OPINION OF ADVOCATE GENERAL

Poiares Maduro

delivered on 16 November 2006 (1)

Case C‑3/06 P

Groupe Danone

v

Commission of the European Communities

(Appeal – Competition – Fine – Article 15(2) of Council Regulation No 17 – Repeated infringement – Guidelines on the method of setting fines – Article 229 EC – Article 17 of Council Regulation No 17 – Unlimited jurisdiction – Non ultra petita rule – Rights of the defence)

1.     The present appeal, lodged by Groupe Danone (‘the appellant’), is directed against the judgment of the Court of First Instance of 25 October 2005 in Case T‑38/02 Groupe Danone v Commission (‘the judgment under appeal’). (2) That case concerned Commission Decision 2003/569/EC of 5 December 2001 (‘the contested decision’), (3) which imposed a fine on the appellant for its participation in a cartel in the Belgian brewing industry. For the most part, the Court of First Instance upheld the contested decision, but it reduced the fine. In the present proceedings, which only concern the setting of the fine, the appellant argues that the Court of First Instance erred in law by relying on an incorrect interpretation of the concept of repeated infringement and by unlawfully amending the Commission’s method of calculation.

I –  Background to the appeal

A –    Legal framework

2.     At the material time, the implementation of Articles 81 EC and 82 EC, including the aspect of fines which the Commission may impose in the event of infringement, was covered by Council Regulation (EEC) No 17. (4)

3.     Article 15(2) of Regulation No 17 provides:

‘The Commission may by decision impose on undertakings or associations of undertakings fines of from [EUR] 1 000 to [EUR] 1 000 000, or a sum in excess thereof but not exceeding 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement where, either intentionally or negligently:

a) they infringe Article [81](1) or Article [82] of the Treaty; or

b) they commit a breach of any of the obligations imposed pursuant to Article 8(1) [of the regulation].

 In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’

4.     The Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3) (‘the Guidelines’) lay down a method for determining the amount of such fines, ‘which start[s] from a basic amount that will be increased to take account of aggravating circumstances or reduced to take account of attenuating circumstances’ (second introductory paragraph of the Guidelines).

5.     According to the Guidelines, ‘the basic amount will be determined according to the gravity and duration of the infringement, which are the only criteria referred to in Article 15(2) of Regulation No 17’ (Section 1 of the Guidelines). The basic amount will be increased where there are aggravating circumstances such as repeated infringement of the same type by the same undertaking (Section 2 of the Guidelines). The basic amount will be reduced where there are attenuating circumstances (Section 3 of the Guidelines).

6.     By virtue of Article 229 EC, ‘[r]egulations adopted jointly by the European Parliament and the Council, and by the Council … may give the Court of Justice unlimited jurisdiction with regard to the penalties provided for in such regulations’.

7.     In light of that provision, Article 17 of Regulation No 17 provides:

‘The Court of Justice shall have unlimited jurisdiction within the meaning of Article [229 EC] to review decisions whereby the Commission has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed.’

B –    Factual background

8.     The contested decision (5) is addressed to the appellant and also to Interbrew, Alken‑Maes, Haacht and Martens. The decision finds two separate infringements of the competition rules, namely, first, a complex set of agreements and/or concerted practices in the Belgian brewing industry (‘the Interbrew/Alken‑Maes Cartel’) and, secondly, concerted practices in respect of private‑label beer.

9.     The appellant was, at the material time, the parent company of Alken‑Maes. In the light of its active involvement in the Interbrew/Alken‑Maes Cartel, the Commission held the appellant responsible both for its own involvement in the cartel and for that of Alken‑Maes. (6) By contrast, the Commission considered that there was no reason to attribute responsibility to the appellant for the participation of its subsidiary in the concerted practice relating to private‑label beer, since the appellant was not itself involved in that cartel. (7)

10.   On account of its involvement in the Interbrew/Alken‑Maes Cartel from 28 January 1993 to 28 January 1998, the contested decision imposes a fine on the appellant of EUR 44.043 million. (8)

11.   The fine is calculated as follows:

Gravity

EUR 25.00 million

Duration (+45%)

EUR 11.25 million

+

Basic amount

EUR 36.25 million

=

Aggravating circumstances (+50%)

EUR 18.125 million

+

Total after aggravating circumstances

EUR 54.38 million

=

Attenuating circumstances (‑10%)

EUR 5.438 million

‑

Total before leniency

EUR 48.94 million

=

Reduction for leniency (‑10%)

EUR 4.894 million

‑

Final amount

EUR 44.043 million

=

12.   The contested decision refers to the following aggravating circumstances: first, the infringement of Article 81 EC constituted a repeat infringement since the appellant had already been found to have committed similar infringements twice before; (9) second, the appellant compelled Interbrew to extend the cooperation, by threatening to take measures against Interbrew if the latter did not cooperate. (10)

C –    The judgment under appeal

13.   By application lodged at the Registry of the Court of First Instance on 22 February 2002, the appellant brought an action for annulment of the decision. In the alternative, the appellant sought a reduction in the amount of the fine.

