Keywords
Summary

Keywords

1. Appeals — Grounds — Erroneous assessment of the facts — Inadmissible — Appeal dismissed — ( Art. 32d(1) CS; ECSC Statute of the Court of Justice, Art. 51)

2. Procedure — Measures of inquiry — Request for production of a document — Discretion of the Court of First Instance — ( Rules of Procedure of the Court of First Instance, Arts 49 and 65(b))

3. Appeals — Jurisdiction of the Court — Whether it may order measures of inquiry — Excluded — ( ECSC Statute of the Court of Justice, Art. 54, para. 1)

4. ECSC — Agreements, decisions and concerted practices — Prejudicial to competition — Anti-competitive object — Sufficient to establish the existence thereof — (ECSC Treaty, Art. 65(1))

5. ECSC — Agreements, decisions and concerted practices — Fines — Amount — Method of calculation — Fixing of fines in ecus for all the undertakings which participated in the infringement on the basis of turnover, expressed in ecus, of the last full year of the period of the infringement — Whether permissible — (ECSC Treaty, Art. 65(5))

Summary

1. It is clear from Article 32d(1) CS and Article 51 of the ECSC Statute of the Court of Justice that an appeal lies on a point of law only. Therefore, the Court of First Instance has sole jurisdiction to find and appraise the relevant facts and to assess the evidence, except where those facts and that evidence have been distorted.

see para. 25

2. It is for the Community Court to decide, in the light of the circumstances of the case and in accordance with the provisions of the Rules of Procedure on measures of inquiry, whether it is necessary for a document to be produced. As regards the Court of First Instance, it follows from Article 49 read in conjunction with Article 65(b) of its Rules of Procedure that a request for production of documents is a measure of inquiry which the Court may order at any stage of the proceedings if it deems them necessary to ascertain the truth.

see paras 28-29

3. A request by a party that the Court should itself order measures of inquiry, such as production of documents, goes beyond the scope of an appeal, the purpose of which is to review the legality of the decision adopted by the Court of First Instance and which is limited to points of law.

First, measures of inquiry would necessarily lead to the Court ruling on questions of fact.

Second, the appeal relates only to the judgment under appeal and it is only if that judgment were set aside that the Court of Justice could, in accordance with the first paragraph of Article 54 of the ECSC Statute of the Court of Justice, deliver judgment itself in the case.

see paras 30-32

4. Since Article 65(1) of the ECSC Treaty prohibits agreements which tend to prevent, restrict or distort normal competition, it follows that that provision prohibits agreements the purpose of which is to restrict competition but the anti-competitive effects of which have not been established, and that the Commission is not obliged to demonstrate that there has been an adverse effect on competition in order to establish an infringement of that provision.

see paras 59-60

5. Where the Commission imposes fines on several undertakings for infringements of the competition rules in the context of the ECSC Treaty, it is relevant to take into account the turnover achieved by each undertaking during the reference year, that is to say, the last full year of the chosen period of infringement, when assessing the gravity of the infringement committed by each undertaking. First, when the size and economic strength of an undertaking at the time of the infringement are being assessed, it is necessary to refer to the turnover achieved at that time and not that achieved at the time when the decision imposing the fine was adopted. Second, the use of a reference year common to all the undertakings which participated in the same infringement means that each undertaking is assured of being treated in the same way as the others since the penalties are determined in a uniform manner without account being taken of extrinsic and uncertain factors which may have affected turnover between the last year of the infringement and the time when the decision imposing the fine was adopted. Moreover, the fact that the reference year is part of the infringement period makes it possible to assess the scale of the infringement committed in the light of the economic reality as it existed during that period.

As regards the fine itself, first, the fixing of its amount in ecus on the basis of turnover achieved in the reference year at the exchange rate applicable at that time makes it possible to avoid distorting the assessment of the respective size of the undertakings which took part in the infringement by taking account of extrinsic and uncertain factors, such as changes in the value of national currencies during the subsequent period. Second, the use of a common currency such as the ecu to fix the fines imposed on undertakings which have taken part in the same infringement is not prohibited by Article 65(5) of the ECSC Treaty; on the contrary, it is justified by the need to penalise those undertakings in a uniform manner.

Lastly, monetary fluctuations are an element of chance which may produce advantages and disadvantages which the undertakings have to deal with regularly in the course of their business activities and whose very existence is not such as to render inappropriate the amount of a fine lawfully fixed by reference to the gravity of the infringement and the turnover achieved during the last year of the period over which it was committed.

see paras 101-106