C-248/98
ECLI:EU:C:2000:258
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OPINION OF MR MISCHO — CASE C-248/98 P
O P I N I O N OF ADVOCATE GENERAL MISCHO delivered on 18 May 2000 *
1. By application lodged on 9 July 1998, 4. For a full statement of the complaints NV Koninklijke KNP BT (hereinafter raised against the Decision and the grounds 'KNP') brought an appeal against the on which the Court considered it should judgment of the Court of First Instance of uphold them in part only, I refer you to the 14 May 1998 in KNP BT v Commission 1 contested judgment. (hereinafter 'the contested judgment').
2. By that judgment the Court upheld the application in part, reducing the fine i m p o s e d on t h e a p p e l l a n t from 5. In its appeal KNP claims that the Court ECU 3 000 000 to ECU 2 700 000, but of Justice should: dismissed the remainder. The action had been brought by KNP against Commission Decision 94/601/EC of 13 July 1994 relat- ing to a proceeding under Article 85 of the EC Treaty (IV/C/33.833 — Carton- board) 2 (hereinafter 'the Decision'), in which the Commission imposed fines on 19 manufacturers supplying cartonboard on the Community market on the ground (1) set aside the contested judgment; that they had infringed Article 85(1) of the EC Treaty (now Article 81(1) EC).
3. In that action KNP asked the Court of First Instance to annul the Decision in whole or in part, to annul or at least reduce (2) annul the Decision and annul or reduce the fine imposed, and to adopt any mea- the fine imposed on the appellant, in sures it considered necessary. accordance with its application of 7 October 1994, or, in the alternative, refer the case back to the Court of First * Original language: French. Instance for a ruling on the (partial) 1 — Case T-309/94 KNP BT v Commission [1998] ECR II-1007. annulment of the aforementioned Deci- 2 — OJ 1994 L 243, p. 1. sion;
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(3) order the Commission to pay the costs — the third plea: inclusion, when estab- of the proceedings before the Court of lishing the turnover on which the fine First Instance and the Court of Justice. was fixed, of sales within the group composed by the appellant and its subsidiaries;
6. The Commission, the respondent in the appeal and defendant at first instance, contends that the Court should: — the fourth plea: the fixing of the middle of 1986 as the starting-point of the period of infringement for Badische Kartonfabrik (hereinafter 'Badische'), one of the companies in its group. (1) dismiss the appeal;
8. In order to avoid unnecessary repetition, (2) order the appellant to pay the costs of I shall describe the pleas in detail as I the appeal; consider them.
7. In support of the form of order sought, KNP puts forward four pleas: The first plea: inadequate statement of reasons of the Decision as regards the fixing of the fine — the first plea, described as the main plea: inadequacy of the statement of reasons of the Decision as regards the 9. The appellant claims that the Court of fixing of the fine imposed on the First Instance should have annulled the appellant; Decision since its statement of reasons was largely inadequate as regards the fixing of the fine.
— the second plea: failure to take into account, when fixing the fine, the appellant's withdrawal from the cartel from the end of 1989 or at least the 10. According to the appellant, there is no peripheral nature of its participation indication of the method used by the from 1990 onwards; Commission to fix a fine that was propor-
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tionate to the turnover of the different 14. It must therefore be held that, in so far undertakings for which KNP was consid- as it refers to the Court's failure to state its ered to be responsible or to the duration view, the plea is unfounded. However, and gravity of the infringement committed perhaps it should be taken to have a by each of them. different meaning, namely that the appel- lant is complaining not that the Court did not express a view but that it did not find that the argument submitted to it was well founded. 11. Since this criticism is the same as that made by Mo och Domsjö AB in Case C-283/98 P, I refer, for a summary of the grounds for rejection of this plea, to the Opinion which I am delivering today in 15. However, if KNP's plea should be taken that matter. to have that meaning, it must inevitably be rejected as inadmissible, as the Commission suggests, since it does not contain a sub- stantiated criticism of the Court of First Instance's reasoning, which alone could protect it from the objection that it was merely a repetition of the argument put The second plea: for the purposes of fixing forward before that Court. the fine, KNP was considered to have been involved in the cartel after 1989
12. The appellant maintains that the Court 16. Under the same plea, the appellant of First Instance 'should have analysed, in criticises the fact that, for the period after its judgment, the appellant's argument that the end of 1989, the Court, when amending the Commission unreasonably imposed a the amount of the fine imposed by the fine in respect of the period after the end of Commission, applies to the undertaking's 1989 or, in the alternative, that it should turnover a rate of 7.5%, which is inap- have imposed only a very moderate fine propriate in the light of the purely peri- given the peripheral nature of the partici- pheral nature of its participation in the pation'. cartel, which the Commission itself acknowledges in its Decision.
