1 By its appeal, Ori Martin SA requests an alteration in the order of the General Court of the European Union of 1 June 2017, Ori Martin v Court of Justice of the European Union (T‑797/16, not published, ‘the order under appeal’, EU:T:2017:396), by which the General Court dismissed its action for damages in respect of the harm incurred as a result of an alleged breach, by the Court of Justice of the European Union, of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 By application lodged at the Registry of the General Court on 14 September 2010, Ori Martin brought an action against Commission Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/38344 - Prestressing steel), as amended by Commission Decision C(2010) 6676 final of 30 September 2010 and by Commission Decision C(2011) 2269 final of 4 April 2011, by which the Commission had, inter alia, imposed a fine of EUR 15.96 million on Siderurgica Latina Martin SpA (‘SLM’), of which EUR 14 million was imposed jointly and severally on Ori Martin.
3 In its application, which gave rise to Case T‑419/10, Ori Martin claimed that the General Court should annul the contested decision in so far as that decision provided that it was jointly and severally liable for the acts committed by SLM and that the General Court should annul or reduce the fine imposed on it by that decision.
4 In the judgment of 15 July 2015, SLM and Ori Martin v Commission (T‑389/10 and T‑419/10, EU:T:2015:513), the General Court, in particular, reduced to EUR 13.3 million the amount of the fine imposed jointly and severally on the appellant and on SLM and dismissed the action as to the remainder.
5 By application lodged at the Registry of the Court of Justice on 18 September 2015, the appellant brought an appeal against that judgment, which gave rise to Case C‑490/15 P.
6 That appeal was dismissed by judgment 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).
7 By application lodged at the Registry of the General Court on 15 November 2016, Ori Martin brought an action for damages against the Court of Justice of the European Union in respect of the harm which it allegedly incurred as a result of the judgment 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).
8 By the order under appeal, the General Court dismissed the action as manifestly lacking any foundation in law pursuant to Article 126 of its Rules of Procedure.
9 First, in paragraphs 6 and 7 of that order, the General Court distinguished the action brought by the appellant from those which can be brought for damages in respect of alleged harm due to excessive length of proceeding before the EU judicature, the latter of which do not involve an assessment of the merits of the findings of the Court of Justice or of the General Court in their judgments or orders. According to the General Court, the purpose of that action was to call into question the finding, in the judgment 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), concerning the application of the presumption that the appellant had exercised a decisive influence on SLM.
10 Second, the General Court considered, in paragraphs 8 to 10 of the order under appeal, that only those requests and applications provided for in Articles 154, 155 and 157 to 159 of the Rules of Procedure of the Court of Justice, to which Article 190(1) of those Rules of Procedure refers, may be brought against a judgment or an order of the Court of Justice on appeal. The General Court made clear that those requests and applications must, moreover, be brought before the Court of Justice itself. According to the General Court, the action brought by the appellant did not relate to a request for rectification of a clerical error, a request for rectification of a failure to adjudicate, to third-party proceedings, or to an application for revision, as provided for in Articles 154, 155 and 157 to 159 of the Rules of Procedure of the Court of Justice.
11 Ori Martin claims that the Court of Justice should: - rectify the order under appeal; - find that the Court of Justice of the European Union breached Article 47 of the Charter; and therefore - order the European Union to pay damages for the harm suffered, estimated at EUR 13.3 million, or such other sum as the Court may consider as fair.
12 The Court of Justice of the European Union contends that the Court should: - dismiss the appeal; and - order the appellant to pay the costs.
13 Ori Martin relies on two grounds of appeal alleging, respectively, a distortion of the application at first instance and an error of law.
14 By its first ground of appeal, the appellant submits that the General Court distorted the substance of its claims for damages by holding, in paragraph 7 of the order under appeal, that, by its action, the appellant sought to call into question the finding, in the judgment 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), concerning the application of the presumption that the appellant had exercised a decisive influence on SLM. The appellant maintains that it is clear from its application at first instance that its claims sought damages for the harm caused, not by that issue being unsubstantiated in the judgment, but by a defect in the statement of reasons as a result of which the defendant did not state the reasons why, notwithstanding the factors the appellant relied on, that presumption was not rebutted.
15 By its second ground of appeal, the appellant claims that the General Court erred, in paragraphs 8 to 10 of the order under appeal, by confining the cases of irregularity affecting a judgment given by the EU judicature that are capable of engendering a right to damages under Article 47 of the Charter only to cases of excessively long proceedings.
16 In response to the first ground of appeal, the Court of Justice of the European Union claims that, in so far as the appellant sought, by its action at first instance, to obtain a statement of reasons which the appellant considered to be lacking, the General Court was entitled to find that its action sought to call into question the substance of the judgment.
17 The Court of Justice of the European Union contends that the Court should dismiss the two grounds of appeal relied on and, consequently, the appeal in its entirety.
18 As regards the first ground of appeal, it should be noted that, so as not to neglect its role, the EU judicature must examine the various claims and pleas submitted by an applicant, as formulated in his pleadings, without modifying their nature or substance (see, to that effect, judgment of 29 June 1994, Klinke v Court of Justice, C‑298/93 P, EU:C:1994:273, paragraph 20).
19 In the present case, in paragraphs 2, 6 and 7 of the application at first instance, it was stated that the alleged irregularity was based on the ground that the appellant had not been put in a position to understand the reasons why a fine had been imposed on it, which deprived it of the opportunity of avoiding being fined in the future.
