Case C‑636/13 P

Roca Sanitario SA

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 — 2006 Guidelines on the method of setting fines — Obligation to state reasons — Principle of equal treatment — Proportionality — Exercise of unlimited jurisdiction)

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

1. Competition—Fines—Amount—Judicial review—Unlimited jurisdiction—Review of legality—Scope and limits

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

2. 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))

3. 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—Not included

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

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

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

5. Competition—Fines—Amount—Determination—Criteria—Gravity of the infringement—Information needed for an assessment

   (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, points 19 to 23 and 25)

6. Competition—Fines—Amount—Determination—Judicial review—Unlimited jurisdiction of the EU judicature—Scope—Limit—Observance of 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 to 22, 25, 28 and 29)

7. Appeal—Grounds—Grounds of a judgment vitiated by an infringement of EU law—Operative part well founded for other legal reasons—Rejection

   (Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.)

8. Appeal—Grounds—Review by the Court of the assessment of the facts and evidence—Possible only where the clear sense of the evidence has been distorted

   (Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.)

1.  As regards the judicial review of Commission decisions imposing a fine for infringement of the competition rules, the Courts of the European Union must carry out the review of legality incumbent upon them on the basis of the evidence adduced by the applicant in support of the pleas in law put forward. In carrying out such a review, the Courts cannot use the Commission’s margin of discretion — either as regards the choice of factors taken into account in the application of the criteria mentioned in the guidelines or as regards the assessment of those factors — as a basis for dispensing with the conduct of an in-depth review of the law and of the facts.

   The review of legality is supplemented by the unlimited jurisdiction which is recognised by Article 31 of Regulation No 1/2003, in accordance with Article 261 TFEU. That jurisdiction empowers the Courts, in addition to carrying out a mere review of legality with regard to the penalty, to substitute their own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed.

   The exercise of unlimited jurisdiction is not equivalent to an own-motion review and proceedings before the Courts of the European Union are inter partes. With the exception of grounds involving matters of public policy which the Courts are required to raise of their own motion, such as the failure to state reasons for a contested decision, it is for the applicant to raise pleas in law against that decision and to adduce evidence in support of those pleas.

   (see paras 32-34)

2.  See the text of the decision.

   (see paras 35-37)

3.  See the text of the decision.

   (see para. 47)

4.  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 the cartel, their size, the value of the goods concerned and the threat that infringements of that type pose to the objectives of the European Union.

   The fact that an undertaking did not belong to the ‘hard core’ of the cartel because, amongst other things, it had not played a part in the creation and maintenance of the cartel does not, in any event, show that the General Court should have held that multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ at a rate of 15% are not appropriate or are too high, where such a rate was warranted by reason of the very nature of the infringement at issue, namely the implementation of coordinated price increases. Such an infringement is among the most harmful restrictions of competition for the purposes of points 23 and 25 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 and 15% is the lowest rate on the scale of penalties prescribed for such infringements under those guidelines.

   Accordingly, the General Court is fully entitled to hold that the Commission has not infringed the principle of proportionality in setting the multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ at 15%, even though the geographic scope of the undertaking’s participation in the infringement at issue is limited.

   (see paras 48, 49, 52-54)

5.  Although, in order to assess the gravity of an infringement of Article 101 TFEU and subsequently set the fine to be imposed, account may be taken, inter alia, of the geographic extent of an infringement and of the number of products covered by it, the fact that an infringement covers a larger geographical area and a larger number of products by comparison with another does not, on its own, necessarily mean that the first infringement, considered as a whole, and in particular in the light of its nature, must be classified as more serious than the second and as therefore justifying the setting of higher multipliers for the ‘gravity of the infringement’ and for the ‘additional amount’ than those used in the calculation of the fine for the second infringement.

   (see para. 56)

6.  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.

   The taking into account, by virtue of the principle of equal treatment, of differences between the undertakings that have participated in a single cartel (in particular with regard to the geographic scope of their respective involvement) for the purpose of assessing the gravity of an infringement 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 58-60)

7.  See the text of the decision.

   (see paras 62, 63)

8.  See the text of the decision.

   (see para. 69)