14.   The Court of First Instance rejected all of the appellant’s pleas, except the fifth plea, which alleged lack of basis for the finding that the pressure put on Interbrew by the appellant constituted an aggravating circumstance. (11) The Court of First Instance found that, although a threat was made against Interbrew, it had not been established that it was as the result of this threat that Interbrew agreed to an extension of the cartel. (12) For that reason, the Court of First Instance fixed the overall increase of the basic amount of the fine in respect of aggravating circumstances at 40% instead of 50%. (13) The Court of First Instance, applying a calculation method that differed from the method used in the decision, reduced the fine to EUR 42.4125 million and dismissed the remainder of the application.

15.   On 4 January 2006, the appellant brought the present appeal against the judgment of the Court of First Instance.

II –  Analysis of the appeal

16.   The appellant raises five pleas in support of its application to have the judgment under appeal set aside in part. Those pleas relate, firstly, to the interpretation by the Court of First Instance of the concept of repeated infringement and, secondly, to the amendment of the method of calculation of the fine.

A –    Pleas concerning the application of repeated infringement as an aggravating circumstance

 First plea: infringement of the principle nulla poena sine lege

17.   The appellant maintains that, by confirming the increase in the appellant’s fine for the aggravating circumstance of repeated infringement, the Court of First Instance failed to take account of the principle that offences and penalties must be defined by law and the corollary principle of non‑retroactivity of more severe penalties. According to the appellant, there is no clear and sufficiently foreseeable legal basis in Community law for taking repeated infringement into account as an aggravating circumstance. The appellant argues that, in any event, such a legal basis was absent at the time of the previous infringements.

18.   In paragraph 351 of the judgment under appeal the Court of First Instance held that the Commission did not infringe the principle nulla poena sine lege in applying the aggravating circumstance of repeated infringement, ‘since it is not disputed that [the Commission] is entitled to do so by virtue of the first indent of Section 2 of the Guidelines and they cannot be regarded as going beyond the legal framework relating to penalties set out in Article 15(2) of Regulation No 17’.

19.   That wording might suggest that the Court of First Instance characterised Section 2 of the Guidelines as the legal basis for the Commission’s findings regarding the appellant’s repeated infringement. To portray the Guidelines in this way would be incorrect. The Guidelines ensure legal certainty, since they determine the calculation method which the Commission has bound itself to use, but they do not constitute the legal basis for fixing the fine. (14) None the less, I believe the Court should reject the appellant’s first plea. (15)

20.   First of all, the appellant’s claim that the Court of First Instance infringed the principle nulla poena sine lege because an adequate legal basis was absent at the time of the previous infringements rests on an incorrect premiss. The material time for establishing whether an adequate legal basis exists for increasing the fine on account of recidivism is the moment of the last infringement – that is to say, the infringement that gave rise to the decision which takes the previous infringements into account as an aggravating circumstance. In this regard, an analogy can be drawn with the judgment of 29 March 2006 of the European Court of Human Rights in Achour, in which that court held that ‘the practice of taking past events into consideration should be distinguished from the notion of retrospective application of the law stricto sensu’. (16) What matters, therefore, is that at the time of the last infringement, the appellant was able to foresee the legal consequences of its actions and to adapt its conduct accordingly. (17)

21.   Was there, at the time of the last infringement, an adequate legal basis for taking repeated infringement into account as an aggravating circumstance? The relevant legal basis is Article 15(2) of Regulation No 17, which states, clearly and unambiguously, (18) that the Commission may impose a fine on an undertaking that infringes Article 81 EC or 82 EC. It provides, furthermore, that the fine is not to exceed 10% of that undertaking’s turnover in the preceding business year and that ‘in fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement’. (19) Admittedly, Article 15(2), while setting a clear ceiling, is formulated in a broad manner as regards the elements which determine the exact level of the fine. Yet, in the context of competition law, I would consider that, as a rule, it is reasonable and foreseeable that the Commission, in the exercise of its discretion, should weigh the element of repeated infringement as pertaining to the gravity of the infringement. This also appears to be the view of this Court as emerging from the case‑law.