20 In paragraph 22 of the application, it was added that, ‘by not setting out in paragraphs 53 to 72 of its judgment 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),] the reasons for rejecting the factual clarifications made by the appellant …, the [defendant] [had] breached Article 47 of the Charter, in so far as it [had] denied [it] … a fair trial, by virtue of which a person reprimanded or fined must know the real reasons why, and on the basis of what particular facts, he was reprimanded or fined’.
21 In paragraphs 25 to 28 of that application, the appellant relied, as regards the rule the breach of which it maintained engendered, in the present case, a right to damages, first, on ‘there [being] reasonable grounds for considering that Article 47 of the Charter is breached on every occasion that courts adopt a measure which does not allow a person to understand clearly and objectively the reasons why, and on the basis of what particular facts, he was fined’, and, second, on ‘the courts’ obligation to safeguard the right to a fair trial [requiring], by virtue of the principle of the sound administration of justice, that judgments always set out the particular grounds on the basis of which they were adopted and, as a preliminary matter, the exact facts that were unlawful’.
22 In paragraphs 30 to 43 of the application at first instance, it was repeated that, in the present case, the unlawfulness of the conduct alleged against the defendant resulted from the fact that ‘the explanation provided by the [defendant] in the judgment under appeal prevent[ed] [it] … from understanding in concrete terms why it [had been] held liable for the actions of SLM and prevent[ed] it from understanding why its particular situation - nonetheless clearly outlined - [had] not been regarded as capable of rebutting the presumption of an actual decisive influence on SLM’.
23 Nevertheless, in paragraph 7 of the order under appeal, the General Court held that the appellant sought, by its action, to call into question the finding, in the judgment 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), concerning the application of the presumption that the appellant exercised a decisive influence on SLM notwithstanding that, as is clear from the foregoing, the irregularity relied on by the appellant was based on a defect in the statement of reasons and therefore on breach of an essential procedural requirement, such that the General Court distorted the substance of the appellant’s sole claim for damages at first instance and therefore did not adequately address that claim.
24 However, according to settled case-law, where the grounds of a judgment of the General Court disclose an infringement of EU law but the operative part of the judgment is shown to be well founded for other legal reasons, the appeal must be dismissed (see, to that effect, judgment of 3 October 2013, Rintisch v OHIM, C‑121/12 P, EU:C:2013:639, paragraph 35).
25 The alleged irregularity pleaded at first instance has not been established.
26 It should be noted, first, that the obligation to state reasons does not require the EU judicature to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and that the reasoning may therefore be implicit on condition that it enables the persons concerned to know why the EU judicature has not upheld their arguments (judgment of 6 September 2012, Prezes Urzędu Komunikacji Elektronicznej v Commission, C‑422/11 P and C‑423/11 P, EU:C:2012:553, paragraph 48). Second, under Article 256(1) TFEU and of the first paragraph of Article 59 of the Statute of the Court of Justice of the European Union, an appeal may be brought on points of law only.
27 Thus, in the case which gave rise to the judgment 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), in order to allow the appellant to know the reasons why the defendant reached the conclusion that the General Court had not erred in law by refusing, despite the factors relied on by the appellant, to rebut the presumption of a decisive influence on SLM and, thereby, to comply with the obligation to state reasons, it was sufficient for the defendant to invoke the legal principle on which it considered that the General Court had been entitled to find that the factors relied on were not capable of rebutting that presumption.
28 The defendant complied with that obligation to the requisite standard. In paragraph 60 of its judgment 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), the Court of Justice stated, first, that it is settled case-law that, in order to ascertain whether a subsidiary decides independently upon its own conduct on the market, account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case, and, second, that the Commission is entitled to impose fines on a parent company where it and its subsidiary form part of a single undertaking for the purposes of Article 101 TFEU, without a parent-subsidiary relationship in which the parent company instigates the infringement or, a fortiori, the parent company’s involvement in the infringement being necessary.
29 It follows that the alleged irregularity on which the appellant relied at first instance, as set out in its application at first instance, was not established and that, consequently, the operative part of the order under appeal, as referred to in paragraph 8 above, must be regarded as justified.
30 Consequently, the first ground of appeal must be dismissed.
31 It should be noted that the second ground of appeal alleges that the General Court erred in law by holding that the only irregularities affecting a judgment given by the EU judicature capable of engendering a right to damages are those relating to excessively long proceedings.
32 In that regard, it should, however, be pointed out that, according to settled case-law, pleas in an appeal directed against grounds which do not provide the necessary basis for the operative part of the judgment or order under appeal are inoperative, and must therefore be rejected (order of the President of the Court of 12 February 2003, Marcuccio v Commission, C‑399/02 P(R), EU:C:2003:90, paragraph 16 and the case-law cited).
33 It must be held that, since the alleged irregularity which the appellant claims vitiates the judgment 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), has not been established, it was not necessary for the General Court to rule on the possible consequences of irregularities vitiating a judgment of the Court of Justice in respect of the liability of the European Union.
34 Since the findings referred to in paragraph 31 above do not provide the necessary basis for the operative part of the order under appeal, the Court finds that the second ground of appeal is ineffective and must therefore be dismissed.
35 Having regard to all of the foregoing considerations, the appeal must be dismissed in its entirety.
36 Under Article 138(1) of the Rules of Procedure of the Court, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
37 Since the defendant has applied for costs and the appellant has been unsuccessful, the appellant must be ordered to pay the costs of the defendant and to bear its own costs.