Case C‑439/11 P
Ziegler SA
v
European Commission
(Appeal — Competition — Agreements, decisions and concerted practices — Article 81 EC and Article 53 of the EEA Agreement — International removal services market in Belgium — Guidelines on the effect on trade between Member States — Legal status — Requirement to define the relevant market — Scope — Right to fair legal process — Principle of good administration — Objective impartiality on the part of the Commission — Guidelines on the method of setting fines (2006) — Proportion of the value of sales — Obligation to state reasons — Fine reduced on grounds of inability to pay or the special circumstances of the case — Equal treatment)
Summary — Judgment of the Court (Third Chamber), 11 July 2013
1. Appeals — Interest in bringing proceedings — Condition — Appeal capable of procuring an advantage for the party bringing it — Whether a request for substitution of grounds amounting to a defence to one of the other party’s pleas is admissible
(Art. 256 TFUE; Statute of the Court of Justice, Art. 56, second para.)
2. Judicial proceedings — Introduction of new pleas during the proceedings — Amplification of a plea put forward previously — Admissibility
(Rules of Procedure of the General Court, Art. 48(2))
3. Actions for annulment — Admissibility — Natural or legal persons — Undertaking to which the statement of objections was addressed which did not challenge the matters of fact or law set out in the statement during the administrative procedure — Restriction on the exercise of the right to bring proceedings — Breach of the fundamental principles of the rule of law and of respect for the rights of the defence
(Arts. 81 EC and 82 EC; Art. 263, fourth para., TFEU; Charter of Fundamental Rights of the European Union, Arts. 47 and 52(1))
4. Acts of the institutions — Guidelines on the effect on trade concept — Measures designed to produce external effects — Scope
(Commission Communication 2004/C 101/07)
5. Agreements, decisions and concerted practices — Definition of the market — Purpose — Determination of the effect on trade between Member States — Obligation to define the market in question — Scope
(Art. 81 EC; Commission Notice 2004/C 101/07, para. 55)
6. Agreements, decisions and concerted practices — Definition of the market — Purpose — Determination of the effect on trade between Member States — Appreciable effect
(Art. 81 EC; Commission Notice 2004/C 101/07)
7. Appeals — Grounds — Incorrect assessment of the facts — Inadmissibility — Review by the Court of Justice of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted
(Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.)
8. Appeals — Grounds — Inadequate statement of reasons — Reliance by the General Court on implicit reasoning — Lawfulness — Conditions
(Art. 256 TFUE; Statute of the Court of Justice, Arts. 36 and 53, first para.)
9. Agreements, decisions and concerted practices — Agreements between undertakings — Effect on trade between Member States — Criteria for assessment
(Art. 81(1) EC)
10. Acts of the institutions — Statement of reasons — Obligation — Scope
(Art. 253 EC)
11. Appeals — Grounds — Plea submitted for the first time in the appeal — Inadmissibility
(Art. 256 TFUE; Statute of the Court of Justice, Art. 58)
12. Competition — Fines — Amount — Determination — Discretion of the Commission — Limits — Observance of the principle of equal treatment — Obligation on the Commission to follow its practice in earlier decisions — None)
(Art. 81 EC; Charter of Fundamental Rights of the European Union, Arts. 20 and 21; Council Regulation No 1/2003, Art. 23(2))
13. Competition — Administrative procedure — Principle of sound administration — Requirement of impartiality — Concept — Infringement — None
(Art. 81 EC; Charter of Fundamental Rights of the European Union, Arts. 41 and 47)
14. European Union law — Principles — Equal treatment — Concept
(Charter of Fundamental Rights of the European Union, Arts. 20 and 21)
15. Competition — Fines — Amount — Determination — Whether it is possible for the Commission to depart from general methodology for the setting of fines — Reduction on account of inability to pay or as a result of the particular circumstances of a given case — Conditions
(Council Regulation No 1/2003, Art. 23(2) and (3); Commission Notice 2006/C 210/02, paragraphs 35 and 37)
1. For a request for substitution of grounds to be admissible, the party concerned must have an interest in bringing proceedings, in so far as the request must be capable, if successful, of procuring an advantage to that party. That may be the case where the request for substitution of grounds amounts to a defence to one of the applicant’s pleas.