22.   The Court has consistently held that ‘in assessing the gravity of an infringement for the purpose of fixing the amount of the fine, the Commission must take into consideration not only the particular circumstances of the case but also the context in which the infringement occurs and must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the Community’. (20) In SGL Carbon the Court recently reiterated its case‑law as follows: ‘[W]hereas the basic amount of the fine is set according to the infringement, its gravity is determined by reference to numerous other factors, in respect of which the Commission has a wide discretion. To take into account aggravating circumstances when setting the fine is consistent with the Commission’s task of ensuring compliance with the competition rules.’ (21) In Aalborg Portland and Others v Commission the Court confirmed that repeated infringements must be taken into consideration as an element in assessing the gravity of the infringement. (22) On this point, the Court’s case‑law corresponds to the case‑law of the Court of First Instance. As the Court of First Instance held in its judgment of 17 December 1991 in Enichem Anic v Commission, ‘the fact that the Commission has in the past already found an undertaking guilty of infringing the competition rules and penalised it for that infringement may be treated as an aggravating factor as against that undertaking’. (23)

23.   The appellant’s plea thus goes against those decisions in which the Court considered that Article 15(2) of Regulation No 17 constitutes an adequate legal basis on which to take aggravating circumstances such as repeated infringement into account.

24.   The appellant’s argument that an adequate legal basis was lacking, because, at the time of the last infringement, the Commission had not yet adopted the Guidelines, equally fails to convince. The Guidelines do not constitute the legal basis for fixing the fine. They simply clarify the application of Article 15(2) of Regulation No 17. (24) Yet, even in the absence of the Guidelines, the appellant would still have been able to foresee the legal consequences of its actions.

25.   Incidentally, even before it adopted and published the Guidelines, the Commission took repeated infringement into account in some of its decisions, (25) including the decision which was taken against the appellant as a result of its penultimate infringement of Article 81 EC. (26)

26.   Therefore, particularly in the light of the case‑law cited at point 22 above, the appellant cannot seriously claim that it was unable to foresee the application of repeated infringement as an aggravating circumstance at the time when it committed the infringement concerned. (27)

 Second plea: infringement of the principle of legal certainty

27.   By its second plea the appellant maintains that the Court of First Instance incorrectly applied the principle of legal certainty by refusing to limit the period over which repeated infringement can be taken into account. The appellant emphasises that the first two decisions in which the Commission found an infringement date from 1974 and 1984 respectively – and that the first decision occurred in very specific circumstances. According to the appellant, the Court of First Instance effectively allowed for a system of ‘everlasting repeated infringement’, contrary to general principles common to the laws of the Member States.

28.   In my opinion, this plea is based on an inaccurate reading of the judgment under appeal. The Court of First Instance essentially held that, because neither Regulation No 17 nor the Guidelines specify a limitation period, there had not been a breach of the principle of legal certainty. (28) In other words, the Court of First Instance suggested that, in the absence of a limitation period, it is foreseeable that any infringement of the same type, committed by the same undertaking and formally established by the Commission in the past, may lead to a finding of repeated infringement. (29)

29.   As a starting point, this is correct. The principle of legal certainty does not require a limitation period for repeated infringement. The Commission consequently has a certain discretion in determining the period over which it will take previous findings of infringements into account. However, particularly in view of the potentially extensive lifespan of undertakings, the Commission must exercise that discretion in a way that observes reasonable expectations about which past infringements are still of relevance and which infringements have to all intents and purposes been expunged.

30.   The purpose of taking repeated infringement into account is to induce undertakings which have demonstrated a tendency towards infringing the competition rules to change their conduct. Thus, given the absence of a limitation period, the Commission and the Community Courts must, in each individual case, consider those factors which confirm such a tendency, including, for example, the time that has elapsed between infringements.

31.   This is exactly how the Court of First Instance approached the problem of legal certainty in the judgment under appeal. In paragraphs 354 to 355 of that judgment the Court of First Instance carefully considered the appellant’s documented history of infringing the competition rules and noted that, each time, a relatively limited period separated one infringement from the next. The Court of First Instance accordingly concluded that ‘the applicant’s repetition of unlawful conduct shows its propensity not to draw the appropriate consequences from a finding that it has infringed the Community competition rules’.

32.   In support of its argument that the Court of First Instance should have applied a limitation period, the appellant relies on the line of case‑law starting with Geigy v Commission. (30) In reality, however, this case‑law provides an argument a maiore ad minus in support of the point of view that it is not for the Community Courts to impose a limit on the period over which repeated infringement can be taken into account. In Geigy v Commission, the Court was asked to rule on whether the Commission exceeded any limitation period by allowing several years to pass before initiating proceedings for an infringement of Article 81 EC. In such situations, the need for legal certainty is even more compelling. After all, the absence of a limitation period has the result of maintaining the threat of punishment, at any moment in the future, for behaviour that lies wholly in the past. Besides, until that moment, it is not formally established that that behaviour actually amounted to an infringement. The Court held that ‘the fundamental requirement of legal certainty has the effect of preventing the Commission from indefinitely delaying the exercise of its power to impose fines’. (31) Yet, the Court did not lay down a limitation period. Instead, it preferred to assess the Commission’s action in light of the specific circumstances of the case, (32) which is also precisely what the Court of First Instance did in the case under consideration.

