Telefónica SA and Telefónica de España SAU v European Commission.
Date: 2014-07-10
29. According to settled case-law, it is apparent from Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 112(1)(c) of the Rules of Procedure of the Court of Justice in force at the time when the present appeal was brought that an appeal must indicate precisely the contested elements of the judgment under appeal and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or the ground of appeal in question will be dismissed as inadmissible (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  EU:C:2005:408, paragraph 426, and Case C‑280/08 P Deutsche Telekom  v Commission EU:C:2010:603, paragraph 24).
30. Accordingly, a ground of appeal supported by an argument that is not sufficiently clear and precise to enable the Court to exercise its powers of judicial review, in particular because essential elements on which the ground of appeal is based are not indicated sufficiently coherently and intelligibly in the text of the appeal, which is worded in a vague and ambiguous manner in that regard, does not satisfy those requirements and must be dismissed as inadmissible (see, to that effect, Case C‑194/99 P Thyssen Stahl  v Commission EU:C:2003:527, paragraphs 105 and 106, and Case C‑520/09 P Arkema  v Commission  EU:C:2011:619, paragraph 61 and the case-law cited). The Court has also held that an appeal lacking any coherent structure which simply makes general statements and contains no specific indications as to the points of the order under appeal which may be vitiated by an error of law must be dismissed as clearly inadmissible (see the order in Case C‑107/07 P Weber  v Commission EU:C:2007:741, paragraphs 26 to 28).
40. The principle of effective judicial protection is a general principle of EU law to which expression is now given by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and which corresponds, in EU law, to Article 6(1) of the ECHR (see Case C‑386/10 P Chalkor v Commission  EU:C:2011:815, paragraph 51; Case C‑199/11 Otis and Others  EU:C:2012:684, paragraph 47; and Case C‑501/11 P Schinlder Holding and Others  v Commission EU:C:2013:522, paragraph 36).
41. Whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of EU law and whilst Article 52(3) of the Charter requires rights contained in the Charter which correspond to rights guaranteed by the ECHR to be given the same meaning and scope as those laid down by the ECHR, the latter does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (see Schindler Holding and Others  v Commission EU:C:2013:522, paragraph 32).
42. According to established case-law, EU law provides for a system of judicial review of Commission decisions relating to proceedings under Article 102 TFEU which affords all the safeguards required by Article 47 of the Charter (see, to that effect, Chalkor v Commission EU:C:2011:815, paragraph 67, and Otis and Others  EU:C:2012:684, paragraphs 56 and 63). That system of judicial review 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, by the Court’s unlimited jurisdiction with regard to the penalties provided for in regulations.
45. It follows from the foregoing that the scope of judicial review extends to all Commission decisions relating to a proceeding under Article 102 TFEU, whereas the scope of the unlimited jurisdiction conferred by Article 31 of Regulation No 1/2003 is confined to the parts of such decisions imposing a fine or a periodic penalty payment.
52. It is also apparent from the case-law of the European Court of Human Rights that the characteristics of a judicial body endowed with unlimited jurisdiction include the power to quash in all respects, on questions of fact and law, the decision at issue. Such a body must in particular have jurisdiction to examine all questions of fact and law relevant to the dispute before it (see, inter alia, the judgment of the European Court of Human Rights, A. Menarinin Diagnostics v. Italy , § 59; and Schindler Holding and Others v Commission EU:C:2013:522, paragraph 35).
53. It is established case-law that the review of legality provided for in Article 263 TFEU involves review by the European Union judicature, in respect of both the law and the facts, of the arguments relied on by applicants against the contested decision, which means that it has the power to assess the evidence, annul the decision and to alter the amount of the fine (see, to that effect, Schindler Holding and Others  v Commission  EU:C:2013:522, paragraph 38 and the case-law cited).
