Contents
Judgment of the Court (Grand Chamber)26 November 2013note(Appeal — Competition — Cartels — Industrial plastic bags sector — Whether the infringement by a subsidiary may be attributed to the parent company — Taking into account the total turnover of the group in order to calculate the upper limit of the fine — Excessive length of the proceedings before the General Court — Principle of effective legal protection)In Case C‑58/12 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 27 January 2012,Groupe Gascogne SA, established in Saint-Paul-les-Dax (France), represented by P. Hubert and E. Durand, avocats,European Commission, represented by F. Castillo de la Torre and N. von Lingen, acting as Agents, with an address for service in Luxembourg,THE COURT (Grand Chamber),composed of V. Skouris, President, K. Lenaerts, Vice-President, R. Silva de Lapuerta, M. Ilešič, L. Bay Larsen, M. Safjan, Presidents of Chambers, J. Malenovský, E. Levits, A. Ó Caoimh, J.‑C. Bonichot, A. Arabadjiev, D. Šváby, and M. Berger (Rapporteur), Judges,Advocate General: E. Sharpston,Registrar: V. Tourrès, Administrator,having regard to the written procedure and further to the hearing on 5 February 2013,after hearing the Opinion of the Advocate General at the sitting on 30 May 2013,gives the following
Judgment
1By its appeal, Groupe Gascogne SA (‘the appellant’) seeks (i) to have set aside the judgment of the General Court of the European Union of 16 November 2011 in Case T-72/06 Groupe Gascogne v Commission (‘the judgment under appeal’), by which that court dismissed the appellant’s action for annulment in part and variation of Commission Decision C(2005) 4634 final of 30 November 2005 relating to a proceeding pursuant to Article 81 [EC] (Case COMP/F/38.354 – Industrial bags) (‘the contested decision’) or (ii), in the alternative, the setting aside of the judgment under appeal in so far as it upheld the amount of the fine imposed on the appellant by the contested decision.
Legal context
Regulation (EC) No 1/2003
2Council 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), which replaced Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), provides in Article 23(2), which replaced Article 15(2) of Regulation No 17, as follows:‘The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:(a) they infringe Article 81 [EC] or Article 82 [EC] ……For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.…’
Directive 83/349/EEC
3It is apparent from the first recital in the preamble to Seventh Council Directive 83/349/EEC of 13 June 1983 based on [Article 44(2)(g) EC] on consolidated accounts (OJ 1983 L 193, p. 1), as amended by Directive 2003/51/EC of the European Parliament and of the Council of 18 June 2003 (OJ 2003 L 178, p. 16 ‘Directive 83/349’), that Directive 83/349 seeks, inter alia, to coordinate national legislation governing the annual accounts of certain types of companies, in particular companies which are members of ‘bodies of undertakings’.
4The undertakings which are under an obligation to prepare consolidated accounts are defined in Article 1(1) and (2) of Directive 83/349. In accordance with Article 1(1) this means, inter alia, any parent undertaking which:(a) has a majority of the shareholders’ or members’ voting rights in another undertaking (a subsidiary undertaking)or(b) has the right to appoint or remove a majority of the members of the administrative, management or supervisory body of another undertaking (a subsidiary undertaking) and is at the same time a shareholder in or member of that undertaking,or(c) has the right to exercise a dominant influence over an undertaking (a subsidiary undertaking) of which it is a shareholder or member …’.
5Under Article 16(3) of that directive, ‘[c]onsolidated accounts shall give a true and fair view of the assets, liabilities, financial position and profit or loss of the undertakings included therein taken as a whole’.
The background to the dispute and the contested decision
6The appellant is a limited company incorporated under French law and since 1994 has controlled Gascogne Sack Deutschland GmbH, formerly Sachsa Verpackung GmbH (‘Sachsa’).
7The appellant holds 10% of Sachsa’s share capital directly. Its wholly‑owned subsidiary, Gascogne Deutschland GmbH holds the remaining 90%.
8In 2001, British Polythene Industries plc informed the Commission of the existence of a cartel in the industrial bags sector.
9After carrying out inspections in June 2002, the Commission initiated the administrative procedure on 29 April 2004 and adopted a statement of objections against several companies, including the appellant.
10On 30 November 2005, the Commission adopted the contested decision, Article 1(1)(k) of which states that Sachsa and the appellant infringed Article 81 EC by participating, in the case of Sachsa from 9 February 1988 until 26 June 2002 and in the case of the appellant from 1 January 1994 until 26 June 2002, in a complex of agreements and concerted practices in the plastic industrial bags sector in Belgium, Germany, Spain, France, Luxembourg and the Netherlands; this consisted in (i) the fixing of prices and the establishment of common price calculation models, (ii) the sharing of markets and the allocation of sales quotas, (iii) the assignment of customers, deals and orders, (iv) the submission of concerted bids in response to certain invitations to tender and (v) the exchange of individualised information.
