Masco Corp. and Others v European Commission.
Date: 2017-01-26
22


As a preliminary point, it should be recalled that, according to settled case-law, an infringement of Article 101(1) TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves and taken in isolation, constitute an infringement of that provision. Accordingly, if the different actions form part of an ‘overall plan’ because their identical object distorts competition in the internal market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole (judgments of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 41, and of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 156).
23


An undertaking which has participated in a single and complex infringement of that kind by its own conduct, which fell within the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may thus be responsible also in respect of the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (judgments of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 42, and of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 157).
25


It should be noted in this regard that, as is clear from that paragraph, the General Court took that finding into account in any event only for the sake of completeness in establishing the existence and nature of an overall plan showing there to be a single infringement. Indeed, that finding as to an overall plan followed, according to the General Court, from many other factors identified by the Commission in the decision at issue.
26


Accordingly, since the argument raised by the appellants in the first part of the first ground of appeal is not capable of calling into question the General Court’s conclusion in paragraphs 58 and 62 of the judgment under appeal that the Commission was fully entitled to conclude that there was a single infringement, this part must be rejected as ineffective (see, to that effect, orders of 28 October 2004, Commission v CMA CGM and Others, C‑236/03 P, not published, EU:C:2004:679, paragraphs 30 to 32, and of 21 October 2014, Mundipharma v OHIM, C‑669/13 P, not published, EU:C:2014:2308, paragraph 36).
28


It should be recalled in this regard that, as follows from settled case-law of the Court of Justice, the General Court cannot, as a general rule, be required to respond to pleas and arguments which have not been raised, or which have not been raised with sufficient clarity and precision, during the proceedings, in particular in the application initiating proceedings (see, to that effect, judgments of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 121, and of 20 March 2014, Rousse Industry v Commission, C‑271/13 P, not published, EU:C:2014:175, paragraphs 17 to 19).
32


As is clear from settled case-law, the jurisdiction of the Court of Justice in appeal proceedings is, as a general rule, confined to a review of the findings of law on the pleas argued at first instance (see, to that effect, judgments of 30 April 2014, FLSmidth v Commission, C‑238/12 P, EU:C:2014:284, paragraph 42, and of 22 May 2014, ASPLA v Commission, C‑35/12 P, EU:C:2014:348, paragraph 39).
35


In that connection, it should be borne in mind that, 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, an appeal lies on points of law only. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of the facts and the assessment of the evidence thus do not, save where the facts and evidence have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (see, to that effect, order of 24 September 2009,Alcon v OHIM , C‑481/08 P, not published, EU:C:2009:579, paragraph 18; judgment of 13 January 2011, Media-Saturn-Holding v OHIM , C‑92/10 P, not published, EU:C:2011:15, paragraph 27; and order of 3 March 2016, AgriCapital v OHIM , C‑440/15 P, not published, EU:C:2016:144, paragraph 32).
36


According to settled case-law law of the Court of Justice, there is such distortion where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect. However, such distortion must be obvious from the documents in the case, without it being necessary to undertake a fresh assessment of the facts and the evidence. Moreover, where an appellant alleges distortion of the evidence by the General Court, he must indicate precisely the evidence alleged to have been distorted by that Court and show the errors of appraisal which, in his view, led to that distortion (see, to that effect, judgment of 3 December 2015, Italy v Commission , C‑280/14 P, EU:C:2015:792, paragraph 52 and the case-law cited).