Moritz J. Weig GmbH & Co. KG v Commission of the European Communities.
Date: 2000-11-16
31 The Court of First Instance first of all referred, in paragraph 182 of the contested judgment, to the settled case-law to the effect that the purpose of the obligation to give reasons for an individual decision is to enable the Community judicature to review the legality of the decision and to provide the party concerned with an adequate indication as to whether the decision is well founded or whether it may be vitiated by some defect enabling its validity to be challenged, the scope of that obligation being dependent on the nature of the act in question and on the context in which it was adopted (see, in particular, besides the case-law cited by the Court of First Instance, Case C-22/94 Irish Farmers Association and Others v Ministry for Agriculture, Food and Forestry, Ireland, and the Attorney General [1997] ECR I-1809, paragraph 39).
43 In those circumstances, in the light of the case-law referred to in paragraphs 182 and 183 of the contested judgment, the essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration. If those factors are not stated, the decision is vitiated by failure to state adequate reasons.
44 The Court of First Instance correctly held in paragraphs 189 and 190 of the contested judgment that the Commission had satisfied that requirement. It must be observed, as the Court of First Instance observed, that points 167 to 172 of the Decision set out the criteria used by the Commission in order to calculate the fines. First, point 167 concerns in particular the duration of the infringement. It also sets out, as does point 168, the considerations on which the Commission relied in assessing the gravity of the infringement and the general level of the fines. Point 169 contains the factors taken into account by the Commission in determining the amount to be imposed on each undertaking. Point 170 identifies the undertakings which were to be regarded as ringleaders of the cartel, and which should accordingly bear special responsibility in comparison with the other undertakings. Lastly, points 171 and 172 of the Decision set out the effect on the amount of the fines of the cooperation by various manufacturers with the Commission during its investigations in order to establish the facts or when they replied to the statement of objections.
45 The fact that more specific information, such as the turnover achieved by the undertakings or the rates of reduction applied by the Commission, were communicated subsequently, at a press conference or during the proceedings before the Court of First Instance, is not such as to call in question the findings in paragraphs 189 and 190 of the contested judgment. Where the author of a contested decision provides explanations to supplement a statement of reasons which is already adequate in itself, that does not go to the question whether the duty to state reasons has been complied with, though it may serve a useful purpose in relation to review by the Community court of the adequacy of the grounds of the decision, since it enables the institution to explain the reasons underlying its decision.
46 Admittedly, the Commission cannot, by a mechanical recourse to arithmetical formulae alone, divest itself of its own power of assessment. However, it may in its decision give reasons going beyond the requirements set out in paragraph 43 of this judgment, inter alia by indicating the figures which, especially in regard to the desired deterrent effect, influenced the exercise of its discretion when setting the fines imposed on a number of undertakings which participated, in different degrees, in the infringement.
47 It may indeed be desirable for the Commission to make use of that possibility in order to enable undertakings to acquire a detailed knowledge of the method of calculating the fine imposed on them. More generally, such a course of action may serve to render the administrative act more transparent and facilitate the exercise by the Court of First Instance of its unlimited jurisdiction, which enables it to review not only the legality of the contested decision but also the appropriateness of the fine imposed. However, as the Commission has submitted, the availability of that possibility is not such as to alter the scope of the requirements resulting from the duty to state reasons.
52 By its second plea the appellant complains that the Court of First Instance infringed the principle of equal treatment, Article 15(2) of Regulation No 17 and Article 172 of the Treaty when the Court fixed the fine imposed on it.
53 The second plea is in four parts.
54 In the first two parts, which should be considered together, the appellant complains that the Court of First Instance did not apply the Commission's method of calculation, namely:
relevant turnover x percentage in respect of the gravity of the infringement x percentage in respect of duration (in the present case a maximum of 60 months) = total (basic amount); basic amount - reduction in the event of cooperation = amount of the fine,
even though the Court of First Instance accepted that the method was valid.
55 In those circumstances, the appellant was treated less favourably than the undertakings whose lesser participation in the infringement the Commission had already recognised and on which it had imposed a lower fine in accordance with its formula. That had been the outcome in Case T-295/94 Buchmann v Commission [1998] ECR II-813, Case T-310/94 Gruber + Weber v Commission [1998] ECR II-1043, and Case T-348/94 Enso Española v Commission [1998] ECR II-1875.
56 The appellant contends that it was also treated less favourably inasmuch as the Court of First Instance itself applied to other undertakings the Commission's method of calculation and thereby reduced the fines. It refers, to that effect, to the judgments in Enso Española v Commission, Gruber + Weber v Commission, cited above, and in Case T-311/94 BPB de Eendracht v Commission [1998] ECR II-1129 and Case T-347/94 Mayr-Melnhof v Commission [1998] ECR II-1751. Although it is true that those judgments do not disclose the way in which the Court of First Instance calculated the reduction in the fines, if account is taken of the criteria adopted by the Court of First Instance (duration of participation in the infringement, relevant turnover, the degree of gravity), the application of the Commission's method, would, according to the appellant, lead to practically the same result. That shows that in those cases the Court of First Instance was influenced by the calculation method adopted by the Commission when it fixed the fines.
57 In the present case, after it had found that the appellant had not participated in the first 22 months of the infringement (the total duration of the infringement being 60 months), the Court of First Instance fixed the fine at ECU 2 500 000, whereas, if it had applied the Commission's formula, it would, according to the appellant, have calculated the new fine as follows:
ECU 56 500 000 x 0.08 x 38/60 = ECU 2 863 (basic amount)
ECU 2 863 000 - ECU 954 000 = ECU 1 909 000 (amount of the fine).