11On that ground, the Commission imposed on Sachsa, in subparagraph (i) of the first paragraph of Article 2 of the contested decision, a fine of EUR 13.20 million, specifying that, of this amount, the appellant was jointly and severally liable for the sum of EUR 9.90 million.
The judgment under appeal
12By application lodged at the General Court Registry on 23 February 2006, the appellant brought an action for annulment of the contested decision. It claimed, in essence, that the General Court should annul that decision in so far as it related to the appellant, vary it in so far as it imposed on Sachsa a fine exceeding 10% of its turnover or, in the alternative, reduce the amount of the fine imposed on Sachsa and the appellant on a joint and several basis.
13In support of its action, the appellant relied on three pleas in law. The first plea in law, raised as a primary plea, alleged an infringement of Article 81 EC, in so far as the Commission had incorrectly attributed Sachsa’s conduct to the appellant as from 1 January 1994 and therefore mistakenly held the latter jointly and severally liable for the payment of part of the fine imposed on Sachsa. By its second plea in law, raised in the alternative, the appellant submitted that the Commission (i) infringed Article 81 EC by misinterpreting the concept of an undertaking within the meaning of that article and (ii) infringed Article 23(2) of Regulation No 1/2003 by incorrectly relying, in order to determine the upper limit of the fine, on the consolidated turnover of the group which the appellant headed. The third plea, put forward in the further alternative, alleged a failure to have regard to the principle of proportionality, in that the Commission imposed an excessive fine on the appellant.
14By letter of 19 October 2010, the appellant requested the General Court to reopen the written procedure because a new matter of law had arisen in the course of proceedings, namely the entry into force of the Treaty of Lisbon and, specifically, of Article 6 TEU, which elevated the Charter of Fundamental Rights of the European Union (‘the Charter’) to primary law status.
15At the hearing which took place on 2 February 2011, in addition to the pleas relied on in its application, the appellant put forward a number of complaints based on the Charter and alleged, in particular, infringement of the presumption of innocence guaranteed by Article 48 thereof. In that regard, the General Court found, at paragraphs 27, 28 and 30 of the judgment under appeal, that:27 … As regards the [appellant]’s complaints alleging an infringement of the principle of the presumption of innocence and of the rights of the defence guaranteed by Article 48 of the Charter, … these are additional to the arguments put forward in the application and do not present a sufficiently close connection with the arguments put forward initially to be considered as forming part of the normal evolution of debate in proceedings before the Court. Those complaints accordingly fall to be considered as new complaints.28 It therefore falls to be determined whether the entry into force, on 1 December 2009, of the Treaty on European Union, and in particular of Article 6 thereof, which confers the same legal value on the Charter as the Treaties, constitutes a new fact giving grounds for introducing new pleas in law. In that regard, it must be observed that, as at the date on which the [contested] decision was adopted, the principles relied on by the [appellant] came within the scope of the European Union legal order and were protected by it, as general principles of European Union law …...30 It must therefore be found that the [appellant] cannot rely on the amendments made to the European Union legal order as a result of the entry into force of the Treaty of Lisbon in order to plead at the hearing stage that Article 48 of the Charter had been infringed ...’
16As regards the three pleas for annulment relied on by the appellant in its action, the General Court rejected them as unfounded.
17As regards the first plea in law, as to the misattribution of Sachsa’s conduct to the appellant, the General Court recalled first of all, in paragraphs 69 and 70 of the judgment under appeal, the Court of Justice’s case-law to the effect that where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules, there is a rebuttable presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary. The General Court then noted, in paragraph 72 of the judgment under appeal, that it is undisputed that ‘[the appellant] held directly and indirectly 100% of the share capital in Sachsa and that it therefore had the possibility of exercising control over Sachsa’s conduct on the market’. Lastly, the General Court examined, in paragraphs 73 to 93 of the judgment under appeal, the arguments relied on by the appellant in order to show that Sachsa determined its own course of conduct and was therefore independent. The Court found, at paragraph 74 of that judgment, that ‘[w]hilst it is true that certain of the matters raised by the [appellant] indicate that Sachsa enjoyed a large measure of autonomy, it none the less remains the case that the [appellant] did indeed intervene in its subsidiary’s operations, that it imposed significant limits on the direction of its conduct on the market and that it thus exercised actual control over its subsidiary’.
18At paragraph 93 of the judgment under appeal, the General Court held as follows:‘Consideration of all of the evidence and arguments put forward by the [appellant] and the Commission shows that the latter did not commit any error of assessment in taking the view that the [appellant] regularly monitored the management of its subsidiary and in attributing responsibility to the [appellant] for the infringement committed by its subsidiary. Indeed, without the Commission needing to rely on the presumption of actual control to which the [appellant]’s 100% shareholding gives rise, all of the evidence available to the Commission allowed it to conclude that the parent company actually controlled its subsidiary in the present case.’
