Quinn Barlo Ltd, established in Ballyconnell (Ireland), v European Commission [2013] EUECJ C-70/12 (30 May 2013)

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(Appeal – Agreements, decisions and concerted practices – European market for methacrylates – Duration of the infringement – Presumption of innocence – Statement of reasons – Unlimited jurisdiction – General principles of the protection of legitimate expectations and equal treatment – Proportionality of the fine)

European Commission, represented by N. Khan and V. Bottka, acting as Agents, with an address for service in Luxembourg,

1 By their appeal, Quinn Barlo Ltd, Quinn Plastics NV and Quinn Plastics GmbH (‘the appellants’) request that the judgment of the General Court of the European Union of 30 November 2011 in Case T-208/06 Quinn Barlo and Others v Commission (‘the judgment under appeal’) be set aside in part. By that judgment the General Court dismissed in part the appellants’ action for (i) annulment of Articles 1 and 2 of Commission Decision C(2006) 2098 final of 31 May 2006 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.645 – Methacrylates) (‘the decision at issue’), and (ii) in the alternative, reduction of the fine imposed on them by that decision, a summary of which was published in the Office Journal of the European Union on 22 November 2006 (OJ 2006 L 322, p. 20).

2 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), which replaced, with effect from 1 May 2004, 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 2, entitled ‘Burden of proof’:

‘In any national or Community proceedings for the application of Articles 81 [EC] and 82 [EC], the burden of proving an infringement of Article 81(1) [EC] or of Article 82 [EC] shall rest on the party or the authority alleging the infringement. The undertaking or association of undertakings claiming the benefit of Article 81(3) [EC] shall bear the burden of proving that the conditions of that paragraph are fulfilled.’

3 Paragraphs 2 and 3 of Article 23 of Regulation No 1/2003 are worded as follows:

‘2. The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:

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.

Where the infringement of an association relates to the activities of its members, the fine shall not exceed 10% of the sum of the total turnover of each member active on the market affected by the infringement of the association.

4 Under Article 31 of that regulation, ‘[t]he Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed’.

5 The Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [ECSC] (OJ 1998 C 9, p. 3, ‘the 1998 Guidelines’), which were applicable at the material time, provide as follows in Section 1.A, which deals with the assessment of the gravity of an infringement:

In assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market.

These will generally be horizontal restrictions such as price cartels and market-sharing quotas, or other practices which jeopardise the proper functioning of the single market, such as the partitioning of national markets and clear-cut abuse of a dominant position by undertakings holding a virtual monopoly …

Where an infringement involves several undertakings (e.g. cartels), it might be necessary in some cases to apply weightings to the amounts determined within each of the three categories in order to take account of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type.

Thus, the principle of equal punishment for the same conduct may, if the circumstances so warrant, lead to different fines being imposed on the undertakings concerned without this differentiation being governed by arithmetic calculation.’

6 As regards the duration of an infringement, the 1998 Guidelines also specify in Section 1:

– infringements of long duration (in general, more than five years) increase of up to 10% per year in the amount determined for gravity.

7 So far as attenuating circumstances are concerned, Section 3 of the 1998 Guidelines states:

8 By the decision at issue, the Commission found that a certain number of undertakings, including the appellants, had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) by participating, during various periods between 23 January 1997 and 12 September 2002, in a complex of anti-competitive agreements and concerted practices in the methacrylates industry, covering the whole territory of the European Economic Area (EEA).

9 According to the decision at issue, there was a single and continuous infringement involving three distinct polymethyl-methacrylate (‘PMMA’) products: moulding compounds, solid sheet and sanitary ware, which have a common raw-material input, methacrylate-monomers (‘MMA’).

10 The infringement in question consisted, first, in discussing prices, second, in agreeing, implementing and monitoring price agreements either in the form of price increases, or at least stabilisation of existing price levels, third, discussing the passing on of additional service costs to customers, fourth, exchange of commercially important and confidential market and/or company relevant information, and, fifth, participating in regular meetings and having other contacts to facilitate the infringement (Article 1 of and recitals 1 to 3 of the decision at issue).

11 So far as the appellants are concerned, their participation in the cartel was restricted to ‘sporadic attendance of meetings’, which entailed ‘[the undertaking] being informed about the anti-competitive agreements or practices for PMMA-solid sheet’. Accordingly, ‘[the appellants’] involvement in the cartel was not comparable to that of most other undertakings’ (recital 373 of the decision at issue).

