JUDGMENT OF THE GENERAL COURT (Third Chamber)
6 February 2014 (*)
(Competition — Agreements, decisions and concerted practices — Spanish service stations market — Decision rejecting a complaint – Regulation (EC) No 1/2003 — Failure to fulfil commitments made binding by a Commission decision — Reopening of the procedure — Fines — Periodic penalty payments)
In Case T‑342/11,
Confederación Española de Empresarios de Estaciones de Servicio (CEEES), established in Madrid (Spain),
Asociación de Gestores de Estaciones de Servicio, established in Madrid,
represented by A. Hernández Pardo and B. Marín Corral, lawyers,
applicants,
v
European Commission, represented by J. Baquero Cruz and F. Ronkes Agerbeek, acting as Agents,
defendant,
supported by
Kingdom of Spain, represented initially by M. Muñoz Pérez, and subsequently by S. Centeno Huerta and finally by A. Rubio González, Abogados del Estado,
and by
Repsol Comercial de Productos Petrolíferos SA, represented by J. Jiménez-Laiglesia Oñate and S. Rivero Mena, lawyers,
interveners,
APPLICATION for annulment of Commission Decision C(2011) 2994 final of 28 April 2011 rejecting the applicants’ complaint concerning infringements of the competition rules allegedly committed by REPSOL (Case COMP/39461),
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz (Rapporteur), President, I. Labucka and D. Gratsias, Judges,
Registrar: J. Palacio González, Principal Administrator,
having regard to the written procedure and further to the hearing on 29 April 2013,
gives the following
Judgment
1 By the present action, the applicants, the Confederación Española de Empresarios de Estaciones de Servicio (CEEES) and the Asociación de Gestores de Estaciones de Servicio, seek the annulment of Commission Decision C(2011) 2994 final of 28 April 2011 rejecting their complaint concerning infringements of the competition rules allegedly committed by REPSOL (Case COMP/39461) (‘the contested decision’). That complaint criticises the failure by the intervener, Repsol Comercial de Productos Petrolíferos SA (‘Repsol’), to fulfil the commitments made binding by Commission decision of 12 April 2006 relating to a proceeding pursuant to Article 81 [EC] (Case COMP/B-1/38.348 — Repsol CPP) (summary in OJ 2006 L 176, p. 104, ‘the commitments decision’).
The facts giving rise to the dispute
2 The CEEES is an association of undertakings whose purpose is the defence and representation of the interests in all areas of its members, which are, in essence, companies holding licences to operate service stations.
3 The Asociación de Gestores of Estaciones de Servicio is an association of undertakings which forms part of the CEEES and which represents the interests of businesses operating service stations which they do not own.
4 Repsol is a Spanish oil company.
5 On 16 June 2004, the Commission of the European Communities opened a proceeding pursuant to Articles 81 EC and 82 EC against Repsol concerning the distribution of fuel to Spanish service stations. In its preliminary assessment, the Commission expressed doubts as to the compatibility with Article 81 EC of some elements of the exclusive long-term distribution agreements concluded between Repsol and the service stations.
6 In order to address the concerns raised by the Commission, Repsol proposed commitments, which were published as part of the public consultation provided for by Article 27(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) and which have been revised several times.
7 On 12 April 2006, in adopting the commitments decision, on the basis of Article 9(1) of Regulation No 1/2003, the Commission made the revised commitments binding until 31 December 2011.
8 The commitments decision provides, inter alia, the following:
‘[Repsol] undertakes to comply with the provisions contained in Articles 4 and 5 of Regulation No 2790/99 in relation to the agreements laying down the conditions under which [Repsol] carries on the business of distributing fuel for motor vehicles through service stations in Spain. In particular, [Repsol] undertakes to:
…
(b) refrain from restricting the purchaser’s ability to determine the selling price, although [Repsol] may impose maximum selling prices or recommend a selling price, provided that these are not tantamount to a fixed or minimum selling price as a result of pressure brought to bear or incentives offered by either of the parties; or, in the case of agency agreements, where [Repsol] determines the selling price since the agent does not become the owner of the goods, refrain from preventing the agent sharing his commission with the customer and from imposing any restrictions on him in this connection, allowing the agent complete freedom to lower the price actually paid by the customer without reducing [Repsol]’s revenue as principal.’
9 In the commitments decision, the Commission considered that the commitments proposed by Repsol were sufficient to remedy the problems identified and closed the procedure.
10 On 30 May 2007, like several other companies, the applicants filed a complaint with the Commission, alleging the existence of an agreement contrary to Article 81 EC between several oil companies. They also argued that Repsol imposed minimum selling prices to the public at service stations, in breach of Articles 81 EC and 82 EC.
11 In their additional written statement of 10 July 2007, the applicants argued that Repsol had failed to fulfil its commitment, made binding by the commitments decision, not to restrict the ability of service stations in Spain to determine the selling price of fuel to the public and asked the Commission to reopen the procedure against Repsol under Article 9(2) of Regulation No 1/2003.