13. It claims, therefore, that one of its arguments was not dealt with in the 17. As the Commission points out, this contested judgment. That is patently criticism cannot be upheld in an appeal untrue, since paragraphs 55 to 59 of the since it invites the Court of Justice to judgment are specifically devoted to a censure the exercise by the Court of First rebuttal of that argument. Instance of its power of unlimited jurisdic-
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tion, without giving any indication of the 21. The arguments put forward by KNP in reasons justifying such censure in ¡aw. this plea reveal that, in fact, several allega- tions are made against the Court of First Instance.
18. The mere fact that the appellant may not agree with an assessment made by the 22. Firstly, the appellant complains that the Court of First Instance of the appropriate Court stated that it had not adduced 'any amount of the fine does not constitute a evidence' when it is apparent from its ground of appeal. lawyer's notes that it argued at the hearing that the turnover on internal sales was irrelevant.
19. This finding leads me to propose that the second plea should be rejected, either as 23. It therefore considers that the above partly unfounded and partly inadmissible, formulation, used by the Court to reject its or as wholly inadmissible. claim, shows that, on this point, the Court has not fulfilled its obligation to state reasons.
24. Lastly, the appellant maintains that the The third plea: inclusion, for the purpose of inclusion of intra-group sales in the turn- determining the amount of the fine, of that over on the basis of which the amount of part of the turnover relating to intra-group the fine was to be fixed constitutes an sales infringement of 'general legal principles, particularly the principles of equal treat- ment and proportionality', and also of 'Article 190 of the EC Treaty and Arti- cle 15 of Regulation No 17'. 20. The appellant claims that the Court of First Instance is wrong and in breach of Community law when it states, in para- graph 112 of the contested judgment, that, as regards intra-group sales of cartonboard, 'the Court finds that the applicant has not 25. The first of these complaints, as well as adduced any evidence to show that the being serious, raises, in my view, a very Commission should not have taken them delicate issue, having regard to the circum- into account when it calculated the fine'. stances in which the various addressees of
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the Decision were able to bring their Badische, in response to a request from the actions. Commission for its turnover figures, pro- duced a table, which the Commission appended to its reply in these proceedings, distinguishing between overall turnover and extra-group sales turnover and argued that, 'The quantities destined for internal 26. I shall merely point out here that, as processing into finished products neither regards the determination of the amount of were nor are available on the cartonboard the fines, the Decision contains only a brief, market. Therefore, they cannot be taken though adequate, statement of reasons, and into account in determining this under- that it was only during the proceedings taking's market share.' before the Court of First Instance, in reply to a question put by the Court, that the Commission gave a list of factors which it had taken into account to determine the amount of the fines.
31. The second is that nothing in the Decision enabled KNP to know whether that point of view had been accepted by the Commission. 27. It was therefore during the oral proce- dure that the companies which had been fined were able to dispute this point.
32. The third is that, even when it was in possession of the facts provided by the 28. It cannot therefore be concluded, after Commission at the request of the Court, examining the application and the reply KNP could not be sure on this point, since submitted by KNP to the Court of First it was only at the hearing that the Commis- Instance, that the statement made in para- sion revealed that, with regard to KNP, it graph 112 of the contested judgment is had not taken into account the 1990 turn- clearly wholly founded. over, as it had for the other undertakings fined but, for reasons which it explained but which did not convince the Court, the 1989 turnover.
29. What criterion can we then take as a basis for deciding whether KNP's criticism is well-founded?
33. It was therefore only during the oral procedure that the appellant was able to establish that it was Badische's overall 30. The first unquestionable fact is that, turnover which had been taken into during the administrative procedure, account.
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34. In the circumstances, it was certainly presented, the Court would have omitted to not easy for the appellant, once it knew the refute it, which it could easily have done true position, to formulate specific oral because it had already done so in its pleadings. Did it nevertheless put forward judgment, pronounced on the same day, an argument that it was entitled to expect in the case of Europa Carton v Commis- the Court to take into account, whether it sion, 3 in which the applicant had also accepted or rejected it? disputed the inclusion of internal sales.
38. However, I cannot say that I am 35. It certainly raised the matter, since the certain, in spite of the fact that Commission Court itself points out, in paragraph 98 of states that, as its agents recall, 'the appel- the contested judgment, that KNP claimed lant's counsel gave no explanation as to that the Commission 'had wrongly inclu- why sales to a sister company should be ded intra-group sales.' deducted'.
