Case T‑486/11
Orange Polska S.A., formerly Telekomunikacja Polska S.A.
v
European Commission
(Competition — Abuse of dominant position — Polish telecommunications market — Decision establishing an infringement of Article 102 TFEU — Conditions imposed by the incumbent operator for allowing paid access for new operators to the network and to wholesale broadband access services — Legitimate interest in finding that an infringement was committed — Fines — Obligation to state reasons — Gravity of the infringement — Mitigating circumstances — Proportionality — Unlimited jurisdiction — 2006 Guidelines on the method of setting fines)
Summary — Judgment of the General Court (Eighth Chamber), 17 December 2015
1. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope — Review of legality both in law and in fact — Effects — Power to modify the amount of the fine
(Arts 102 TFEU, 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Arts 23 and 31; Commission Notice 2006/C 210/02)
2. Competition — Administrative procedure — Powers of the Commission — Finding of an infringement which has been terminated — Obligation of the Commission to demonstrate a legitimate interest in finding such an infringement
(Art. 102 TFEU; Council Regulation No 1/2003, Art. 7(1))
3. Competition — Administrative procedure — Statement of objections — Necessary content — Observance of the rights of the defence — Indication of the main factual and legal elements likely to entail a fine — Scope — Announcement of relevant factors concerning aggravating and extenuating circumstances — Whether sufficient
(Art. 102 TFEU; Council Regulation No 1/2003, Arts 27(1), and 31; Commission Notice 2006/C 210/02)
4. EU law — Principles — Fundamental rights — Right to fair legal process — Scope — Entry into force of the Lisbon Treaty — Irrelevant to the content of the principle of a fair trial
(Charter of Fundamental Rights of the European Union, Art. 47, second para.)
5. Competition — Fines — Amount — Determination — Commission’s margin of discretion — Limits — Observance of the principle of proportionality — Scope — Account taken of the gravity of the infringement and the criteria for its assessment
(Art. 102 TFEU, Council Regulation No 1/2003, Art. 23; Commission Notice 2006/C 210/02)
6. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — No binding or exhaustive list of criteria — Criteria for assessment
(Art. 102 TFEU; Council Regulation No 1/2003, Art. 23; Commission Notice 2006/C 210/02)
7. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — No obligation to take account of the actual impact on the market — Account taken of criteria not expressly mentioned by the Commission’s guidelines
(Art. 102 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notices 98/C 9/03, point 1A and 2006/C 210/02, point 22)
8. Dominant position — Abuse — Refusal to supply — Infringement considered very serious — Criteria for assessment — Dominant position owing its origin to a former legal monopoly — Multiple, flagrant, persistent and intentional infringements extending over the whole territory of a Member State
(Art. 102 TFEU, Council Regulation No 1/2003, Art. 23; Commission Notice 2006/C 210/02)
9. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Termination of the infringement after the Commission’s intervention — Need for a causal link
(Art. 102 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notices 98/C 9/03, point 3, third indent and 2006/C 210/02, point 29, first indent)
10. Competition — Fines — Amount — Determination — Criteria — Mitigating circumstances — Effective cooperation by the undertaking in the proceedings outside the scope of the Leniency Notice — Inclusion — Conditions
(Art. 102 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 29, fourth indent)
1. See the text of the decision.
(see paras 66-68, 114, 115)
2. It follows from Article 7(1) of Regulation No 1/2003, read in the light of the preparatory work to that regulation, that it is for the Commission to show a legitimate interest in finding an infringement which occurred in the past where, at the same time, that infringement is terminated and the Commission does not impose a fine.
There is a link between, on the one hand, the obligation imposed on the Commission to demonstrate a legitimate interest in finding an infringement and, on the other, the time-limit on its power to impose fines. The time-limit on the Commission’s power to impose fines cannot affect its implicit power to find that an infringement had been committed. However, the exercise of that implicit power to adopt a decision establishing an infringement after expiry of the limitation period is conditional on the Commission showing a legitimate interest in making such a finding.
It follows that the Commission must establish the existence of a legitimate interest in finding an infringement where both the infringement has ceased and the Commission does not impose a fine.
(see paras 76-78)
3. See the text of the decision.
(see paras 90-92)
4. The entry into force of the Lisbon Treaty, incorporating the Charter of Fundamental Rights into European Union primary law, has not substantially changed the content of the right to a fair trial, as it derives inter alia from Article 6 ECHR and as recognised at EU level as a general principle of EU law. Those considerations may be extended to the right to be heard and, more broadly, to the rights of the defence as a whole, relied on by the applicant, to the extent that those rights help to ensure that a fair trial is held.
(see para. 95)
5. See the text of the decision.
(see paras 109, 176)
6. See the text of the decision.
(see paras 110-113)
7. See the text of the decision.
(see para. 163)
8. In the context of the examination of an abuse of dominant position committed in breach of EU competition law, where the existence of a dominant position has its origins in a former legal monopoly, that fact has to be taken into account. In assessing the proportionality of a fine imposed for abuses committed by a telecommunications undertaking, and, more particularly, concerning the proportionality of the basic amount of the fine, it is essential to take account:
– first, of the fact that that undertaking had a dominant position which owed its origin to a former legal monopoly;
– secondly, of the fact that the infringement committed consisted of multiple, flagrant, persistent and intentional breaches of the regulatory framework which required that undertaking, as operator with significant market power, to grant alternative operators unbundled access to its local loop and to related services under transparent, fair and non-discriminatory terms;
– thirdly, of the fact that that undertaking was aware of the illegality of its conduct, both in regulatory terms, since proceedings were brought and it was found to be in breach by the decisions of the national regulatory authority, confirmed by the final decisions of the national courts, and in terms of competition law, where its practices were designed to prevent or delay the entry of new entrants into the product markets concerned; and,
– fourthly, of the fact that the product markets affected by that undertaking’s abusive practices, which are considerable in size, since they extend over the whole territory of one of the largest Member States of the European Union, are markets of great importance both from an economic point of view and from a social point of view, in that access to broadband internet constitutes the key element of the development of the information society.
Such elements are sufficient to consider that the abuse of a dominant position attributed to that undertaking and consisting in a refusal to supply a service constitutes a serious infringement.
In that context, where the incriminated undertaking cannot be unaware of the illegality of its conduct, that conduct is intentional, and, finally, the historical operator holds a virtually monopolistic position in wholesale broadband access services and a very strong dominant position in the retail markets, the Commission is right to classify that infringement as a flagrant abuse and very serious. Taking account of that particular gravity, the Commission does not infringe the principle of proportionality by setting at 10% the proportion of the value of sales used for the purposes of determining the basic amount of the fine imposed on it pursuant to points 19 to 22 of the guidelines for the calculation of fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003.
(see paras 177-183, 185, 186)
9. In the matter of the determination of the amount of a fine imposed for breach of competition law, the termination of the infringement as soon as the Commission intervenes can logically constitute a mitigating circumstance only if there are reasons to suppose that the undertakings concerned were encouraged to cease their anti-competitive conduct by the interventions in question. In other words, for the termination of the infringement to be recognised as a mitigating circumstance, there must be a causal link between the interventions of the Commission and the termination of the infringement concerned.
(see para. 213)
10. See the text of the decision.
(see paras 219-221, 224)