33.   The appellant claims that the Court of First Instance failed to take sufficient notice of the circumstance that the decision of 1974 did not impose a penalty on the appellant, but merely ordered it to bring the infringement in question to an immediate end. (33)

34.   This claim is unfounded. As the Court of First Instance rightly held, ‘the concept of repeated infringement does not necessarily imply that a fine has been imposed in the past, but merely that a finding of infringement has been made in the past’. (34) Indeed, the mere fact that the Commission does not impose a penalty when it makes a finding of an infringement does not create the legitimate expectation that that infringement will henceforth be disregarded.

35.   For those reasons, I suggest that the Court reject the appellant’s second plea.

 Third plea: defect in the statement of grounds

36.   By its third plea, the appellant maintains that the judgment under appeal is vitiated by a contradiction in the grounds concerning the link between repeated infringement and the need to ensure that fines be sufficiently deterrent. According to the appellant, the Court of First Instance held at one point in its judgment that, in assessing the gravity of the infringement, the elements of deterrence and repeated infringement must be distinguished, while, later in the same judgment, the Court of First Instance held that a repeated infringement justifies an increase in the amount of the fine in the context of deterrence.

37.   I read no such contradiction in the judgment under appeal. The Court of First Instance effectively held that the Commission had lawfully considered various elements, including repeated infringement, as circumstances reflecting on the gravity of the infringement, with a view to setting a fine which would be sufficiently deterrent. Accordingly, I propose that the Court reject the appellant’s third plea.

B –    Pleas concerning the method of calculation of the fine

38.   The fourth and fifth pleas concern the fact that the Court of First Instance applied a method of calculation which was less favourable than the method used in the contested decision. The Commission had imposed a fine of EUR 44.043 million. Having found that the Commission had wrongly taken the threat against Interbrew into account as an aggravating circumstance, the Court of First Instance fixed the increase in respect of aggravating circumstances at 40% instead of 50%. The Court of First Instance then set the total amount of the fine at EUR 42.4125 million, using a different formula from that used by the Commission.

39.   Thus, the judgment under appeal reduced the total amount of the fine by EUR 1.6305 million. However, the reduction would have been EUR 2.9355 million had the Court of First Instance applied the same calculation method as the Commission.

40.   By its fourth plea, the appellant maintains that the Court of First Instance exceeded the limits of its jurisdiction under Article 229 EC and Article 17 of Regulation No 17 by amending the method of calculation of the fine. In the alternative, the appellant puts forward a fifth plea, based on infringement of the rights of the defence and the principle of non‑retroactivity. The two pleas are closely linked, but I shall address them in turn.

 Fourth plea: failure of the Court of First Instance to observe the limits of its jurisdiction

41.   The appellant argues that neither Article 230 EC nor Article 229 EC in conjunction with Article 17 of Regulation No 17 allowed the Court of First Instance to amend the Commission’s calculation method. In essence, the appellant claims that the Court of First Instance acted either ultra vires in respect of its jurisdiction on the basis of Article 230 EC, or ultra petita in the exercise of its jurisdiction under Article 229 EC.

42.   The Commission argues that this plea is inadmissible. According to the Commission, the appellant is asking the Court to substitute its own assessment of the fine for that of the Court of First Instance. The Commission points out that, when the Court of First Instance, in the exercise of its unlimited jurisdiction within the meaning of Article 229 EC, has ruled on the amount a fine, ‘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’. (35)

43.   I do not agree with the Commission’s classification of the appellant’s plea. In my view, the appellant raises a question of law, concerning the limits on the jurisdiction of the Court of First Instance in the matter of fines. The plea is therefore admissible.

44.   However, the appellant’s claim that, under Article 230 EC, the Court of First Instance did not have the requisite jurisdiction to amend the calculation method is immaterial. When setting the new fine, the Court of First Instance did not act within the framework of Article 230 EC, but in the exercise of its jurisdiction under Article 229 EC and Article 17 of Regulation No 17. Hence I shall turn my attention to the appellant’s assertion that the Court of First Instance decided ultra petita when it substituted the Commission’s calculation method for its own.

