Quinn Barlo Ltd and Others v European Commission.
Date: 2013-05-30
25. As a preliminary point, it should be recalled, first, that the General Court has exclusive jurisdiction to find and appraise the facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, inter alia, Case C‑551/03 P General Motors  v Commission  [2006] ECR I‑3173, paragraph 52, and Case C‑535/06 P Moser Baer India  v Council [2009] ECR I‑7051, paragraph 32 and the case-law cited).
26. Second, it should be noted that an appeal is inadmissible in so far as it merely repeats the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by it. Such an appeal amounts in reality to no more than a request for re‑examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake on appeal (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 51 and the case-law cited).
27. By contrast, provided that an appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (Case C‑229/05 P PKK and KNK  v Council  [2007] ECR I‑439, paragraph 32 and the case-law cited).
36. It follows from the case-law cited in paragraph 25 of this judgment that it is for the Court of Justice to ascertain whether the General Court, in its assessment of the facts and evidence, made an error of law by infringing general principles of law, such as the presumption of innocence and the applicable rules of evidence, such as those relating to the burden of proof and the taking of evidence (see, to that effect, Case C‑7/95 P Deere  v Commission  [1998] ECR I‑3111, paragraph 22; Case C‑8/95 P New Holland Ford  v Commission  [1998] ECR I‑3175, paragraph 26; Case C‑185/95 P Baustahlgewebe  v Commission  [1998] ERC I‑8417, paragraph 24; and Case C‑199/92 P Hüls  v Commission  [1999] ECR I‑4287, paragraph 65).
37. Accordingly, although the alleged infringement of the presumption of innocence in the determination of the duration of the infringement may have an impact on the findings of fact made by the General Court, it is, contrary to what is maintained by the Commission, a point of law amenable, as such, to review by the Court of Justice. The same principle applies with regard to the complaint concerning the grounds of the judgment under appeal (see, inter alia, Case C‑401/96 P Somaco v Commission  [1998] ECR I‑2587, paragraph 53, and Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel  v Commission  [2007] ECR I‑729, paragraph 77).
39. As to the merits, it must be recalled that, according to the settled case-law of the Court of Justice, the obligation of the General Court to state reasons does not require it to carry out an analysis which follows exhaustively and one by one all the arguments formulated by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the decision in question has been taken and provides the Court of Justice with sufficient material for it to exercise its power of review, as in the present case (see, inter alia, Aalborg Portland and Others v Commission , paragraph 372; Case C‑16/07 P Chetcuti  v Commission  [2008] ECR I‑7469, paragraph 87; and Case C‑440/07 P Commission  v Schneider Electric  [2009] ECR I‑6413, paragraph 135).
40. In the first place, it is settled case-law that the system of competition established by Articles 101 TFEU and 102 TFEU is concerned with the economic consequences of agreements, or of any comparable form of concertation or coordination, rather than with their legal form. Consequently, in the case of agreements which have ceased to be in force, it is sufficient, in order for Article 101 TFEU to apply, that they produce their effects beyond the date on which the unlawful contacts formally come to an end. It follows that the duration of an infringement may be assessed by reference to the period during which the undertakings concerned engaged in conduct prohibited by that article (see, to that effect, Case 51/75 EMI Records  [1976] ECR 811, paragraph 30; Case 86/75 EMI Records [1976] ECR 871, paragraph 27; Case 96/75 EMI Records [1976] ECR 913, paragraph 15; and Case 243/83 Binon  [1985] ECR 2015, paragraph 17). In other words, the General Court could in theory have found there to be an infringement, for example, throughout the whole period in which the unlawful prices were applied, which would have led, in the present case, to a result objectively less favourable to the appellants’ interests.
46. With regard to the argument concerning infringement of the principle of equal treatment, it is true that the case-law of the Court of Justice makes clear that the exercise of unlimited jurisdiction in respect of the determination of fines cannot result in discrimination between undertakings which have participated in an agreement contrary to Article 101(1) TFEU (see, inter alia, 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 617, and Case C‑407/04 P Dalmine  v Commission  [2007] ECR I‑829, paragraph 152). If the General Court intends, in the case of one of those undertakings, to depart specifically from the method of calculation followed by the Commission, which it has not called into question, it must give reasons for doing so in the judgment under appeal (Case C‑338/00 P Volkswagen v Commission  [2003] ECR I‑9189, paragraph 146).
47. It must also be recalled that, according to the settled case-law of the Court of Justice, an appeal must indicate precisely the alleged flaws in the judgment which the appellant claims should be set aside, and also the legal arguments specifically advanced in support of that claim, failing which the latter is inadmissible (see, inter alia, Limburgse Vinyl Maatschappij and Others  v Commission , paragraphs 497 and 618, and Dalmine  v Commission , paragraph 153).
51. It must therefore be concluded that the appellants’ argument relating to the alleged infringement of the principle of equal treatment does not satisfy the requirements which must be met by an appeal, as referred to in paragraph 47 of this judgment and as deriving from Article 168(1)(d) of the Rules of Procedure of the Court of Justice.
52. With regard to the alleged infringement of the principle of the protection of legitimate expectations, suffice it to note that the General Court is entitled, in the exercise of its unlimited jurisdiction, to substitute its own appraisal for the Commission’s and, consequently, to increase, where appropriate, the fine or penalty payment imposed (Case C‑3/06 P Groupe Danone  v Commission  [2007] ECR I‑1331, paragraph 61 and the case-law cited).
53. The Court of Justice has already held that the Guidelines set out rules of practice from which the Commission may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment. Indeed, by adopting such rules of conduct and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules without running the risk of suffering the consequences of being in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (see, 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  [2005] ECR I‑5425, paragraphs 209 and 211). However, as the Commission rightly submits, although it must observe the principle of the protection of legitimate expectations when it applies its self-imposed guidelines, that principle cannot bind the Courts of the Union in the same way, in so far as they do not propose to apply a specific method of setting fines in the exercise of their unlimited jurisdiction, but consider case by case the situations before them, taking account of all the matters of fact and of law relating to those situations.
57. According to its settled case-law, it is not for the Court of Justice, when ruling on points of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of EU law (see, to that effect, Case C‑310/93 P BPB Industries and British Gypsum  v Commission  [1995] ECR I‑865, paragraph 34; Case C‑248/98 P KNP BT v Commission  [2000] ECR I‑9641, paragraph 54; and Case C‑328/05 P SGL Carbon v Commission  [2007] ECR I‑3921, paragraph 98). Accordingly, 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, on account of the inappropriateness of the amount of a fine (Case C‑89/11 P E.ON Energie v Commission  [2012] ECR I‑0000, paragraph 126).