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Order of the Court of 25 March 1996. # Vereniging van Samenwerkende Prijsregelende Organisaties in de Bouwnijverheid and others v Commission of the European Communities. # Appeal - Competition - Decisions of associations of undertakings - Exemption - Appraisal of the gravity of the infringements - Appeal manifestly unfounded. # Case C-137/95 P.
Uznesenie Súdneho dvora z 25. marca 1996. Vereniging van Samenwerkende Prijsregelende Organisaties in de Bouwnijverheid a iní proti Komisii Európskych spoločenstiev. Odvolanie - Hospodárska súťaž. Vec C-137/95 P.
Uznesenie Súdneho dvora z 25. marca 1996. Vereniging van Samenwerkende Prijsregelende Organisaties in de Bouwnijverheid a iní proti Komisii Európskych spoločenstiev. Odvolanie - Hospodárska súťaž. Vec C-137/95 P.
Appeals – Pleas in law – Plea directed against a ground of the judgment which was not necessary to support the operative part thereof – Plea ineffectual
2..
Competition – Fines – Amount – Determination – Criteria – Gravity and duration of infringements – Consideration of the conditions for the imposition of fines by the Commission – Excluded
(
Council Regulation No 17, Art. 15(2), second subpara.)
3..
Competition – Fines – Amount – Conditions for the imposition of fines by the Commission – Infringement committed intentionally or negligently – Alternative conditions
(
Council Regulation No 17, Art. 15(2), first subpara.)
1.
In appeal proceedings, a plea in law directed against a ground given in a judgment of the Court of First Instance merely for
the sake of completeness must, where the operative part is adequately based on other grounds, be rejected.
2.
In determining the gravity of an infringement of the competition rules, the Court of First Instance is not required to verify
whether it was committed intentionally or negligently, and still less to draw a distinction between the two cases. It is apparent from its clear and precise terms that Article 15(2) of Regulation No 17 deals with two distinct matters. First,
in the first subparagraph, it lays down the conditions which must be fulfilled to enable the Commission to impose fines, one
of which is that the infringement must have been committed intentionally or negligently from the outset (initial conditions).
Secondly, in the second subparagraph, it governs determination of the amount of the fine, which depends on the gravity and
duration of the infringement, and it does not require (or indeed allow) any reference to the conditions in the first subparagraph.
The gravity of infringements must be determined by reference to numerous factors such as, in particular, the particular circumstances
of the case and its context; however, no binding or exhaustive list of the criteria which must be applied has been drawn up.
3.
The first subparagraph of Article 15(2) of Regulation No 17 draws no distinction based on whether the infringement was committed
intentionally or negligently but gives those two conditions for the imposition of a fine as alternatives to each other.
Vereniging van Samenwerkende Prijsregelende Organisaties in de Bouwnijverheid and Others, represented by L.H. van Lennep, of The Hague Bar, and E.H. Pijnacker Hordijk, of the Amsterdam Bar, with an address for service
in Luxembourg at the Chambers of L. Frieden, 62 Avenue Guillaume,
appellants,
APPEAL against the judgment of the Court of First Instance of the European Communities of 21 February 1995 in Case T-29/92
SPO and Others v
Commission [1995] ECR II-289, seeking to have that judgment set aside,
the other party to the proceedings being:
Commission of the European Communities, represented by B.J. Drijber, of its Legal Service, acting as Agent, assisted by P. Glazener, of the Amsterdam Bar, with an
address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, C.N. Kakouris, D.A.O. Edward, J.-P. Puissochet and G. Hirsch (Presidents of Chambers), G.F. Mancini, F.A. Schockweiler, J.C. Moitinho de Almeida, P.J.G. Kapteyn, C. Gulmann, J.L. Murray, P. Jann (Rapporteur), H. Ragnemalm, L. Sevón and M. Wathelet, Judges,
Advocate General: M. B. Elmer, Registrar: R. Grass,
after hearing the Opinion of the Advocate General, makes the following
Order
1
By application lodged at the Court Registry on 27 April 1992, the Vereniging van Samenwerkende Prijsregelende Organisaties
in de Bouwnijverheid (hereinafter
SPO) and 28 others brought an appeal against the judgment delivered by the Court of First Instance on 21 February 1995 in Case
T-29/92
SPO and Others v
Commission [1995] ECR II-289, in so far as it dismissed their application for a declaration that Commission Decision 92/204/EEC of 5
February 1992 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.572 and 32.571 ─ Building and Construction
Industry in the Netherlands (OJ 1992 L 92, p. 1) was non-existent or, alternatively, for a declaration that it was void.
