OPINION OF ADVOCATE GENERAL
KOKOTT
delivered on 24 May 2012 (1)
Case C‑441/11 P
European Commission
v
Verhuizingen Coppens NV
(Appeal – Competition – Agreements, decisions and concerted practices – Article 81(1) EC and Article 53(1) of the EEA Agreement – International removal services market in Belgium – Global cartel consisting of three individual agreements – Single and continuous infringement – No proof that a participant in a cartel, which was involved in only one individual agreement, was aware of the other individual agreements – Partial or complete annulment of a Commission decision)
I – Introduction
1. When may the General Court of the European Union annul an antitrust decision by the European Commission in its entirety and when must it be satisfied with a partial annulment? That is essentially the question of law on which the Court of Justice must decide in the present appeal proceedings and whose practical importance should not be underestimated. (2) It arises in connection with the ‘removals cartel’ which the Commission detected on the international removal services market in Belgium a few years ago and made the subject of a decision imposing a fine (3) (‘the contested decision’) on 11 March 2008.
2. According to the Commission’s findings, that removals cartel was a global cartel in the form of a single and continuous infringement based on three kinds of anti-competitive agreement between the removal companies involved: agreements on prices, agreements on sharing the market by means of false quotes (cover quotes) and agreements on a system of financial compensation for rejected offers or for not quoting at all (commissions).
3. In addition to nine other companies or groups of companies, the Commission accused Verhuizingen Coppens NV (‘Coppens’) of participating in the global cartel. However, the Commission was able to prove that Coppens participated actively in only one of the three components of the global cartel, namely the system of cover quotes. It could not be clarified whether Coppens was aware or should have been aware that by participating in the system of cover quotes it was also joining in the global cartel. Under those circumstances, by judgment of 16 June 2011 (also ‘the judgment of the General Court’ or ‘the judgment under appeal’), (4) the General Court annulled the declaration that Coppens had participated in the cartel and the fine imposed on Coppens.
4. The Commission is now appealing against that judgment. It claims that the General Court should have annulled the contested decision only partially, in so far as it concerns Coppens, since it was proved at least that Coppens participated in the anti-competitive system of cover quotes.
5. The Court will soon be required to deal with a number of further questions of law in the other pending appeal proceedings concerning the removals cartel. (5)
II – Background to the dispute
A – Facts and administrative procedure
6. According to the findings in the Commission’s investigations, a cartel had existed on the international removal services market in Belgium from 1984 to 2003, in which 10 removal companies (6) had participated in different periods (7) and to differing extents.
7. In the contested decision, the Commission found that the cartel was a global cartel in the form of a single and continuous infringement (8) based on a total of three kinds of agreement: (9)
– agreements on prices, in which the removal companies involved entered into arrangements concerning remuneration for their services to customers;
– agreements on a system of financial compensation for rejected offers or for not quoting at all (commissions); the competitors of the company winning the contract for an international removal were intended to receive a sort of financial compensation, whether they themselves had submitted a quote for the contract or abstained from doing so; those commissions were included in the final price for the respective removal services, unnoticed by the customers;
– agreements on sharing the market by means of false quotes (cover quotes) submitted to the customer or the person who was moving by a removal company which did not intend to carry out the removal; to that end, a company indicated in each case to its competitors the price, the rate of insurance and the storage costs that they were to quote for the fictitious service.
8. Whilst the agreements on commissions and cover quotes applied throughout the duration of the cartel (from 1984 to 2003), the implementation of the agreements on prices could not be proven after May 1990. (10)
9. In the contested decision, the Commission inferred from its factual findings that the companies involved had infringed Article 81(1) EC and Article 53(1) of the European Economic Area (EEA) Agreement of 2 May 1992 (OJ 1994 L 1, p. 3) by, in different periods, ‘directly and indirectly fixing prices for international removal services in Belgium, sharing part of the market, and manipulating the procedure for the submission of tenders’. (11)
10. The contested decision was served on 31 legal persons in total, on which the Commission also imposed fines of various amounts (12) in respect of the infringement, in some cases individually and in some cases jointly and severally.
