ABB v Commission (Competition - European market for underground and submarine power cables - Judgment) [2019] EUECJ C-593/18P (28 November 2019)

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(Appeal — Competition — Agreements, decisions and concerted practices — European market for underground and submarine power cables — Market allocation in connection with projects — Burden of proof — Presumption of innocence — Principle of equal treatment)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 21 September 2018,

European Commission, represented by H. van Vliet, I. Zaloguin and I. Rogalski, acting as Agents,

composed of P.G. Xuereb (Rapporteur), President of the Chamber, T. von Danwitz and A. Kumin, Judges,

having regard to the written procedure and further to the hearing on 11 July 2019,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 By their appeal, ABB Ltd and ABB AB ask the Court of Justice to set aside the judgment of the General Court of the European Union of 12 July 2018, ABB v Commission (T‑445/14, not published, ‘the judgment under appeal’, EU:T:2018:449), by which the General Court dismissed their action for the annulment in part of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables) (‘the decision at issue’) in so far as it concerned them.

2 The background to the dispute, set out in paragraphs 1 to 17 of the judgment under appeal, may, for the purposes of the present proceedings, be summarised as follows.

3 ABB Ltd, which has its seat in Switzerland, and ABB AB, a subsidiary with its seat in Sweden, are active, inter alia, in the underground and submarine power cable production and supply sector.

4 By letter of 17 October 2008, ABB AB provided the European Commission with a series of statements and documents concerning restrictive commercial practices in that sector.

5 In Article 1 of the decision at issue, the Commission found that the appellants and 24 other undertakings, including Nexans France SAS, had participated in a cartel (‘the cartel’), constituting a single and continuous infringement of Article 101 TFEU and of Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) in the sector for (extra) high voltage underground and/or submarine power cables (‘the infringement at issue’).

6 More precisely, the Commission considered that the infringement at issue covered projects relating to all types of underground power cables with a voltage of 110 kV and above and all types of submarine power cables with a voltage of 33 kV and above, including all products, works and services supplied to customers in connection with the sale of power cables, when such sales were part of such a project.

7 In the decision at issue, the Commission found that the cartel consisted of two main configurations forming a composite whole, namely:

– one configuration which included the European, Japanese and South Korean undertakings which made it possible to achieve the objective of allocating territories and customers among those undertakings. That allocation followed an agreement relating to ‘home territory’, under which the Japanese and South Korean producers would refrain from competing for projects in the European producers’ ‘home territory’, while the European producers stayed out of the Japanese and South Korean markets. In addition, the parties allocated projects in the ‘export territories’, namely the rest of the world with the notable exception of the United States, and

– another configuration which involved the allocation of territories and customers by the European producers for projects to be carried out within the European ‘home’ territory or allocated to the European producers.

8 According to the decision at issue, ABB AB participated in the infringement at issue from 1 April 2000 to 17 October 2008. ABB Ltd was held liable for the conduct of ABB AB as the parent company of its subsidiary.

9 Having found that ABB AB had met the requirements for the grant of immunity under the Commission Notice on immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17), the Commission exempted that company, and therefore its parent company ABB Ltd, from any fine.

10 By application lodged at the Registry of the General Court on 16 June 2014, the appellants brought an action for annulment in part of the decision at issue in so far as it concerned them.

11 In support of their claims for annulment, in part, of the decision at issue, the appellants raised five pleas in law before the General Court, alleging, first, that the Commission had not discharged its burden of proof and had made a manifest error of assessment in finding that the infringement at issue included all projects relating to underground power cables with a voltage of 110 kV and above, second, that, even if those projects were covered by that infringement, the Commission had not discharged its burden of proof in finding that the appellants had participated in that aspect of the infringement, third, that the Commission had not discharged its burden of proof and had made a manifest error of assessment in including all power cable accessories connected with underground power cable projects with a voltage of 110 kV and above in the infringement at issue, fourth, an error in law and breach of the principle of equal treatment in holding that the appellants’ involvement in the infringement at issue had started on 1 April 2000, despite the fact that no infringement had been found against Nexans France before 13 November 2000, and, fifth, a manifest error of assessment and disregard for the presumption of innocence on the ground that the Commission found that the appellants had started to participate in the infringement at issue on 1 April 2000.

13 In the first place, the General Court considered that the evidence on which the Commission had relied proved to the requisite legal standard that the infringement at issue also covered underground power cable projects with voltages from 110 kV and below 220 kV and that, in that regard, the Commission was not required to prove that all those projects had been allocated by the members of the cartel. In the second place, the General Court found that the appellants had the requisite degree of awareness to establish their participation in the infringement at issue in respect of those projects and that they did not distance themselves publicly from that aspect of the infringement. In the third place, the General Court found that the Commission had established that the infringement at issue covered power cable accessories relating to the same projects. In the fourth place, the General Court held, first that, having regard to the evidence on which it relied, the Commission was fully entitled to find that the appellants’ participation in the infringement at issue had started on 1 April 2000. Second, the General Court held that, by establishing that the appellants’ participation had started on that date, the Commission had not breached the principle of equal treatment, since that principle had to be reconciled with the principle of legality. Lastly, the General Court held that the Commission, by finding that the appellants’ participation in the infringement at issue had started on that date, did not disregard the presumption of innocence.