(see para. 42)
2. See the text of the decision.
(see paras 45, 46)
3. See the text of the decision.
(see para. 57)
4. See the text of the decision.
(see paras 59-62)
5. In competition matters, even though it is unnecessary, in certain circumstances, to define the relevant market in order to establish whether there is an appreciable effect on trade between Member States for the purpose of Article 81 EC, namely where it is possible, even in the absence of such a definition, to establish that the cartel in question is capable of affecting trade between Member States and has the object or effect of preventing, restricting or distorting competition within the common market, it is not possible, by definition, to verify whether a market share threshold has been exceeded in the absence of any definition whatsoever of that market. Point 55 of the Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty states, logically, that in order to apply the market share threshold, it is necessary to determine the relevant market, and a footnote to that point refers to the Notice on the definition of the relevant market. The Commission is therefore required, under those guidelines, to define the relevant market.
(see paras 63, 64)
6. See the text of the decision.
(see paras 71-73)
7. See the text of the decision.
(see paras 74, 75, 86, 88, 161)
8. See the text of the decision.
(see paras 81, 82, 149)
9. See the text of the decision.
(see paras 92-95)
10. See the text of the decision.
(see paras 113-116)
11. See the text of the decision.
(see para. 127)
12. See the text of the decision.
(see paras 132-134)
13. While the Commission may not be classified as a ‘tribunal’ within the meaning of Article 6 of the European Convention on Human Rights, it is nevertheless required during the administrative procedure to respect the fundamental rights of the European Union, which include the right to good administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, which governs the administrative procedure relating to restrictive practices before the Commission.
Article 41 of the Charter provides that every person has the right, inter alia, to have his or her affairs handled impartially by the institutions of the European Union. That requirement of impartiality encompasses, on the one hand, subjective impartiality, in so far as no member of the institution concerned who is responsible for the matter may show bias or personal prejudice, and, on the other hand, objective impartiality, in so far as there must be sufficient guarantees to exclude any legitimate doubt as to bias on the part of the institution concerned.
First, the simple fact that the Commission investigates a cartel which is detrimental to the European Union’s financial interests and imposes penalties on its members does not mean that the Commission lacks objective impartiality. Second, the fact that the Commission’s departments responsible for bringing proceedings for infringements of EU competition law and those responsible for payment for the services that were the subject of the cartel belong to the same organisational structure cannot, of itself, call into question that institution’s objective impartiality, since those departments necessarily form part of the structure, to which they belong. Third, Commission decisions may be subject to review by the EU judicature and EU law lays down a system enabling the courts to review Commission decisions, including decisions relating to procedures under Article 81 EC, which provides all the guarantees required by Article 47 of the Charter. The Commission cannot, therefore, in any event be regarded as both the victim of an infringement and the judge responsible for imposing penalties for the infringement.
(see paras 154, 155, 157-159)
14. See the text of the decision.
(see paras 166, 167)
15. With regard to competition matters, it is true that point 35 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 states that, in exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. However, point 37 of those guidelines provides that although those guidelines present the general methodology for the setting of fines, the particularities of a given case or the need to achieve deterrence in a particular case may justify departing from such methodology or from the limits specified in point 21. It follows that, unlike point 35 of those guidelines, point 37 may be applied independently of the ability of the undertaking concerned to pay.
Nevertheless, the wording of point 37 does not preclude the possibility that an undertaking’s inability to pay may be relevant for the purpose of determining whether that provision is applicable. However, in order for both points 35 and 37 of the Guidelines on the method of setting fines to be effective, the conditions for their respective application must be different. Accordingly, an inability or reduced ability to pay within the meaning of point 35 cannot be deemed sufficient, in itself, to give rise to the possible application of point 37 of those guidelines.
(see paras 171, 173)