2
SPO is a coordinating organization set up in 1963 by a number of Netherlands associations of building undertakings, the present
membership of which now comprises the 28 other appellants. Since 1952, the latter had adopted rules to regulate competition
in connection with calls for tenders issued in certain regions or sectors of the construction industry. After the SPO was
set up, those regional and sectoral rules were progressively standardized under its control between 1973 and 1979 (paragraphs
1, 2 and 4 of the contested judgment).
3
Under its statutes, SPO's object is
to promote and administer orderly competition, to prevent improper conduct in price tendering and to promote the formation
of economically justified prices. To that end, it drew up rules and regulations providing for
institutionalized regulation of prices and competition and is empowered to impose penalties on contractors affiliated to its member organizations if they breach their obligations
under those rules. Implementation of the rules is entrusted to eight executive offices, whose operations are controlled by
the SPO. The member associations of the SPO at present have a membership of more than 4 000 building undertakings established
in the Netherlands (paragraph 2 of the judgment).
4
On 3 June 1980, the general meeting of SPO adopted a
Code of Honour which was made binding on all the contractors belonging to its member associations and provided for a uniform system of penalties
for infringements of the rules standardized between 1973 and 1979 and certain material provisions necessary for the application
of those rules. The Code of Honour entered into force on 1 October 1980 (paragraph 5 of the judgment).
5
On 16 August 1985, the Commission sent to the SPO a request for information concerning the participation of foreign undertakings
in the SPO (paragraph 6 of the judgment).
6
By Ministerial Decree of 2 June 1986, the Netherlands authorities adopted uniform rules on tendering, laying down the rules
for the award of public contracts (paragraph 7 of the judgment).
7
In the same year, the SPO adopted two sets of price-regulating rules (hereinafter
the UPR), one of which concerns invitations to tender under the restricted procedure and the other invitations to tender under the
open procedure. Those rules were themselves supplemented by four regulations and three annexes and entered into force on
1 April 1987 (paragraph 8 of the judgment).
8
It is apparent in particular from paragraphs 90 and 125 of the judgment of the Court of First Instance that the UPR are essentially
intended to ensure that the undertakings rather than the contract awarders designate the
entitled undertaking, which will be the only one entitled to contact the contract awarder to negotiate the content and price of its tender and
to fix the price increases to be borne by the contract awarder, comprising essentially compensation for calculation costs
and contributions to the running costs of trade organizations, including the SPO. The UPR also provide that such increases
are to cover all the calculation costs of all the interested undertakings taking part in the meeting and are to be added to
the amount of the tender which the entitled undertaking will make to the contract awarder; in other words they are, according
to the appellants, charged to the works in relation to which those costs were incurred. Finally, tenderers may withdraw their
proposed price tenders after comparing them with those of other tenderers.
9
On 15 June 1987, the Commission carried out investigations at the SPO's premises. Thereafter, on 13 January 1988, the SPO
notified the UPR to the Commission, supplementing that notification on 13 July 1989 after amending the UPR. In November 1989,
the Commission decided to initiate a procedure against the SPO and on 5 December 1989 it sent it a statement of objections.
After a hearing on 12 June 1990, the Commission adopted a decision unfavourable to the applicants on 5 February 1992 under
Article 85 of the EEC Treaty (paragraphs 10 to 23 of the contested judgment).
10
In that decision, the Commission found that the statutes of the SPO of 10 December 1963, as subsequently amended, the two
sets of UPR rules of 9 October 1986 and the regulations and annexes forming part of them, the previous and similar UPR rules
which they replaced and the Code of Honour, except for Article 10 thereof, constituted infringements of Article 85(1) of the
Treaty. It also rejected the application for an exemption under Article 85(3) of the Treaty and imposed on the appellants
fines totalling ECU 22 498 000 (paragraphs 22, 23 and 25 of the judgment).