54. Accordingly, the Court of Justice has already stated that, whilst, in areas giving rise to complex economic assessments, the Commission has a margin of discretion with regard to economic matters, that does not mean that the EU judicature must refrain from reviewing the Commission’s interpretation of information of an economic nature. The EU judicature must, among other things, not only establish whether the evidence put forward is factually accurate, reliable and consistent, but must also determine whether that evidence contains all the relevant data that must be taken into consideration in appraising a complex situation and whether it is capable of substantiating the conclusions drawn from it ( Commission  v Tetra Laval  EU:C:2005:87, paragraph 39; Chalkor  v Commission  EU:C:2011:815, paragraph 54; and Otis and Others  EU:C:2012:684, paragraph 59).
55. Moreover, failure to review the whole of the contested decision of the court’s own motion does not contravene the principle of effective judicial protection. Compliance with that principle does not require that the General Court — which is indeed obliged to respond to the pleas in law raised and to carry out a review of both the law and the facts — should be obliged to undertake of its own motion a new and comprehensive investigation of the file ( Chalkor  v Commission  EU:C:2011:815, paragraph 66, and Kone and Others  v Commission  EU:C:2013:696, paragraph 32).
56. Accordingly, the EU judicature must carry out its review of legality on the basis of the evidence adduced by the applicant in support of the pleas in law put forward and it cannot use the Commission’s margin of discretion as regards the assessment of that evidence as a basis for dispensing with the conduct of an in‑depth review of the law and of the facts (see, to that effect, Chalkor v Commission  EU:C:2011:815, paragraph 62, and Schindler Holding and Others  v Commission EU:C:2013:522, paragraph 37).
57. Given those characteristics, the review of legality provided for by Article 263 TFEU satisfies the requirements of the principle of effective judicial protection enshrined in Article 6(1) of the ECHR, which corresponds in EU law to Article 47 of the Charter (see, to that effect, Chalkor  v Commission  EU:C:2011:815, paragraph 67; Otis and Others  EU:C:2012:684, paragraph 56; and Schindler and Others  v Commission  EU:C:2013:522, paragraph 38).
59. In any event, it should be noted that, in carrying out the review of legality provided for in Article 263 TFEU, the General Court did not merely ascertain whether there were any manifest errors of assessment but carried out an in-depth review, as regards questions of both fact and law, of the contested decision in the light of the pleas in law put forward by the appellants, thus satisfying the requirements of an unrestricted review for the purpose of Article 47 of the Charter (see, to that effect, Chalkor  v Commission  EU:C:2011:815, paragraph 82, and Case C‑272/09 P KME and Others  v Commission  EU:C:2011:810, paragraph 109).
64. While the appellants seek to have the judgment under appeal set aside or, in the alternative, to have the judgment set aside in so far as it confirms the fine imposed or to obtain a reduction in the amount of the fine, it should be noted that, in the absence of any evidence that the excessive duration of the proceedings before the General Court 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 (Case C‑40/12 P Gascogne Sack Deutschland  v Commission  EU:C:2013:768, paragraphs 81 and 82; Case C‑50/12 P Kendrion  v Commission EU:C:2013:771, paragraphs 82 and 83; and Case C‑58/12 P Groupe Gascog ne v Commission  EU:C:2013:770, paragraphs 81 and 82).
66. In so far as the appellants claim, in the alternative, that the Court should reduce the amount of the fine imposed on them, it should be recalled 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 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 ( Gascogne Sack Deutschland  v Commission EU:C:2013:768, paragraphs 86 to 90; Kendrion  v Commission EU:C:2013:771, paragraphs 91 to 95; and Groupe Gascogne  v Commission EU:C:2013:770, paragraphs 80 to 84).
67. 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 ( Groupe Gascogne  v Commission  EU:C:2013:770, paragraph 90).
75. That argument is ineffective, as pointed out by the Advocate General at point 27 of his Opinion, since the appellants’ reliance on the non-essential nature of wholesale products formed part of a broader argument in which the General Court was invited to apply the criteria established by the Court of Justice in Bronner  (Case C‑7/97 EU:C:1998:569) in connection with a refusal to supply amounting to abuse. As is apparent from paragraphs 180 and 181 of the judgment under appeal, the abusive conduct of which the appellants stand accused, which took the form of a margin squeeze, constitutes an independent form of abuse distinct f rom that of refusal to supply, so that the criteria established in Bronner  (EU:C:1998:569) were not applicable in the present case (Case C‑52/09 TeliaSonera Sverige EU:C:2011:83, paragraphs 55 to 58).