19In so far as the second plea relied on by the appellant in support of its action alleged infringement of Article 23(2) of Regulation No 1/2003, the General Court found as follows, in paragraphs 110 to 113 of the judgment under appeal:110 ... the upper limit of the amount of the fine referred to in Article 23(2) of Regulation No 1/2003 must be calculated on the basis of the turnover of the undertaking within the meaning of the competition rules, that is the combined turnover of all the companies belonging to the group of which the holding company is the head.111 ... the taking into account of the consolidated turnover figure of the parent company for the purposes of the application of the ceiling of 10% of the turnover of the undertaking in question does not require that it be demonstrated that each subsidiary in the group is not autonomous in the manner in which it determines its conduct on the market.112 The taking into account of the consolidated turnover of the ultimate holding company ... is not attributing responsibility for the infringement to the subsidiaries of the group of which the ultimate holding company is the head. The only purpose of the ceiling referred to in that provision is to prevent the imposition of a fine which is excessive in the light of the overall size of the economic entity on the date of the decision’s adoption, its overall size being assessed on the basis of the combined turnover of the companies comprising the group of companies ...113 On that ground, taking into account the consolidated turnover figure of the ultimate holding company for the purposes of calculating the 10% ceiling of the undertaking concerned does not require that the subsidiaries comprising the group should be active on the same market, nor that those subsidiaries and the infringement must be connected.’
20After examining each of the pleas raised by the appellant in support of its action, the General Court dismissed the action in its entirety.
Forms of order sought and procedure before the Court
21The appellant claims that the Court should:— principally, set aside the judgment under appeal;— in the alternative, set aside the judgment under appeal in so far as it upheld the penalty imposed on the appellant by the contested decision and refer the case back to the General Court or fix the amount of the fine directly at an amount not exceeding 10% of the combined turnover of the appellant and Sachsa, taking into account the excessive duration of the proceedings before the General Court;— order the Commission to pay the costs.
22The Commission contends that the Court should:— dismiss the appeal; and— order the appellant to pay the costs.
23By letter of 11 September 2012, the appellant, relying on Article 42(2) of the Rules of Procedure of the Court, in the version applicable at that time, requested that the written procedure be reopened on the ground that a new matter had arisen, namely the severe deficit in its financial position.
24In accordance with Article 24 of the Statute of the Court of Justice of the European Union and Article 61 of its Rules of Procedure, the Court invited the parties, the European Parliament, the Council of the European Union and the Member States to answer questions concerning (i) the criteria allowing the reasonableness of the length of proceedings before the General Court to be assessed and (ii) the measures capable of remedying the consequences of the excessive length of such proceedings.
The appeal
The first and second grounds
Arguments of the parties
25By its first ground of appeal, the appellant complains that the General Court declared the complaints alleging an infringement of the presumption of innocence and of the rights of the defence – which the appellant put forward at the hearing, on the basis of the Charter – inadmissible because they were out of time. It complains that the General Court held, first, that those complaints did not present a sufficiently close connection with the arguments put forward initially in the originating application and, second, that the entry into force of the EU Treaty did not constitute a new fact giving grounds for being able to rely on such complaints after the application was lodged.
26By its second ground of appeal, the appellant complains that the General Court found, solely because it held all the shares in its subsidiary, Sachsa, that it could be held liable for the latter’s anti‑competitive conduct. In so doing, the General Court infringed the presumption of innocence guaranteed by Article 48 of the Charter and breached its obligation to state the reasons for its judgments.
27The Commission contends that the first ground of appeal is manifestly unfounded.
28It contends that the second ground is inadmissible, since it was not raised at first instance. In the Commission’s view, that ground is also ineffective, since, in order to hold the appellant jointly and severally liable for the infringement committed by Sachsa, the Commission did not rely solely on the presumption that a decisive influence had been exercised as a result of the appellant holding all the shares in Sachsa. In any event, this ground of appeal is unfounded.
Findings of the Court
29It is appropriate to examine together the first and second grounds, which raise questions relating to compliance with the presumption of innocence and the rights of the defence.
30As regards the first ground of appeal on which the appellant relies – and to the extent that the appellant criticises the General Court for finding that the complaints put forward at the hearing on the basis of the Charter did not amplify the pleas initially set out in the application – it is sufficient to note that the appellant expressly acknowledged in its appeal that it had not made any explicit reference to the Charter in its application, but that, at that stage of the written procedure, it had confined itself to calling in question the impossibility in practice of proving a negative, such as the absence of instructions given by a parent company to its subsidiary. The appellant also acknowledges that it was only at a later procedural stage, in the reply, that it mentioned the Charter, in a reference to the principle of the legality of criminal offences and penalties, as laid down in Article 49 thereof.
