Salzgitter Mannesmann GmbH v Commission of the European Communities.
Date: 2007-01-25
40. The Court has recognised the general principle of Community law that everyone is entitled to a fair legal process (Case C-185/95 P Baustahlgewebe  v Commission  [1998] ECR I‑8417, paragraph 21; Joined Cases C‑174/98 P and C‑189/98 P Netherlands and Van der Wal  v Commission  [2000] ECR I‑1, paragraph 17; and Case C‑341/04 Eurofood IFSC  [2006] ECR I‑3813, paragraph 65).
41. It has also held that that principle is inspired by the fundamental rights which form an integral part of the general principles of Community law which the Court of Justice enforces, drawing inspiration from the constitutional principles common to the Member States and from the guidelines supplied, in particular, by the ECHR ( Eurofood IFSC , paragraph 65).
44. In those conditions specific to the Commission’s investigations into anti-competitive practices, the principle that everyone has the right to a fair legal process cannot be interpreted as meaning that documents containing incriminating evidence must automatically be excluded as evidence when certain information must remain confidential. That confidentiality may also relate to the identity of the authors of the documents and also to persons who transmitted them to the Commission.
45. In the light of the foregoing considerations, the Court of First Instance was correct to hold:
‘84 …, as regards the admissibility of the sharing key document as evidence of the infringement referred to in Article 1 of the contested decision, that the principle that prevails in Community law is that of the unfettered evaluation of evidence and that it is only the reliability of the evidence that is decisive when it comes to its evaluation … . It may also be necessary for the Commission to protect the anonymity of informants and that circumstance cannot suffice to require the Commission to disregard evidence in its possession.
85 Consequently, although Mannesmann’s arguments may be relevant to the evaluation of the reliability and therefore the probative value of the sharing key document, that document cannot be regarded as inadmissible evidence which must be removed from the file.’
46. It is also apparent from the judgment under appeal that the Court of First Instance, in assessing the credibility of the sharing key document, took the anonymous origin of that document into account. It was held at paragraph 86 of the judgment under appeal that ‘in so far as Mannesmann derives from its arguments concerning the admissibility of that document a complaint in respect of its credibility, it must be held that its credibility is necessarily reduced by the fact that the context in which it was drafted is largely unknown and because the Commission’s assertions in that regard cannot be verified’.
47. The Court of First Instance further recognised that evidence of anonymous origin, such as the sharing key document, cannot in itself establish the existence of an infringement of Community competition law. That Court held at paragraph 87 of the judgment under appeal that only ‘in so far as the sharing key document contains specific information corresponding to the information in other documents, in particular Mr Verluca’s statements, [must] those matters … be regarded as mutually supporting’. The Court of First Instance had already emphasised, at paragraphs 81 and 82 of the judgment under appeal, that the sharing key document formed part of a body of evidence and that it was of only ancillary importance. That assessment is also to be found at paragraph 94 of the judgment, where the Court of First Instance concludes that that document retains probative value only ‘as one of a number of coherent indicia identified by the Commission which corroborate certain of the essential assertions in Mr Verluca’s statements’.
48. Regard being had to the limits which the Court of First Instance thus placed on the probative value of the sharing key document, it must be concluded that no error of law was made in the analysis of the admissibility and relevance of that document as evidence.
55. It must be borne in mind that in an appeal the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it (Case C-7/95 P John Deere  v Commission  [1998] ECR I‑3111, paragraph 22). Save where the evidence adduced before the Court of First Instance has been distorted, the appraisal therefore does not constitute a point of law which is subject to review by the Court of Justice (Case C-53/92 P Hilti and Others  v Commission  [1994] ECR I-667, paragraph 42, and Joined Cases C‑204/00 P, C‑205/00 P, C-211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others  v Commission  [2004] ECR I‑123, paragraph 49).
68. It must be borne in mind that although, in the context of an appeal, it is not open to the Court of Justice to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law, the exercise of that jurisdiction in respect of the determination of those fines cannot result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 81(1) EC (Case C‑291/98 P Sarrió  v Commission  [2000] ECR I‑9991, paragraphs 96 and 97, 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  [2002] ECR I‑8375, paragraph 617).
69. However, the appeal must indicate the legal arguments advanced in support of the plea alleging breach of the principle of equal treatment, failing which the plea is inadmissible ( Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 618).
71. As regards, next, the comparison with the cooperation shown by Dalmine, the Court of First Instance held, at paragraphs 303 to 305 of the judgment under appeal, that ‘in order to receive a reduction in the fine on the ground of not contesting the facts, in accordance with point D.2 of the Leniency Notice, an undertaking must expressly inform the Commission that it has no intention of substantially contesting the facts, after perusing the statement of objections’. That finding by the Court of First Instance is consistent with the case-law of the Court of Justice, according to which a distinction must be drawn between express admission of an infringement and a mere failure to deny it, which does not contribute to facilitating the Commission’s task of finding and bringing to an end infringements of the Community competition rules (Joined Cases C‑65/02 P and C‑73/02 P ThyssenKrupp  v Commission  [2005] ECR I‑6773, paragraph 58). Accordingly, in the absence of such an express admission on the appellant’s part, the latter’s argument alleging discrimination by comparison with Dalmine must be rejected as unfounded.