Commission  EU:C:2011:372, paragraph 146 and the case-law cited).
27. As regards, first of all, the alleged unlawfulness of the presumption, applied in European Union competition law, that a company holding directly or indirectly all t he capital of another company exercises decisive influence over the latter company, it need merely be pointed out that the validity of that presumption is clear from settled case-law (see, inter alia, Case C‑179/12 P The Dow Chemical Company  v Commission  EU:C:2013:605, paragraph 56 and the case-law cited). Furthermore, as the Court has also held, the application of such a presumption does not in any way infringe the presumption of innocence, laid down in Article 48 of the Charter and Article 6(2) of the ECHR, given in particular that it is rebuttable (see, inter alia, Case C‑508/11 P Eni  v Commission EU:C:2013:289, paragraph 50 and the case-law cited).
30. Next, so far as concerns, in particular, the complaint that the specific application of that presumption by the Commission, and as confirmed by the General Court, rendered the presumption irrebuttable, it is to be noted that, in paragraph 30 et seq. of the judgment under appeal, the General Court examined whether FLS Plast had succeeded in rebutting the presumption by establishing that its subsidiary acted independently on the market, and concluded that that was not the case. Accordingly, the mere fact that it is difficult to prove the opposite in order to rebut a presumption does not in itself mean that it is in fact irrebuttable (see, inter alia, Eni  v Commission EU:C:2013:289, paragraph 68 and the case-law cited).
32. In that respect, it must be held that, by this line of argument, FLS Plast is in reality asking the Court to conduct a fresh appraisal of the facts and the evidence provided, without thereby asserting that the General Court distorted them. In accordance with Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, as an appeal lies only on a point of law such an appraisal falls outside the Court’s powers of review (see inter alia, to this effect, Case C‑601/12 P Ningbo Yonghong Fasteners  v Council EU:C:2014:115, paragraph 32 and the case-law cited). The arguments put forward by FLS Plast in this context are therefore inadmissible.
48. It is, however, clear from the Court’s settled case-law that a party is entitled to lodge an appeal relying, before the Court, on pleas arising from the judgment under appeal itself which seek to criticise, in law, its merits (Joined Cases C‑231/11 P to C‑233/11 P Commission  v Siemens Österreich and Others  and Siemens Transmission & Distribution and Others  v Commission EU:C:2014:256, paragraph 102 and the case-law cited). In so far as the second plea concerns, in essence, the General Court’s failure to raise of its own motion an objection relating to insufficient reasoning of the decision at issue, the plea has its origins in the judgment under appeal itself. The plea is therefore admissible.
49. Second, as regards FLS Plast’s line of argument that when an action for annulment of a measure adopted by a European Union body has been brought before the General Court, it is required to raise of its own motion an objection relating to legally insufficient reasoning, it should be recalled that, according to the Court of Justice’s settled case-law, the purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the European Union judicature and, second, to enable that judicature to review the legality of the act (Case C‑417/11 P Council  v Bamba  EU:C:2012:718, paragraph 49 and the case‑law cited).
51. As to the matters relied upon by FLS Plast in its reply to the statement of objections in order to rebut the presumption of actual exercise of decisive influence, whilst the Commission does not seem to have addressed all those matters one by one, it nevertheless provided FLS Plast, in recitals 718 to 731 of the decision at issue, with information sufficient both to enable it to determine whether that decision is, in its view, well founded or whether it is vitiated by a defect making it possible to challenge its validity, and to enable the General Court to review the legality of that decision (see to this effect, inter alia, 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 EU:C:2005:408, paragraph 462, and Eni  v Commission  EU:C:2013:289, paragraph 72).
