Productos Asfálticos (PROAS), SA v European Commission.
Date: 2016-06-09
33


In that regard, suffice it to note that, in accordance with settled case-law, it follows from the 1998 Guidelines that horizontal price or market sharing agreements may be classified as very serious infringements solely on account of their nature, without the Commission being required to demonstrate an actual impact of the infringement on the market (see, to that effect, judgment of 3 September 2009 in Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 75; of 24 September 2009 in Erste Group Bank and Others v Commission, C‑125/07 P, C‑133/07 P and C‑137/07 P, EU:C:2009:576, paragraph 103; and of 8 May 2013 in Eni v Commission, C‑508/11 P, EU:C:2013:289, paragraph 97).
42


As regards the second part of the first ground of appeal, which should be examined in the first place, it should be noted, as a preliminary point, that the system of judicial review of Commission decisions relating to proceedings under Articles 101 and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of applicants, by the General Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission (judgment of 21 January 2016 in Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 71).
43


In that regard, as the Court has stated on many occasions, the scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings applying Articles 101 and 102 TFEU which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicants and taking into account all the elements submitted by them, whether those elements pre-date or post-date the decision at issue, whether they were submitted previously in the context of the administrative procedure or, for the first time, in the context of the proceedings before the General Court, in so far as those elements are relevant to the review of the legality of the Commission decision (judgment of 21 January 2016 in Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 72).
44


By contrast, the scope of the General Court’s unlimited jurisdiction is strictly limited, unlike the review of legality provided for in Article 263 TFEU, to determining the amount of the fine (judgment of 21 January 2016 in Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 76).
51


Moreover, the mere fact that, in paragraphs 157, 158 and 449 of the judgment under appeal, the General Court also endorsed, in the exercise of its unlimited jurisdiction as regards the fine imposed on PROAS, several assessment criteria used by the Commission in the decision at issue and whose legality has been previously established, cannot establish a failure by the General Court to exercise its unlimited jurisdiction (see, to that effect, judgment of 8 May 2013 in Eni v Commission, C‑508/11 P, EU:C:2013:289, paragraph 99).
52


Moreover, inasmuch as PROAS disputes the General Court’s assessment of the evidence as to the pressure exerted by the Spanish Government and, in particular, the fact that that pressure is considered by the General Court to be mere approval or tolerance of an infringement on the part of the national authorities, it must be recalled that, according to settled case-law, the General Court has exclusive jurisdiction to find and assess 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 before it. Save where the clear sense of the evidence has been distorted, that assessment does not therefore constitute a point of law which is subject as such to review by the Court of Justice (judgment of 20 January 2016 in Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 40).
55


The same is true of the argument that the General Court found that PROAS had relied on the characteristic elements of the Spanish market by way of mitigating circumstances and not as factors illustrating the lesser seriousness of the infringement at issue. In fact, since the General Court carried out a review of PROAS’ claims relating to the characteristics of the Spanish market in the context of the assessment of mitigating circumstances, the General Court cannot, in any event, be criticised for not having examined them in the assessment of the seriousness of the infringement (see judgment of 5 December 2013 in Solvay Solexis v Commission, C‑449/11 P, not published, EU:C:2013:802, paragraphs 78 and 79).
58


In that regard, suffice it to state, as the General Court did in paragraph 161 of the judgment under appeal, that, according to settled case-law, the Commission’s practice in previous decisions does not serve as a legal framework for the fines imposed in competition matters (judgment of 23 April 2015 in LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 67 and the case-law cited).
66


As regards the refusal by the General Court of the request for measures of organisation of procedure or of inquiry submitted by PROAS, it should be borne in mind that, according to settled case-law, the General Court is the sole judge, in principle, of any need to supplement the information available to it in respect of the cases before it (see, to that effect, judgment of 14 March 2013 in Viega v Commission, C‑276/11 P, EU:C:2013:163, paragraph 39 and the case-law cited).
67


In view of the sufficient reasoning of the General Court, in paragraphs 204 to 208 of the judgment under appeal, to establish the irrelevant nature of the documents relating to sales of the Repsol group to Composán Distribución SA, PROAS’ simple assertions as to the possibly useful nature for its defence of those documents are not sufficient to demonstrate that the General Court was not able to give its ruling in full knowledge of the facts. Therefore, an obligation on the General Court to make use of measures of organisation of procedure or of inquiry cannot be inferred from those claims (see, by analogy, judgment of 19 March 2015 in Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 59).
74


As regards the first part of the present ground of appeal, by which the appellant criticises the General Court for having committed an error of law by finding that the administrative procedure had been conducted within a reasonable period, it should be noted that, although the infringement of the principle of observance of a reasonable period is capable of justifying the annulment of a decision taken following an administrative procedure based on Article 101 or 102 TFEU inasmuch as it also constitutes an infringement of the rights of defence of the undertaking concerned (see, to that effect, judgment of 21 September 2006 in Nederlandse Vereniging voor de Groothandel Federatieve op Elektrotechnisch Gebied v Commission, C‑105/04 P, EU:C:2006:592, paragraphs 42 and 43), the Commission’s infringement of a reasonable period for such an administrative procedure, if established, is not capable of leading to a reduction of the amount of the fine imposed (see, to that effect, judgment of 8 May 2014 in Bolloré v Commission, C‑414/12 P, EU:C:2014:301, paragraph 109).
81


As regards the second part of that ground of appeal, by which PROAS criticises the General Court for having infringed its right to a judgment within a reasonable period, it should be borne in mind 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, contrary to what PROAS argues, an effective remedy. It follows that a claim for compensation in respect of the damage caused by the General Court’s failure 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, judgments of 10 July 2014 in Telefónica and Telefónica de España vCommission, C 295/12 P, EU:C:2014:2062, paragraph 66; of 9 October 2014 in ICF v Commission, C 467/13 P, EU:C:2014:2274, paragraph 57; and of 12 November 2014 in Guardian Industries and Guardian Europe v Commission, C 580/12 P, EU:C:2014:2363, paragraphs 17 and 18).
82


The General Court, which has jurisdiction under Article 256(1) TFEU, hearing a claim for damages, is required to rule on such a claim sitting in a different composition from that which heard the dispute which gave rise to the procedure whose duration is criticised (see, inter alia, judgments of 10 July 2014in Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 67; of 9 October 2014 in ICF v Commission, C‑467/13 P, EU:C:2014:2274, paragraph 58; and of 12 November 2014 in Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 19).
83


That said, where it is clear, without any need for the parties to adduce additional evidence in that regard, that the General Court infringed, in a sufficiently serious manner, its obligation to adjudicate on the case within a reasonable time, the Court of Justice may note that fact (see, inter alia, judgments of 9 October 2014 in ICF v Commission, C 467/13 P, EU:C:2014:2274, paragraph 59, and of 12 November 2014 in Guardian Industries and Guardian Europe v Commission, C 580/12 P, EU:C:2014:2363, paragraph 20).
88


According to settled case-law, where all the other grounds put forward in an appeal have been rejected, any ground challenging the decision of the General Court on costs must be rejected as inadmissible by virtue of the second paragraph of Article 58 of the Statue of the Court of Justice of the European Union, under which no appeal lies regarding only the amount of the costs or the party ordered to pay them (see, to that effect, order of 13 January 1995 in Roujansky v Council, C‑253/94 P, EU:C:1995:4, paragraphs 13 and 14, and judgment of 2 October 2014 in Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 151).