11
On 13 April 1992, the SPO and its 28 members brought an action before the Court of First Instance for a declaration that the
Commission decision was non-existent or, in the alternative, for the annulment of the decision.
12
By judgment of 21 February 1995, the Court of First Instance dismissed the application, thus confirming the Commission's decision.
13
On 27 April 1995, the SPO and its 28 members brought the present appeal against that judgment.
The pleas in law of the parties
14
In support of their appeal for annulment of the judgment of 21 February 1995, the appellants put forward two pleas in law,
one relating to the application for exemption under Article 85(3) of the EC Treaty and the other to determination of the amount
of the fines.
15
The appellants thus do not challenge the part of the judgment of the Court of First Instance which finds that infringements
of Article 85(1) of the Treaty were committed.
16
In their first plea, the appellants allege that the Court of First Instance, in reviewing the Commission's appraisal of their
application for exemption, infringed Articles 85(3) and 190 of the EEC Treaty, Article 9(1) of Council Regulation No 17 of
6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p.
87), or in any event the general principles of Community law requiring reasons to be given for decisions, and failed to observe
the rights of the defence.
17
Article 85(3) provides: The provisions of paragraph 1 may, however, be declared inapplicable in the case of:
─
any agreement or category of agreements between undertakings;
─
any decision or category of decisions by associations of undertakings;
─
any concerted practice or category of concerted practices;
which contributes to improving the production or distribution of goods or to promoting technical or economic progress (first condition)
while allowing consumers a fair share of the resulting benefit (second condition),
and which does not:
(a)
impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives
(third condition); (b) afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in
question (fourth condition).
18
In the first part of the first plea, the appellants claim that, to enable it to review the Commission's appraisal of the second
and third conditions for exemption and the statement of reasons therefor, the Court of First Instance should have determined
the
benefits at issue by first examining the first condition for exemption to which that concept relates before going on to examine the
other conditions.
19
In the second part of the first plea in law, the appellants claim that the Court of First Instance applied a number of inappropriate
legal criteria when reviewing the Commission's appraisal of the second condition for exemption.
20
First, they submit that it carried out its review by reference to the concept of competition rather than to that of benefits
as defined in the first condition for exemption under Article 85(3), first by deciding that the rules designed to counter
what the appellants refer to as ruinous competition could not,
in principle, be exempted because they necessarily lead to restriction of competition and, secondly, by indicating,
inter alia in paragraph 294 of the contested judgment, that the appellants
necessarily restrict competition and therefore deprive consumers of its benefits.
21
Secondly, they claim, it took the view, in paragraph 292, that, in examining the second condition for exemption, a macroeconomic
analysis was unnecessary; and it failed to take account of the position and role of the Netherlands authorities whilst the
rules were applicable.
22
Thirdly, they say, it expressed the view, in paragraph 295, that the benefits should accrue to all users without distinction,
and it also failed to take account of the fact that it was apparent from its own findings at the end of paragraph 296 that
contract awarders other than those whose situation it considered obtained benefits from the application of the rules.
23
In the third part of the first plea, concerning the third condition for exemption, the appellants claim that the Court of
First Instance, in considering that the process for designating the entitled undertaking was unilateral, substituted its own
view of the rules in question for that of the Commission, in breach of the exclusive competence vested in the latter by Article
9(1) of Regulation No 17. They also allege that the Court of First Instance disregarded a number of arguments they put forward.
24
In their second plea, the appellants, albeit without going into detail, criticize the Court of First Instance for infringing
Articles 85 and 190 of the EC Treaty, Article 4(2) and 15(2) of Regulation No 17 or the general principles of Community law
concerning the statement of reasons on which a decision is based, legal certainty, legal protection and proportionality, in
reviewing the Commission's evaluation of the gravity of the infringements that it had found. The plea as a whole concerns
the obligation whereby, according to the applicants, the Commission and the Court of First Instance must take account of the
extent to which the infringement was intentional (
intentionally or negligently) when evaluating its gravity, gravity being one of the two criteria for determining the amount of the fine provided for in
the second subparagraph of Article 15(2) of Regulation No 17.