45.   Under Article 17 of Regulation No 17, the Community judicature has ‘unlimited jurisdiction within the meaning of Article [229 EC] to review decisions whereby the Commission has fixed a fine or periodic penalty payment; it may cancel, reduce or increase the fine or periodic penalty payment imposed’. The distinguishing characteristic of the jurisdiction of the Community Courts under this provision is that it allows them not only to review the legality of the sanction, but also to vary the sanction, even in the absence of a material error of fact or law on the part of the Commission. (36)

46.   The non ultra petita rule has the effect that courts may only exercise their jurisdiction to the extent that they have been formally called upon to do so by a party to proceedings before them. The question that arises at present is what implications the non ultra petita rule has in connection with the concept of ‘unlimited jurisdiction’ in the meaning of Article 229 EC.

47.   In private law, from which the non ultra petita rule originally stems, it limits the ambit of the powers of the judiciary so as to ensure the sovereignty and the legal certainty of the parties to the proceedings. (37) The same essentially holds true in the framework of administrative law. However, within that framework the non ultra petita rule has a direct bearing on the relationship between the judiciary and the administrative authorities, since the latter are, by definition, party to the proceedings.

48.   The notion of ‘unlimited jurisdiction’ concerns precisely this aspect – the demarcation between the powers of the judiciary and those of the administrative authorities. Article 229 EC and Article 17 of Regulation No 17 give the Community Courts the possibility to replace the assessment of the administrative authority and thus to decide in place of the Commission. This clearly creates a significant exception to the normal position of the Community judicature, albeit in a limited area. (38)

49.   Accordingly, within this area, the non ultra petita rule, properly understood as a restriction on the exercise of judicial power, has only a limited role to play. In my view, it merely implies that the Community Courts must not exercise their unlimited jurisdiction without having been seised of the matter of the fine. Once the issue of the amount of the fine has been submitted for reassessment, the jurisdiction under Article 229 EC is indeed ‘unlimited’, in the sense that it may be exercised both in order to reduce and in order to increase the fine. (39) By implication, the Court of First Instance may apply a different method of calculation when it reassesses the fine, even if that method is less favourable for the undertaking concerned.

50.   It follows that the Court should reject the appellant’s fourth plea.

51.   None the less, I must emphasise, already at this point, that I am not suggesting that the Court of First Instance has unfettered discretion under Article 229 EC and Article 17 of Regulation No 17. This brings me to the appellant’s fifth plea.

 Fifth plea: infringement of the rights of the defence and the principle of non‑retroactivity

52.   The first limb of the fifth plea is based on infringement of the rights of the defence. The appellant claims that the Court of First Instance should have submitted its intention to amend the calculation method to discussion. By failing to grant the appellant an opportunity to state its point of view on the matter, the Court of First Instance violated a general principle of Community law.

53.   To my mind, the Community Courts, when exercising their unlimited jurisdiction, are bound by the same legal requirements that apply to the Commission when it imposes a sanction. These requirements include the duty to state reasons, the principle of equal treatment, (40) the principle of legal certainty (41) and the right to be heard. (42)

54.   In this regard, it must be borne in to mind that, in respect of the powers of the Commission to adopt decisions which impose a fine, the Court of First Instance has rightly stated in its case‑law that the right to be heard constitutes ‘a fundamental principle of Community law and must be observed in all circumstances, in particular in all proceedings liable to give rise to penalties, including administrative procedures’. (43)

55.   By the same token, the Community Courts must observe that right when they exercise their unlimited jurisdiction. This view finds support in the Opinion of Advocate General VerLoren van Themaat in Stichting Sigarettenindustrie v Commission. (44) In that case, the Advocate General considered that the Commission had failed to ascertain and take into account the degree of culpability of the applicants. As a consequence, the Commission had applied a rate of fine that, in his view, was too low. He then observed:

‘Under Article 17 of Regulation No 17 that … might give the Court occasion to increase, of its own motion, the fines imposed on certain undertakings. I shall not however propose that the Court make use of that power in this case. … [I]n a case in which the exercise of that power was considered it would perhaps be advisable, in my view, to call the attention of the parties by written notice sufficiently in advance of the oral procedure to the existence of this power, and at the same time if necessary to request the Commission to provide the information necessary for its exercise and give the applicants the opportunity to make written submissions before the oral procedure.’ (45)

56.   The approach suggested by the Advocate General arises from the rightful concern that the exercise of unlimited jurisdiction must not result in the consideration of facts or criteria which the parties had no genuine opportunity to contest. In my view, this concern is equally justified in the context of a change in the calculation method when that change, as in the present case, works to the detriment of the undertaking concerned. Given the wide powers which the Community Courts enjoy under Article 17 of Regulation No 17 and the important financial consequences such a change may entail, it is essential that the Community Courts exercise their unlimited jurisdiction with the utmost regard for the right of the applicant to be heard.