12 The other facts relating to the background to the dispute and to the decision at issue are set out in the following terms in paragraphs 4 to 20 of the judgment under appeal:

‘4 The … decision [at issue] was addressed to Degussa AG, Röhm GmbH & Co. KG and Para-Chemie GmbH (“Degussa”), Total SA, Elf Aquitaine SA, Arkema SA (formerly Atofina SA), Altuglas International SA and Altumax Europe SAS (collectively “Atofina”), Lucite International Ltd and Lucite International UK Ltd (collectively “Lucite”), ICI plc, and also the applicants ...

5 The applicants are part of the Irish conglomerate Quinn Group Ltd., which, on 7 May 2004, after the infringement period in question, took over the entire share capital of the ultimate parent company of the Barlo group (Barlo Group plc, subsequently renamed Barlo Group Ltd) (recital 299 of the … decision [at issue]). The applicants are the result of the integration of the activities of the three former companies of the Barlo group (“Barlo”) into the Quinn group in January 2005:

– Quinn Plastics GmbH is the successor to Barlo Plastics GmbH. According to the … decision [at issue], Barlo Plastics GmbH participated in the collusive behaviour in the methacrylates sector (recital 297 of the … decision [at issue]);

– Quinn Plastics NV is the successor to Barlo Plastics NV. The latter was the parent company of Barlo Plastics GmbH, holding 100% of its share capital indirectly (recitals 38, 43 and 301 of the … decision [at issue]);

– Quinn Barlo is the successor to Barlo Group Ltd. It is the parent company of the former Barlo group, which holds, directly or indirectly, 100% of the share capital of the former Barlo companies (recitals 300 and 301 of the … decision [at issue]).

6 All three applicants are addressees of the … decision [at issue], the Commission having considered that Quinn Barlo and Quinn Plastics NV were responsible for the conduct of Quinn Plastics GmbH (formerly Barlo Plastics GmbH) during the infringement (recitals 301 and 304 and Article 1 of the … decision [at issue]).

7 The investigation which led to the adoption of the contested decision was initiated after Degussa submitted an application for immunity on 20 December 2002 under the Commission notice of 19 February 2002 on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3) (“the Leniency Notice”).

8 On 25 and 26 March 2003, the Commission conducted inspections at the premises of Atofina, Barlo, Degussa and Lucite (recital 59 of the … decision [at issue]). Following those inspections, on 3 April and 11 July 2003 respectively Atofina and Lucite submitted applications for immunity or reduction in the amount of the fine under the Leniency Notice (recitals 60 and 66 of the … decision [at issue]). On 18 October 2004, ICI submitted an application for a reduction in the amount of the fine under the Leniency Notice (recital 83 of the … decision [at issue]). Barlo did not submit an application under that notice.

9 From 9 April 2003 to 29 July 2004, the Commission made a number of requests for information to Barlo under Article 11 of … Regulation No 17 ..., and under Article 18 of … Regulation … No 1/2003 ... (recitals 62 to 79 of the … decision [at issue]).

10 On 17 August 2005 the Commission adopted a statement of objections concerning a single and continuous infringement relating to MMA, PMMA moulding compounds, PMMA solid sheet and PMMA sanitary ware and addressed it to, inter alia, the applicants and Quinn Plastics SA (recital 85 of the … decision [at issue]).

12 In the light of the evidence provided by the undertakings in their replies to the statement of objections and at the hearing, the Commission decided to withdraw certain objections, including:

– the objections directed at all of the undertakings to which the statement of objections had been addressed in respect of the part of the infringement relating to MMA;

– the objections directed at the applicants and Quinn Plastics, SA in respect of the PMMA moulding compounds;

– the objections directed at Quinn Plastics, SA in respect of the PMMA solid sheet (recital 93 of the … decision [at issue]).

13 On 31 May 2006, the Commission adopted the … decision [at issue]. As regards the applicants, the Commission found that they had participated in the anti-competitive agreements and concerted practices referred to in paragraphs [8 to 11 of the judgment on appeal] in the period from 30 April 1998 to 21 August 2000 (Article 1(l) to (n) of the … decision [at issue]) and imposed on them a fine of EUR 9 million, for which they were held jointly and severally liable (Article 2(e) of the … decision [at issue]).

14 With regard to the calculation of the fine, the Commission examined the gravity of the infringement and found, first of all, that, in view of the nature of the infringement and the fact that it covered the entire territory of the EEA, it was a very serious infringement within the meaning of the [1998 Guidelines] (recitals 319 to 331 of the … decision [at issue]).