12 In their observations of 13 November 2009, the applicants argued that the Commission was required to impose a fine on Repsol on the basis of the latter’s failure to fulfil its commitments.
13 On 30 July 2009, the Comisión Nacional de la Competencia (the Spanish National Competition Commission, ‘the CNC’) adopted a decision against Repsol, Cepsa Estaciones de Servicio SA and BP Oil España SA (‘the decision of the CNC’). In that decision, the CNC found that those companies had infringed Article 1 of the Ley 16/1989, de 17 de julio, de Defensa de la Competencia (Law No 16/1989 of 17 July 1989 on the protection of competition, BOE No 170 of 18 July 1989, p. 22747), and Article 81(1) EC, inasmuch as they had indirectly fixed selling prices of fuel to the public to be applied by independent undertakings which operated under their brand, thereby restricting free competition between service stations in their network and between the remaining service stations. In addition, the CNC imposed a fine of EUR 5 million on Repsol and ordered it to take all measures necessary to end that practice of price-fixing and to refrain from that practice in the future.
14 By documents of 30 March and 28 December 2010, respectively, the applicants and Repsol appealed against the decision of the CNC.
15 By letter of 21 September 2010, the Commission presented to the applicants its provisional assessment of the complaint which they had filed on 30 May 2007.
16 As regards the first part of the applicants’ complaint, relating to an alleged agreement contrary to Article 101 TFEU, the Commission informed the applicants that it had forwarded all the elements of that complaint relating to such an agreement to the CNC and asked them to confirm whether they were going to withdraw their complaint concerning that agreement.
17 As to the second part of their complaint, alleging an infringement by Repsol and Cepsa Estaciones de Servicio of Article 101 TFEU on the basis of the imposition of minimum selling prices at service stations, the Commission argued that that issue had already been addressed in the decision of the CNC and announced its intention to reject that part of their complaint, in accordance with Article 13(2) of Regulation No 1/2003. The Commission invited the applicants to withdraw it.
18 Finally, as regards the third part of their complaint, concerning the failure by Repsol to fulfil its commitments made binding by the commitments decision, the Commission pointed out that there were insufficient grounds to conduct an investigation and that, still on a preliminary basis, it rejected that part of their complaint.
19 In their reply of 18 October 2010, the applicants expressed their agreement to the withdrawal of the first two parts of their complaint referred to in paragraphs 16 and 17 above. However, they maintained the third part of their complaint, referred to in paragraph 18 above.
20 On 28 April 2011, the Commission adopted the contested decision, in which it rejected the applicants’ complaint.
21 The Commission pointed out, in recitals (22) to (25) in the preamble to the contested decision, that, following failure to comply with a commitments decision, in the first place, it could reopen the procedure under Article 9(1) of Regulation No 1/2003 and impose fines or periodic penalty payments under Articles 23 and 24 of that regulation and, secondly, it had discretion in that regard. In this case, there are insufficient grounds to adopt measures against Repsol.
22 In recitals (26) to (32) in the preamble to the contested decision, the Commission concluded that it was not necessary to reopen the procedure against Repsol, because the CNC had already conducted an investigation against Repsol and adopted measures against that company. The analysis of the complaint would have resulted in the duplication of work and would have been an ineffective use of public resources.
23 In recitals (33) to (43) in the preamble to the contested decision, the Commission examined and rejected two of the applicants’ arguments. First, in recitals (34) to (40) in the preamble to that decision, the Commission rejected the applicants’ argument that the examination of the complaint would have led only to a limited duplication of work. Secondly, in recitals (41) to (43) in the preamble to that decision, the Commission rejected the argument that the case was concerned with separate infringements. In that context, the Commission considered, in particular, that, even assuming that Repsol’s behaviour constituted an infringement of two separate legal provisions, namely Article 101 TFEU, on the one hand, and Article 9 of Regulation No 1/2003, on the other hand, there were insufficient grounds for adopting measures concerning that aspect of the complaint. The public proceedings brought by the CNC to penalise Repsol’s behaviour is sufficient to deter the latter from participating in such anticompetitive practices in the future.
24 Finally, in recitals (44) to (48) in the preamble to the contested decision, the Commission responded to the applicants’ argument that it was required to impose fines under Article 23(2)(c) of Regulation No 1/2003 or a periodic penalty payment under Article 24(1)(c) of that regulation. In that context, the Commission considered that those provisions did not establish the right to require it to impose a fine or periodic penalty payment and that, in any event, in the circumstances of this case, it was not necessary to open a procedure in order to impose a fine on Repsol.