25
In the first part of the second plea, the appellants criticize the Court of First Instance for failing to verify in each case,
when carrying out its review, whether the infringement had been committed
intentionally or negligently, a condition laid down in the first subparagraph of Article 15(2).
26
In the second part, they criticize it for failing to annul the Commission decision, which made it impossible for it to examine
the application of the criteria at issue since, in point 140, it
failed to decide whether there was any intention or fault as regards the infringements dating back to at least 1 October 1980, even though it did so in relation to the other infringements.
27
In the third part of the plea they maintain, essentially, that any application of Article 4(2) of Regulation No 17, which
grants exemption from the requirement of notification for certain agreements, is a factor that the Court of First Instance
must without fail take into account in determining the amount of the fine. In their view, that factor implies, as a matter
of principle, that the infringements could only have been committed negligently and not intentionally as the Court of First
Instance had, they maintain, decided.
28
In its reply, the Commission contends that the appeal should be dismissed as unfounded.
29
With respect to the first part of the plea, it submits that, in view of the cumulative nature of the conditions for exemption,
the Court of First Instance cannot be criticized for failure to examine the first exemption condition. Nor can it be criticized,
having regard to the second and third exemption conditions, for adopting for the purposes of its review the definition of
benefit put forward by the appellants themselves.
30
As regards the second part of the first plea, it contends that the various charges made by the appellants are based on a misreading
of the judgment of the Court of First Instance or concern assessments of fact which are outside the purview of the Court of
Justice in appeals.
31
With respect to the third part of the first plea, it contends that the matter to be examined, namely the unilateral nature
of the procedure for designation of the entitled undertaking, formed part of the proceedings since it appears in various parts
of the Commission decision and, moreover, there is no rule preventing the Community judicature, when reviewing the legality
of acts of the institutions, from taking account of arguments which are not contained as such in the act in question but nevertheless
confirm that it is correct. It considers that the many other arguments put forward in connection with this plea should be
rejected.
32
As regards the second plea, the Commission submits, first, that the Court of First Instance enjoys unlimited jurisdiction
in reviewing decisions which impose fines. Then, with respect to the various parts of the plea, it considers that the appellants
have, first of all, misinterpreted the first and second subparagraphs of Article 15(2) of Regulation No 17, between which
a distinction must be drawn, and have then misread point 140 of the Commission decision, which contains the criticized wording,
namely
intentionally or, at the very least, negligently, concerning the fulfilment or otherwise of the condition for the imposition of fines contained in the first subparagraph
of Article 15(2), which does not distinguish between the two cases. Finally, it submits that the appellants are wrong to
claim that their rules are covered by Article 4(2) of Regulation No 17, a claim which, moreover was rejected both by the Commission
decision and by the Court of First Instance; furthermore, that article is not required to be taken into account in imposing
the fine or determining its amount.
Findings of the Court
33
Pursuant to Article 119 of its Rules of Procedure, the Court may, where an appeal is clearly inadmissible or clearly unfounded,
by reasoned order dismiss it at any time.
The first plea
The first part
34
As regards the plea as to the failure by the Court of First Instance to examine the first exemption condition when carrying
out its review of the Commission's appraisal of the second and third exemption conditions, it must be pointed out, first,
that the Court of First Instance referred, in paragraphs 267 and 286, to the cumulative nature of the four exemption conditions
and indicated that
non-fulfilment of only one of those conditions will render it necessary to confirm the decision rejecting the application
for exemption made by the applicants.
35
Secondly, it must be held that the Court of First Instance, which referred in paragraph 288 of the contested judgment to the
limited nature of its review of the Commission's assessments relating to the grant of an exemption under Article 85(3), first
described, having regard to the arguments of the parties, the benefit considered by the appellants to derive from their rules
(paragraphs 268 to 271 regarding the second condition and paragraph 301 regarding the third), before examining those arguments
individually, in particular in paragraphs 293, 295, 296 and 298 and in paragraph 310 et seq.
