Aloys F. Dornbracht GmbH & Co. KG v European Commission.
Date: 2017-01-26
22


In so far as, on the one hand, by its first ground of appeal, the appellant essentially complains that the General Court misinterpreted Article 23(2) of Regulation No 1/2003 in holding that it imposes a ceiling, it must be noted that the General Court, without adopting that position, correctly stated in paragraph 216 of the judgment under appeal that it is apparent from the settled case-law of the Court of Justice that it is only the final amount of the fine imposed which must comply with that upper limit of 10% of turnover referred to in that provision, and that that provision does not prohibit the Commission from arriving, during the various stages of calculation of the fine, at an intermediate amount higher than that limit, provided that the final amount of the fine does not exceed that limit (see, in particular, judgments 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 277 and 278; of 29 June 2006, SGL Carbon v Commission, C‑308/04 P, EU:C:2006:433, paragraph 82; and of 12 July 2012, Cetarsa v Commission, C‑181/11 P, not published, EU:C:2012:455, paragraph 80).
23


On the other hand, as regards the complaints that the General Court infringed Article 23(3) of Regulation No 1/2003 and, therefore, the principle nullum crimen, nulla poena sine lege and the principles of equal treatment and of proportionality on the ground that it failed to take into account in an appropriate manner the gravity and duration of the infringements, it should be borne in mind that the Court has consistently held that the fact that, owing to the application of the limit of 10% of turnover referred to in the second subparagraph of Article 23(2) of that regulation, certain factors such as the gravity and duration of the infringement are not actually reflected in the amount of the fine imposed is merely a consequence of the application of that upper limit to the final amount (see, in particular, judgments 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, paragraph 279, and of 12 July 2012, Cetarsa v Commission, C‑181/11 P, not published, EU:C:2012:455, paragraph 81).
24


That upper limit seeks to prevent fines being imposed which it is foreseeable that the undertakings, owing to their size, as determined, albeit approximately and imperfectly, by their total turnover, will not be able to pay (judgments 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, paragraph 280, and of 12 July 2012, Cetarsa v Commission, C‑181/11 P, not published, EU:C:2012:455, paragraph 82).
25


The limit is therefore one which is uniformly applicable to all undertakings and arrived at according to the size of each of them, and seeks to ensure that the fines are not excessive or disproportionate. That upper limit thus has a distinct and autonomous objective by comparison with the criteria of gravity and duration of the infringement (judgments 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 281 and 282, and of 12 July 2012, Cetarsa v Commission, C‑181/11 P, not published, EU:C:2012:455, paragraph 83).
32


According to the settled case-law of the Court of Justice, it follows from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) and Article 169(2) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment or order which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal. Where, without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal, an appeal merely reproduces verbatim the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by that Court, it fails to satisfy the requirement to state reasons under those provisions. In reality, such an appeal amounts to no more than a request for re-examination of the application submitted to the General Court, which falls outside the jurisdiction of the Court of Justice (see, in particular, judgments of 30 June 2005, Eurocermex v OHIM, C‑286/04 P, EU:C:2005:422, paragraphs 49 and 50, and of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraphs 49 and 50).
39


The appellant submits in this regard that it is true that the Court ruled in its 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, paragraph 231), that the Commission could, without disregarding the principle of non-retroactivity, calculate the amount of the fine on the basis of the 1998 Guidelines, even though they had been adopted after the infringement at issue in that case was committed, since those guidelines and the new method of calculation they contained were reasonably foreseeable at the time when that infringement was committed. However, according to the appellant, in the case giving rise to that judgment, there were no guidelines at the time when the infringement was committed, and therefore the question that arose was whether or not the fine had to be calculated on the basis of the new guidelines which the Commission first adopted in 1998. Contrary to what the General Court found in the judgment under appeal, that situation should, in the appellant’s submission, be distinguished from a situation in which guidelines were applicable at the time when the infringement was committed but have been replaced or amended by new guidelines since that infringement. In the latter situation, the question arises as to which guidelines, the old or the new, should be applied for the purposes of calculating the amount of the fine. The General Court’s application in the second situation of the approach adopted in the 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), is, the appellant claims, contrary to the principles of equal treatment and of the protection of legitimate expectations.
42