79. Finally, so far as concerns the failure to state reasons that is pleaded by FLS Plast in this context, it has already been stated in paragraphs 73 to 75 of the present judgment that the General Court, taking account of the broad discretion available to the Commission in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings (see, to this effect, Case C‑328/05 P SGL Carbon  v Commission EU:C:2007:277, paragraph 88), considered that the evidence and arguments put forward by FLS Plast to establish that its alleged abstention from substantially contesting the facts had assisted the Commission, or that that non‑contestation was at least comparable to that of Bonar, were insufficient. It is evident that the reasoning provided by the General Court in this regard enables FLS Plast to understand the reasons why the General Court rejected its line of argument and the Court of Justice to conduct its judicial review. This argument advanced by FLS Plast is therefore unfounded.
84. However, it is to be recalled that, if the grounds of a judgment of the General Court disclose an infringement of European Union law but the operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the setting aside of that judgment, and a substitution of grounds must be made (see Diputación Foral de Vizcaya  v Commission  EU:C:2011:372, paragraph 171 and the case-law cited).
107. The Court has already held that, as regards payment of a fine imposed for breach of the competition rules, the joint and several liability between two companies constituting an economic entity cannot be reduced to a type of security provided by the parent company in order to guarantee payment of the fine imposed on the subsidiary and that an argument that that parent company could not be ordered to pay a fine higher than the fine imposed on its subsidiary is therefore unfounded (see, to this effect, Case C‑50/12 P Kendrion  v Commission  EU:C:2013:771, paragraphs 56 and 58). This case-law takes account of the fact that the principle that penalties must be specific to the offender and the offence requires, in accordance with Article 23(3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 EC] and [82 EC] (OJ 2003 L 1, p. 1), that the amount of the fine to be paid jointly and severally must be determined by reference to the gravity of the infringement for which the undertaking concerned is considered individually responsible and the duration of the infringement (Joined Cases C‑247/11 P and C‑253/11 P Areva and Others  v Commission  EU:C:2014:257, paragraph 127 and the case-law cited).
130. As is apparent from the first paragraph of Article 58 of the Statute of the Court of Justice and from its case-law, the Court has jurisdiction, in an appeal, to verify whether a breach of procedure adversely affecting the appellant’s interests was committed by the General Court (see, inter alia, Case C‑385/07 P Der Grüne Punkt — Duales System Deutschland  v Commission  EU:C:2009:456, paragraph 176).
131. So far as concerns infringement of Article 47 of the Charter, pleaded by FLS Plast, it should be pointed out that, under the second paragraph of that provision, ‘[e]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law’. As the Court has repeatedly held, that article relates to the principle of effective judicial protection (see, inter alia, Der Grüne Punkt — Duales System Deutschland  v Commission  EU:C:2009:456, paragraph 179 and the case-law cited).
132. On that basis, such a right, which was affirmed as a general principle of European Union law before the Charter entered into force, is applicable in the context of proceedings brought against a Commission decision (see inter alia, to this effect, Der Grüne Punkt — Duales System Deutschland  v Commission  EU:C:2009:456, paragraph 178 and the case-law cited).
135. Indeed, the Court has also held that the sanction for a breach, by a Court of the European Union, of its obligation under the second paragraph of Article 47 of the Charter to adjudicate on the cases before it within a reasonable time must be an action for damages brought before the General Court, since such an action constitutes an effective remedy. It follows that a claim for compensation for the damage caused by the failure by the General Court to adjudicate within a reasonable time may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself (see, inter alia, Groupe Gascogne  v Commission  EU:C:2013:770, paragraphs 83 and 84).
136. It is consequently for the General Court, sitting in a different composition from that which heard the dispute giving rise to the proceedings whose duration is criticised, to assess both the actual existence of the harm alleged and the causal connection between that harm and the excessive length of the legal proceedings at issue by examining the evidence submitted for that purpose (see inter alia, to this effect, Groupe Gascogne  v Commission  EU:C:2013:770, paragraphs 88 and 90).
142. In the light of the foregoing, it must be found that the procedure in the General Court infringed the second paragraph of Article 47 of the Charter in that it did not comply with the requirement to adjudicate within a reasonable time, which constitutes a sufficiently serious breach of a rule of law intended to confer rights on individuals (see, to this effect, Case C‑352/98 P Bergaderm and Goupil  v Commission  EU:C:2000:361, paragraph 42).