36
Since the second exemption condition concerns the sharing out of the benefit and not its existence, the Court of First Instance
was entitled to adopt, as it did, the definition of benefit adopted by the appellants, an approach which did not adversely
affect them in any way.
37
It follows that the first part of the first plea must be rejected as manifestly unfounded.
The second part
38
The objection that the Court of First Instance applied a number of inappropriate criteria in reviewing the Commission's assessment
of the second exemption condition, concerning the sharing of the benefit, is manifestly unfounded.
39
The first argument is entirely based on a manifestly incorrect reading of the judgment. A reading of the contested passage
(end of paragraph 294) in context is sufficient to demonstrate this. In that part of the judgment, the Court of First Instance
merely carried out a check, as is appropriate in relation to the grant of exemptions, to establish whether the Commission
committed a manifest error of assessment (paragraph 288). Adjudicating in relation to the examination of the second exemption
condition (fair sharing of the benefit considered to derive from the contested rules), it simply found that the benefit considered
to derive from
action to counteract what they regard as ruinous competition (beginning of the contested passage) does not extend to consumers. In adjudicating as it did, the Court of First Instance
did not in any way confuse Article 85(1) (existence of restrictions of competition) and Article 85(3) (exemption conditions).
40
The appellants' second argument relates to paragraph 292 and is also based on a manifestly incorrect reading of the judgment.
It is clear merely from a reading of the judgment that the Court of First Instance did not, as the appellants imply, exclude
as a matter of principle macroeconomic analyses from the assessment of cartels in relation to the second exemption condition
in Article 85(3).
41
After mentioning, in paragraphs 288 and 289 of the judgment, its limited powers of review in relation to exemptions for restrictive
arrangements, in that Article 9 of Regulation No 17 conferred exclusive powers on the Commission, the Court of First Instance
considered, in paragraphs 290 and 291, whether the Commission was right not to have accepted the macroeconomic benefits relied
on by the appellants, before going on to conclude, in paragraph 292, that the Commission, by weighing the appellants' macroeconomic
analysis against its own microeconomic analysis, did not commit a manifest error of assessment.
42
Moreover, the attitude of the national authorities during the period of application of the rules constitutes a matter of fact
which the Court of First Instance, applying Community law, was not required to take into account in its assessment in relation
to the second exemption condition.
43
As to the third argument, its first part is also based on a manifestly incorrect reading of paragraph 295 of the contested
judgment. The Court of First Instance did not there admit, as the appellants assert, that the advantages identified should
benefit all users without distinction but merely noted the limits of the advantages claimed by the appellants, on the basis
of findings of fact ─ which, as such, fall outside the purview of the Court of Justice in an appeal.
44
In the second part of that argument, the appellants criticize the Court of First Instance for failing to take into consideration
the fact that, in the absence of the rules, the calculation costs which contract awarders who seek tenders from a large number
of undertakings cause the latter to incur are incorporated by the latter in their general costs and are thus passed on to
other contract awarders and that, by preventing this, the rules, in their view, are beneficial to contract awarders other
than those considered by the Court of First Instance.
45
However, it is clear from the beginning of paragraph 296 that the Court of First Instance expressly examined the question
of exactly who received the benefit which those other contract awarders were said to obtain, and in doing so weighed the benefit
against the disadvantages associated with it and the limited way in which it was shared.
46
Accordingly, the second part of the first plea must be rejected in its entirety as manifestly unfounded.
The third part
47
It must be borne in mind, without any detailed consideration of the appellants' arguments being necessary, that it is settled
case-law that the Court of Justice will reject outright complaints directed against grounds given in a judgment of the Court
of First Instance merely for the sake of completeness, since the latter cannot provide any basis for its annulment (see, in
particular, Case C-244/91 P
Pincherle v
Commission [1993] ECR I-6965, paragraph 25, and Case C-35/92 P
Parliament v
Frederiksen [1993] ECR I-991).