Procedure and forms of order sought
25 By application lodged at the Registry of the Court on 30 June 2011, the applicants brought the present action.
26 By documents lodged at the Registry of the Court on 23 September and 3 October 2011 respectively, the Kingdom of Spain and Repsol applied for leave to intervene in the present case in support of the form of order sought by the Commission. By orders of 8 and 30 November 2011 respectively, the President of the Third Chamber of the Court granted them leave to intervene.
27 After the closure of the written procedure, by letters of 12 July 2012 and 9 April 2013, the applicants made two offers of evidence to which documents were annexed. Those offers were placed on the file subject to a decision on their admissibility.
28 Acting upon a report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure.
29 The parties presented oral argument and answered the questions put by the Court at the hearing on 29 April 2013.
30 In their application, the applicants claim that the Court should:
– annul the contested decision;
– as a consequence, order the Commission to impose a fine or periodic penalty payments on Repsol for having failed to comply with Article 9 of Regulation No 1/2003.
31 In response to a question from the Court at the hearing, the applicants withdrew the head of claim seeking an order requiring the Commission to impose a fine or periodic penalty payment on Repsol, formal notice of which was taken in the minutes of the hearing.
32 The Commission contends that the Court should:
– declare the action inadmissible in part and dismiss it in part as unfounded or, in any event, dismiss it in its entirety as unfounded;
– order the applicants to pay the costs.
33 The Kingdom of Spain claims that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
34 Repsol claims that the Court should:
– dismiss the action as partly inadmissible and partly unfounded or, in any event, dismiss the action as unfounded in its entirety;
– order the applicants to pay the costs, including those relating to its intervention.
Law
35 In support of the action, the applicants argue that the Commission infringed, first, Article 9(2) of Regulation No 1/2003 and, secondly, Article 23(2)(c) and Article 24(1)(c) of that regulation.
36 In essence, the applicants put forward two pleas in law.
37 First, the applicants claim that, as a result of the failure by Repsol to comply with the commitments decision, the Commission should have reopened the procedure against that company and imposed on it a fine or periodic penalty payment. By failing to take those measures, the Commission infringed Article 9(2) of Regulation No 1/2003 and Article 23(2)(c) and Article 24(1)(c) of that regulation.
38 Secondly, the applicants take the view that, by failing to reopen the procedure against Repsol and to withdraw or repeal the commitments decision, the Commission infringed Article 9(2) of Regulation No 1/2003.
39 Since some of the applicants’ observations may be understood as covering not only the merits of the grounds of the contested decision, but also the obligation to state reasons under Article 296 TFEU, the Court will examine that aspect following the examination of the two pleas.
40 Finally, the Court will rule on the evidence submitted on 12 July 2012 and 9 April 2013.
The plea alleging infringement of Article 9(2) of Regulation No 1/2003 and of Article 23(2)(c) and Article 24(1)(c) of that regulation based on the Commission’s failure to reopen the procedure against Repsol and to impose on it a fine or periodic penalty payment
Admissibility of the plea
41 The Commission argues that the plea alleging infringement of Article 23(2)(c) and Article 24(1)(c) of Regulation No 1/2003 was relied upon only in support of the applicants’ second head of claim, which they have withdrawn (see paragraph 31 above), seeking to have a direction issued to it.
42 However, contrary to what the Commission claims, it is not clear from the application that the applicants restrict themselves to relying on an infringement of Article 23(2)(c) or Article 24(1)(c) of Regulation No 1/2003 only in support of their head of claim seeking a declaration that the Commission is required to impose a fine or periodic penalty payment on Repsol, and not in support of their first head of claim.
43 In that context, the case-law does indeed make clear that it is not for the European Union judicature, when exercising the jurisdiction to annul acts conferred on it by Article 263 TFEU, to issue directions to the institutions and that a head of claim seeking to have a direction issued to an institution of the European Union must therefore be rejected as inadmissible (Case T‑74/08 Now Pharm v Commission [2010] ECR II‑4661, paragraph 9).
44 However, that case-law does not prevent the applicants from basing an application for annulment of the contested decision on a plea alleging infringement of Article 23(2)(c) or Article 24(1)(c) of Regulation No 1/2003. Indeed, in the event that the Commission infringed those provisions in the contested decision, the applicants should be able to seek annulment of that decision before the Court and accordingly it would be for the Commission to take the necessary measures to comply with the judgment of the Court, pursuant to Article 266 TFEU.
45 The Commission’s objection as to inadmissibility must accordingly be rejected.
The merits of the plea
46 In essence, the applicants argue that, in refusing to reopen the procedure against Repsol and to impose on it a fine or periodic penalty payment as a result of the failure to comply with the commitments decision, the Commission infringed Article 9(2) of Regulation No 1/2003 and Article 23(2)(c) and Article 24(1)(c) of that regulation.
– The Commission’s discretion
47 It should be pointed out that, in the event that the applicants are arguing that the provisions of Article 9(2) of Regulation No 1/2003 and of Article 23(2)(c) and Article 24(1)(c) of that regulation require the Commission to reopen the procedure and to impose periodic penalty payments and fines on any undertaking that does not comply with its commitments made binding by a decision based on Article 9(1) of that regulation, that complaint should be rejected as unfounded.