31In those circumstances, the appellant has no grounds to challenge the General Court’s assessment, in paragraph 27 of the judgment under appeal, that the complaints which it put forward during the hearing – alleging a failure to have regard to the principle of the presumption of innocence and a breach of the rights of the defence, guaranteed by Article 48 of the Charter – did not present a sufficiently close connection with the arguments put forward initially in the originating application to be considered as forming part of the normal evolution of debate in proceedings before the Court. Consequently, the General Court was fully entitled to consider that those arguments were new.
32As to the question of whether the entry into force of the Lisbon Treaty ought to have been regarded, as the appellant submits, as a matter which came to light in the course of the proceedings before the General Court and, on that basis, gave good grounds, in accordance with the first subparagraph of Article 48(2) of the Rules of Procedure of the General Court, for introducing new pleas in law, the Court of Justice has held that the entry into force of that treaty, incorporating the Charter into European Union primary law, cannot be considered a new matter of law within the meaning of the first subparagraph of Article 42(2) of its Rules of Procedure. In that context, the Court has noted that, even before that treaty entered into force, it had found on several occasions that the right to a fair trial, which derives inter alia from Article 6 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, constitutes a fundamental right which the European Union respects as a general principle under Article 6(2) EU (see, in particular, Case C‑289/11 P Legris Industries v Commission, paragraph 36).
33That interpretation provided by the Court for the purposes of applying its Rules of Procedure is also true mutatis mutandis for applying the corresponding provisions of the Rules of Procedure of the General Court.
34In those circumstances, the first ground relied on by the appellant in support of its appeal must be rejected as unfounded.
35As regards the second ground of appeal on which the appellant relies – and to the extent that the appellant complains that the General Court infringed the presumption of innocence guaranteed by Article 48 of the Charter in holding that it could be held liable for the infringement committed by its subsidiary, Sachsa, since it held all the shares in it – it is sufficient to note that, according to settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court, although it could have done so, would in effect allow that party to bring before the Court a wider case than that heard by the General Court. In an appeal, the Court’s jurisdiction is, as a general rule, confined to a review of the assessment by the General Court of the pleas argued before it.
36In so far as it alleges an infringement of Article 48 of the Charter, the second ground of appeal relied on by the appellant must therefore be rejected as inadmissible.
37To the extent that the appellant submits, in the second ground of appeal, that the General Court breached its obligation to state the reasons in not responding to the arguments which it had put forward in order to show that the presumption of the actual exercise of a decisive influence functions in practice as a non-rebuttable presumption, it should be noted that, according the settled case-law of the Court of Justice, the obligation on the General Court, under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice, to state reasons for its judgments does not require the General Court to provide an account that follows exhaustively and one by one all the arguments articulated by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know the grounds on which the judgment under appeal is based and provides the Court of Justice with sufficient material for it to exercise its powers of review on appeal.
38In that regard, the General Court correctly recalled first, in paragraphs 69 and 70 of the judgment under appeal, the settled case-law of the Court of Justice, confirmed by the latter since the entry into force of the Lisbon Treaty (see, in particular, Case C-501/11 P Schindler Holding and Others v Commission [2013] ECR, paragraphs 107 to 111), that, when a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules, there is a simple presumption that the parent company does in fact exercise a decisive influence over the conduct of its subsidiary. According to that case-law, the Commission will then be able to regard the parent company as jointly and severally liable for payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see, in particular, Joined Cases C-628/10 P and C-14/11 P Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others [2012] ECR, paragraph 47).
39Second, the General Court devoted paragraphs 73 to 93 of the judgment under appeal to examining the arguments put forward by the appellant seeking to prove that it had not participated in Sachsa’s operations. While conceding, in paragraph 74, that certain of the arguments indicated that Sachsa enjoyed a large measure of autonomy, the General Court concluded, in paragraph 93, after a detailed examination of the evidence submitted by the parties, that the Commission had not committed any error of assessment in finding that the appellant regularly monitored the management of its subsidiary and in attributing liability to it for the infringement committed by its subsidiary.
40Contrary to the appellant’s claims, the approach of the General Court in the judgment under appeal does not show that the presumption that a parent company owning all or virtually all the shares in its subsidiary actually exercises decisive influence over it is, in fact, non‑rebuttable.
41As the Court of Justice has held, the mere fact that an entity does not, in a given case, produce evidence capable of rebutting the presumption of actual exercise of decisive influence by a parent company over its subsidiary does not mean that that presumption cannot be rebutted in any circumstances (Case C-521/09 P Elf Aquitaine v Commission [2011] ECR I-8947, paragraph 66).