B – Participation by Coppens in the cartel
11. The Commission found that Coppens had participated in the global cartel in the period from 13 October 1992 to 29 July 2003 in Article 1(i) of the contested decision. Under Article 2(k) of the contested decision, a fine of EUR 104 000 was imposed on Coppens, without any order as to joint and several liability.
12. However, it is clear from the judgment under appeal (13) that the Commission did not show that, when Coppens participated in the agreement on cover quotes, it was aware of the other companies’ anti-competitive conduct concerning the commissions, or that it could reasonably have foreseen such conduct. As regards the applicant’s awareness of the offending conduct of the other participants in the cartel, as the Commission itself acknowledges, the contested decision was not based upon specific evidence.
C – Judicial proceedings at first instance
13. Several of the addressees of the contested decision sought legal protection at first instance by way of actions for annulment before the General Court. (14)
14. By the judgment under appeal, delivered on 16 June 2011, the General Court decided the action brought by Coppens on 4 June 2008. In that judgment, the General Court granted the application brought by Coppens in its entirety, annulling Article 1(i) and Article 2(k) of the contested decision and ordering the Commission to pay the costs of the proceedings at first instance.
III – Procedure before the Court
15. By written pleading of 25 August 2011, the Commission brought the present appeal against the judgment of the General Court. It claims that the Court should:
– set aside the judgment under appeal;
– dismiss the application for annulment or – in the alternative – annul Article 1(i) of the contested decision in so far as it holds Coppens liable for the agreement on commissions;
– set the level of the fine at such amount as the Court of Justice considers appropriate; and
– order Coppens to pay the costs of the appeal and such proportion of the costs of the proceedings before the General Court as the Court of Justice considers appropriate.
16. Coppens contends that the Court should:
– uphold the judgment under appeal;
– in the alternative, should the Court set aside the judgment under appeal in whole or in part, reduce the fine imposed by the Commission such that it is equivalent to 10% of Coppens’ turnover on the market concerned; and
– order the Commission to pay the costs of the proceedings before the General Court and the costs of the appeal proceedings.
17. The appeal was examined before the Court of Justice on the basis of the written documents.
IV – Assessment of the appeal
18. The Commission relies on a single plea in law. It argues that the General Court erred in law and acted ultra vires in so far as it annulled the contested decision in respect of Coppens in its entirety. In the Commission’s view, the General Court should instead have ordered a partial annulment, since it was proved at least that Coppens had participated actively in one part of the infringement, the anti-competitive system of cover quotes.
A – Admissibility of the appeal
19. It should first be pointed out that Coppens criticises the lack of precision in the plea in law raised by the Commission.
20. If, in doing so, Coppens wished to call into question the admissibility of the appeal, its claims would not be very convincing. The error of law by the General Court alleged by the Commission is described precisely in the appeal. Contrary to the view apparently taken by Coppens, the Commission also states precisely which legal provisions it considers to have been infringed: Article 263 TFEU and Article 264 TFEU. In addition, the Commission relies on considerations relating to proportionality, procedural economy, the effective enforcement of the competition rules and the ne bis in idem principle.
21. Consequently, there can be no doubts as to the admissibility of the present appeal.
B – The merits of the appeal
22. The appeal brought by the Commission will be successful if the General Court was not permitted to annul the contested decision in respect of Coppens in its entirety, but only partially.
23. Contrary to the view taken by the Commission, the examination of this question does not depend on the principle of proportionality, and certainly not on the particular formulation thereof contained in the second sentence of Article 5(1) and (4) TEU with regard to the distribution of competences between the European Union (EU) and its Member States.
24. The sedes materiae is Article 264 TFEU alone. (15) That provision lays down the powers of the General Court – as part of the institution ‘Court of Justice of the European Union’ – in deciding on actions for annulment under Article 263 TFEU. The first paragraph of Article 264 TFEU provides:
‘If the action is well founded, the Court of Justice of the European Union shall declare the act concerned to be void.’
25. This latter provision should not be misconstrued as an ‘all or nothing’ rule. If an action for annulment is only partially well founded, it can hardly be granted in its entirety. Otherwise the applicant would obtain more than he is entitled to by law. Consequently, the first paragraph of Article 264 TFEU must be interpreted and applied in such a way that the act contested by the action for annulment is declared to be void in so far as the action is well founded.