48 It is entirely clear from the wording of Article 9(2) of Regulation No 1/2003 that, when the undertaking in question does not comply with a commitments decision, for the purposes of Article 9(1) of that regulation, the Commission is not required to reopen the procedure against that undertaking, but has discretion in that regard. Indeed, under that provision, where an undertaking fails to fulfil its commitments made binding for the purposes of Article 9 of Regulation No 1/2003, the Commission may reopen the procedure against that undertaking upon request or on its own initiative.
49 The Commission also has discretion concerning the application of Article 23(2)(c) and Article 24(1)(c) of Regulation No 1/2003, under which it may impose fines or periodic penalty payments on undertakings where they do not comply with a commitment made binding by a decision taken pursuant to Article 9 of that regulation.
50 However, in the course of the procedure, the applicants stated that they were not calling into question the fact that the provisions in question confer discretion on the Commission.
51 Nevertheless, the applicants consider that, even if, in principle, the Commission has discretion, it should, in the circumstances of this case, have reopened the procedure against Repsol and imposed on it a periodic penalty payment and a fine.
52 In that context, the applicants argue that the case-law according to which the Commission has a wide margin of discretion as regards the question whether it is in the European Union interest to pursue a complaint concerning an infringement of Article 101 TFEU or Article 102 TFEU is not applicable in the present case, since their complaint covers the failure to comply with a commitments decision and that failure was established by the decision of the CNC.
53 In that regard, it should be borne in mind, as a preliminary point, that the power to reopen the procedure available to the Commission under Article 9(2) of Regulation No 1/2003 and the power to impose fines or periodic penalty payments available to it under Articles 23 and 24 of that regulation were conferred on it for the purpose of the task of supervising compliance with Articles 101 TFEU and 102 TFEU which was vested in it pursuant to Article 105 TFEU.
54 Where it identifies competition problems, the Commission may make binding the commitments which have been proposed by the undertakings concerned and which it considers appropriate, instead of proceeding by making a formal finding of infringement under Article 101 TFEU or Article 102 TFEU (Case C‑441/07 P Commission v Alrosa [2010] ECR I‑5949, paragraph 35).
55 On the one hand, the mechanism introduced by Article 9 of Regulation No 1/2003 enables the undertaking concerned to participate fully in the procedure, by putting forward the solutions which appear to it to be the most appropriate for addressing the Commission’s concerns and preventing the Commission from making a formal finding of infringement of Article 101 TFEU or Article 102 TFEU. On the other hand, that article is based on considerations of procedural economy, since the Commission is not required to demonstrate to the requisite legal standard that the conditions of Article 101 TFEU or Article 102 TFEU are satisfied and is therefore able to provide a more rapid solution to the problems which it has identified (see, to that effect, Commission v Alrosa, paragraph 54 above, paragraph 35).
56 The powers conferred on the Commission under Article 9(2), Article 23(2)(c) and Article 24(1)(c) of Regulation No 1/2003 seek to ensure compliance with such commitments. Where an undertaking does not comply with the commitments which it has made and which have been made binding by the Commission, the latter may reopen the procedure and impose on the undertaking a periodic penalty payment or fine merely by establishing non-compliance with the commitments decision, and is not required to have previously made a finding of infringement of Article 101 TFEU or Article 102 TFEU.
57 However, contrary to what the applicants claim, the purpose of those provisions is not to allow the imposition of a double penalty on an undertaking for particularly serious infringements of Article 101 TFEU or Article 102 TFEU. Such an interpretation would hardly be consistent with the last sentence of recital (13) in the preamble to Regulation No 1/2003, according to which decisions seeking to make commitments binding are not appropriate in cases where the Commission intends to impose a fine.
58 As regards the factors determining the exercise of the discretion enjoyed by the Commission under Article 9(2) of Regulation No 1/2003, it should be remembered that the latter has only limited resources, which it must use in taking action against a potentially wide range of behaviour which is contrary to competition law.
59 Therefore, it is incumbent on the Commission to assign different priorities to the competition problems which are brought to its attention and to decide whether further investigation of a case is in the European Union interest (Case T‑427/08 CEAHR v Commission [2010] ECR II‑5865, paragraph 27 and case-law cited).