58 The Commission submits that the application for review of the fine, as amended by the Court of First Instance, is inadmissible according to the case-law of the Court of Justice on the ground that the exercise of unlimited jurisdiction involves a global assessment of all the factors in the case, so that it is not possible to carry out such an assessment in appeal proceedings (see Ferriere Nord v Commission, cited above, paragraph 31, and Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, paragraph 34).
59 On the merits, the Commission submits, with regard to the alleged failure by the Court of First Instance to apply the Commission's method of calculation, that the Court of First Instance, as is clear from paragraph 306 of the contested judgment, fixed the fine imposed on the appellant in the exercise of its unlimited jurisdiction, that is to say, using its own power to assess that fine.
60 The Commission adds that, apart from Enso Española v Commission, cited above, the cases to which the appellant refers do not concern the duration of the infringement, but rather the turnover taken into account by the Commission (Gruber + Weber v Commission and Mayr-Melnhof v Commission, cited above) or the fact that less serious participation in the infringement was combined with a shorter duration of the infringement (BPB de Eendracht v Commission, cited above).
61 In BPB de Eendracht v Commission a purely arithmetical reduction of the fine by reference to the duration of the participation would have resulted in a reduced fine of ECU 729 167. However, the Court of First Instance imposed a fine of ECU 750 000, in particular because of the undertaking's minor active participation in the infringement. Likewise, in the case of Enso Española v Commission, cited above, the Court reduced the fine from ECU 1 750 000 to ECU 1 200 000. A reduction in proportion to the duration of the infringement would have resulted in a fine of ECU 1 181 250. Contrary to the appellant's assertion, the Court of First Instance did not use a simple mathematical formula, but fixed the fine by taking into account all the circumstances of the case in the exercise of its unlimited jurisdiction, as is apparent from paragraph 306 of the contested judgment.
62 It should be observed that the Court of First Instance has unlimited jurisdiction when it rules on the amount of fines imposed on undertakings for infringements of Community law and 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 Court of First Instance in the matter (Ferriere Nord v Commission, cited above, paragraph 31).
63 However, when the amount of the fines imposed is determined the exercise of unlimited jurisdiction must not result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 85(1) of the Treaty.
64 The appellant's complaint alleging infringement of the principle of non-discrimination is based on the premiss that in the judgments in Buchmann v Commission, Enso Española v Commission, Gruber + Weber v Commission, BPB de Eendracht v Commission and Mayr-Melnhof v Commission, cited above, the Court of First Instance intended to apply, unlike in its own case, the method of calculation adopted by the Commission.
65 In the absence of any indication to the contrary in the latter judgments, that premiss must be regarded as correct. Although in those judgments the Court of First Instance does not expressly state its intention actually to apply the method of calculation adopted by the Commission, it should be noted that not only did the Court of First Instance not expressly call in question the correctness of that method, but the amount of the fine imposed by it in each of those judgments corresponds generally to that which would have resulted from application of the method to the new figures adopted by the Court, in particular in regard to turnover, gravity or the duration of the infringement.
66 Thus, in Enso Española v Commission, cited above, which, as the Commission has stated, is the most similar to the present case in that the Court of First Instance there also reduced the duration of the infringement to be taken into account in order to calculate the fine, but did not uphold any other argument by the applicant which would have justified a reduction of its fine, the Court fixed the fine at ECU 1 200 000, which corresponds approximately to the amount which would ensue if the Commission's method of calculation were applied (ECU 1 150 000).
67 As the Advocate General has observed in point 42 of his Opinion, the amount of the fine imposed on the appellant is clearly an exception to that general approach, but no objective justification for it was given by the Court of First Instance. Although application of the method would have led to an amount of ECU 1 900 000, the Court of First Instance fixed the amount of the fine at the considerably higher amount of ECU 2 500 000. The appellant, which considered that the contested judgment was undoubtedly vitiated by a clerical or calculation error, therefore applied to the Court of First Instance for rectification of the judgment, but its application was rejected by order of the Court of First Instance of 16 September 1998. In that order, the President of the Third Chamber (Extended Composition) of the Court of First Instance stated, notwithstanding the foregoing, that the contested judgment did not contain any clerical or calculation error, nor any manifest inaccuracy as to the amount of the fine.
68 It must therefore be found that in paragraph 306 of the contested judgment the Court of First Instance infringed the principle of equal treatment and the first two parts of the second plea must be upheld.
75 It follows from the foregoing that the Court of First Instance considered, in the exercise of its unlimited jurisdiction, that its findings regarding the effects of the infringement were not such as to alter the Commission's own assessment of the gravity of the infringement, or, more precisely, as to diminish the gravity of the infringement so assessed. It considered, in the light of the specific circumstances of the case and the context in which the infringement took place, as taken into account by the Decision and set out in paragraphs 69 and 70 of this judgment, and in the light of the deterrent effect of the fines imposed, all being factors which could be applied, in accordance with the case-law of the Court of Justice, in assessing the gravity of the infringement (see Musique Diffusion Française and Others v Commission, cited above, paragraph 106; Order in SPO and Others v Commission, cited above, paragraph 54, and Ferriere Nord v Commission, cited above, paragraph 33), that it was not appropriate to reduce the level of the fine.
79 It suffices in that regard to observe, as the Commission has submitted, that the Court of First Instance set out in detail, in paragraphs 280 to 289 of the contested judgment, its reasons for not upholding the objection alleging that the Commission failed to have adequate regard to the appellant's cooperation in the procedure. In reaching that conclusion, the Court of First Instance undertook an assessment of the facts which cannot be questioned in appeal proceedings (see Case C-362/95 P Blackspur DIY and Others v Council and Commission [1997] ECR I-4775, paragraph 42).