It should be noted that it follows from well-established case-law that the application, for the purpose of calculating fines imposed for competition infringements, of new guidelines, such as the 2006 Guidelines, and in particular of a new method of calculating the amount of a fine contained therein, even to infringements committed before the adoption or the amendment of those guidelines, does not breach the principle of non-retroactivity in so far as those new guidelines and that new method were reasonably foreseeable at the time when the infringements in question were committed (see, to that effect, in particular, judgments 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 217, 218, and 227 to 232; of 18 May 2006, Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, C‑397/03 P, EU:C:2006:328, paragraph 25; of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 75; and of 14 September 2016, Ori Martin and SLM v Commission, C‑490/15 P and C‑505/15 P, not published, EU:C:2016:678, paragraphs 82 to 94).
52


As a preliminary point, it must be noted 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 (see, to that effect, judgments of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 42, and of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 71).
53


The scope of that unlimited jurisdiction of the General Court is strictly limited, unlike the review of legality provided for in Article 263 TFEU, to determining the amount of the fine. It concerns solely the assessment by that Court of the fine imposed by the Commission, to the exclusion of any alteration of the constituent elements of the infringement lawfully determined by the Commission in the decision under examination by the General Court (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraphs 76 and 77).
58


As regards, first, the argument put forward in the second part of that ground of appeal, alleging that the General Court made an error of assessment as to the product groups to which the infringement the appellant is said to have committed related, it must be noted, as the General Court stated in paragraph 51 of the judgment under appeal, that, in accordance with Article 44(1)(c) of the Rules of Procedure of the General Court, in the version in force at the date of the judgment under appeal, the subject matter of the dispute and a summary of the pleas in law relied on constitute two essential elements which must be included in the application initiating proceedings, and that, under Article 48(2) of those rules of procedure, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which have come to light in the course of the procedure (see, to that effect, judgments of 12 November 2009, SGL Carbon v Commission, C‑564/08 P, not published, EU:C:2009:703, paragraph 21, and of 3 April 2014, France v Commission, C‑559/12 P, EU:C:2014:217, paragraph 38). As the General Court found, however, the appellant disputed its awareness of the fact that the infringement covered three product sub-groups only in its reply before the General Court, and that argument did not amplify a complaint made in the application at first instance. Consequently, the General Court was fully entitled to reject it as being out of time, in paragraphs 53, 54, 114 and 171 of the judgment under appeal.
65


As regards, in the first place, the appellant’s arguments alleging that the General Court made errors of assessment in relation in particular to the geographic scope of the infringement when determining, in the exercise of its unlimited jurisdiction, the amount of the fine, it should be noted at the outset that the General Court alone has jurisdiction to examine how in each particular case the Commission assessed the gravity of unlawful conduct. In an appeal, the purpose of review by the Court of Justice is, first, to examine to what extent the General Court took into consideration, in a legally correct manner, all the essential factors to assess the gravity of particular conduct in the light of Article 101 TFEU and Article 23 of Regulation No 1/2003 and, secondly, to consider whether the General Court responded to a sufficient legal standard to all the arguments raised in support of the claim for cancellation or reduction of the fine (see, inter alia, judgments of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraph 128; 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, paragraph 244; and of 5 December 2013, Solvay Solexis v Commission, C‑449/11 P, not published, EU:C:2013:802, paragraph 74).
66


On the other hand, it must be borne in mind that it is not for the Court of Justice, when ruling on questions 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 (judgments 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, paragraph 245, and of 11 July 2013, Gosselin Group v Commission, C‑429/11 P, not published, EU:C:2013:463, paragraph 87).
67


It should also be recalled that, according to the settled case-law of the Court, in setting the amount of fines, regard must be had to the duration of the infringement and to all the factors capable of affecting the assessment of the gravity of that infringement (judgments 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, paragraph 240, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 98).
68


The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union (judgments 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, paragraph 242, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 100).
75


It follows from the foregoing that, contrary to what is claimed by the appellant, the General Court did take into account the fact that the geographic scope of the infringement covered only two Member States and not six. However, the General Court found that, despite the more limited geographic scope, a rate of 15% was appropriate in the light, inter alia, of the nature of the infringement. It should be pointed out in that respect that, having regard to point 23 of the 2006 Guidelines, on which the General Court decided to draw in this case, the 15% multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ were warranted in view of the very nature of the infringement at issue, since, as the General Court noted, it is among the most harmful restrictions of competition for the purpose of point 23 of the 2006 Guidelines and that rate is the lowest rate on the scale of penalties prescribed for such infringements under those guidelines (in that regard, see, to that effect, judgments of 11 July 2013, Ziegler v Commission, C‑439/11 P, EU:C:2013:513, paragraphs 124 and 125, and of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 125). Accordingly, the appellant is wrong to criticise the General Court for having failed to take into account the geographic scope of the infringement when determining the multipliers for the ‘gravity of the infringement’ and the ‘additional amount’, and for having set those multipliers at 15%.
77