60 In that context, it should be recalled that, as regards decisions rejecting complaints concerning infringements of Articles 101 TFEU and 102 TFEU, it is clear from settled case-law that the Commission must take into account all the relevant mattes of law and of fact, including those which the complainant brings to its attention. Accordingly, in that context, it must, in particular, take into account the significance of the alleged infringement as regards the functioning of the internal market, the probability of establishing the existence of the infringement and the scope of the investigation required in order to fulfil, under the best possible conditions, its task of ensuring that Articles 101 TFEU and 102 TFEU are complied with (Case C‑450/98 P IECC v Commission [2001] ECR I‑3947, paragraph 57 and case-law cited; Case T‑24/90 Automec v Commission [1992] ECR II‑2223, paragraph 86, and Case T‑60/05 Ufex and Others v Commission [2007] ECR II‑3397, paragraph 178). Moreover, the Commission must be able to take into account the measures taken by the national competition authorities (see judgment of 3 July 2007 in Case T‑458/04 Au Lys de France v Commission, not published in the ECR, paragraph 72 and case-law cited). Finally, the Court has already found that there is nothing to prevent the Commission, in a particular case, from giving priority to a single criterion for the purpose of assessing the European Union interest in examining a competition problem (see, to that effect, IECC v Commission, cited above, paragraphs 58 and 59).
61 It is also apparent from the settled case-law that the person lodging a complaint concerning an infringement of Article 101 TFEU or Article 102 TFEU does not have the right to require the Commission to adopt a final decision as regards the existence or otherwise of the alleged infringement (Case C‑119/97 P Ufex and Others v Commission [1999] ECR I‑1341, paragraph 87; Automec v Commission, paragraph 60 above, paragraph 75, and Case T‑119/09 Protégé International v Commission [2012] ECR, paragraph 32).
62 Having regard to the fact that the Commission’s power to make commitments binding under Article 9 of Regulation No 1/2003 also has the purpose of ensuring compliance with Articles 101 TFEU and 102 TFEU and to the fact that the powers laid down in Article 9(2), Article 24(1)(c) and Article 23(2)(c) of that regulation seek to ensure compliance with those commitments, the Court considers that the principles laid down in the case-law referred to in paragraphs 60 to 61 above also apply where any failure to fulfil a commitment is brought to the attention of the Commission and where it must decide whether it should reopen the procedure.
63 Since the Commission must assess whether it is in the European Union interest to further investigate a complaint in the light of the matters of law and of fact relevant in a particular case, it must take into account the fact that the situation may arise in a different way depending on whether that complaint relates to a potential failure to comply with a commitments decision or a potential infringement of Article 101 TFEU or Article 102 TFEU.
64 Since a failure to fulfil commitments is, in general, more readily established than an infringement of Article 101 TFEU or Article 102 TFEU, the extent of the investigative measures necessary to establish such a failure to fulfil commitments will, in principle, be more limited. However, contrary to what the applicants argue, it cannot be inferred from this that, in such a case, the Commission should systematically reopen the procedure and impose a fine or a periodic penalty payment. Such an approach would convert its powers under Article 9(2), Article 23(2)(c) and Article 24(1)(c) of Regulation No 1/2003 into circumscribed powers, which would not be consistent with the wording of those provisions.
65 Next, as regards the argument put forward by the applicants that it is for the Commission to ensure compliance with a commitments decision, it should be pointed out that there is nothing, in the context of the provisions in question, to prevent the Commission from taking into account the measures of national competition authorities.
66 In that context, it should be borne in mind that the parallel jurisdiction of the national competition authorities for the application of Articles 101 TFEU and 102 TFEU, under Article 5 of Regulation No 1/2003, is not called into question by the adoption, by the Commission, of a commitments decision taken under Article 9 of that regulation. Indeed, as is clear from recital (13) in the preamble to Regulation No 1/2003, the commitments decisions taken by the Commission under Article 9 of that regulation are without prejudice to the ability of the national competition authorities to find an infringement of Article 101 TFEU or Article 102 TFEU and to give a ruling on the case in question. Furthermore, it is clear from recital (22) in the preamble to that regulation that commitments decisions adopted by the Commission do not affect the power of the national competition authorities to apply Articles 101 TFEU and 102 TFEU.
67 Finally, contrary to what the applicants claim, the adoption by the Commission of a decision under Article 9 of Regulation No 1/2003 does not confer an exclusive power upon it. Admittedly, Article 11(6) of that regulation, on which the applicants rely in that context, provides, inter alia, that the opening, by the Commission, of a procedure for the adoption of a decision finding an infringement and ordering its termination under Article 7 of that regulation or a procedure for the adoption of a decision making commitments binding under Article 9 of that regulation results in the Member States’ competition authorities losing their power to apply Articles 101 TFEU and 102 TFEU. However, it cannot be inferred from those provisions that a national competition authority cannot adopt a decision against an undertaking after the Commission has adopted a commitments decision for the purposes of Article 9 of Regulation No 1/2003. It is clear from the case-law that Article 11(6) of Regulation No 1/2003 removes the power of the national competition authorities not on a permanent basis, but only for the duration of the procedure before the Commission (see, to that effect, Case C‑17/10 Toshiba Corporation and Others [2012] ECR, paragraphs 68 to 92).