15 The Commission then considered that, within the category of very serious infringements, it was possible to apply differential treatment to undertakings in order to take account of the effective economic capacity of the offenders to cause significant economic damage to competition. To that end, the Commission found in the present case that the undertakings concerned “[could] be subdivided into [three] categories according to their relative weight in turnover achieved with the PMMA products for which they participated in the cartel”. The Commission stated that Barlo, with EEA turnover of EUR 66.37 million in 2000 in PMMA solid sheet, was to be placed in the third category.

16 Moreover, again in relation to differential treatment, the Commission reduced by 25% the basic amount of the fine calculated for the applicants, for the following reasons (recital 335 of the … decision [at issue]):

“… the Commission takes into account that it is not clear whether Barlo took part in any collusive contacts concerning PMMA moulding compounds or PMMA sanitary ware. Therefore it seems that Barlo was not aware or could not necessarily have had knowledge of the overall scheme of the anti-competitive arrangements …”

17 Those considerations led the Commission to set the starting amount for the fine to be imposed on the applicants at EUR 15 million (recital 336 of the … decision [at issue]).

18 Secondly, the Commission discussed the duration of the infringement and found that, as the applicants had been involved in the infringement for a period of two years and three months, the starting amount should be increased by 20% (10% for each full year of participation) (recitals 351 to 353 of the … decision [at issue]). The starting amount of the fine calculated for the applicants was thus EUR 18 million (recital 354 of the … decision [at issue]).

19 Thirdly, the Commission examined the aggravating and mitigating circumstances and found no aggravating circumstances against the applicants. So far as mitigating circumstances were concerned, the Commission accepted the applicants’ argument that they had had only a passive and minor role in the infringement and granted them a 50% reduction in the fine which would otherwise have been imposed (recitals 372 to 374 of the … decision [at issue]).

20 The Commission rejected the other mitigating circumstances put forward by the applicants (recitals 375 to 396 of the … decision [at issue]) and therefore set the fine at EUR 9 million (recital 397 of the … decision [at issue]). As the applicants received no benefit under the Leniency Notice, that is the final amount of their fine.’

13 Before the General Court, the appellants put forward two pleas in law in support of their action for annulment of the decision at issue.

14 In the context of their first plea, alleging infringement of Article 81 EC, the appellants raised three complaints concerning errors made by the Commission in its findings of fact, so far as concerned, respectively, meetings and other contacts or exchanges involving Barlo, Barlo’s participation in a ‘single and common anti-competitive scheme’ covering the three PMMA products and Barlo’s participation in a continuous infringement.

15 By their second plea, alleging infringement of Article 23(3) of Regulation No 1/2003, of the 1998 Guidelines and of the principle of proportionality, the appellants criticised the Commission’s assessment relating to the determination of the fine, as regards (i) the duration of the alleged infringement, (ii) the gravity of the infringement and (iii) the fact that no mitigating circumstances were taken into account.

16 The General Court upheld the appellants’ action in part. Firstly, it held, in paragraph 112 of the judgment under appeal, that Barlo’s alleged attendance at a meeting in May or June 1999 in Barcelona (Spain) had not been proved to the required legal standard. Moreover, the General Court found it plausible that Barlo’s involvement in the cartel was limited to the four meetings which the appellants admitted they attended, namely the meetings held in Germany – in Dernbach in April 1998, in Darmstadt on 29 June 1998, in Heidelberg on 24 February 2000 and in Deidesheim on 21 August 2000. Secondly, the General Court found that the Commission had not established that Barlo, as a result of its participation in the infringement concerning PMMA solid sheet, had incurred liability for whole of the single infringement, which concerned PMMA sanitary ware and moulding compounds as well. In that regard, the General Court stated that it had not been established that Barlo knew or should have known that, by participating in an agreement relating to PMMA solid sheet, it was joining in a global cartel relating to three PMMA products. Thirdly, taking account of the inadequacy of the evidence concerning the meeting in Barcelona, the General Court stated that the period in which there were no collusive contacts or manifestations by Barlo amounted to almost 16 months (from the end of October 1998 to 24 February 2000). Consequently, the General Court concluded that there was an interruption in Barlo’s participation in the infringement throughout that period.

