Case C‑604/13 P

Aloys F. Dornbracht GmbH & Co. KG

v

European Commission

(Appeal — Agreements, decisions and concerted practices — Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria — Coordination of selling prices and exchange of sensitive business information — Regulation (EC) No 1/2003 — Article 23(2) — Ceiling of 10% of turnover — 2006 Guidelines on the method of setting fines — Principle of non-retroactivity — Exercise of unlimited jurisdiction — Excessive duration of the proceedings)

Summary — Judgment of the Court (First Chamber), 26 January 2017

1. Competition—Fines—Amount—Determination—Maximum amount—Calculation—Distinction between the final amount and the intermediate amount of the fine—Consequences

   (Council Regulation No 1/2003, Art. 23(2) and (3))

2. Appeal—Grounds—Mere repetition of the pleas and arguments put forward before the General Court—Error of law relied on not identified—Inadmissibility

   (Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d) and 169(2))

3. EU law—Principles—Non-retroactivity of penal provisions—Scope—Fines imposed for infringement of competition rules—Included—Whether breach by applying the Guidelines on the method of setting fines to an infringement predating their introduction—Foreseeability of changes made by the Guidelines—No infringement

   (Council Regulation No 1/2003, Art. 23(2); Commission notice 2006/C 210/02)

4. Competition—Fines—Amount—Judicial review—Unlimited jurisdiction—Review of legality—Scope and limits—Unlimited jurisdiction strictly limited to determining the amount of the fine imposed

   (Arts 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Art. 31)

5. Judicial proceedings—Introduction of new pleas during the proceedings—Conditions—Amplification of an existing plea—No amplification—Inadmissibility

   (Rules of Procedure of the General Court (1991), Art. 48(2))

6. Appeal—Jurisdiction of the Court—Whether it may review, on grounds of fairness, the assessment by the General Court in regard to the amount of the fines imposed on undertakings which have infringed the competition rules of the Treaty—Precluded

   (Arts 256 TFEU and 261 TFEU; Statute of the Court of Justice, Art. 58, first para.; Council Regulation No 1/2003, Art. 31)

7. Competition—Fines—Amount—Determination—Determination of the basic amount—Gravity of the infringement—‘Entry fee’—Factors to be taken into consideration

   (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission notice 2006/C 210/02, points 21, 23 and 25)

8. Competition—Fines—Amount—Determination—Judicial review—Unlimited jurisdiction of the EU judicature—Scope—Limit—Respect for the principle of equal treatment—Taking into account of differences between, and of the particular circumstances of, the undertakings concerned

   (Art. 101(1) TFEU; Charter of Fundamental Rights of the European Union, Arts 20 and 21; Council Regulation No 1/2003, Art. 23(3); Commission notice 2006/C 210/02, points 13, 19-22, 25, 28 and 29)

9. Appeal—Grounds—Inadequate statement of reasons—Reliance by the General Court on implied reasoning—Whether permissible—Conditions

   (Art. 256 TFEU; Statute of the Court of Justice, Arts 36 and 53, first para.; Rules of Procedure of the General Court (1991), Art. 81)

10. Judicial proceedings—Duration of the proceedings before the General Court—Reasonable time—Dispute as to whether there has been an infringement of the competition rules—Failure to act within a reasonable time—Consequences

    (Charter of Fundamental Rights of the European Union, Art. 47, second para.)

11. Judicial proceedings—Duration of the proceedings before the General Court—Reasonable time—Dispute as to whether there has been an infringement of the competition rules—Failure to act within a reasonable time—Consequences—Non-contractual liability pursued by means of an action for damages

    (Arts 256(1) TFEU, 268 TFEU and 340, second para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47, second para.)

1.  Article 23(2) of Regulation No 1/2003 must be interpreted as meaning that it is only the final amount of the fine imposed which must comply with the upper limit of 10% of turnover referred to in that provision, and that that provision does not prohibit the Commission from arriving, during the various stages of calculation of the fine, at an intermediate amount higher than that limit, provided that the final amount of the fine does not exceed that limit.