68 Accordingly, there is nothing to prevent the Commission from taking into consideration the measures which a national competition authority has taken against an undertaking, when it is assessing whether it is in the European Union interest to reopen the procedure against that undertaking for failure to fulfil its commitments, in order to impose on it a fine or a periodic penalty payment. On the contrary, in so far as the powers of the Commission under Article 9(2), Article 23(2)(c) and Article 24(1)(c) of Regulation No 1/2003 have been conferred on it for the purpose of its task of supervising compliance with Articles 101 TFEU and 102 TFEU, such consideration is required.
– The exercise of discretion in the present case
69 It is in the light of the foregoing considerations that it is necessary to examine the complaint that the Commission’s decision not to reopen the procedure and not to impose a periodic penalty payment or fine on Repsol is vitiated by a manifest error of assessment. The applicants argue that the grounds which the Commission set out in the contested decision do not justify that decision.
70 In that regard, it should be recalled that the review by the Courts of the European Union of the Commission’s exercise of the discretion conferred on it in this regard must not lead them to substitute their assessment of the European Union interest for that of the Commission, but focuses on whether the contested decision is based on materially incorrect facts, or is vitiated by an error of law, manifest error of appraisal or misuse of powers (See CEAHR v Commission, paragraph 59 above, paragraph 65 and case-law cited).
71 The Court considers that, in the present case, the grounds for the contested decision, summarised in paragraphs 21 to 24 above, are not vitiated by a manifest error of assessment.
72 It should be recalled that the Commission relied, inter alia, on the existence of the decision of the CNC, in which the latter found that Repsol had infringed Article 101 TFEU by indirectly fixing selling prices of fuel to the public, imposed on it a fine of EUR 5 million and ordered it to take all measures necessary to stop that practice of price-fixing and to refrain from that practice in the future. That approach is consistent with the objective of close cooperation between the Commission and the national competition authorities within the European Competition Network, which is referred to, in particular, in recitals (6), (8) and (15) in the preamble to Regulation No 1/2003.
73 Moreover, having regard to the decision of the CNC, the Commission was able to consider, without committing a manifest error of assessment, that the adoption of additional measures against Repsol was not necessary.
74 Indeed, first, as regards the applicants’ argument that the Commission should have penalised Repsol’s failure to comply with the commitments decision by imposing on it a periodic penalty payment under Article 24(1)(c) of Regulation No 1/2003, it should be remembered that that power of the Commission is intended to compel an undertaking to fulfil a commitment in the future. In that regard, the objectives which the Commission could have pursued by imposing a periodic penalty payment on Repsol and those pursued by the CNC in its decision converged, since the objective was to stop the practice of fixing the selling price of fuel. In the contested decision, the Commission found that the measures adopted by the CNC were sufficient to compel Repsol to refrain from that practice in the future. Accordingly, it was able to take the view, without committing a manifest error of assessment, that intervention on its part was not necessary and that it was therefore not in the European Union interest to reopen the procedure in order to impose a periodic penalty payment.
75 Secondly, as regards the applicants’ argument that the Commission should have imposed a fine based on the failure to comply with the commitments decision, it should be recalled that the main objective of a fine imposed on the basis of Article 23(2)(c) of Regulation No 1/2003 is to penalise behaviour which, in the Commission’s view, raises competition problems, without having to prove to the requisite legal standard that the conditions of Article 101 TFEU or Article 102 TFEU are satisfied. In its decision, the CNC had already found that Repsol had fixed the selling prices of fuel and had imposed a penalty on it. Since the commitments decision covers the same behaviour, the Commission had to take into account the decision of the CNC. Since the main purpose of penalising Repsol’s behaviour which the Commission had identified as problematic had already been attained, the Commission could take the view that reopening the procedure and imposing an additional fine was not in the European Union interest, without committing a manifest error of assessment.
76 No argument put forward by the applicants is capable of calling that assessment into question.
77 In the first place, the applicants argue that, in spite of the fact that the CNC had already imposed a fine on Repsol for fixing the selling prices of fuel, the Commission was obliged to impose an additional fine on it under Article 23(2)(c) of Regulation No 1/2003, in order not to threaten the very essence of the mechanism introduced by Article 9 of that regulation, for reasons of legal certainty and in order to prevent the failure to fulfil a commitment from appearing to be a ‘gratuitous, insignificant or irrelevant’ act, in particular in relation to undertakings which have not given commitments.
78 That argument must be rejected.
79 Even in the twin scenario where, first, Article 23(2)(c) of Regulation No 1/2003 should be interpreted so as to allow the Commission to impose an additional fine on an undertaking for the sole reason that it has not fulfilled its commitments, although that same behaviour has already been penalised by a national competition authority on the ground of infringement of Article 101 TFEU, and, secondly, such a procedure would not be contrary to the ne bis in idem principle, in the present case, the Commission could have considered that the reopening of the procedure with the aim of imposing an additional fine on Repsol was not in the European Union interest, without committing a manifest error of assessment.