84. It should be recalled that, in accordance with Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice, appeals against decisions of the General Court are limited to points of law. It is settled case-law that the General Court has exclusive jurisdiction to find and appraise the relevant facts and, in principle, to examine the evidence it accepts in support of those facts. 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 (Case C‑535/06 P Moser Baer India  v Council EU:C:2009:498, paragraph 32 and case-law cited, and Case C‑89/11 P E.ON Energie  v Commission EU:C:2012:738, paragraph 64).
90. In the light of the foregoing, as observed by the Advocate General at point 12 of his Opinion, the plea of inadmissibility raised by the Commission, the ECTA, France Telecom and Ausbanc Consumo must be upheld and the second ground of appeal rejected in its entirety as inadmissible.
The third ground of appeal, alleging errors of law in the assessment of the dominant position
96. As is apparent from paragraph 75 above, the General Court stated at paragraphs 180 and 181 of the judgment under appeal that the criteria established by the Court in Bronner  (EU:C:1998:569) related to a refusal to supply amounting to abuse. However, the abusive conduct of which the appellants stand charged, which takes the form of a margin squeeze, constitutes an independent form of abuse distinct from that of refusal to supply ( TeliaSonera Sverige  EU:C:2011:83, paragraph 56), to which the criteria established in Bronner  (EU:C:1998:569) are not applicable, in particular, the essential nature of the inputs.
99. It has consistently been held that a plea raised for the first time in an appeal before this Court must be rejected as inadmissible. In an appeal, the Court’s jurisdiction is confined to examining the assessment by the General Court of the pleas argued before it. To allow a party to put forward in an appeal before the Court of Justice a plea in law which it has not raised before the General Court would amount to allowing that party to bring before the Court, whose jurisdiction in appeals is limited, a wider case than that heard by the General Court ( Dansk Rørindustri and Others  v Commission  EU:C:2005:408, paragraph 165 and the case-law cited).
118. That complaint must be rejected as unfounded as it is based on a misinterpretation of paragraph 69 of the judgment in TeliaSonera Sverige  (EU:C:2011:83), in which the Court simply stated that, when assessing the effects of the margin squeeze, the question whether the wholesale product is indispensable may be relevant, with the result that the General Court was not obliged to take account of it.
124. That third complaint must be rejected as unfounded since, first, in order to establish that a practice such as margin squeeze is abusive, that practice must have an anti-competitive effect on the market, although the effect does not necessarily have to be concrete, it being sufficient to demonstrate that there is a potential anti‑competitive effect which may exclude competitors who are at least as efficient as the dominant undertaking (see TeliaSonera Sverige  EU:C:2011:83, paragraph 64) and, second, the General Court found at paragraph 282 of the judgment under appeal, in its assessment of the facts, that the Commission had demonstrated that there were such potential effects.
147. It should be recalled that the principle that penalties must be clearly defined by law and the principle of legal certainty cannot be interpreted as prohibiting the gradual clarification of the rules of criminal liability but may preclude the retroactive application of a new interpretation of a rule establishing an offence ( Dansk Rørindustri and Others  v Commission  EU:C:2005:408, paragraph 217).
148. That is particularly true of a judicial interpretation which produces a result that was not reasonably foreseeable at the time when the offence was committed, especially in the light of the interpretation put on the provision in the case-law at the material time ( see Dansk Rørindustri and Others  v Commission  EU:C:2005:408, paragraph 218 and the case-law cited).
156. With regard to whether the offences were committed intentionally or as a result of serious negligence and are therefore liable to be penalised by the imposition of a fine in accordance with the first subparagraph of Article 15(2) of Regulation No 17 or Article 23(2) of Regulation No 1/2003, it is the Court’s settled case-law that that condition is satisfied where the undertaking concerned cannot be unaware of the anti-competitive nature of its conduct, whether or not it is aware that it is infringing the competition rules of the Treaty ( Deutsche Telekom  v Commission  EU:C:2010:603, paragraph 124 and the case-law cited).
