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. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for infringement of the competition rules — Merely desirable that the method of calculating the fine be disclosed — ( ECSC Treaty, Arts 15, first para., and 65(5))

3. 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))

4. ECSC — Community competition rules — Infringements — Fines — Amount — Determination — Criteria — Raising of the general level of fines — Whether permissible — Conditions — ( ECSC Treaty, Art. 65(5))

5. ECSC — Community competition rules — Infringement by an undertaking — Attribution to another undertaking having regard to the economic and legal links between them — Conditions — Control of share capital in the same hands insufficient — ( ECSC Treaty, Art. 65(1))

6. 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))

7. Court of First Instance — Organisation — Composition of chambers — Judge absent or prevented from attending — Whether absence definitive or temporary — Not relevant — ( ECSC Statute of the Court of Justice, Arts 18 and 44; Rules of Procedure of the Court of First Instance, Arts 32 and 33(1) and (5))

8. Proceedings — Duration of the proceedings before the Court of First Instance — Reasonable period — Criteria of assessment

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.

However, the Court may examine whether the Court of First Instance has responded to the parties' pleas and given proper grounds for its judgment.

see paras 40-41

2. The purpose of the obligation to state the reasons on which an individual decision is based is to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested.

With regard to the obligation to state reasons for a decision imposing fines on several undertakings for an infringement of the Community competition rules, statements of figures relating to the calculation of those fines, however useful and desirable such figures may be, are not essential; in any event, the Commission cannot, by mechanical recourse to arithmetical formulas alone, divest itself of its own power of assessment.

see paras 52, 56

3. It is for the Community judicature 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. With regard to 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 67-68

4. Difficulties in comparing the level of fines imposed on undertakings which have participated in different agreements on different markets at times which, in some cases, are separated by long intervals may also be encountered as a result of the conditions necessary for implementing an effective competition policy. In that respect, the fact that the Commission penalised certain types of infringement in the past with fines of a particular level cannot prevent it from raising that level within the limits indicated in Article 65(5) of the ECSC Treaty if that is necessary to ensure the effectiveness of Community competition policy.

see para. 81

5. The anti-competitive conduct of an undertaking can be attributed to another undertaking where it has not decided independently upon its own conduct on the market, but carried out, in all material respects, the instructions given to it by that other undertaking, having regard in particular to the economic and legal links between them.

In that respect, the simple fact that the share capital of two separate commercial companies is held by the same person or the same family is insufficient, in itself, to establish that those two companies are an economic unit with the result that, under Community competition law, the actions of one company can be attributed to the other and that one can be held liable to pay a fine for the other.

see paras 96, 99

6. 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. On the one hand, 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. On the other hand, the use of a reference year common to all the undertakings involved 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 taking account of extrinsic and uncertain factors which might have affected the turnover between the last year of the infringement and the time when the decision imposing the fines is adopted. Moreover, the fact that the reference year is part of the infringement period enables the scale of the infringement committed to be assessed in the light of the economic reality as it appeared 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 involved 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.

Finally, monetary fluctuations are elements of uncertainty which may give rise to advantages and disadvantages and which 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 128-132

7. For the purposes of applying the rules laid down in the second paragraph of Article 18 and Article 44 of the ECSC Statute of the Court of Justice, and Articles 32 and 33(1) of the Rules of Procedure of the Court of First Instance, which relate to the composition of the chambers of the Court of First Instance hearing a case, the decisive factor is not whether a judge is definitively or temporarily prevented from attending. If a temporary absence or prevention from attending justifies a change in the composition in order to allow an uneven number of members to reach the decision, the same is true, a fortiori, of a definitive prevention from attending arising, for example, from expiry of a member's mandate.

In that respect, the relevant time in determining whether the provisions of the Rules of Procedure of the Court of First Instance relating to deliberations have been complied with is, in accordance with Article 33(5) of those Rules, that of adoption, after final discussion, of the conclusions determining the Court's decision.

see paras 155-157

8. The general principle of Community law that everyone is entitled to a fair hearing, and in particular the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law.

The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities.

In that respect, this list of criteria is not exhaustive and the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. The purpose of those criteria is to determine whether the time taken in the handling of a case is justified. Thus, the complexity of the case or the dilatory conduct of the applicant may be deemed to justify a duration which is prima facie too long. Conversely, the time taken may be regarded as longer than is reasonable in the light of just one criterion, in particular where its duration is the result of the conduct of the competent authorities. Where appropriate, the duration of a procedural stage may be regarded as reasonable from the outset if it appears to be consistent with the average time taken in handling a case of its type.

see paras 165-167