17 The General Court’s conclusions, as set out in the previous paragraph, led it to recalculate the fine, in the exercise of its unlimited jurisdiction. In doing so, it took account of the fact that the infringement was of shorter duration than that found by the Commission, namely 11 months and 28 days instead of 2 years and 3 months, as a result of which it reduced the fine by replacing the increase of 20% of the starting amount applied by the Commission by an increase of 10%. In taking the view that such an increase adequately reflected the duration of the appellants’ participation in the infringement, the General Court thus did not follow the method set out in the 1998 Guidelines, by virtue of which participation of less than one year in an infringement constitutes, in general, an infringement of short duration, for which no increase in the amount of the fine is, as a rule, provided (Section 1.B, first indent, of the 1998 Guidelines). In that regard, the General Court held, in paragraph 176 of the judgment under appeal, that that provision does not lay down an imperative rule and that it cannot, in any event, bind the court in the exercise of its unlimited jurisdiction.

18 As regards the effect on the amount of the fine of the error made by the Commission in the determination of the appellants’ liability for the infringement as a whole, the General Court held, in paragraph 201 of the judgment under appeal, that, in the case in issue, even though the Commission had made an error in this respect, it had nevertheless determined the amount of the fine correctly, since the latter adequately reflected the gravity of the infringement.

19 Consequently, the amount of the fine for payment of which the appellants were held jointly and severally liable was reduced from EUR 9 million to EUR 8 250 000. The action was dismissed as to the remainder. The General Court thus ordered the appellants to bear 60% of their own costs and to pay 60% of the costs incurred by the Commission, whilst the Commission was ordered to bear 40% of its own costs and 40% of the costs incurred by the appellants.

– set aside the judgment under appeal to the extent to which it finds that the appellants have infringed Article 101 TFEU and has, on that account, failed to annul Article 1 of the decision at issue in so far it concerns the appellants;

– in the alternative, set aside the judgment under appeal to the extent to which, in the context of the General Court’s unlimited jurisdiction, it reduced the starting amount of the fine by only 10% and failed to annul the part of the decision at issue which included in the calculation of the fine an increase on account of the duration of the infringement;

– in the further alternative, (i) set aside the judgment under appeal to the extent to which it fails to annul the part of the decision at issue which limited to 25% the reduction of the basic amount of the fine on account of differential treatment and (ii) within the framework of its unlimited jurisdiction, set a higher percentage which duly reflects the appellants’ lack of liability for the cartel as it extends to PMMA moulding compounds and PMMA sanitary ware, thereby ensuring that such, higher, reduction is consistent with the general principle of proportionality, and

21 The Commission contends that the Court should dismiss the appeal and order the appellants to pay the entirety of the costs of these proceedings and those of the proceedings at first instance.

22 The appellants put forward three pleas in law in support of their appeal. First of all, they assert that the General Court incorrectly applied Article 2 of Regulation No 1/2003 and thus made an error of law in finding an infringement of Article 101 TFEU. They then submit that the General Court, in reviewing the Commission’s assessment of the duration of the infringement, breached Article 23(3) of Regulation No 1/2003 in that it failed to observe general principles of European Union (‘EU’) law, namely the principles of the presumption of innocence, the protection of legitimate expectations and of equal treatment. Finally, they complain that the General Court, in the assessment of the gravity of the infringement, infringed the principle of proportionality and, as a consequence, Article 23(3) of Regulation No 1/2003.

First plea in law: error of law in finding an infringement of Article 101 TFEU and/or error of law as regards the application of Article 2 of Regulation No 1/2003

23 In the appellants’ submission, the General Court erred in its reliance on a legal test based on evidence that they attended four meetings and on the absence of any evidence that they had publicly distanced themselves from the content of those meetings. In doing so, the General Court disregarded objective and undisputed factors demonstrating that that legal test was inappropriate in the circumstances of the case and, in any event, insufficient to arrive at a finding that the appellants had infringed Article 101 TFEU. They submit that those objective factors instead show that the cartel members knew that the appellants were attending those meetings in a spirit that was different from theirs. In that regard, the appellants maintain, inter alia, that the cartel members had invited them to attend the meetings in question in order to ascertain whether they might join the cartel, that the appellants’ pricing policy was incompatible with the cartel’s objectives, that their market share was increasing and that their representative who attended those meetings had confirmed that he had given no indication to the other participants that the appellants would change their pricing policy. Accordingly, in relying on the legal test consisting in the absence of public distancing on the part of the appellants, the General Court did not observe Article 2 of Regulation No 1/2003 and did not establish to the required legal standard an infringement of Article 101 TFEU.