42In those circumstances, to the extent that the appellant submits that solely by virtue of the conclusion reached by the General Court in its assessment of its arguments – a negative conclusion from the appellant’s perspective – the existence of a non-rebuttable presumption is demonstrated, such a line of argument must be rejected (see, to that effect, Elf Aquitaine v Commission, paragraph 67).
43In the light of the above, the second ground of appeal must be rejected as being partly inadmissible and partly unfounded.
The third ground
Arguments of the parties
44By its third ground, the appellant complains that the General Court misinterpreted the concept of an undertaking, in holding that the Commission was fully entitled, for the purposes of calculating the upper limit of the fine referred to in Article 23(2) of Regulation No 1/2003, to take the combined turnover of all the companies belonging to the group of which the appellant was the ultimate holding company. In the appellant’s view, it is only if the entire group constituted one single undertaking that the combined turnover of the group could have served as an upper limit for calculating the fine imposed in response to an anti-competitive practice by one of its subsidiaries. However, there is no attempt, either in the contested decision or the judgment under appeal, to show the existence of such a single entity.
45Quite apart from that failure to state the grounds, the General Court erred in law in holding, in paragraph 108 of the judgment under appeal, that the overall size of an economic entity must be assessed ‘on the basis of the total turnover of all the companies constituting the group of which the ultimate holding company is the head, since only the total turnover of the component companies of the group can constitute an indication of the size and economic power of the undertaking in question’. In so doing, the General Court confused the concept of an undertaking with that of a corporate group.
46The Commission contends that this plea is unfounded. It is settled case-law that the turnover of an undertaking as a whole gives an indication of its economic importance and influence on the market. Consequently, the Commission contends that it was entitled to refer to the worldwide turnover of the group of which the appellant was the head, in order to determine the upper limit of the fine, as is apparent from the EU accounting consolidation rules in force.
Findings of the Court
47Article 23(2) of Regulation No 1/2003 provides that the Commission may impose fines on undertakings where they infringe Article 81 EC provided that, for each undertaking participating in the infringement, the fine does not exceed 10% of its total turnover in the preceding business year.
48That upper limit of the amount of the fine seeks to prevent fines being imposed which it is foreseeable that the undertakings will not be able to pay, having regard to their size, as determined, albeit approximately and imperfectly, by their total turnover. That limit is therefore one which is uniformly applicable to all undertakings, arrived at by reference to the size of each of them and seeks to ensure that the fines are not excessive or disproportionate (see, in particular, Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraphs 280 and 281).
49That objective must, however, be combined with the aim of ensuring that the fine has sufficient deterrent effect, which justifies taking into consideration the size and the economic power of the undertaking concerned, namely the global resources of the infringer (see, to that effect, Case C-413/08 P Lafarge v Commission [2010] ECR I-5361, paragraph 102 and the case-law cited).
50The taking into consideration of the size and global resources of the undertaking in question is justified by the impact sought on the undertaking concerned, in order to ensure that the fine has sufficient deterrent effect, as the sanction must not be negligible in the light, particularly, of its financial capacity (Lafarge v Commission, paragraph 104).
51In those circumstances, when assessing the financial resources of an undertaking to which a breach of the EU competition law rules is attributed, the taking into account of the turnover of all the companies in respect of which the undertaking concerned has the opportunity to exercise a decisive influence is justified.
52In particular, when the undertaking to which the infringement is attributed heads a group which constitutes an economic unit, the turnover of the group as a whole must be taken into account when calculating the upper limit of the amount of the fine referred to in Article 23(2) of Regulation No 1/2003.
53That turnover is the best indicator of the ability of the undertaking concerned to mobilise the funds needed to pay the fine.
54In that regard, as the Commission contends, the EU accounting consolidation rules in force seek to give a true and fair view of the assets, liabilities, financial position and profit or loss of the companies which are members of a group. Article 1(1)(a) to (c) of Directive 83/349 therefore imposes an obligation to prepare consolidated accounts on any parent undertaking which, inter alia, has a majority of the voting rights in a subsidiary undertaking, has the right to appoint or remove the members of the administrative or supervisory body of such an undertaking or has the right to exercise a ‘dominant influence’ over such an undertaking.
55It follows that, provided that the Commission has established to a sufficient legal standard that an infringement may be attributed to a company which heads a group, it is entitled, for the purposes of assessing the financial capacity of that company, to take into consideration the latter’s consolidated accounts inasmuch as they may be regarded as constituting a relevant factor of assessment.
56In those circumstances, the General Court did not err in law in holding, in paragraphs 108 and 110 of the judgment under appeal, that the Commission had been fully entitled to calculate the upper limit of the amount of the fine imposed on the appellant on the basis of the combined turnover of all the companies belonging to the group headed by it.
