Zucchetti Rubinetteria SpA v European Commission.
Date: 2017-01-26
38


As regards the substance of the first ground of appeal, which alleges that the General Court infringed the principles of personal responsibility, proportionality and equal treatment in calculating the fine, it should be noted, first, that the principle of equal treatment is a general principle of EU law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union. According to settled case-law, that principle requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified. Secondly, it is also settled case-law that, when the amount of the fine is determined, there cannot, by the application of different methods of calculation, be any discrimination between the undertakings which have participated in an agreement or a concerted practice contrary to Article 101(1) TFEU. Thirdly, the Court has repeatedly held that the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters and that decisions in other cases can give only an indication for the purpose of determining whether there is discrimination (see, to that effect, judgment of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraphs 132 to 134).
39


Next, it is settled case-law that, in the first place, the supervisory task conferred on the Commission by Article 105(1) and Article 106 TFEU not only includes the duty to investigate and punish individual infringements but also encompasses the duty to pursue a general policy designed to apply, in competition matters, the principles laid down by the Treaties and to guide the conduct of undertakings in the light of those principles. That competition policy is characterised by a wide discretion on the part of the Commission, in particular as regards the determination of the amount of fines (see, to that effect, judgment of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 170 and 172).
40


In the second place, for the purposes of determining the fine, regard must be had both to the gravity and to the duration of the infringement so that it is necessary to take account of the legislative background and economic context of the conduct to which exception is taken, the nature of the restrictions of competition, as well as the number and size of the undertakings concerned (see, to that effect, judgment of 16 December 1975, Suiker Unie and Others v Commission, 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73, EU:C:1975:174, paragraph 612).
41


In the third place, it is necessary to take into account all the factors capable of affecting the assessment of the gravity of the infringement and the conduct of the undertaking during the administrative procedure (judgment of 11 January 1990, Sandoz prodotti farmaceutici v Commission, C‑277/87, EU:C:1990:6, paragraph 27).
42


In the fourth place, in order to determine the gravity of an infringement, regard must be had to a large number of factors, the nature and importance of which vary according to the type of infringement in question and the particular circumstances of the case. Those factors may, depending on the circumstances, include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking and, consequently, the influence which the undertaking was able to exert on the market (see, to that effect, judgments of 7 June 1983, Musique Diffusion française and Others v Commission, 100/80 to 103/80, EU:C:1983:158, paragraph 120; of 9 November 1983, Nederlandsche Banden-Industrie-Michelin v Commission, 322/81, EU:C:1983:313, paragraph 111; and of 11 July 2013, Gosselin Group v Commission, C‑429/11 P, not published, EU:C:2013:463, paragraphs 89 and 90).
43


Finally, 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, would it have to find that the General Court erred in law, due to the inappropriateness of the amount of a fine (judgment of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraph 126).
48


Although, in order to assess the gravity of an infringement and, subsequently, set the fine to be imposed, account may be taken, inter alia, of the geographic extent of that infringement and the number of products it covers, the mere fact that the geographic scope of one infringement is more extensive and that the infringement covers a greater number of products than that of another does not, in itself, necessarily mean that the first infringement, considered as a whole, and in particular in the light of its nature, must be classified as more serious than the second and as therefore justifying the setting of higher multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ than those used in calculating the fine for the second infringement (see, to that effect, judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 178).
49


It should be borne in mind, however, that if the grounds of a decision of the General Court contain an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not one that should cause that decision to be set aside, and the grounds should be substituted (see, to that effect, judgments of 9 June 1992, Lestelle v Commission, C‑30/91 P, EU:C:1992:252, paragraph 28, and of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 187 and the case-law cited).
56


Moreover, it follows from the Court’s case-law that the differentiation in the amounts of the fine, which the principle of equal treatment between undertakings requires, need not necessarily be undertaken in the context of setting the multipliers for the ‘gravity of the infringement’ and the ‘additional amount’, in view of the broad discretion enjoyed by the Commission in calculating the fine. The differences and circumstances particular to the undertakings concerned may, if need be, be taken into account at another stage in calculating the fine, such as in the context of adjusting the basic amount in the light of aggravating and mitigating circumstances under points 28 and 29 of the 2006 Guidelines (see, to that effect, judgments of 11 July 2013, Gosselin Group v Commission, C‑429/11 P, not published, EU:C:2013:463, paragraphs 96 to 100, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraphs 104 and 105), or in the context of the value of sales taken into account in calculating the basic amount of the fine, inasmuch as that value reflects, for each participating undertaking, the extent of its participation in the infringement in question, in accordance with point 13 of the 2006 Guidelines.
57


As the Court has already held, that point pursues the objective of adopting as the starting point for the setting of the fine imposed on an undertaking, an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it (see judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 76).
68


In that regard, it suffices to recall that, under the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court, consequently, has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence submitted to it. The appraisal of the facts and the assessment of the evidence do not therefore, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, inter alia, order of 11 June 2015, Faci v Commission, C‑291/14 P, not published, EU:C:2015:398, paragraph 31 and the case-law cited, and, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 46 and the case-law cited). Such distortion must be obvious from the documents in the case, without it being necessary to undertake a fresh assessment of the facts and evidence (see, inter alia, order of 11 June 2015, Faci v Commission, C‑291/14 P, not published, EU:C:2015:398, paragraph 32 and the case-law cited).