24 The Commission contends that this plea must be rejected as inadmissible, since the appellants put forward purely factual arguments which are not subject to review by the Court of Justice in appeal proceedings. It also submits that those arguments have already been raised at first instance and were rejected by the General Court. In any event, this plea in law is, in the Commission’s view, unfounded.

25 As a preliminary point, it should be recalled, first, that the General Court has exclusive jurisdiction to find and appraise the facts and, in principle, to examine the evidence it accepts in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (see, inter alia, Case C-551/03 P General Motors v Commission [2006] ECR I-3173, paragraph 52, and Case C-535/06 P Moser Baer India v Council [2009] ECR I-7051, paragraph 32 and the case-law cited).

26 Second, it should be noted that an appeal is inadmissible in so far as it merely repeats the pleas in law and arguments previously submitted to the General Court, including those based on facts expressly rejected by it. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake on appeal (Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-123, paragraph 51 and the case-law cited).

27 By contrast, provided that an appellant challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (Case C-229/05 P PKK and KNK v Council [2007] ECR I-439, paragraph 32 and the case-law cited).

28 In that regard, although the appellants describe the first plea in law as one relating to a point of law, that plea ultimately amounts to calling in question the General Court’s assessment of the facts and of the evidence produced before it, concerning the appellants’ failure publicly to distance themselves from the content of the four anti-competitive meetings which they admit that they attended.

29 Indeed, far from alleging distortion of the facts or of the clear sense of the evidence, the appellants merely maintain that the well-established legal test applied in paragraph 47 of the judgment under appeal is ‘inappropriate’. They thus seek to challenge the settled case-law of the Court of Justice according to which it is sufficient for the Commission to establish that the undertaking concerned participated in meetings having an anti-competitive purpose, without manifestly opposing it, in order to prove to the requisite legal standard that the undertaking participated in the cartel. The appellants have put forward no legal argument to substantiate their assertion that that method of proof is inappropriate but merely repeat factual arguments which have already been raised and rejected before the General Court and which seek to show that they participated in the meetings in question in a spirit that was different from that of the other participants.

30 As has been recalled in paragraph 25 of this judgment, the Court of Justice does not have jurisdiction to consider the appellants’ first plea in law in so far as it amounts not to showing that the General Court made an error of law, but to challenging the facts and the probative value of the various indicia which were before the Court.

31 The appellants’ first ground of appeal must therefore be rejected as inadmissible.

First part of the second plea in law: failure to comply with the general principle of the presumption of innocence in the determination of the duration of the alleged infringement

32 In the alternative, the appellants in essence complain that the General Court disregarded the general principle of the presumption of innocence when it extended the duration of the first period of their participation in the cartel beyond the date of the second cartel meeting – which was held on 29 June 1998 in Darmstadt and which it is established they attended – until the end of October 1998 (paragraph 163 of the judgment under appeal). They also maintain that the General Court did not give sufficient grounds for its findings in that respect.

33 The appellants submit that there is at least reasonable doubt as to whether they were able to benefit from information received at that meeting and to adapt their commercial strategy accordingly. In particular, even though the decision at issue found that, during the meeting on 29 June 1998, the participants agreed on a price increase ‘for October 1998’, there is no reason to assume that that language justifies extending the infringement period beyond the date of that meeting and until the end of October 1998. The infringement period should have ended in August 1998, or at the latest in September 1998, and the General Court does not explain the reasons why the full month of October 1998 is included in the infringement period.

34 Accordingly, by virtue of the principle of the presumption of innocence, the General Court should, the appellants submit, have given them the benefit of the doubt and should have found the duration of the infringement to be shorter (7 months and 29 days instead of 11 months and 28 days).

35 The Commission maintains that the appellants’ arguments are directed against a finding of fact made by the General Court – the finding relating to the end of the first period of their participation in the cartel – and must consequently be rejected as inadmissible. In any event, in the light of all the documentary evidence on which the decision at issue is based, the price increase discussed at the meeting on 29 June 1998 related to the coordination of an increase in the European price level which was announced and implemented during the second half of 1998, as late as December of that year or even into January 1999. The Commission argues that the General Court thus adopted a cautious approach to the evaluation of the duration of the infringement and therefore made no error of law when it set the end of October 1998 as the end of the first period of the appellants’ participation in the cartel.