39. In such circumstances, it seems to me 36. It is all a matter of knowing, therefore, that these doubts ought to benefit KNP, whether KNP merely made an assertion or especially considering the fact that it was actually presented an argument. In the placed, in order to put forward its argu- former case, the Court was, in fact, right ments, in a position which, as I have to state that 'the applicant has not adduced pointed out above, was anything but ideal. any evidence to show that the Commission However, before proposing that the judg- should not have taken them into account ment be set aside, I must consider whether when it calculated the fine', even though, in it is justified, given that the Court of Justice my view, it was not required to provide has held that 'if the grounds of a judgment evidence, the distribution between intra- of the Court of First Instance reveal an group and extra-group sales having been infringement of Community law but the disclosed to the Commission during the operative part appears well-founded on administrative procedure, but legal reasons. other legal grounds, the appeal must be In the latter case, the first and second dismissed.' 4 complaints forming part of the third plea would be well-founded and annulment would have to be contemplated.
40. That is why I believe I should examine the third complaint made by the appellant,
37. I tend to think that the appellant did 3 — Case T-304/94 Europa Carton v Commission [1998] ECR not actually present an argument, since it is I-869, paragraphs 120 to 131. 4 — Case C-30/91 P Lestellev Commission [19921 ECR I-3755, difficult to understand why, if it had been paragraph 28.
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which is a substantive point, namely the The fourth plea: the fixing of the starting determination of the turnover taken into point of the infringement for one of the account to fix the amount of the fine. companies in the group
41. I think, however, that the Court of First Instance was right not to criticise the 44. The appellant claims that, by holding it Commission for taking into account responsible, when fixing the amount of the Badische's total turnover in the carton- fine, for the unlawful actions of Badische board sector. from mid-1986, even though it did not acquire that company until 1 January 1987, the Commission infringed the prin- ciple of equal treatment, the principle of proportionality, Article 190 of the EC Treaty (now Article 253 EC) and Article 15 42. Indeed, as the Court held in its judg- of Regulation No 17 of the Council of ment in Europa Carton v Commission: 6 February 1962, the First Regulation implementing Articles 85 and 86 of the Treaty, 5 and that the Court of First Instance, by endorsing that approach with- out giving any explanation, even though the applicant had contested it, itself infringed Community law, in particular 'To ignore the value of... internal carton- the obligation to state reasons. board deliveries would inevitably give an unjustified advantage to vertically integra- ted companies.
In such a case the benefit derived from the 45. Again, as in the case of the previous cartel might not be taken into account and plea, the Commission disputes the appel- the undertaking in question would avoid lant's assertions. It states that it could not the imposition of a fine proportionate to its discern 'any trace of such a plea or importance on the product market to which argument relating to the fixing of the the infringement relates.' amount of the fine, either in the application or in the reply. Furthermore, the Commis- sion's agents do not recall that the point was raised at the hearing.' It therefore concludes that the plea is inadmissible.
43. I therefore consider that the third plea should be rejected as unfounded. 5 — OJ, English Special Edition (1959-1962), p. 87.
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46. Before considering whether that is the and had invited the Court to draw the case, let us start by noting that, indeed, as appropriate conclusions. KNP maintains, at no point does the contested judgment tackle the issue of the exact moment from which KNP could be held responsible for Badische's participa- tion in the cartel, even though the end of Badische's participation in the cartel is 49. The arguments which KNP puts for- examined in paragraphs 55 to 60 of the ward in this connection are contained in judgment. points 7 and 8 and 12 to 14 of the application, and there is a reference to the date on which it acquired Badische in point 7 of the reply.
50. It is therefore wrong to say, as the 47. Does this silence merely reflect the fact Commission does, that in its fourth plea that KNP never raised the matter? If KNP KNP is complaining that the Court of First had told us that it was only at the hearing Instance did not reply to an argument that it drew the Court's attention to this which, in fact, had not been presented to questionable aspect of the Decision, we it. The fourth plea must therefore be would be faced with the same dilemma as declared admissible. presented by the first plea. But this, may I say, is not the case.
51. However, is it such as to lead to a declaration that the contested judgment is unlawful?
48. Indeed, we need only examine the documents submitted by KNP to the Court of First Instance to see that, even though the appellant did not know in detail the 52. In its comments on this plea, the way in which the fine had been calculated, Commission states as follows: 'The Com- it had in the light of paragraph 149 of the mission reiterates, merely in the alternative, Decision in which it is stated that 'KNP was that the Court of First Instance fixed the also at all relevant times the owner (95%) amount of the fine at ECU 2 700 000 in the of the German board producer Herzberger judgment which is the subject of the appeal, Papierfabrik, which included Badische Kar- thus exercising its unlimited jurisdiction tonfabrik', pointed out that Badische had (paragraph 114). Since it is unable to have joined the group only on 1 January 1987 direct knowledge of the facts... the Court of
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Justice cannot exercise that unlimited jur- ited jurisdiction to rule on the amount of isdiction in the context of an appeal'. fines imposed on undertakings for infringe- ments of Community law (Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, para- graph 34). In contrast, the Court of Justice does have jurisdiction to consider whether 53. I consider these statements to be the the Court of First Instance has responded to result of a regrettable confusion. The fact a sufficient legal standard to all the argu- that the Court of First Instance exercised its ments raised by the appellant with a view unlimited jurisdiction to fix the amount of to having the fine abolished or reduced. the fine does not mean in any way that the fine so fixed cannot be set aside by the Court of Justice on appeal.