57Contrary to what the appellant contends, the Commission cannot be required, after establishing that the parent company must be held liable for the infringement of its subsidiary, to demonstrate that each subsidiary in the group does not determine its conduct on the market independently. As the General Court held in paragraph 112 of the judgment under appeal, attributing a subsidiary’s infringement to the parent company and prohibiting a fine being imposed in excess of 10% of the turnover of the undertaking concerned are two separate issues serving different purposes. If the case arises, it is for the company which considers that the consolidated turnover does not reflect the economic reality to submit evidence capable of refuting the existence of a power of control by the parent company.
58The third ground of appeal must therefore be rejected as unfounded, in so far as it alleges that the General Court has erred in law and that it breached its obligation to state reasons.
The fourth ground
Arguments of the parties
59By the present ground, the appellant submits that its fundamental right to a hearing within a reasonable time, as guaranteed by Article 47 of the Charter, has been infringed in the present case.
60The appellant notes that the proceedings before the General Court started on 23 February 2006 and ended on 16 November 2011. It states that, between the end of the written procedure and the first information that it received concerning the state of the proceedings, there was a long period of inactivity at the General Court.
61In the appellant’s submission, neither the complexity or volume of the file nor the number of undertakings or number of languages of the case in question can justify the General Court’s complete failure to deal with the case during that period.
62The appellant submits that, when it brought its action before the General Court against the contested decision, it decided not to pay the fine immediately and had, in return, to agree to pay interest on the amount of the fine and provide a bank guarantee. The excessive length of the proceedings had the effect of increasing the costs associated with those steps.
63Consequently, the appellant requests the Court to set aside the judgment under appeal, inasmuch as it imposed on Sachsa a fine for which the appellant is itself jointly and severally liable, or alternatively to reduce the amount of that fine, having regard to the financial burden that it had to suffer as result of the breach of its right to have the case dealt with within a reasonable time.
64As a preliminary point, the Commission contends that the present ground is inadmissible because it was not raised at the hearing before the General Court.
65As to the substance, the Commission contends that, if a reasonable period has been exceeded in a legal action against a decision imposing a fine on an undertaking for infringing the competition rules, the appropriate remedy should not be a reduction in the fine imposed, but rather take the form of an action for damages. In the alternative, the Commission considers that, if the Court were to find that the reasonable time principle had not been observed and that this called for a remedy consisting in a reduction in the fine, that reduction should be symbolic.
Findings of the Court
–Admissibility
66As is apparent from the first paragraph of Article 58 of the Statute of the Court and from its case-law, the Court has jurisdiction, in an appeal, to verify whether a breach of procedure adversely affecting the appellant’s interests was committed by the General Court (see, in particular, Case C-385/07 P Der Grüne Punkt - Duales System Deutschland v Commission [2009] ECR I-6155, paragraph 176).
67As regards the breach of procedure relied on in the present ground, it should be borne in mind that the second paragraph of Article 47 of the Charter provides that ‘[e]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law’. As the Court of Justice has held on several occasions, that article relates to the principle of effective judicial protection (see, in particular, Der Grüne Punkt – Duales System Deutschland v Commission, paragraph 179 and the case-law cited).
68On that basis, such a right, which was affirmed as a general principle of EU law before the Charter entered into force, is applicable in the context of proceedings brought against a Commission decision (see, in particular, Der Grüne Punkt – Duales System Deutschland v Commission, paragraph 178 and the case-law cited).
69Although the appellant focusses its criticisms mainly on the period of procedural inactivity of the General Court between the end of the written procedure and the beginning of the oral procedure, it did not argue at the hearing before the General Court that the right in question had been breached.
70Contrary to the Commission’s claims, such a failure to adjudicate cannot render inadmissible the fourth ground of appeal on the ground that it was raised for the first time in the context of the appeal. Although a party must be able to raise a breach of procedure where it considers that a breach of the rules applicable is established, it cannot be required to do so at a stage where the full effects of that breach are not yet known. As regards, in particular, a failure to adjudicate within a reasonable time, an appellant which considers that such a failure prejudices its interests is not required to assert that prejudice immediately. Where appropriate, it may wait until the end of proceedings in order to ascertain the total duration of the prejudice and therefore to have all the information necessary to identify that which it has, in its view, sustained.
71The fourth ground of appeal relied on by the appellant is therefore admissible.
–Substance
72First of all, it should be pointed out that, according to the European Court of Human Rights, a failure to adjudicate within a reasonable time must, as a procedural irregularity constituting the breach of a fundamental right, give rise to an entitlement of the party concerned to an effective remedy granting him appropriate relief (see, Kudla v. Poland, no. 30210/96, § 156 and 157, ECHR 2000-XI).
