Case C‑578/11 P

Deltafina SpA

v

European Commission

‛Appeal — Agreements, decisions and concerted practices — Italian market for the purchase and first processing of raw tobacco — Decision finding an infringement of Article 81 EC — Immunity from fines — Obligation to cooperate — Rights of the defence — Limits of judicial review — Right to fair legal process — Hearing of witnesses or of parties — Reasonable time — Principle of equal treatment’

Summary — Judgment of the Court (Second Chamber), 12 June 2014

1. Competition — Fines — Amount — Determination — Criteria — Reduction in the amount of the fine in return for cooperation by the offending undertaking — Conditions — Obligation to preserve the confidentiality of the cooperation — Unsolicited, voluntary disclosure to the other participants in the cartel — Disclosure not inevitable — Infringement of the obligation to cooperate

   (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23; Commission Notice 2002/C 45/03)

2. Judicial proceedings — Measures of inquiry — Hearing — Questioning on technical matters or complex facts — Discretion of the General Court — Limits

   (Rules of Procedure of the General Court, Art. 68)

3. Appeals — Grounds — Review by the Court of Justice of the assessment by the General Court of the need to supplement the information before it — Possible only where the clear sense of the evidence has been distorted

   (Art. 256 TFEU; Rules of Procedure of the General Court, Art. 64)

4. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Plea based on matters revealed during the proceedings — New matter of law — Decision specifying the Commission’s obligations under the principle of equal treatment — Not included

   (Art. 256 TFEU; Rules of Procedure of the Court of Justice, Art. 127(1); Rules of Procedure of the General Court, Art. 48(2))

5. Judicial proceedings — Length of the proceedings before the General Court — Reasonable time — Dispute concerning the existence of an infringement of the competition rules — Non-compliance with a reasonable period — Consequences

   (Charter of Fundamental Rights of the European Union, Arts 41 and 47, second para.)

6. Non-contractual liability — Action based on excessive length of the proceedings before the General Court — Conditions — Unlawfulness — Damage — Causal link — Criteria for assessment — Composition of the Chamber hearing the case

   (Arts 256 TFEU, 268 TFEU and 340 TFEU; Charter of Fundamental Rights of the European Union, Arts 41 and 47, second para.)

1.  Under EU competition law, for the purposes of the reduction of a fine in return for cooperation by the offending undertaking, it is the undertaking which is under an obligation to cooperate.

   Even if the Commission has accepted a possible non-voluntary disclosure by an undertaking of its cooperation with the Commission to other undertakings which participated in the cartel, that cannot justify the unsolicited disclosure which that undertaking made and cannot therefore call into question the finding that that company had breached its obligation to cooperate. A disclosure which is unsolicited is not inevitable.

   (see para. 53)

2.  Although the General Court does indeed follow a current and legitimate practice of questioning, on technical matters or complex facts, the persons representing the parties who know relevant details, if the questions put by the General Court to the applicant’s lawyer and the Commission official in charge of a case concerned, in particular, facts which are contentious and in dispute between the parties and it does not appear that those persons were questioned because of their particular technical knowledge, then the General Court goes beyond what may be carried out under that practice, since the General Court’s questioning concerns facts which ought to be established, as necessary, by witness statements, under the procedure laid down in Article 68 of the Rules of Procedure of the General Court. The fact that the applicant did not raise any objection at the hearing does not have the effect of rendering the ground of appeal relating to that irregularity inadmissible

   (see paras 59-62)

3.  See the text of the decision.

   (see para. 67)

4.  See the text of the decision.

   (see paras 74-76)

5.  A failure to adjudicate within a reasonable time must, as a procedural irregularity constituting the breach of a fundamental right, give rise to an entitlement of the party concerned to an effective remedy granting him appropriate relief.

   However, where there are no indications that the excessive length of the proceedings before the General Court affected the outcome of the dispute, failure to deliver judgment within a reasonable time cannot lead to the setting aside of the judgment under appeal.

   That conclusion is based, in particular, on the consideration that, where the 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 remedy the infringement of the principle of effective legal protection committed by the General Court.

   In addition, as regards the case-law establishing an infringement of EU competition law and imposing a fine, having regard to the need to ensure that the rules of EU law are complied with, the Court of Justice cannot allow an appellant to reopen the question of the validity or amount of a fine, on the sole ground that there was a failure to adjudicate within a reasonable time, where all of its pleas directed against the findings made by the General Court concerning the amount of that fine and the conduct that it penalises have been rejected.

   (see paras 80-84)

6.  The failure by the General Court to fulfil its obligation under the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union to adjudicate on the cases before it within a reasonable time can give rise to a claim for damages. Accordingly, the sanction for such a breach is an action for damages brought before the General Court, since such an action constitutes an effective remedy.

   It is for the General Court, which has jurisdiction under Article 256(1) TFEU, to determine such claims for damages, sitting in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticised. Those claims may not be made directly to the Court of Justice in the context of an appeal.

   It is for the General Court, in its assessment of whether the requirement that the case be dealt with within a reasonable time has been met, to take account of the circumstances specific to each case, such as the complexity of the case and the conduct of the parties, the fundamental requirement of legal certainty on which economic operators must be able to rely and the aim of ensuring that competition is not distorted.

   It will also be for the General Court to assess both the actual existence of the harm alleged and the causal connection between that harm and the excessive length of the legal proceedings and to take into consideration the general principles applicable in the legal systems of the Member States for actions based on similar breaches.