26. As the Court has found in this regard, the General Court may not, merely because it considers a plea relied on by the applicant to be well founded, automatically annul the challenged act in its entirety. Annulment of the act in its entirety is not acceptable where it is obvious that that plea, directed only at a specific part of that act, is such as to provide a basis only for partial annulment. (16)
27. Moreover, in administrative procedures in particular, the principle of procedural economy suggests that EU legal acts should be annulled only partially in cases of doubt, because it is then possible to avoid any repetition of the administrative procedure and possible fresh judicial proceedings or at least to restrict their subject-matter. In addition, in antitrust cases in particular, a repetition of the administrative procedure could, depending on the circumstances, be contrary to the ne bis in idem principle. (17) Furthermore, only partial annulment of Commission decisions is more consistent with the fundamental requirement of an effective enforcement of the EU competition rules (18) than their complete annulment.
28. However, the partial annulment of an EU act is possible only if the elements the annulment of which is sought may be severed from the remainder of the act (the ‘requirement of severability’). (19) There is no such severability where the partial annulment of the contested act would have the effect of altering its substance. (20)
29. Exercising its powers under the first paragraph of Article 264 TFEU, the General Court was therefore permitted to annul the contested decision in respect of Coppens in its entirety in so far as partial annulment would have altered the substance of that decision. This must be assessed on the basis of objective criteria. (21)
30. Regrettably, the General Court did not make any specific statements in this regard in the judgment under appeal. It merely pointed out that the Commission regarded Coppens as liable for its alleged participation in a single and continuous infringement, even though it was possible to prove only that Coppens participated in one of the three elements of the global cartel, namely the system of cover quotes. (22)
31. Apparently, the General Court – like Coppens – took the view that participation by an undertaking in a single and continuous infringement is fundamentally different, in its substance, to the commission of a ‘simple’ infringement of Article 81 EC (now Article 101 TFEU).
32. However, that is not the case.
33. Of course, a finding that an undertaking participated in a single and continuous infringement is more than a mere finding that it participated in one or more elements of that infringement. This certainly does not mean, however, that a global cartel constitutes an ‘aliud’ in relation to the individual agreements from which it is composed. The differences are only gradual in nature.
34. If a single and continuous infringement is taken to exist in a case like the present one, this means that all the participants in the cartel can have imputed to them the participation in the offence by each of the other participants in the cartel – like co-perpetrators – even if they did not themselves participate actively in each individual element of the global cartel.
35. The condition for such imputation, according to settled case-law, is that it is established that the undertaking in question was aware of the offending conduct of the other participants or that it could reasonably have foreseen it and that it was prepared to take the risk. (23)
36. In other words, the reciprocal imputation of participation in an offence is possible if the respective participant in the cartel was aware or should have been aware that, through its own participation, it was joining in a global cartel and contributing by its own conduct to the anti-competitive objectives jointly pursued by all the participants. (24) The extent and the gravity of the respective participation in the global cartel may be taken into consideration individually in determining the fine for each participant in the cartel. (25)
37. If such reciprocal imputation of participation in an infringement is frustrated because, as in the present case, one of the participants in the cartel was not aware of the existence of the global cartel and could not reasonably have foreseen it, this certainly does not mean, however, that it would automatically be exonerated from any sanction. In fact, there is nothing to prevent it still being held liable for the individual agreements in which it has been established to have participated actively (26) and by which the same anti-competitive object was pursued.
38. The fact that several anti-competitive agreements may be regarded as a single and continuous infringement does not in itself mean that each individual agreement cannot also in itself constitute an infringement of Article 81 EC (now Article 101 TFEU). (27) The General Court certainly acknowledges this, (28) but does not draw the necessary inferences for its judgment.
39. As the Commission rightly observes, both the global cartel and the constituent individual agreements may have the same anti-competitive object for the purposes of Article 81(1) EC (now Article 101(1) TFEU). (29) In the case of the Belgian removals cartel, this common anti-competitive object consisted in directly and indirectly fixing prices for international removal services in Belgium, sharing part of the market, and manipulating the procedure for the submission of tenders. (30) That object was reflected both in the individual agreements and in the global cartel.