73Although the appellant seeks to have the judgment under appeal set aside in its entirety or, alternatively, to have it set aside in so far as it upheld the fine imposed on the appellant or to have the fine reduced, the Court notes that it has held that, where there are no indications that the excessive length of the proceedings before the General Court affected their outcome, failure to deliver judgment within a reasonable time cannot lead to the setting aside of the judgment under appeal (see, to that effect, Der Grüne Punkt – Duales System Deutschland v Commission, paragraphs 190 and 196 and the case-law cited).
74That case-law is based, in particular, on the consideration that, where the failure to adjudicate within a reasonable time has no effect on the outcome of the dispute, the setting aside of the judgment under appeal would not remedy the infringement of the principle of effective legal protection committed by the General Court (Der Grüne Punkt – Duales System Deutschland v Commission, paragraph 193).
75In the present case, the appellant has not provided any evidence to the Court from which it may be inferred that a failure by the General Court to adjudicate within a reasonable time could have affected the outcome of the dispute before it.
76It follows that, contrary to the appellant’s claims, the fourth ground of appeal cannot lead, as such, to the setting aside of the judgment under appeal.
77The appellant submits, however, that the excessive length of the proceedings before the General Court resulted in onerous financial consequences for it and seeks on that ground the annulment of the fine for which it is held jointly and severally liable.
78In that connection, having regard to the need to ensure that the competition rules of European Union law are complied with, the Court of Justice cannot allow an appellant to reopen the question of the validity or amount of a fine, on the sole ground that there was a failure to adjudicate within a reasonable time, where all of its pleas directed against the findings made by the General Court concerning the amount of that fine and the conduct that it penalises have been rejected (see, to that effect, Der Grüne Punkt – Duales System Deutschland v Commission, paragraph 194).
79It follows that the failure to adjudicate within a reasonable time when examining a legal action brought against a Commission decision imposing a fine on an undertaking for infringing the EU law competition rules cannot lead to the annulment, in whole or in part, of the fine imposed by that decision.
80In so far as the appellant seeks, in the alternative, a reduction in the fine for which it is jointly and severally liable as compensation for the financial damage which it claims to have sustained as a result of the excessive duration of the proceedings before the General Court, it must be borne in mind that, when first faced with a similar situation, the Court of Justice granted such an application, for reasons of economy of procedure and in order to ensure an immediate and effective remedy regarding a procedural irregularity of that kind and, accordingly, reduced the amount of the fine (Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 48).
81In a later case concerning a Commission decision finding that there had been abuse of a dominant position yet not imposing a fine, the Court held that the failure on the part of the General Court to adjudicate within a reasonable time can give rise to a claim for damages (Der Grüne Punkt – Duales System Deutschland v Commission, paragraph 195).
82Admittedly, the present case concerns a similar situation to that giving rise to the judgment in Baustahlgewebe v Commission. However, a claim for damages brought against the European Union pursuant to Article 268 TFEU and the second paragraph of Article 340 TFEU constitutes an effective remedy of general application for asserting and penalising such a breach, since such a claim can cover all the situations where a reasonable period of time has been exceeded in proceedings.
83It is therefore appropriate for the Court of Justice to rule that the sanction for a breach, by a Court of the European Union, of its obligation under the second paragraph of Article 47 of the Charter to adjudicate on the cases before it within a reasonable time must be an action for damages brought before the General Court, since such an action constitutes an effective remedy.
84It follows that a claim for compensation for the damage caused by the failure by the General Court to adjudicate within a reasonable time may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself.
85As regards the criteria for assessing whether the General Court has observed the reasonable time principle, it must be borne in mind that the reasonableness of the period for delivering judgment is to be appraised in the light of the circumstances specific to each case, such as the complexity of the case and the conduct of the parties (see, in particular, Der Grüne Punkt – Duales System Deutschland v Commission, paragraph 181 and the case-law cited).
86The Court has held in that regard that the list of relevant criteria is not exhaustive and that the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of the case or the dilatory conduct of the applicant may be deemed to justify a duration which is prima facie too long (see, in particular, Der Grüne Punkt – Duales System Deutschland v Commission, paragraph 182 and the case-law cited).
87In examining those criteria, it must be borne in mind that, in the case of proceedings concerning infringement of competition rules, the fundamental requirement of legal certainty on which economic operators must be able to rely and the aim of ensuring that competition is not distorted in the internal market are of considerable importance not only for an applicant itself and its competitors but also for third parties, in view of the large number of persons concerned and the financial interests involved (see, in particular, Der Grüne Punkt – Duales System Deutschland v Commission, paragraph 186 and the case-law cited).
88It will also be for the General Court to assess both the actual existence of the harm alleged and the causal connection between that harm and the excessive length of the legal proceedings in dispute by examining the evidence submitted for that purpose.