48
In this case, it must be noted that in paragraph 267 of the judgment, in examining the conditions for the grant of an exemption,
the Court of First Instance rightly stated:
It must first be borne in mind that the four conditions for granting an exemption under Article 85(3) of the Treaty are cumulative
... and that therefore non-fulfilment of only one of those conditions will render it necessary to confirm the decision rejecting
the application for exemption (see also paragraph 286) and that, furthermore, after reaching the conclusion, in paragraph 300, that the second exemption
condition was not fulfilled, it stated, in paragraph 310 of the contested judgment, that its finding that the third exemption
condition likewise had not been fulfilled was made
unnecessarily.
49
Since it is apparent from paragraphs 35 and 44 of this order that the Court of First Instance did not infringe Community law
by concluding that the second exemption condition was not fulfilled, the third part of the first plea fails and therefore
manifestly provides no basis for the appeal.
The second plea in law
The first two parts
50
This plea concerns determination of the amount of the fine under the second subparagraph of Article 15(2) of Regulation No
17.
51
In the first part, the appellants rely on the erroneous premise that the gravity of the infringements committed ─ one of the
prescribed criteria ─ should without fail have been considered in relation to the condition in the first subparagraph of that
provision, according to which infringements must have been committed intentionally or negligently.
52
In the second part, they also submit, likewise incorrectly, that the Court of First Instance should have annulled the Commission
decision which, by not distinguishing in paragraph 140 thereof between infringements committed intentionally and those committed
negligently, made it impossible for it to carry out its review.
53
However, it must be pointed out at the outset that it is apparent from the clear and precise terms of Article 15(2) that it
deals with two distinct matters. First, it lays down the conditions which must be fulfilled to enable the Commission to impose
fines (initial conditions); these include the condition concerning the intentional or negligent nature of the infringement
(first subparagraph). Secondly, it governs determination of the amount of the fine, which depends on the gravity and duration
of the infringement (second subparagraph). That clear distinction underlies all the case-law of the Court on that provision.
54
With regard to the first part, it must be observed next that the second subparagraph of Article 15(2) does not require (or
indeed allow) any reference to the initial conditions in the first subparagraph, or indeed to the case-law of the Court of
Justice on determination of the amount of the fines. It is apparent from that case-law that the gravity of infringements
must be determined by reference to numerous factors such as, in particular, the particular circumstances of the case, its
context and the dissuasive element of fines; moreover, no binding or exhaustive list of the criteria which must be applied
has been drawn up.
55
Furthermore, it must be observed that, as the Commission emphasizes, infringements committed negligently are not, from the
point of view of competition, less serious than those committed intentionally.
56
With regard to the second part, it need merely be observed that paragraph 140 of the Commission decision does relate to the
conditions for the imposition of fines and that the first subparagraph of Article 15(2), like the case-law of the Court of
Justice, draws no distinction between the two cases in which fines may be imposed, which are given as alternatives to each
other.
57
In those circumstances, the Court of First Instance was not required to verify, in order to determine the gravity of the infringement,
whether it had been committed intentionally or negligently, still less to distinguish between the two cases. The first two
parts of the second plea in law must therefore be rejected as manifestly unfounded.
The third part
58
As regards the appellants' claim that it is necessary, in assessing the gravity of an infringement, to take account of the
possible application of Article 4(2) of Regulation No 17, it need merely be pointed out that, for the purposes of determining
the amount of the fine, nothing in the text of the second subparagraph of Article 15(2) of Regulation No 17 or of Article
4(2) thereof or in the case-law of the Court of Justice requires the Commission or the Court of First Instance to take account
of any such application. It must also be pointed out, as the Court of First Instance rightly indicated, that in such circumstances
the parties are always entitled to notify their agreements to the Commission in order to obtain immunity from a fine.
59
The third part of the second plea must therefore also be dismissed.
60
Accordingly, pursuant to Article 119 of the Rules of Procedure, the appeal must be dismissed as clearly unfounded.
Costs
61
Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party's pleadings. Since the appellants have been unsuccessful, they must be ordered to pay
the costs.
On those grounds,
THE COURT
hereby:
1.
Dismisses the appeal;
2.
Orders the appellants, jointly and severally, to pay the costs.
Luxembourg, 25 March 1996.