40. Under these circumstances, in the present case there was no reason to fear that only partial annulment of the contested decision solely in so far as it held Coppens liable for participation in a global cartel would have altered the substance of that decision. Rather, the result of partial annulment would have been that Coppens was still held liable for an infringement with the same anti-competitive object as the global cartel, albeit now limited to its active participation in only one part, the system of cover quotes.
41. All in all, the General Court would therefore have been obliged, under the first paragraph of Article 264 TFEU, to annul the contested decision only partially. By nevertheless annulling the contested decision in respect of Coppens in its entirety, the General Court erred in law.
42. Consequently, the appeal brought by the Commission is well founded and the judgment under appeal should be set aside.
V – Decision on the action for annulment brought by Coppens
43. In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice, if the appeal is well founded, that court must quash the General Court’s decision. It may then itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
44. In the present case, in its judgment the General Court examined only some of the pleas in law raised by Coppens in the proceedings at first instance. In such a situation, it may be appropriate to refer the case back to the General Court for a fresh judgment. (31) However, that course of action is not compulsory. In accordance with the principle of procedural economy, the Court of Justice may itself give final judgment in the matter whenever there is sufficient information before the Court, it has all the elements necessary, and the parties were able to comment on all the relevant considerations before the General Court. (32)
45. That is the situation here. First, the facts, as far as the relevant points are concerned, are undisputed and require no further clarification. Second, the parties had sufficient opportunity, both in the proceedings at first instance and in the appeal proceedings, to exchange their views before the European Union Courts on all the considerations which are relevant to the decision in the case.
46. I therefore suggest that the Court exercise its right to assume responsibility for the examination and itself give final judgment in the matter.
A – The finding that Coppens participated in the infringement
47. In Article 1(i) of the contested decision, Coppens was found to have participated in the infringement for the period from 13 October 1992 to 29 July 2003. In the proceedings at first instance, Coppens essentially raised three pleas in this regard, which I will examine in a different order below.
48. First of all, the company claims that there is absolutely no evidence for the anti-competitive conduct of which it is accused in 1994 and 1995.
49. In fact, the contested decision does not contain any specific evidence that Coppens itself had submitted cover quotes or requested such cover quotes from other participants in the cartel in 1994 and 1995. The Commission has expressly conceded that it has no such evidence. Relevant evidence exists only for 1992 and 1993 and for the years 1996 to 2003.
50. From this fact alone, however, it can be inferred at most that Coppens did not participate actively in the implementation of the agreement on cover quotes in 1994 and 1995. This may be taken into consideration, if appropriate, in determining the amount of the fine. (33)
51. It is not self-evident, on the other hand, to draw a further conclusion that in 1994 and 1995 Coppens withdrew from the cartel entirely and thus did not commit any infringement at all. The fact that an undertaking does not act on the outcome of discussions or agreements having an anti-competitive object is not such as to relieve that undertaking of responsibility for the fact of its participation in a cartel, unless it has publicly distanced itself from what was discussed or agreed. (34) In this regard, the burden of adducing evidence rests with the undertaking in question. (35)
52. In the present case, Coppens has not at any time put forward a substantiated argument that specifically in 1994 and 1995 it publicly distanced itself from the agreement on the system of cover quotes. Any such distancing also appears fairly implausible in view of the fact that for the subsequent years there is much evidence that Coppens participated actively in the system of cover quotes.
53. Under these circumstances, there can be no criticism that the Commission did not assume a complete interruption in Coppens’ participation in the cartel, in the light of the ‘gap’ in 1994 and 1995, but merely took the view that Coppens did not participate in implementing the cartel temporarily. The first plea raised by Coppens must therefore be rejected.
54. Second, Coppens alleges that the Commission failed to take due account of the relative weight of its participation in the cartel.
55. This plea likewise does not concern the finding of the infringement as such, but may possibly be relevant with regard to the amount of the fine. It has no bearing in the present connection at least.
56. Third, Coppens objects to the finding of its participation in the global cartel as a single and continuous infringement.