80 First of all, it should be borne in mind that, contrary to what the applicants argue, in the present case, the Commission could not impose a fine on Repsol for failure to comply with the commitments decision without assigning public resources to that task. As the Commission rightly claims, it would have had to carry out a whole series of administrative procedures, such as drafting the decision opening the procedure and the statement of objections, the hearing of interested parties and the adoption of the decision imposing the fine.
81 The Commission was also able to take the view that the added value of intervention on its part would have been limited, since the main purpose covered by Article 23(2)(c) of Regulation No 1/2003, namely penalising the behaviour by Repsol which it considered to be problematic in the light of the competition rules, had already been attained.
82 Finally, with regard to the objective relied on by the applicants, that is preserving the effectiveness of the mechanism introduced by Article 9 of Regulation No 1/2003, it should be considered that it is an objective directly concerned with determination of Commission policy in the field of competition law.
83 Therefore, even in the twin scenario referred to in paragraph 79 above, in the present case, the Commission did not exceed the limits of its discretion in deciding that, in this case, it was not justified in reopening the procedure and imposing an additional fine on Repsol.
84 Secondly, the applicants submit that, in the contested decision, the Commission did not sufficiently take into account the seriousness of Repsol’s infringement and the effects of its behaviour on the market.
85 That argument must also be rejected.
86 As has been stated in paragraphs 60 and 62 above, where the Commission assigns different priorities to the competition problems which are brought to its attention, there is nothing to prevent it from giving priority to one of the relevant criteria.
87 For the reasons referred to in paragraphs 72 to 83 above, in this case, the Commission could consider, rightly, that, having regard to the decision of the CNC against Repsol, further intervention on its part was not in the European Union interest, without its having to balance other criteria or having to reach a decision on the merits of the case, on the seriousness of Repsol’s behaviour, on the structure of the Spanish market or on the impact of Repsol’s behaviour on that market.
88 Thirdly, the applicants argue that, because of the direct effect of the commitments decision, its binding nature for Repsol, the bilateral relationship and the relationship of trust which it establishes between that undertaking and the Commission and the need to apply EU law in a uniform manner and respecting the principle of equal treatment, the Commission should have reopened the procedure and imposed a fine and a periodic penalty payment on Repsol.
89 That argument must also be rejected.
90 By raising those matters, the applicants are merely pointing out that Repsol agreed to be bound by a commitments decision under Article 9 of Regulation No 1/2003 and that it did not comply with that decision.
91 As has been stated in paragraph 64 above, the EU legislature decided to confer a wide discretion on the Commission where it encounters a failure to fulfil a commitment made binding under Article 9(1) of Regulation No 1/2003. Therefore, the circumstances relied on by the applicants, which merely indicate that the Commission is faced with such a case, are not capable of establishing that the Commission has exceeded the limits of the discretion available to it in the context of its powers under Article 9(2) of that regulation and under Article 23(2)(c) and Article 24(1)(c) of that regulation. However, the approach advocated by the applicants, according to which those circumstances alone require the Commission to reopen the procedure and to impose a fine or a periodic penalty payment, would have the consequence of applying those powers as circumscribed powers, which would be contrary to what is provided for by the wording of those provisions.
92 Fourthly, it is necessary to reject the applicants’ argument based on the case-law of the Court of Justice, according to which the full effectiveness of Articles 101 TFEU and 102 TFEU requires that each person may claim damages for the loss caused by an infringement of those rules (Case C‑453/99 Courage and Crehan [2001] ECR I‑6297, paragraph 26, and Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 60). Since that case-law relates to the implementation of those provisions on the initiative of a person who has suffered damage, it is not possible to infer from it that, in the context of the implementation of those provisions on the initiative of a competition authority, which has only limited resources, a penalty should be imposed in all cases in which an undertaking does not comply with a commitment made binding under Article 9(1) of Regulation No 1/2003.
93 Fifthly, in so far as the applicants rely on recital (29) in the preamble to Regulation No 1/2003, according to which compliance with Articles 101 TFEU and 102 TFEU and the obligations imposed on undertakings under that regulation should be enforceable by means of fines and periodic penalty payments, it is sufficient to point out that that recital calls into question neither the objective of a decentralised application of Article 101 TFEU by national competition authorities nor the possibility for the Commission to take into account the measures of those authorities when determining whether there is a European Union interest in further investigation of a case by the Commission.
94 Sixthly, as regards the Commission’s press release of 12 April 2006, concerning its decision in Case COMP/B-1/38.348 relating to the commitments on the part of Repsol and its memorandum of the same day, to which the applicants refer, it is sufficient to note that the Commission merely pointed out therein that it could impose fines on Repsol in the event that it fails to comply with the commitments decision, without undertaking to impose such fines automatically.