36 It follows from the case-law cited in paragraph 25 of this judgment that it is for the Court of Justice to ascertain whether the General Court, in its assessment of the facts and evidence, made an error of law by infringing general principles of law, such as the presumption of innocence and the applicable rules of evidence, such as those relating to the burden of proof and the taking of evidence (see, to that effect, Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 22; Case C-8/95 P New Holland Ford v Commission [1998] ECR I-3175, paragraph 26; Case C-185/95 P Baustahlgewebe v Commission [1998] ERC I-8417, paragraph 24; and Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraph 65).

37 Accordingly, although the alleged infringement of the presumption of innocence in the determination of the duration of the infringement may have an impact on the findings of fact made by the General Court, it is, contrary to what is maintained by the Commission, a point of law amenable, as such, to review by the Court of Justice. The same principle applies with regard to the complaint concerning the grounds of the judgment under appeal (see, inter alia, Case C-401/96 P Somaco v Commission [1998] ECR I-2587, paragraph 53, and Joined Cases C-403/04 P and C-405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I-729, paragraph 77).

38 The objection to admissibility raised by the Commission against the first part of the appellants’ second plea in law is therefore unfounded.

39 As to the merits, it must be recalled that, according to the settled case-law of the Court of Justice, the obligation of the General Court to state reasons does not require it to carry out an analysis which follows exhaustively and one by one all the arguments formulated by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the decision in question has been taken and provides the Court of Justice with sufficient material for it to exercise its power of review, as in the present case (see, inter alia, Aalborg Portland and Others v Commission, paragraph 372; Case C-16/07 P Chetcuti v Commission [2008] ECR I-7469, paragraph 87; and Case C-440/07 P Commission v Schneider Electric [2009] ECR I-6413, paragraph 135).

40 In the first place, it is settled case-law that the system of competition established by Articles 101 TFEU and 102 TFEU is concerned with the economic consequences of agreements, or of any comparable form of concertation or coordination, rather than with their legal form. Consequently, in the case of agreements which have ceased to be in force, it is sufficient, in order for Article 101 TFEU to apply, that they produce their effects beyond the date on which the unlawful contacts formally come to an end. It follows that the duration of an infringement may be assessed by reference to the period during which the undertakings concerned engaged in conduct prohibited by that article (see, to that effect, Case 51/75 EMI Records [1976] ECR 811, paragraph 30; Case 86/75 EMI Records [1976] ECR 871, paragraph 27; Case 96/75 EMI Records [1976] ECR 913, paragraph 15; and Case 243/83 Binon [1985] ECR 2015, paragraph 17). In other words, the General Court could in theory have found there to be an infringement, for example, throughout the whole period in which the unlawful prices were applied, which would have led, in the present case, to a result objectively less favourable to the appellants’ interests.

41 In the second place, the General Court, referring to recitals 155 and 157 of the decision at issue, explained in paragraph 163 of the judgment under appeal the reasons why it considered it appropriate to make a finding of infringement in respect of the period running from the meeting on 29 June 1998 to the end of October 1998. In that regard, it stated that the appellants had been able to benefit from the information relating to the price increases planned for October 1998, which was discussed at those meetings, and to adapt their commercial conduct accordingly. In addition, the General Court relied on the decision at issue, which refers in that connection to documentary evidence indicative of a price increase for the second half of 1998 and even to certain price increases announced or implemented in December 1998 or January 1999, that is to say, after the end of October 1998.

42 It follows that it was for the appellants to prove that they had distanced themselves from what had been agreed at the meeting of 29 June 1998 and that their commercial strategy had not been influenced by those discussions, in order to be able to establish that their participation in the infringement gave rise to no liability in respect of the period after that meeting.

43 Accordingly, by setting the end of October 1998 as the end of the first period of the appellants’ participation in the infringement, the General Court adopted an approach which is favourable to the appellants and did not make an error of law so far as the assessment of the duration of the infringement is concerned.

Second part of the second plea in law: failure to observe the general principles of the protection of legitimate expectations and equal treatment

44 The appellants maintain, as a subsidiary plea, that the General Court’s decision to exercise its unlimited jurisdiction and increase the starting amount of the fine by 10% is contrary to the general principles of equal treatment and/or the protection of legitimate expectations, since it did not follow the method set out in the 1998 Guidelines. They argue that, according to Section 1.B, first indent, of those guidelines, an infringement lasting less than one year is an infringement of short duration, for which, as a rule, no increase in the amount of the fine is applied. Consequently, if the Commission had assessed the duration of the infringement correctly from the outset, it would have had to qualify the infringement as being of short duration and, in accordance with the guidelines, no increase in the amount of the fine would have been made.