57.   An exemplary ruling in that respect is the judgment of the Court of First Instance in Cheil Jedang v Commission. (46) The Commission, in a manner similar to that employed in the present case, had applied a calculation method that was different from the method set out in the Guidelines. The Court of First Instance took the view that the method described in the Guidelines was more appropriate. (47) Therefore, it applied that method in the exercise of its unlimited jurisdiction. (48) Yet, as the judgment in Cheil Jedang clearly shows, it did so only after having allowed the applicant to state its point of view in the matter:

‘225. By a written question sent on 7 February 2002 the Court called upon the Commission, inter alia, to explain in detail and justify the method which it used to calculate the fines.

226. In its reply of 27 February 2002 the Commission stated that the proper way to calculate the increases and reductions intended to reflect aggravating and mitigating circumstances was to apply a percentage to the basic amount of the fine. It also acknowledged that it did not consistently follow that method in the Decision …

227. At the hearing the applicant stated that it had no objection to the method used to calculate the fines which the Commission described in its letter of 27 February 2002.’

58.   By contrast, the judgment under appeal makes no mention of written questions concerning the method of calculation. Nor does it refer to any exchange of views on this issue with the appellant at the hearing. In such circumstances, the Court of Justice, when ruling on appeal, cannot be satisfied that the appellant’s right to be heard was respected in the proceedings before the Court of First Instance.

59.   I therefore conclude that the first limb of the fifth plea is well founded and that, in consequence, the Court should set aside the judgment under appeal in so far as it fixes the fine at EUR 42.4125 million.

C –    The consequences of annulment of the contested judgment to the extent to which it determines the amount of the fine

60.   According to Article 61 of the Statute of the Court, the Court of Justice ‘may itself give final judgment in the matter, where the state of the proceedings so permits’. Now that it has heard the appellant’s arguments concerning the level of the fine, I suggest that the Court should make use of this possibility and exercise its own jurisdiction under Article 229 EC and Article 17 of Regulation No 17.

61.   The appellant has requested that the amount of the fine be reduced to EUR 41.11 million, which is the amount the Court of First Instance would have imposed had it applied the same calculation method as the Commission.

62.   In connection with this request it should be noted that, in the judgment under appeal, the Court of First Instance applied the calculation method laid down in the Guidelines. The appellant does not contest the appropriateness of that calculation method as such. However, the appellant contends that its application to the present case leads to an infringement of the principle of non‑retroactivity.

63.   I disagree with the appellant. The Court carefully examined the problem of retroactive application of the Guidelines in its judgments in Dansk Rørindustri and Others v Commission (49) and Archer Daniels Midland. (50) It came to the conclusion that ‘the Guidelines and, in particular the new method of calculating fines contained therein, on the assumption that this new method had the effect of increasing the level of fines imposed, were reasonably foreseeable for undertakings such as the appellants at the time when the infringements concerned were committed’. (51) Therefore, in applying the Guidelines in relation to infringements that, in the case of Dansk Rørindustri and Others v Commission, even dated back to 1990, the Commission did not infringe the principle of non‑retroactivity. (52) Likewise, in the present case, the application of the calculation method set out in the Guidelines would not run counter to that principle.

64.   I therefore propose that this Court apply the calculation method set out in the Guidelines and, having regard to all the circumstances of the present case, set the amount of the fine at EUR 42.4125 million.

III –  On the costs

65.   Under Article 69(3) of the Rules of Procedure – which, pursuant to Article 118, applies to the procedure on appeal – where each party succeeds on some and fails on other heads the Court may order that the costs be shared. Since the Commission has failed on one head and the appellant has failed on the others, I propose that the appellant be ordered to bear its own costs and to pay three quarters of those of the Commission.

IV –  Conclusion

66.   I therefore propose that the Court should:

1)         annul paragraph 1 of the operative part of the judgment of the Court of First Instance of 25 October 2005 in Case T‑38/02 Groupe Danone v Commission;

2)         set the amount of the fine imposed on the appellant at EUR 42.4125 million;

3)         for the rest, dismiss the appeal;

4)         order the appellant to bear its own costs and to pay three quarters of the Commission’s costs.

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1 – Original language: Portuguese.

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2 – [2005] ECR II‑0000.

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3 – Relating to a proceeding under Article 81 of the EC Treaty (Case IV/37.614/F3 PO/Interbrew and Alken‑Maes) (OJ 2003 L 200, p. 1).

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4 – Of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959‑62, p. 87). The contested decision predates the entry into force of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1) and the adoption of the Commission’s new Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).

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5 – Cited in footnote 3.

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6 – Recital 295 of the contested decision.

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7 – Recital 331 of the contested decision.

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8 – Articles 1 and 2 of the contested decision.

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9 – Recital 314 of the contested decision.

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10 – Recital 315 of the contested decision.

