Chalkor AE Epexergasias Metallon v European Commission.
Date: 2011-12-08
46. The role of the Court of Justice in adjudicating on an appeal is to establish whether the General Court erred in law in the manner in which it adjudicated on the action brought before it.
51. Moreover, as the appellant noted in its appeal, Article 47 of the Charter implements in European Union law the protection afforded by Article 6(1) of the ECHR. It is necessary, therefore, to refer only to Article 47.
52. The principle of effective judicial protection is a general principle of European Union law to which expression is now given by Article 47 of the Charter (see Case C‑279/09 DEB  [2010] ECR I‑0000, paragraphs 30 and 31; order in Case C‑457/09 Chartry [2011] ECR I‑0000, paragraph 25; and Case C‑69/10 Samba Diouf  [2011] ECR I‑0000, paragraph 49).
54. As regards the review of legality, the Court of Justice has held that whilst, in areas giving rise to complex economic assessments, the Commission has a margin of discretion with regard to economic matters, that does not mean that the Courts of the European Union must refrain from reviewing the Commission’s interpretation of information of an economic nature. Not only must those Courts establish, among other things, whether the evidence relied on is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (see Case C‑12/03 P Commission  v Tetra Laval  [2005] ECR I‑987, paragraph 39, and Case C‑525/04 P Spain  v Lenzing  [2007] ECR I‑9947, paragraphs 56 and 57).
56. The Court of Justice has held that, in order to determine the amount of a fine, it is necessary to take account of the duration of the infringements and of all the factors capable of affecting the assessment of their gravity, such as the conduct of each of the undertakings, the role played by each of them in the establishment of the concerted practices, the profit which they were able to derive from those practices, their size, the value of the goods concerned and the threat that infringements of that type pose to the European Community (Joined Cases 100/80 to 103/80 Musique Diffusion française and Others  v Commission  [1983] ECR 1825, paragraph 129; Dansk Rørindustri and Others  v Commission , paragraph 242; and Case C‑534/07 P Prym and Prym Consumer  v Commission  [2009] ECR I‑7415, paragraph 96).
57. The Court has also stated that objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements (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 91).
59. In the interests of transparency the Commission adopted the Guidelines, in which it indicates the basis on which it will take account of one or other aspect of the infringement and what this will imply as regards the amount of the fine.
60. The Guidelines, which, the Court has held, form rules of practice from which the administration may not depart in an individual case without giving reasons compatible with the principle of equal treatment (Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients  v Commission  [2006] ECR I‑4429, paragraph 91), merely describe the method used by the Commission to examine infringements and the criteria that the Commission requires to be taken into account in setting the amount of a fine.
61. It is important to bear in mind the obligation to state reasons for acts of the European Union. That is a particularly important obligation in the present case. It is for the Commission to state the reasons for its decision and, in particular, to explain the weighting and assessment of the factors taken into account (see, to that effect, Prym and Prym Consumer  v Commission , paragraph 87). The Courts must establish of their own motion that there is a statement of reasons.
62. Furthermore, the Courts must carry out the review of legality incumbent upon them on the basis of the evidence adduced by the applicant in support of the pleas in law put forward. In carrying out such a review, the Courts cannot use the Commission’s margin of discretion – either as regards the choice of factors taken into account in the application of the criteria mentioned in the Guidelines or as regards the assessment of those factors – as a basis for dispensing with the conduct of an in-depth review of the law and of the facts.
63. The review of legality is supplemented by the unlimited jurisdiction which the Courts of the European Union were afforded by Article 17 of Regulation No 17 and which is now recognised by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see, to that effect, 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 692).
64. It must, however, be pointed out that the exercise of unlimited jurisdiction does not amount to a review of the Court’s own motion, and that proceedings before the Courts of the European Union are inter partes . With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, such as the failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas.
65. That requirement, which is procedural in nature, does not conflict with the rule that, in regard to infringements of the competition rules, it is for the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement. What the applicant is required to do in the context of a legal challenge is to identify the impugned elements of the contested decision, to formulate grounds of challenge in that regard and to adduce evidence – direct or circumstantial – to demonstrate that its objections are well founded.
66. The failure to review the whole of the contested decision of the Court’s own motion does not contravene the principle of effective judicial protection. Compliance with that principle does not require that the General Court – which is indeed obliged to respond to the pleas in law raised and to carry out a review of both the law and the facts – should be obliged to undertake of its own motion a new and comprehensive investigation of the file.
67. The review provided for by the Treaties thus involves review by the Courts of the European Union of both the law and the facts, and means that they have the power to assess the evidence, to annul the contested decision and to alter the amount of a fine. The review of legality provided for under Article 263 TFEU, supplemented by the unlimited jurisdiction in respect of the amount of the fine, provided for under Article 31 of Regulation No 1/2003, is not therefore contrary to the requirements of the principle of effective judicial protection in Article 47 of the Charter.
70. It must be noted in that regard that, in paragraph 175 of the judgment under appeal, the General Court rejected one of the appellant’s complaints by reference to an explanation provided by the Commission which is not challenged by the appellant. In paragraph 176 it stated that, even on the assumption that Chalkor could argue that the amount of the fine imposed on it is capable of reducing its competitiveness, so as to demonstrate that the fine is disproportionate, it had to be noted that Chalkor had not put forward any specific evidence in this respect. As observed in paragraphs 64 to 66 of the present judgment, with the exception of pleas involving matters of public policy, the General Court is required not to carry out of its own motion a review of a Commission decision but to adjudicate on the pleas of illegality submitted to it by an applicant. In the present case, the appellant cannot complain that the General Court failed to adjudicate on pleas which were not submitted to it or which were not specified in the complaints and evidence enabling the General Court to carry out an effective review of the decision at issue.
79. In the fifth place, the appellant submits that the General Court failed to take account of the fact that the appellant was the victim, and treated it in the same way as the other undertakings, taking account only of sales volumes and not of its culpability. It must however be noted that, in paragraph 72 of the judgment under appeal, the General Court recalled the case-law according to which pressure which is brought to bear on an undertaking does not absolve it from its responsibility in participating in an infringement (see, to that effect, Dansk Rørindustri and Others  v Commission , paragraphs 369 and 370; Case T‑17/99 KE KELIT  v Commission  [2002] ECR II‑1647, paragraph 50; and Case T‑62/02 Union Pigments  v Commission [2005] ECR II‑5057, paragraph 63). It follows that this criticism is based on a false premiss, that is that the appellant is a victim and not a responsible participant in the infringement.
82. It follows from all of those considerations that the appellant’s criticisms are unfounded. Although the General Court repeatedly referred to the ‘substantial margin of discretion’ or the ‘wide discretion’ of the Commission, including in paragraphs 62, 63 or 143 of the judgment under appeal, such references did not prevent the General Court from carrying out the full and unrestricted review, in law and in fact, required of it.