   The fact that, owing to the application of the limit of 10% of turnover referred to in the second subparagraph of Article 23(2) of that regulation, certain factors such as the gravity and duration of the infringement are not actually reflected in the amount of the fine imposed is merely a consequence of the application of that upper limit to the final amount.

   The limit is one which is uniformly applicable to all undertakings and arrived at according to the size of each of them, and seeks to ensure that the fines are not excessive or disproportionate. That upper limit thus has a distinct and autonomous objective by comparison with the criteria of gravity and duration of the infringement.

   (see paras 22, 23, 25)

2.  See the text of the decision.

   (see paras 32, 33)

3.  See the text of the decision.

   (see paras 42, 43)

4.  The system of judicial review of Commission decisions relating to proceedings under Articles 101 and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of applicants, by the General Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission.

   The scope of that unlimited jurisdiction of the General Court is strictly limited, unlike the review of legality provided for in Article 263 TFEU, to determining the amount of the fine. It concerns solely the assessment by that Court of the fine imposed by the Commission, to the exclusion of any alteration of the constituent elements of the infringement lawfully determined by the Commission in the decision under examination by the General Court.

   (see paras 52, 53)

5.  See the text of the decision.

   (see para. 58)

6.  See the text of the decision.

   (see para. 66)

7.  In setting the amount of fines imposed for infringement of the competition rules, regard must be had to the duration of the infringement and to all the factors capable of affecting the assessment of the gravity of that infringement. The factors capable of affecting the assessment of the gravity of the infringements include the conduct of each of the undertakings, the role played by each of them in the establishment of the cartel, the profit which they were able to derive from it, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union.

   In the case of a secret cartel to coordinate future price increases in respect of the products at issue in the territories of Germany and Austria, the 15% multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ are warranted in view of the very nature of the infringement, since it is among the most harmful restrictions of competition for the purpose of point 23 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003, and that rate is the lowest rate on the scale of penalties prescribed for such infringements under those guidelines.

   (see paras 67, 68, 72, 75)

8.  Observance of the principle of equal treatment is binding on the General Court not only in the exercise of its review of the legality of the Commission’s decision imposing fines but also in the exercise of its unlimited jurisdiction. When the amount of the fines imposed is determined, the exercise of such jurisdiction cannot result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 101(1) TFEU.

   In assessing the gravity of an infringement, the taking into account, by virtue of that principle, of differences between the undertakings that have participated in a single cartel (in particular with regard to the geographic scope of their respective involvement) need not necessarily occur when the multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ are set but may occur at another stage in the setting of the fine, such as when the basic amount of the fine is adjusted in the light of mitigating and aggravating circumstances under points 28 and 29 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003. Such differences may also be reflected by means of the value of sales that is used in calculating the basic amount of the fine inasmuch as that value reflects, for each participating undertaking, the scale of its involvement in the infringement in question, in accordance with point 13 of the 2006 Guidelines, under which it is possible to take as a starting point for the calculation of the fines an amount which reflects the economic significance of the infringement and the size of the undertaking’s contribution to it.

   (see paras 78-80)

9.  See the text of the decision.

   (see paras 84-86)

10.  In the absence of any evidence that the duration of the proceedings before the General Court had an effect on the outcome of the dispute, failure on the part of the General Court to adjudicate within a reasonable time cannot lead to the judgment under appeal being set aside. Indeed, where 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 provide a remedy for any infringement by the General Court of the principle of effective judicial protection.

    (see paras 94)

11.  The sanction for a breach, by a court of the European Union, of 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 must be an action for damages brought before the General Court, since such an action constitutes an effective remedy. Accordingly, a claim for compensation for the damage caused by the failure on the part of the General Court to adjudicate within a reasonable time may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself.

    Where a claim for damages is brought before the General Court, which has jurisdiction under Article 256(1) TFEU, it must determine such a claim sitting in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticised.

    Nonetheless, where it is evident, without it being necessary for the parties to adduce additional evidence in that regard, that the General Court has breached, in a sufficiently serious manner, its duty to adjudicate within a reasonable period, the Court of Justice can find accordingly.

    (see paras 97-99)