It will be recalled that that principle 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 (see, inter alia, judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 51).
78


Observance of that principle is binding, in particular, on the General Court not only in the exercise of its review of the legality of the Commission’s decision imposing fines but also in the exercise of its unlimited jurisdiction. When the amount of the fines imposed is determined, the exercise of such jurisdiction cannot result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 101(1) TFEU (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 77).
79


It follows from the case-law of the Court of Justice, however, that the taking into account, by virtue of the principle of equal treatment, of differences between the undertakings that have participated in a single cartel (in particular with regard to the geographic scope of their respective involvement) need not necessarily occur when the multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ are set but may occur at another stage in the setting of the fine, such as when the basic amount of the fine is adjusted in the light of mitigating and aggravating 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).
80


As the Commission has observed, such differences may also be reflected by means of the value of sales that is used in calculating the basic amount of the fine inasmuch as that value reflects, for each participating undertaking, the scale of its involvement in the infringement in question, in accordance with point 13 of the 2006 Guidelines, under which it is possible to take as a starting point for the calculation of the fines an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 76).
84


As regards, in the third place, the complaint as to a failure to state reasons, it should be borne in mind that the obligation to state the reasons on which a judgment is based, to which the General Court is subject under Article 36 of the Statute of the Court of Justice of the European Union, which applies to the General Court by virtue of the first paragraph of Article 53 of the Statute, and Article 81 of the Rules of Procedure of the General Court, in the version in force at the date of the judgment under appeal, requires the General Court clearly and unequivocally to disclose its reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (see, in particular, judgments of 26 September 2013, Alliance One International v Commission, C‑679/11 P, not published, EU:C:2013:606, paragraph 98, and of 28 January 2016, Quimitécnica.com and de Mello v Commission, C‑415/14 P, not published, EU:C:2016:58, paragraph 56).
85


As this Court has already held, the General Court is bound to comply with that obligation when exercising its unlimited jurisdiction (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 77).
86


According to well established case-law, that obligation to state reasons does not, however, require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review (see, to that effect, in particular, judgments of 2 April 2009, Bouygues and Bouygues Télécom v Commission, C‑431/07 P, EU:C:2009:223, paragraph 42, and of 22 May 2014, Armando Álvarez v Commission, C‑36/12 P, EU:C:2014:349, paragraph 31).
94


In so far as the appellant, by its sixth ground of appeal, asks the Court, in the first place, to set aside the judgment under appeal on account of the excessive duration of the proceedings before the General Court, it should be noted that, in the absence of any evidence that the excessive duration of those proceedings had an effect on the outcome of the dispute, failure on the part of the General Court to adjudicate within a reasonable time cannot lead to the judgment under appeal being set aside. Indeed, where failure to adjudicate within a reasonable time has no effect on the outcome of the dispute, the setting aside of the judgment under appeal would not provide a remedy for any infringement by the General Court of the principle of effective judicial protection (judgments of 26 November 2013, Gascogne Sack Deutschland v Commission, C‑40/12 P, EU:C:2013:768, paragraphs 81 and 82; of 26 November 2013, Kendrion v Commission, C‑50/12 P, EU:C:2013:771, paragraphs 82 and 83; and of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 64).
97


In so far as, by its sixth ground of appeal, the appellant seeks, in the second place and in the alternative, a reduction of the fine imposed on it, it should be noted 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 of Fundamental Rights of the European Union 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 an effective remedy. Accordingly, a claim for compensation for the damage caused by the failure on the part of the General Court 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 (judgments of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 66; of 9 October 2014, ICF v Commission, C‑467/13 P, not published, EU:C:2014:2274, paragraph 57; and of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 55).
98


Where a claim for damages is brought before the General Court, which has jurisdiction under Article 256(1) TFEU, it must determine such a claim sitting in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticised (see, to that effect, judgments of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 67; of 9 October 2014, ICF v Commission, C‑467/13 P, not published, EU:C:2014:2274, paragraph 58; and of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 56).
99


Nonetheless, where it is evident, without it being necessary for the parties to adduce additional evidence in that regard, that the General Court has breached, in a sufficiently serious manner, its duty to adjudicate within a reasonable period, the Court of Justice can find accordingly (see, to that effect, judgments of 9 October 2014, ICF v Commission, C‑467/13 P, not published, EU:C:2014:2274, paragraph 59; and of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 57).