178. As the Commission was correct to observe, the General Court did not err in law in finding, at paragraph 413 of the judgment under appeal, that the fact that the relevant geographic market is restricted to Spain does not mean that the infringement cannot be classified as ‘very serious’. The mere fact that, in the Deutsche Telekom and Wanadoo decisions, the Commission classified the infringements in question as ‘serious’, even though the relevant geographic markets were larger than that in question in the present case, does not affect that assessment, as the classification of an infringement as ‘serious’ or ‘very serious’ does not depend only on the size of the relevant geographic market but also, as correctly observed by the General Court at paragraph 413 of the judgment under appeal, other criteria characterising the infringement.
181. The General Court did not err in law in pointing out, at paragraph 416 of the judgment under appeal, that in the determination of the amount of the fine in a case of infringement of the competition rules, the Commission fulfils its obligation to state reasons when it indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration, and it is not required to indicate the figures relating to the method of calculating the fines (see Case C‑280/98 P Weig v Commission EU:C:2000:627, paragraphs 43 to 46; Case C‑291/98 P Sarrió  v Commission  EU:C:2000:631, paragraphs 73 to 76; and 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 EU:C:2002:582, paragraphs 463 to 464).
183. Admittedly, it would have been preferable for the Commission to have included in the contested decision reasons which went beyond those requirements, inter alia by setting out the figures on the basis of which it took account of the varying degree of seriousness of the infringement when determining the starting amount of the fine. However, the availability of that possibility is not such as to alter the scope of the requirements attaching to the duty to state reasons in so far as concerns the contested decision (see, to that effect, Weig  v Commission  EU:C:2000:627, paragraph 47; Sarrió v Commission  EU:C:2000:631, paragraph 77; and Case C‑199/99 P Corus UK  v Commission EU:C:2003:531, paragraph 149).
189. As the General Court observed at paragraph 425 of the judgment under appeal, the Court has consistently held that the Commission’s practice in previous decisions does not itself serve as a legal framework for the fines imposed in competition matters and that decisions in other cases can give only an indication for the purpose of determining whether there is discrimination (Case C‑549/10 P Tomra Systems and Others  v Commission  EU:C:2012:221, paragraph 104 and the case‑law cited).
190. Accordingly, the fact that the Commission has, in the past, imposed fines set at a specific level for certain categories of infringements cannot prevent it from setting new fines at a higher level, if raising of penalties is deemed necessary in order to ensure the implementation of EU competition policy, that policy continuing to be defined solely by Regulation No 1/2003 ( Tomra Systems and Others v Commission  EU:C:2012:221, paragraph 105 and the case-law cited).
200. It follows from the foregoing considerations that, in order to satisfy the requirements of conducting a review exercising its powers of unlimited jurisdiction for the purpose of Article 47 of the Charter with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 TFEU and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement.
205. In so far as, by the fourth complaint, the appellants criticise the General Court’s assessment at paragraph 432 of the judgment under appeal of whether the starting amount of the fine was proportionate in the light of the relevant facts, it should be borne in mind that 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. 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 (see, to that effect, E.ON Energie  v Commission  EU:C:2012:738, paragraphs 125 and 126; Case C‑70/12 P Quinn Barlo and Others  v Commission  EU:C:2013:351, paragraph 57; and Case C‑586/12 P Koninklijke Wegenbouw Stevin  v Commission  EU:C:2013:863, paragraph 33 and the case-law cited).
213. It should be noted in that regard that the exercise of powers of unlimited jurisdiction provided for in Articles 261 TFEU and Article 31 of Regulation No 1/2003 does not amount to a review of the Court’s own motion and that proceedings before the Courts of the European Union are inter partes. With the exception of pleas involving matters of public policy which the Courts are required to raise of their own motion, such as the failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against such a decision and to adduce evidence in support of those pleas ( Chalkor v Commission  EU:C:2011:815, paragraph 64, and Case C‑389/10 P KME Germany and Others  v Commission  EU:C:2011;816, paragraph 131).