   (see paras 86-89)

Case C‑578/11 P

Deltafina SpA

v

European Commission

‛Appeal — Agreements, decisions and concerted practices — Italian market for the purchase and first processing of raw tobacco — Decision finding an infringement of Article 81 EC — Immunity from fines — Obligation to cooperate — Rights of the defence — Limits of judicial review — Right to fair legal process — Hearing of witnesses or of parties — Reasonable time — Principle of equal treatment’

Summary — Judgment of the Court (Second Chamber), 12 June 2014

1. Competition — Fines — Amount — Determination — Criteria — Reduction in the amount of the fine in return for cooperation by the offending undertaking — Conditions — Obligation to preserve the confidentiality of the cooperation — Unsolicited, voluntary disclosure to the other participants in the cartel — Disclosure not inevitable — Infringement of the obligation to cooperate

   (Arts 81 EC and 82 EC; Council Regulation No 1/2003, Art. 23; Commission Notice 2002/C 45/03)

2. Judicial proceedings — Measures of inquiry — Hearing — Questioning on technical matters or complex facts — Discretion of the General Court — Limits

   (Rules of Procedure of the General Court, Art. 68)

3. Appeals — Grounds — Review by the Court of Justice of the assessment by the General Court of the need to supplement the information before it — Possible only where the clear sense of the evidence has been distorted

   (Art. 256 TFEU; Rules of Procedure of the General Court, Art. 64)

4. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Plea based on matters revealed during the proceedings — New matter of law — Decision specifying the Commission’s obligations under the principle of equal treatment — Not included

   (Art. 256 TFEU; Rules of Procedure of the Court of Justice, Art. 127(1); Rules of Procedure of the General Court, Art. 48(2))

5. Judicial proceedings — Length of the proceedings before the General Court — Reasonable time — Dispute concerning the existence of an infringement of the competition rules — Non-compliance with a reasonable period — Consequences

   (Charter of Fundamental Rights of the European Union, Arts 41 and 47, second para.)

6. Non-contractual liability — Action based on excessive length of the proceedings before the General Court — Conditions — Unlawfulness — Damage — Causal link — Criteria for assessment — Composition of the Chamber hearing the case

   (Arts 256 TFEU, 268 TFEU and 340 TFEU; Charter of Fundamental Rights of the European Union, Arts 41 and 47, second para.)

1.  Under EU competition law, for the purposes of the reduction of a fine in return for cooperation by the offending undertaking, it is the undertaking which is under an obligation to cooperate.

   Even if the Commission has accepted a possible non-voluntary disclosure by an undertaking of its cooperation with the Commission to other undertakings which participated in the cartel, that cannot justify the unsolicited disclosure which that undertaking made and cannot therefore call into question the finding that that company had breached its obligation to cooperate. A disclosure which is unsolicited is not inevitable.

   (see para. 53)

2.  Although the General Court does indeed follow a current and legitimate practice of questioning, on technical matters or complex facts, the persons representing the parties who know relevant details, if the questions put by the General Court to the applicant’s lawyer and the Commission official in charge of a case concerned, in particular, facts which are contentious and in dispute between the parties and it does not appear that those persons were questioned because of their particular technical knowledge, then the General Court goes beyond what may be carried out under that practice, since the General Court’s questioning concerns facts which ought to be established, as necessary, by witness statements, under the procedure laid down in Article 68 of the Rules of Procedure of the General Court. The fact that the applicant did not raise any objection at the hearing does not have the effect of rendering the ground of appeal relating to that irregularity inadmissible

   (see paras 59-62)

3.  See the text of the decision.

   (see para. 67)

4.  See the text of the decision.

   (see paras 74-76)

5.  A failure to adjudicate within a reasonable time must, as a procedural irregularity constituting the breach of a fundamental right, give rise to an entitlement of the party concerned to an effective remedy granting him appropriate relief.

   However, where there are no indications that the excessive length of the proceedings before the General Court affected the outcome of the dispute, failure to deliver judgment within a reasonable time cannot lead to the setting aside of the judgment under appeal.

   That conclusion is based, in particular, on the consideration that, where the 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 remedy the infringement of the principle of effective legal protection committed by the General Court.

   In addition, as regards the case-law establishing an infringement of EU competition law and imposing a fine, having regard to the need to ensure that the rules of EU law are complied with, the Court of Justice cannot allow an appellant to reopen the question of the validity or amount of a fine, on the sole ground that there was a failure to adjudicate within a reasonable time, where all of its pleas directed against the findings made by the General Court concerning the amount of that fine and the conduct that it penalises have been rejected.

   (see paras 80-84)

6.  The failure by the General Court to fulfil its obligation under the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union to adjudicate on the cases before it within a reasonable time can give rise to a claim for damages. Accordingly, the sanction for such a breach is an action for damages brought before the General Court, since such an action constitutes an effective remedy.

   It is for the General Court, which has jurisdiction under Article 256(1) TFEU, to determine such claims for damages, sitting in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticised. Those claims may not be made directly to the Court of Justice in the context of an appeal.

   It is for the General Court, in its assessment of whether the requirement that the case be dealt with within a reasonable time has been met, to take account of the circumstances specific to each case, such as the complexity of the case and the conduct of the parties, the fundamental requirement of legal certainty on which economic operators must be able to rely and the aim of ensuring that competition is not distorted.

   It will also be for the General Court to assess both the actual existence of the harm alleged and the causal connection between that harm and the excessive length of the legal proceedings and to take into consideration the general principles applicable in the legal systems of the Member States for actions based on similar breaches.

   (see paras 86-89)