57. This latter plea can be upheld. It is clear that Coppens participated actively in the anti-competitive system of cover quotes, in respect of which the Commission produced a total of 67 items of evidence which were not disputed by Coppens. However, it could not be proved that Coppens further participated in the global cartel. Neither in the contested decision nor in the proceedings before the European Union Courts has the Commission put forward any evidence that – apart from the cover quotes – Coppens was aware of the unlawful conduct of the other participants in the global cartel, or could reasonably foresee such conduct, and was prepared to accept the risk. (36) By nevertheless holding Coppens liable for participating in the global cartel, the Commission therefore committed a manifest error of assessment.
58. As Coppens rightly observes, that error of assessment cannot be rectified solely by reducing the fine imposed in Article 2(k) of the contested decision. Rather, account must also be taken of that error in relation to the finding of the infringement in Article 1(i) of the contested decision. Not only the sanction, but also the actual anti-competitive conduct on which the sanction is based must be set out correctly in the operative part of the contested decision. Otherwise, the condemnation of the company concerned in the contested decision would go beyond what it may be reproached of by law. This could have a negative effect on the company’s reputation and be detrimental to it in relation to third-party civil claims and in future antitrust proceedings. (37)
59. However, as has already been explained above, (38) the error of assessment made by the Commission does not justify the annulment of the contested decision in relation to Coppens in its entirety. Instead, Article 1(i) of the contested decision should be annulled, in accordance with the first paragraph of Article 264 TFEU, only in so far as it finds that, beyond Coppens’ participation in the system of cover quotes, it took part in a single and continuous infringement, that is in the global cartel.
B – Revision of the amount of the fine
60. The consequence of the partial annulment of Article 1(i) of the contested decision which I propose is that the fine set in Article 2(k) of the decision must also be revised. In the context of its right to assume responsibility for the examination under the first paragraph of Article 61 of the Statute, the Court enjoys unlimited jurisdiction in this regard, as is laid down in Article 261 TFEU in conjunction with Article 31 of Regulation (EC) No 1/2003. (39) It may therefore revise the fine at its own discretion. (40)
Starting point for the calculation of the fine
61. The basic amount of the fine should be determined by reference to Coppens’ turnover from the relevant services during the last full business year of its participation in the infringement. (41) In the case of Coppens, this is the turnover generated in 2002 from international removal services, which indisputably amounted to EUR 58 338. (42) This is also the best way to take account of the relative size and importance of the respective companies on the market concerned, as has been urged by Coppens on several occasions.
Gravity and duration of the infringement
62. The removals cartel is an extremely serious infringement, by which the companies were involved in ‘directly and indirectly fixing prices for international removal services in Belgium, sharing part of the market, and manipulating the procedure for the submission of tenders’. (43)
63. The argument put forward by Coppens that its participation in the system of cover quotes has less weight than the participation by other companies in the agreements on prices and the financial compensation system is not very convincing. As the Commission rightly observes, a system of cover quotes is also capable of distorting competition on a lasting basis, increasing prices for the services concerned and thus ultimately causing considerable damage to consumers. Consequently, it is certainly not a minor offence.
64. Coppens likewise cannot claim that it played only a relatively small role within the system of cover quotes. It is common ground that Coppens submitted cover quotes in 67 individual cases, more often than most of the other participants in the cartel. (44) It should also be borne in mind that Coppens not only submitted cover quotes itself, but also requested other participants in the cartel to submit such quotes. Coppens thus participated both actively and passively to a considerable degree in the system of cover quotes.
65. It is also irrelevant how often Coppens itself secured a removals contract on the basis of the system of cover quotes. (45) Submitting cover quotes generally entails the risk of a distortion of competition and higher prices, irrespective of the company securing a specific contract. Competition and ultimately the consumer may therefore be damaged even where, in a specific case, the result is not that precisely desired by the participants in the cartel.
66. Accordingly, with regard to the removals cartel, the factor of 17% of the relevant turnover, (46) chosen by the Commission, seems appropriate, in principle, for reflecting the degree of gravity of the infringement in calculating the fine. The deterrence factor additionally applied by the Commission, amounting to a further 17% of the relevant turnover, (47) also seems appropriate to me; (48) moreover, it was not challenged by Coppens on a substantiated basis in the judicial proceedings.