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11 – Groupe Danone v Commission, cited in footnote 2.

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12 – Paragraphs 309 and 310 of the judgment under appeal.

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13 – Paragraphs 311 to 313 of the judgment under appeal.

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14 – 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 [2005] ECR I‑5425, paragraph 213. See also Case C‑167/04 P JCB Service v Commission [2006] ECR I‑0000, paragraphs 207 to 209.

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15 – Cf. Case C‑30/91 P Lestelle v Commission [1992] ECR I‑3755, paragraph 28; Case C‑93/02 P Biret International v Council [2003] ECR I‑10497, paragraph 60; and Case C‑226/03 P José Martí Peix v Commission [2004] ECR I‑11421, paragraph 29.

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16 – Eur. Court H.R. (Grand Chamber), Achour v France judgment of 29 March 2006, § 59.

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17 – See, to that effect, Achour v France judgment, § 53.

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18 – Case 117/83 Könecke [1984] ECR 3291, paragraph 11.

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19 – See also Opinion of Advocate General Geelhoed in Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑0000, at point 78.

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20 – Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 106. See also, most recently, Dansk Rørindustri and Others v Commission, cited in footnote 14, paragraphs 240 to 242.

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21 – Case C‑308/04 P, cited in footnote 19, paragraph 71.

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22 – 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 [2004] ECR I‑123, paragraph 91.

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23 – Case T‑6/89 Enichem Anic v Commission [1991] ECR II‑1623, paragraph 295. See also Case T‑203/01 Michelin v Commission [2003] ECR II‑4071, paragraph 293.

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24 – See, to that effect, Dansk Rørindustri and Others v Commission, cited in footnote 14, paragraphs 211, 213 and 214.

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25 – Commission Decision 86/398/EEC of 23 April 1986 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.149 – Polypropylene), OJ 1986 L 230, p. 1, at recital 107, and Commission Decision 91/297/EEC of 19 December 1990 relating to a proceeding under Article 85 of the EEC Treaty (IV/33.133‑A: Soda‑ash – Solvay / ICI), OJ 1991 L 152, p. 1, at recital 65.

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26 – Commission Decision 84/388/EEC of 23 July 1984 relating to a proceeding under Article 85 of the EEC Treaty (IV/30.988 – Agreements and concerted practices in the flat‑glass sector in the Benelux countries), OJ 1984 L 212, p. 13, at recital 53.

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27 – To the same effect: Dansk Rørindustri and Others v Commission, cited in footnote 14, paragraph 231. See also Case C‑397/03 P Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2006] ECR I‑4475, paragraph 25.

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28 – Paragraphs 352 and 353 of the judgment under appeal. The Court of First Instance referred, in this context, to Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 19.

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29 – As to the concept of repeated infringement, see the judgments of the Court of First Instance in Case T‑141/94 Thyssen Stahl v Commission [1999] ECR II‑347, paragraph 617, and Michelin, cited in footnote 23, paragraph 284.

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30 – Case 52/69 [1972] ECR 787.

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31 – Geigy v Commission, cited in footnote 30, at paragraph 21.

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32 – Geigy v Commission, cited in footnote 30, at paragraph 21. See also: Case C‑298/00 P Italy v Commission [2004] ECR I‑4087, paragraphs 89 to 92, and Case C‑372/97 Commission v Italy [2004] ECR I‑3679, paragraphs 116 to 119 (concerning the review of aid granted under the EC Treaty); Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraph 140 (concerning the review of aid granted under the ECSC Treaty). Examples from the case‑law of the Court of First Instance are: Case T‑109/01 Fleuren Compost v Commission [2004] ECR II‑127, paragraph 145 (concerning the review of aid granted under the EC Treaty); Case T‑307/01 François v Commission [2004] ECR II‑1669, paragraph 46 (concerning the initiation of disciplinary proceedings under the Staff Regulations); and Joined Cases T‑22/02 and T‑23/02 Sumitomo Chemical and Sumika Fine Chemicals v Commission [2005] ECR II‑0000, paragraph 87 (concerning the Commission’s power to impose fines for infringement of the competition rules).

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33 – Article 3 of Commission Decision 74/292/EEC of 15 May 1974 relating to proceedings under Article 85 of the EEC Treaty (IV/400 – Agreements between manufacturers of glass containers), OJ 1974 L 160, p. 1.

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34 – Paragraph 363 of the judgment under appeal.

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35 – Dansk Rørindustri and Others v Commission, cited in footnote 14, paragraphs 245 and 246. See also, for instance, Case C‑320/92 P Finsider v Commission [1994] ECR I‑5697, paragraph 46.