54. The power of unlimited jurisdiction is not an arbitrary power. Admittedly, the It should first be pointed out (see the order Court of First Instance is at liberty to of 25 March 1996 in Case C-137/95 P SPO decide the level at which the fine must be and Others v Commission [1996] ECR fixed, but it must reach that decision I-1611) that, on the one hand, the first lawfully, in particular on the basis of subparagraph of Article 15(2) of Regula- precise data. tion No 17 lays down the conditions which must be fulfilled to enable the Commission to impose fines (initial conditions); those conditions include the intentional or negli- gent nature of the infringement. On the other hand, the second subparagraph of 55. This is quite apparent from the judg- that provision governs determination of the ment in Ferriere Nord v Commission, 6 amount of the fine, which depends on the according to which: gravity and duration of the infringement.'
'As regards the allegedly unjust nature of the fine, it is important to point out that it is not for this Court, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fair- ness, its own assessment for that of the 56. It is obvious, in the present case, that Court of First Instance exercising its unlim- the Court of First Instance exercised its unlimited jurisdiction when it held that responsibility for Badische's conduct from 6 — Case C-219/95 P Ferriere Nord v Commission [1997] ECR mid-1986 was rightly attributed to KNP. I-4411, paragraphs 31 and 32. We need only refer to paragraphs 96 to 114
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of the contested judgment to establish that Badische, the Court of First Instance attrib- the Court completely disregarded KNP's uted too long a period of infringement, and objection that it acquired Badische on to reduce the amount of the fine accord- 1 January 1987 and at no time sought to ingly. question the validity of the Commission's assertion that the applicant had to bear the responsibility for Badische's unlawful con- duct for 60/60th of the duration of the infringement, that is to say, from mid-1986 60. I therefore propose that the Court of to April 1991. Justice should hold that the state of the proceedings permits final judgment, should itself exercise the power of unlimited jurisdiction conferred on the Community judicature by Regulation No 17 and, in the 57. Such exercise of unlimited jurisdiction exercise of that jurisdiction, reduce the clearly constitutes a misuse of powers, amount of the fine imposed on KNP to because the power to assess may be exer- EUR 2 600 000. cised lawfully only after precise factual information has been taken into account. I therefore have no alternative but to pro- pose that the Court of Justice should set aside the contested judgment in so far as it fixed at ECU 2 700 000 the amount of the fine imposed on KNP, which it held Costs responsible for the infringement committed by Badische from mid-1986. 61. It is clear that the setting aside of the contested judgment, even if only on one point, must be reflected in the costs. In its judgment, the Court of First Instance 58. However, in my view the setting aside ordered the applicant to bear its own costs of the judgment should not be accompanied and to pay half the Commission's costs, the by a referral of the case back to the Court other half to be borne by the Commission of First Instance. Indeed, in order to draw itself. the proper conclusions, there is no need, where the validity of the assessments made by the Court of First Instance in respect of the general level of the fines is not being called in question, to consider the facts and to give the parties the opportunity to 62. I suggest that this distribution should submit arguments on them. be modified in such a way that the appel- lant pays, in addition to its own costs, only two fifths of the Commission's costs. As regards the appeal costs, I consider that, in view of the fact that the appellant has failed in most of its pleas, it is appropriate that it 59. It is enough to draw the appropriate should bear its own costs and pay two conclusions from the fact that, in respect of thirds of the Commission's costs.
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Conclusion
63. In the light of the foregoing considerations, I propose that the Court should:
— set aside the judgment of the Court of First Instance of 14 May 1998 in Case T-309/94 KNP BT v Commission in so far as it has fixed the amount of the fine imposed on the appellant at ECU 2 700 000 and in so far as it has ordered the appellant to bear its own costs and to pay half of the costs of the Commission of the European Communities and has ordered the Commission of the European Communities to bear half of its own costs;
— set the fine at EUR 2 600 000;
— order the appellant to pay, in respect of the proceedings before the Court of First Instance, in addition to its own costs, two fifths of the costs incurred by the Commission of the European Communities, and, in respect of the proceedings before the Court of Justice, in addition to its own costs, two thirds of the costs incurred by the Commission of the European Communities;
— order the Commission of the European Communities to bear, in respect of the proceedings before the Court of First Instance, three fifths of its own costs and,in respect of the proceedings before the Court of Justice, one third of its own costs.
— dismiss the remainder of the appeal.
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