89In that regard, it should be noted that, in an action for damages based on a breach by the General Court of the second paragraph of Article 47 of the Charter, in so far as it failed to have regard to the requirement that the case be dealt with within a reasonable time, the General Court must, in accordance with the second paragraph of Article 340 TFEU, take into consideration the general principles applicable in the legal systems of the Member States for actions based on similar breaches. In that context, the General Court must, in particular, ascertain whether it is possible to identify, in addition to any material loss, any other type of harm sustained by the party affected by the excessive period, which should, where appropriate, be suitably compensated.
90It is therefore for the General Court, which has jurisdiction under Article 256(1) TFEU, to determine such claims for damages, sitting in a different composition from that which heard the dispute giving rise to the procedure whose duration is criticised and applying the criteria set out in paragraphs 85 to 89 above.
91That said, it must be stated that the length of the proceedings before the General Court, which amounted to approximately 5 years and 9 months, cannot be justified by any of the particular circumstances of the present case.
92It is apparent, in particular, that the period between the end of the written procedure, when the Commission’s rejoinder was lodged in February 2007, and the opening, in December 2010, of the oral procedure lasted for approximately 3 years and 10 months. The length of that period cannot be explained by the circumstances of the case, whether it be the complexity of the dispute, the conduct of the parties or supervening procedural matters.
93As regards the complexity of the dispute, it is apparent from examining the action brought by the appellant, as summarised in paragraph 13 above, that, while requiring a detailed examination, the pleas relied on did not present any particular difficulties. Although it is true that around 15 addressees of the contested decision brought actions for its annulment before the General Court, that fact could not prevent it from scrutinising the documents in the case and preparing for the oral procedure within a period of less than 3 years and 10 months.
94It must be pointed out that, during that period, the procedure was not interrupted or delayed by the adoption of any measures of organisation of procedure by the General Court.
95As regards the conduct of the parties and supervening procedural matters, the fact that the appellant requested, in October 2010, the reopening of the written procedure cannot justify the period of 3 years and 8 months which had already elapsed since it was closed. In addition, as the Advocate General observed in point 105 of her Opinion, the fact that the appellant was notified in December 2010 that there would be a hearing in February 2011 shows that that procedural matter had only a minimal effect on the overall length of proceedings, or even no effect at all.
96In the light of the foregoing, it must be found that the procedure in the General Court breached the second paragraph of Article 47 of the Charter in that it failed to comply with the requirement that it adjudicate within a reasonable time, which constitutes a sufficiently serious breach of a rule of law that is intended to confer rights on individuals (Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 42).
97It is, however, clear from the considerations set out at paragraphs 73 to 84 above that the fourth ground of appeal must be rejected.
The appellant’s financial situation
98At the hearing, the appellant made submissions to the Court concerning its current financial position, which, it claims, show that it is unable to pay the fine imposed by the contested decision. The appellant claims that those arguments, seeking to substantiate its claim for the total annulment or, in the alternative, reduction of that fine, are admissible since they are linked to the appearance of a new fact as provided for in Article 127 of the Rules of Procedure, and amplify the fourth ground of appeal concerning the failure to observe the reasonable time principle.
99The Commission contends that those arguments are inadmissible since they are new and, in any event unfounded, because unsupported by evidence.
100In that regard, it must be recalled that appeals brought before the Court of Justice can only relate to questions of law. However, in order to assess the appellant’s ability to pay the fine imposed on it by the Commission, the Court would have to examine questions of fact which are not within its jurisdiction in an appeal.
101Furthermore, it is not open to the Court, when determining an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fine imposed on an undertaking for infringements of European Union law (see, in particular, Case C-328/05 P SGL Carbon v Commission [2007] ECR I-3921, paragraph 98 and the case-law cited). In addition, it is settled case-law that the Commission is not required, when determining the amount of the fine, to take into account the financial situation of an undertaking, since recognition of such an obligation would be tantamount to giving unjustified competitive advantages to undertakings least well adapted to the market conditions (see, in particular, SGL Carbon v Commission, paragraph 100 and the case-law cited).
102The appellant’s arguments based on its financial situation must therefore be rejected as inadmissible and, in any event, unfounded.
103It must, however, be added that, in so far as the appellant considers that its financial difficulties are causally linked to the failure by the General Court to adjudicate within a reasonable time, it is open to it to plead this in an action before the General Court under Article 268 TFEU and the second paragraph of Article 340 TFEU (see paragraphs 88 to 90 above).
104It follows from the foregoing considerations that none of the grounds relied on by the appellant in support of its appeal can be upheld and, accordingly, the appeal must be dismissed in its entirety.
Costs
105In accordance with Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.
106Under Article 138(1) of those Rules, which applies to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs to be awarded against the appellant and the latter has been unsuccessful, the appellant must be ordered to bear its own costs and to pay those incurred by the Commission.
Operative part
On those grounds, the Court (Grand Chamber) hereby:
1.Dismisses the appeal;
2.Orders Groupe Gascogne SA to pay the costs of this appeal.
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