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36 – See, to that effect, 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 692. See also Commentaire Mégret (1993), volume 10, p. 94 and, in contrast, for a more restrictive view, the Opinion of Advocate General Warner in Joined Cases 32/78 and 36/78 to 82/78 BMW v Commission [1979] ECR 2435, at 2494.

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37 – As the Court stated in van Schijndel and van Veen: ‘That limitation is justified by the principle that, in a civil suit, it is for the parties to take the initiative, the court being able to act of its own motion only in exceptional cases where the public interest requires its intervention. That principle reflects conceptions prevailing in most of the Member States as to the relations between the State and the individual; it safeguards the rights of the defence; and it ensures proper conduct of proceedings by, in particular, protecting them from the delays inherent in examination of new pleas’ (Joined Cases C‑430/93 and C‑431/93 [1995] ECR I‑4705, paragraph 21). As van Schijndel and van Veen illustrates, the result of the non ultra petita rule is that courts cannot normally raise pleas of their own motion and that, after a certain point in the proceedings, the claimant cannot raise pleas or rely on factual circumstances other than those on which he based his claim. See also the Opinion of Advocate General Jacobs in Case C‑210/98 P Salzgitter v Commission [2000] ECR I‑5843, points 129 to 143, on the principle that grounds of appeal not raised by the parties cannot be upheld by the Court and on the exception as regards pleas involving matters of public policy.

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38 – See, apart from Article 17 of Regulation No 17, Article 25 of Council Regulation No 11 of 27 June 1960 concerning the abolition of discrimination in transport rates and conditions, in implementation of Article 79(3) of the Treaty establishing the European Economic Community (OJ, English Special Edition 1959‑1962, p. 60); Article 24 of Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (OJ, English Special Edition 1968 (I), p. 302); Article 21 of Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles [81] and [82] of the Treaty to maritime transport (OJ 1986 L 378, p. 4); Article 14 of Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ 1987 L 374, p. 1); Article 17 of Council Regulation (EEC) No 2299/89 of 24 July 1989 on a code of conduct for computerised reservation systems (OJ 1989 L 220, p. 1); Article 16 of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1).

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39 – For the same view: Opinion of Advocate General VerLoren van Themaat in Joined Cases 240/82 to 242/82, 261/82, 262/82, 268/82 and 269/82 Stichting Sigarettenindustrie v Commission [1985] ECR 3831, at 3851. One might however note that in Case 8/56 ALMA the Court stated: ‘Even in the absence of any formal submission, the Court is authorised to reduce the amount of an excessive fine since such a result would not have an effect ultra petita, but would on the contrary amount to a partial acceptance of the application’ ([1957 and 1958] ECR 95, at 100). Interpreted a contrario, this could lead to the conclusion that the CFI cannot increase a fine without a formal submission requesting a reassessment of the fine (i.e. either a reduction or an increase). Yet, arguments a contrario are to be treated with great circumspection, as the Court made clear in Case 8/55 Fédération Charbonnière de Belgique v High Authority [1954 to 1956] ECR 245, at 300.

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40 – Limburgse Vinyl Maatschappij and Others v Commission, cited in footnote 36, paragraph 617.

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41 – See, for instance, Case 326/85 Netherlands v Commission [1987] ECR 5091, paragraph 24.

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42 – Case 85/76 Hoffmann‑La Roche v Commission [1979] ECR 461, paragraph 11, and Musique Diffusion française and Others v Commission, cited in footnote 20, paragraph 10. See also Article 19 of Regulation No 17 and Article 27 of Regulation 1/2003.

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43 – Joined Cases T‑5/00 and T‑6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2003] ECR II‑5761, paragraph 32. See also, for instance, Case T‑31/99 ABB Asea Brown Boveri v Commission [2002] ECR II‑1881, paragraph 53; Case T‑11/89 Shell International Chemical Company v Commission [1992] ECR II‑757, paragraph 39; and Case T‑450/93 Lisrestal and Others v Commission [1994] ECR II‑1177, paragraph 42. See, in addition, the case‑law of the Court of Justice cited in footnote 42.

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44 – Cited in footnote 39.

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45 –      Ibid., page 3851.

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46 – Case T‑220/00 [2003] ECR II‑2473.

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47 – Ibid., paragraph 229.

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48 – Ibid., paragraph 230.

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49 – Cited in footnote 14. See, in particular, paragraphs 173 and 219 to 232.

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50 – Cited in footnote 27. See paragraphs 20 to 26.

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51 – Dansk Rørindustri and Others v Commission, cited in footnote 14, paragraph 231. See also Archer Daniels Midland, cited in footnote 27, paragraph 25.

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52 – Dansk Rørindustri and Others v Commission, cited in footnote 14, paragraph 232; Archer Daniels Midland, cited in footnote 27, paragraph 25.