45 The Commission contends that such a plea is inadmissible in that it takes issue with the General Court’s exercise of its unlimited jurisdiction. In any event, the Courts of the European Union (‘Courts of the Union’), when they examine and adjust the amounts of fines, are in no way bound by the 1998 Guidelines, from which even the Commission may depart provided that its decision is duly reasoned. As regards the principle of the protection of legitimate expectations, which the Commission is bound to observe when it applies its self-imposed guidelines, it cannot bind the Courts of the Union when they review and adjust fines, since they have certainly not undertaken to use any specific method in determining fines when exercising their unlimited jurisdiction.

46 With regard to the argument concerning infringement of the principle of equal treatment, it is true that the case-law of the Court of Justice makes clear that the exercise of unlimited jurisdiction in respect of the determination of fines cannot result in discrimination between undertakings which have participated in an agreement contrary to Article 101(1) TFEU (see, inter alia, Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I-8375, paragraph 617, and Case C-407/04 P Dalmine v Commission [2007] ECR I-829, paragraph 152). If the General Court intends, in the case of one of those undertakings, to depart specifically from the method of calculation followed by the Commission, which it has not called into question, it must give reasons for doing so in the judgment under appeal (Case C-338/00 P Volkswagen v Commission [2003] ECR I-9189, paragraph 146).

47 It must also be recalled that, according to the settled case-law of the Court of Justice, an appeal must indicate precisely the alleged flaws in the judgment which the appellant claims should be set aside, and also the legal arguments specifically advanced in support of that claim, failing which the latter is inadmissible (see, inter alia, Limburgse Vinyl Maatschappij and Others v Commission, paragraphs 497 and 618, and Dalmine v Commission, paragraph 153).

48 First, the General Court clearly stated, in paragraphs 176 and 177 of the judgment under appeal, the reasons why it considered it to be reasonable, in the appellants’ case, not to apply the criteria set by the Commission in the 1998 Guidelines, making particular mention of the fact that the appellants’ participation in the cartel had subsequently resumed.

50 Moreover, the appellants express their complaint concerning discrimination in general terms, linking it with the principle of the protection of legitimate expectations. In particular, they do not identify the elements which distinguish their own situation as compared with those of the other undertakings that participated in the cartel and which would serve to establish the alleged discrimination.

51 It must therefore be concluded that the appellants’ argument relating to the alleged infringement of the principle of equal treatment does not satisfy the requirements which must be met by an appeal, as referred to in paragraph 47 of this judgment and as deriving from Article 168(1)(d) of the Rules of Procedure of the Court of Justice.

52 With regard to the alleged infringement of the principle of the protection of legitimate expectations, suffice it to note that the General Court is entitled, in the exercise of its unlimited jurisdiction, to substitute its own appraisal for the Commission’s and, consequently, to increase, where appropriate, the fine or penalty payment imposed (Case C-3/06 P Groupe Danone v Commission [2007] ECR I-1331, paragraph 61 and the case-law cited).

53 The Court of Justice has already held that the Guidelines set out rules of practice from which the Commission may not depart in an individual case without giving reasons that are compatible with the principle of equal treatment. Indeed, by adopting such rules of conduct and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules without running the risk of suffering the consequences of being in breach of general principles of law, such as equal treatment or the protection of legitimate expectations (see, inter alia, 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 209 and 211). However, as the Commission rightly submits, although it must observe the principle of the protection of legitimate expectations when it applies its self-imposed guidelines, that principle cannot bind the Courts of the Union in the same way, in so far as they do not propose to apply a specific method of setting fines in the exercise of their unlimited jurisdiction, but consider case by case the situations before them, taking account of all the matters of fact and of law relating to those situations.

54 The second part of the second plea in law must therefore be rejected in its entirety as being in part inadmissible and in part unfounded and, accordingly, the appellants’ second ground of appeal cannot be accepted.

Third plea in law: infringement of Article 23(3) of Regulation No 1/2003 and of the principle of proportionality

55 In the further alternative, the appellants complain that the General Court failed to make use of its unlimited jurisdiction once it found that the Commission had made an error in holding them liable for the entire cartel. Having made such a finding, the General Court should have granted them an additional reduction in the basic amount of the fine, which the Commission had already reduced by 25% on account of differential treatment, since a further reduction was necessary to reflect the fact that the appellants were not liable for branches of the cartel relating to PMMA moulding compounds and PMMA sanitary ware. The appellants submit that only a reduction of that kind – larger than the reduction granted by the Commission – would ensure compliance with the general principle of proportionality. As regards the precise level of the reduction to be applied, the appellants maintain that, as the Commission and the General Court have advanced no other parameter, the relative importance of the turnover of the three PMMA products is the appropriate criterion to ensure that the general principle of proportionality is respected.

