Koninklijke Philips NV and Philips France v European Commission.
Date: 2018-09-26
In this respect, in the judgment 20 January 2016, Toshiba Corporation v Commission (C‑373/14 P, EU:C:2016:26, paragraphs 27 to 29), the Court drew a distinction between two types of restrictions by object. Certain types of conduct reveal by their very nature a sufficient degree of harm to competition, so that the analysis of the economic and legal context of which the conduct at issue forms a part may be limited to what is strictly necessary. Other types of conduct may only be considered to constitute a restriction by object in so far as they reveal a sufficient degree of harm to competition, following a full analysis of that context.
In that regard, it should be borne in mind that, according to the case-law of the Court, the essential legal criterion for ascertaining whether an agreement or a concerted practice involves a restriction of competition ‘by object’, for the purposes of Article 101(1) TFEU, is the finding that such an agreement or practice reveals in itself a sufficient degree of harm to competition for it to be considered that it is not appropriate to assess its effects (see, to that effect, judgment of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraph 104 and the case-law cited).
In order to determine whether a type of coordination between undertakings reveals a sufficient degree of harm to competition that it may be considered a restriction of competition ‘by object’, regard must be had, inter alia, to its content, its objectives and the economic and legal context of which it forms a part. When determining that context, it is also necessary to take into consideration the nature of the goods or services affected, as well as the real conditions of the functioning and structure of the market or markets in question (see, to that effect, judgments of 5 December 2013, Solvay Solexis v Commission, C‑449/11 P, not published, EU:C:2013:802, paragraph 36; of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 117 and the case-law cited; and of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraph 105 and the case-law cited).
The appellants’ argument, based on the Horizontal Guidelines and on the premiss that the information exchanged was of a general rather than individual nature, is irrelevant in that regard. That premiss, which the General Court indeed rejected, in particular in paragraph 85 of the judgment under appeal, falls within the scope of a factual assessment. In that regard, it should be recalled that, under Article 256(1) 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 has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgments of 9 October 2014, ICF v Commission, C‑467/13 P, not published, EU:C:2014:2274, paragraph 26, and of 16 February 2017, Tudapetrol Mineralölerzeugnisse Nils Hansen v Commission, C‑94/15 P, not published, EU:C:2017:124, paragraph 46). Since the appellants have not established or even alleged such a distortion, their argument is inadmissible.
In the second place, first of all, by their claim that the General Court could not merely find that the information exchanged was capable of influencing the conduct of the undertakings without setting out the reasons why it actually influenced that conduct, the appellants complain that the General Court failed to examine the effects of the bilateral contacts. However, according to the Court’s case-law, there is no need to consider the effects of a concerted practice where its anticompetitive object is established (judgment of 4 June 2009, T-Mobile Netherlands and Others, C‑8/08, EU:C:2009:343, paragraph 30). That line of argument cannot therefore succeed.
Next, the appellants cannot complain that the General Court failed to take account of the alleged need for the competitors to continuously adapt their pricing to that of Atmel. As the Commission correctly observes, that argument, which entails assessments of fact falling within the General Court’s exclusive jurisdiction, was not raised before that court. According to settled case-law, since, in an appeal, the jurisdiction of the Court of Justice is confined to a review of the findings of law on the pleas and arguments debated before the General Court, a party cannot raise for the first time before the Court of Justice an argument that it did not put forward before the General Court (see, to that effect, judgments of 8 November 2016, BSH v EUIPO, C‑43/15 P, EU:C:2016:837, paragraph 43, and of 13 December 2017, Telefónica v Commission, C‑487/16 P, not published, EU:C:2017:961, paragraph 84). Accordingly, the argument relating to Atmel’s pricing is inadmissible.
In the third place, as regards the appellants’ argument that their intentions were insufficiently taken into account and that they were distorted, it should be observed that that argument is directed against paragraph 80 of the judgment under appeal. However, that paragraph, which starts with the words ‘as a preliminary point’, sets out a ground which is preliminary to the grounds relating to the detailed assessment of the disputed bilateral contacts, and has no bearing on that assessment. Moreover, as the appellants themselves acknowledge, it has been held that, although nothing prevents the Commission or the Courts of the European Union from taking account of the parties’ intentions, that intention is not a necessary factor in determining whether a type of coordination between undertakings is restrictive (see, to that effect, judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 118 and the case-law cited). In those circumstances, their argument must be rejected as ineffective.
It should 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 (judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 71).
In that regard, it must be stated that the Courts of the European Union cannot alter the constituent elements of the infringement lawfully determined by the Commission in the decision at issue either in the context of the review of legality or when exercising their unlimited jurisdiction. According to the Court’s case-law, those courts cannot, in the context of the review of legality referred to in Article 263 TFEU, substitute their own reasoning for that of the author of the contested act. The unlimited jurisdiction enjoyed by the General Court on the basis of Article 31 of Regulation No 1/2003 concerns solely the assessment by that Court of the fine imposed by the Commission (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 73 and 77).
Such an approach is consistent with the case-law that the existence of anticompetitive practices or agreements must, in most cases, be inferred from a number of coincidences or indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules (judgment of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraph 51 and the case-law cited).
There is distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect. It is for appellants to indicate precisely the evidence which has been distorted and show the errors of appraisal which have allegedly been made (see, to that effect, judgments of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraphs 16 and 17, and of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraphs 47 and 48).
In that regard, it must be stated that the General Court essentially recalled, in paragraphs 171 and 173 of the judgment under appeal, the case-law of the Court of Justice, according to which an undertaking which has participated in a single and complex infringement, by its own conduct, which meets 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 also be responsible for 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).
It must be recalled 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, second, 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 (judgment of 26 January 2017, Laufen Austria v Commission, C‑637/13 P, EU:C:2017:51, paragraph 58).
First, the General Court thus complied with the case-law of the Court of Justice that, having regard to point 23 of the 2006 Guidelines, a gravity multiplier of 16% is 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 among the lowest rates on the scale of penalties prescribed for such infringements under those guidelines (see, to that effect, judgment of 26 January 2017, Aloys F. Dornbracht v Commission, C‑604/13 P, EU:C:2017:45, paragraph 75).
Third, in so far as the appellants allege that the General Court infringed the principle of proportionality by refusing to reduce the gravity multiplier of 16% set by the Commission, it should be recalled that, according to settled case-law of the Court of Justice, it is not for the latter, 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. Accordingly, only where the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, does it have to find that the General Court erred in law, on account of the inappropriateness of the amount of a fine (judgment of 30 May 2013, Quinn Barlo and Others v Commission, C‑70/12 P, not published, EU:C:2013:351, paragraph 57 and the case-law cited). However, the appellants have failed to show why the amount of the fine imposed on them is excessive, to the point of being disproportionate.