67. Since I could not find any error of law committed by the Commission as regards the duration of the infringement by Coppens, (49) in accordance with the findings in the contested decision, the calculation of the amount of its fine should be based on a period of 10 years and 9 months, which corresponds to a multiplier of 11. (50)
68. This gives a basic amount for the fine of EUR 119 009.52, which can be rounded down to EUR 119 000. (51)
Reduction of the fine
69. It should be borne in mind, however, that in the present case it could not be proven that Coppens participated in the removals cartel as a global cartel in the form of a single and continuous infringement. (52) Rather, it can be held liable solely for involvement in the anti-competitive system of cover quotes. As the Commission also concedes, this must result in a reduction of the fine.
70. It would be conceivable simply to halve the calculated basic amount of the fine. After all, during the period when Coppens participated in the cartel, the system of cover quotes was one of two individual elements of the global cartel still in operation, to which roughly the same weight should be attributed on the basis of their gravity and their effects. (53)
71. However, in my view, such an approach would not take sufficient account of the fact that a global cartel is more than the sum of its individual parts. On account of its particular complexity and the interaction between several individual agreements in one overall system, the global cartel is especially likely to damage competition. The infringement by an undertaking which participates in a global cartel therefore has much greater relative weight than mere participation by that undertaking in one or more individual elements of that cartel.
72. I therefore consider it appropriate in the present case to apply to Coppens considerably less than half of the calculated basic amount, more precisely around one third, that is EUR 39 600.
73. It should also be taken into consideration that there is no proof that Coppens participated actively in the implementation of the system of cover quotes for 1994 and 1995, that is for 2 of almost 11 years. This should not lead to complete impunity for the years in question, as Coppens should still be regarded as a member of the cartel in that period. (54) However, an additional reduction of the basic amount by around one half of the amount apportionable to that two-year period, that is just under 10%, would appear to be appropriate. The fine would then amount to EUR 35 900.
74. Because the Commission did not otherwise establish any aggravating or attenuating circumstances and no such circumstances have been claimed in the proceedings before the European Union Courts, a further increase or reduction of the calculated fine does not appear appropriate.
75. I would merely point out in passing that the fine thus calculated also does not exceed the maximum amount, as laid down by law, of 10% of Coppens’ total turnover (55) (second subparagraph of Article 23(2) of Regulation No 1/2003).
76. Lastly, as regards the principle of proportionality relied on by Coppens, under that principle the fine must be proportionate to the nature, gravity and duration of the established infringement. (56) Because Coppens is guilty of an extremely serious infringement over a period of many years, it is entirely appropriate that the calculated fine erodes a large proportion of its annual turnover on the international removal services market concerned, which moreover represents only a relatively small proportion of the total annual turnover generated by Coppens from removal services.
Interim conclusion
77. Reconsidering all the circumstances of the individual case, in particular the nature, gravity and duration of the infringement and the relative size of Coppens on the market concerned, a fine of EUR 35 900 seems to be commensurate with the nature and the seriousness of the offence. In particular, it does not raise any doubts in relation to the principle of proportionality.
VI – Costs
78. Where the appeal is well founded, and the Court itself gives final judgment in the case, the Court is to make a decision as to costs (first paragraph of Article 122 of the Rules of Procedure).
79. Under the first subparagraph of Article 69(3) in conjunction with Article 118 of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order that the costs be shared. That is the situation in the present case: whilst the Commission’s main argument in the appeal proceedings may be upheld, Coppens is largely successful on the merits with its action for annulment before the Court, according to my proposed solution. Against this background, it seems fair to take into consideration the overall costs at both instances, ordering Coppens to pay one third of its own costs and the Commission to pay the other costs of the proceedings.
VII – Conclusion
80. In the light of the foregoing considerations, I propose that the Court should:
(1) set aside the judgment of the General Court of the European Union of 16 June 2011 in Case T‑210/08 Verhuizingen Coppens v Commission;
(2) annul Article 1(i) of Commission Decision C (2008) 926 final of 11 March 2008 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.543 – International Removal Services) in so far as it finds that, beyond the system of cover quotes, Verhuizingen Coppens NV took part in a single and continuous infringement;
(3) set the fine imposed on Verhuizingen Coppens NV in Article 2(k) of that decision at EUR 35 900;
(4) order Verhuizingen Coppens NV to pay one third of its own costs in both sets of proceedings, the remainder of the costs of the proceedings to be borne by the European Commission.