56 The Commission contends that this plea, which seeks, in essence, a fresh assessment of the amount of the fine in place of the General Court’s assessment, is inadmissible even though it is described by the appellants as a point of law. In any event, it should be rejected as unfounded. Given that the starting amount of the fine imposed on the appellants, following reduction by the Commission, already reflected the gravity of the part of the overall infringement for which the appellants’ liability was confirmed in the judgment under appeal, there is no reason to grant an additional reduction in the fine. Moreover, the reduction for the narrower scope of the infringement need not be based on an exact division of turnover between the products concerned by the wider cartel and those covered by the narrower cartel. Likewise, a 25% reduction is also appropriate since it has been shown that PMMA solid sheet represented more than 60% of the turnover for all three PMMA products.

57 According to its settled case-law, it is not for the Court of Justice, when ruling on points of law in the context of 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 fines imposed on undertakings for infringements of EU law (see, to that effect, Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, paragraph 34; Case C-248/98 P KNP BT v Commission [2000] ECR I-9641, paragraph 54; and Case C-328/05 P SGL Carbon v Commission [2007] ECR I-3921, paragraph 98). Accordingly, only inasmuch as the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, would it have to find that the General Court erred in law, on account of the inappropriateness of the amount of a fine (Case C-89/11 P E.ON Energie v Commission [2012] ECR I-0000, paragraph 126).

58 The arguments which the appellants put forward in support of their third plea seek a reassessment of the appropriateness of the amount of the fine imposed on them.

59 Even assuming that the 25% reduction which the Commission granted the appellants did not precisely reflect the relative importance of the turnover relating to the two PMMA products for which their liability was not established, the fact remains that the amount of their fine adequately reflects the gravity of the infringement committed, which entailed taking part in meetings of a cartel which covered the whole of the EEA and in respect of which the 1998 Guidelines provide, in principle, for EUR 20 million as a minimum starting amount. Moreover, the 25% reduction is also appropriate since the product in respect of which the appellants’ liability was established – PMMA solid sheet – represented the largest proportion of overall turnover, that is, more than 60% of the turnover recorded for sales of the three PMMA products. Furthermore, there are no grounds for claiming that the fine is disproportionate in terms of turnover, given that the appellants’ weight compared to the market and the overall cartel was already reflected in the starting amount of the fine, that is to say, even before the grant of the 25% reduction. In that regard, contrary to the other undertakings involved, that amount was based only on the turnover in PMMA solid sheet, even though the appellants were also active in the PMMA moulding compounds sector, as the General Court stated in paragraphs 195 and 202 of the judgment under appeal, making reference to recital 333 of the decision at issue.

60 Consequently, in accordance with the case-law of the Court of Justice referred to in paragraph 57 of the present judgment, the appellants’ arguments based on the alleged infringement of the principle of proportionality must be rejected as inadmissible since the amount of the fine set by the General Court is not excessive and since, that being the case, the Court of Justice does not have jurisdiction to substitute its assessment for that of the General Court.

61 Since the appellants’ grounds of appeal are in part inadmissible and in part unfounded, the appeal must be dismissed in its entirety.

62 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings pursuant to 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.

63 As the Commission has requested that the appellants be ordered to pay ‘the entirety of the costs of these proceedings and those of the proceedings at first instance’, the form of order sought by the Commission must be rejected in so far as it relates to the costs at first instance since, as the appeal has been unsuccessful, the judgment under appeal will not be set aside.

64 Since the appellants have been unsuccessful, they must be ordered to pay the costs of these proceedings.

2. Orders Quinn Barlo Ltd, Quinn Plastics NV and Quinn Plastics GmbH to pay the costs of these proceedings.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Quinn Barlo Ltd, established in Ballyconnell (Ireland), v European Commission [2013] EUECJ C-70/12 (30 May 2013) URL: http://www.bailii.org/eu/cases/EUECJ/2013/C7012.html Cite as: [2013] EUECJ C-70/12, ECLI:EU:C:2013:351, EU:C:2013:351

Court of Justice of the European Communities (including Court of First Instance Decisions)