95 Seventhly, in so far as the applicants rely on the principle of proportionality, it is necessary to reject that complaint as unfounded, without it being necessary to examine its admissibility. As is clear from the foregoing considerations, the Commission did not commit a manifest error of assessment in the context of the balancing of interests which it must carry out under Article 9(2) of Regulation No 1/2003, and Article 23(2)(c) and Article 24(1)(c) of that regulation. Consequently, the contested decision cannot have adversely affected the applicants’ interests disproportionately.
96 Having regard to all the foregoing considerations, the Court must hold that the Commission was rightly able to consider that it was not in the European Union interest to reopen procedure against Repsol in order to impose on it a fine or a periodic penalty payment. Therefore, it is appropriate to reject the plea alleging infringement of Article 9(2) of Regulation No 1/2003, and Article 23(2)(c) and Article 24(1)(c) of that regulation.
The plea alleging infringement of Article 9(2) of Regulation No 1/2003 based on the Commission’s failure to reopen the procedure and to withdraw or repeal the commitments decision
97 The applicants also submit that the Commission infringed Article 9(2) of Regulation No 1/2003 by not reopening the procedure against Repsol and by not withdrawing or repealing the commitments decision. As a result of the failure to comply with the commitments decision, the Commission should have withdrawn or repealed that decision.
98 In that regard, the Commission rightly argues that, in the present case, there was an interest in maintaining the commitments decision. First of all, the commitments decision related not only to Repsol’s obligations concerning the selling price of fuel, but also and principally to the exclusive, long-term distribution contracts. In addition, with regard to the commitment concerning the selling price of fuel, nothing prevents the Commission from maintaining its decision with respect to that commitment. As stated in paragraph 56 above, maintaining such a decision allowed the Commission to impose periodic penalty payments and fines for failure to comply with that decision, without previously having to find an infringement of Article 101 TFEU or Article 102 TFEU.
99 Therefore, the applicants have not adduced any evidence to show that the Commission committed a manifest error of assessment. Accordingly, the present plea must be rejected.
The statement of reasons for the contested decision
100 In the event that, in arguing that the statement of reasons for the contested decision was not adequate, the applicants seek to rely not only on a plea concerning the merits of the decision, but also on a plea alleging infringement of the obligation to state reasons laid down in Article 296 TFEU, it should first of all be borne in mind that this is a plea which must be examined by the Court of its own motion and that it therefore cannot be rejected as out of time.
101 As to the merits of that plea, it should be recalled that, according to settled case-law, the statement of reasons for a measure must be appropriate to it and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its jurisdiction to review legality (Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR I‑8947, paragraph 147).
102 In the present case, the statement of reasons for the contested decision was adequate. It is clear from the statement of reasons for the contested decision that the Commission considered that, following the decision of the CNC, further intervention on its part was not in the European Union interest.
103 As regards the argument put forward by the applicants that the greater the discretion which is available to a body, the greater is the need to provide an adequate statement of reasons for the decision, it should be pointed out that the scope of the required statement of reasons also depends on the applicable rules. As stated in paragraphs 60, 62, 86 and 87 above, even though the Commission had to take into account all the relevant elements, there was nothing to prevent it, in this case, from basing its decision on the consideration that the measures taken by the CNC were sufficient. The statement of the reasons for the contested decision must therefore be held to be sufficient.
The evidence relied on by the applicants
104 The applicants lodged, on 12 July 2012 and 9 April 2013, and accordingly after the closure of the written procedure, new evidence consisting of documents accompanied by statements setting out their importance for the assessment of the present case.
105 In that regard, it is sufficient to note that those submissions of evidence are not relevant in the present case, without its being necessary to rule on their admissibility, since all the documents lodged on 12 July 2012 and 9 April 2013 are dated after the date of the contested decision. According to settled case-law, the legality of a European Union measure is assessed on the basis of the elements of fact and of law existing at the time when the measure was adopted. It follows that elements post-dating the adoption of the European Union measure cannot be taken into account in assessing the legality of that measure (see Case T‑257/07 France v Commission [2011] ECR II‑5827, paragraph 172 and case-law cited).
106 In the light of all of the foregoing considerations, the action must be dismissed.
Costs
107 Under Article 87(2) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, the applicants must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
108 Under Article 87(4) of the Rules of Procedure, Member States which have intervened in the proceedings are to bear their own costs and the Court may order an intervener to bear its own costs. In the present case, the Kingdom of Spain and Repsol shall bear their own costs.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1. Dismisses the action;
2. Orders the Confederación Española de Empresarios de Estaciones de Servicio (CEEES) and the Asociación de Gestores of Estaciones de Servicio to bear their own costs and those incurred by the European Commission;
3. Orders the Kingdom of Spain to bear its own costs;
4. Orders Repsol Comercial de Productos Petrolíferos SA to bear its own costs.
Delivered in open court in Luxembourg on 6 February 2014.
[Signatures]