Case C‑619/13 P

Mamoli Robinetteria SpA

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 — Leniency programme — Regulation (EC) No 1/2003 — Article 23(2) — Ceiling of 10% of turnover — Exercise of unlimited jurisdiction)

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

1. Judicial proceedings—Introduction of new pleas during the proceedings—Conditions—Plea based on matters which have come to light in the course of the procedure—No such plea—Amplification of an existing plea—No amplification—Inadmissibility

   (Rules of Procedure of the General Court (1991), Arts 44(1)(c) and 48(2))

2. Appeal—Grounds—Ground directed against a factual finding included purely for the sake of completeness—Ineffective plea in law—Rejection

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

3. Appeal—Grounds—Error of law relied on not identified—Ground lacking precision—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, Art. 168(1)(d))

4. 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, Art. 169(2))

5. Competition—EU rules—Commission notices on leniency and on immunity from fines and reduction of fines in cartel cases—Validity

   (Art. 101 TFEU; Council Regulation No 17, Art. 15(2); Commission Notice 2002/C 45/03)

6. Appeal—Grounds—Mistaken assessment of the facts—Inadmissibility—Review by the Court of the findings of fact—Possible only where the clear sense of the evidence has been distorted—Review by the Court of Justice of whether the obligation to state reasons has been observed—Included

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

7. Appeal—Grounds—Inadequate statement of reasons—Reliance by the General Court on implied reasoning—Lawfulness—Conditions

   (Art. 256 TFEU; Statute of the Court of Justice, Arts 36 and 53, first para.)

8. Competition—Fines—Amount—Determination—Maximum amount—Application of the maximum amount to all the undertakings penalised after participating in the same infringement—Breach of the principles of proportionality and equal treatment—No such breach

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

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

   (Art. 101 TFEU; Council Regulations No 1/2003, Art. 23(3); Commission Notice 2006/C 210/02, points 22 and 25)

10. 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, 19-22, 25, 28 and 29)

11. 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.)

12. Judicial proceedings—Measures of inquiry—Hearing of witnesses—Discretion of the General Court

1.  See the text of the decision.

   (see paras 30-35)

2.  See the text of the decision.

   (see paras 37, 38)

3.  See the text of the decision.

   (see paras 42, 50)

4.  See the text of the decision.

   (see paras 43, 44, 62)

5.  See the text of the decision.

   (see paras 51-55)

6.  See the text of the decision.

   (see paras 63-65, 113)

7.  See the text of the decision.

   (see paras 66-69)

8.  The limit of 10% of turnover provided for in the second subparagraph of Article 23(2) of Regulation No 1/2003 seeks to prevent fines being imposed which it is foreseeable that the undertakings, owing to their size, as determined, albeit approximately and imperfectly, by their total turnover, will not be able to pay. The limit is therefore 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.

   It follows that setting fines for all penalised undertakings having participated in the same infringement at 10% of their respective turnovers, cannot, since it is merely the result of applying the ceiling provided for in the second subparagraph of Article 23(2) of Regulation No 1/2003, constitute an infringement of the principles of proportionality and equal treatment.

   (see paras 83-85)

9.  Although, in assessing the gravity of an infringement of Article 101 TFEU and subsequently setting the fine to be imposed, account may be taken, inter alia, of the geographic extent of an infringement and of the number of product sub-groups 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, must be classified as more serious than the second and as therefore justifying the setting of a multiplier for the ‘additional amount’ which is higher than that used for calculating the fine imposed for the second infringement.

   (see para. 101)

10.  Observance of the principle of equal treatment is binding, in particular, on the General Court in the exercise of its unlimited jurisdiction with regard to a Commission decision imposing fines. 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 of differences between the undertakings that have participated in the same 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 103-105)

11.  See the text of the decision.

    (see paras 107, 108)

12.  See the text of the decision.

    (see paras 117-120)