16 In support of their appeal, the appellants rely on three grounds of appeal alleging, first, that the General Court erred in law by holding that the Commission had discharged its burden of proof in order to establish that the appellants had committed an infringement covering all underground power cable projects with voltages from 110 kV and below 220 kV and the accessories for those power cables, second, breach of the principle of equal treatment and disregard for the presumption of innocence in connection with the start of the appellants’ participation in the infringement at issue, and third, failure to state reasons for the judgment under appeal in respect of the start of the appellants’ participation in that infringement.

18 By the first part of its first ground of appeal, which concerns paragraphs 48, 67, 68, 71, 76, 78, 95 and 141 of the judgment under appeal, the appellants submit that the General Court erred in law by holding that the Commission had discharged its burden of proof by finding that the infringement at issue extended to all projects involving underground power cables with voltages from 110 kV and below 220 kV.

19 First, the appellants claim that it cannot be held on the basis of the General Court’s findings in paragraph 48 of the judgment under appeal that there is clear and convincing evidence of a cartel extending to all those projects. They maintain that the General Court found that, for projects in the ‘home territories’, no distinction had been drawn on the basis of voltage and that the distinctions that were drawn in respect of the ‘export territories’ had been ‘more limited than the [appellants submitted]’. In addition, the General Court allegedly considered that, even if there was some evidence that the members of the cartel had, ‘at times’, indicated that they would treat those projects differently depending on whether they involved voltages of more or less than 220 kV, such projects involving voltages below 220 kV had nevertheless still been subject to the cartel arrangements as a whole. Lastly, the appellants submitted that the General Court found that projects in the export territories involving voltages below 220 kV were still reported, ‘sometimes discussed and possibly allocated’. In their submission, it follows that the allocation by the members of the cartel of projects involving underground power cables with voltages from 110 kV and below 220 kV was merely regarded as possible by the General Court.

20 Second, they claim that, in paragraphs 76, 78, 95 and 141 of the judgment under appeal, the General Court reversed the burden of proof in taking the view that it was sufficient, in order for it to be found that all those projects were included in the infringement at issue, that the projects with a voltage below 220 kV had not been specifically excluded in certain documents.

21 Third, the General Court’s finding in paragraph 71 of the judgment under appeal that the Commission was not required to establish that all projects involving voltages below 220 kV had been allocated by the cartel members, suggests that it was not necessary for the decision at issue to contain any substantiated evidence in order to conclude that those projects were subject to the cartel.

22 Fourth, the appellants claim that the General Court distorted the evidence by taking the view, in paragraph 68 of the judgment under appeal, that there was an inconsistency between the application initiating the proceedings and the appellants’ reply to the statement of objections as to whether the infringement at issue covered projects involving underground power cables with voltages from 110 kV and below 220 kV, on the ground that the appellants had noted in that application that such projects ‘[had been] discussed only exceptionally or on an ad hoc basis’, whereas the appellants had indicated in their reply to the statement of objections that these projects were discussed from ‘case to case’. However, the appellants assert that there is no difference between ‘case to case’ and ‘ad hoc’ discussions.

23 By the second part of their first ground of appeal, which concerns paragraphs 148, 150 and 153 of the judgment under appeal, the appellants submit that the General Court misapplied the evidentiary requirements and reversed the burden of proof in respect of the Commission’s assessment in the decision at issue that power cable accessories for underground power cable projects with voltages from 110 kV and below 220 kV were covered by the infringement at issue.

24 By the third part of their first ground of appeal, which concerns paragraphs 108 to 113 of the judgment under appeal, the appellants submit that, even if the infringement at issue were to cover all underground power cable projects with voltages from 110 kV and below 220 kV and the accessories for such power cables, the General Court erred in finding that the Commission had discharged its burden of proof and established to the requisite legal standard that they had participated in that infringement. In particular, the General Court misapplied the condition of awareness which is required to hold a company liable for practices by other companies in which it did not participate directly.

25 Contrary to what the General Court found in paragraph 108 of the judgment under appeal, there is nothing contradictory in the fact that the appellants distanced themselves from the cartel in so far as the cartel concerned projects involving underground power cables with voltages from 110 kV and below 220 kV and that they therefore lacked awareness of the essential characteristics of the cartel in relation to those projects. The General Court also seems to have accepted, in paragraph 109 of the judgment under appeal, that the appellants were aware only of the structure and general manner in which the cartel operated. Moreover, and contrary to the reasoning of the General Court set out in paragraph 110 of the judgment under appeal, it was not for the appellants to show that they lacked the requisite degree of awareness. Lastly, the General Court’s finding in paragraph 111 of the judgment under appeal that it did not appear that different rules had been applied systematically for projects involving underground power cables with voltages from 110 kV and below 220 kV, has no bearing on whether the appellants were correctly deemed to have participated in that part of the cartel.

26 The Commission raises an objection of inadmissibility with regard to the first ground of appeal, on the ground that it seeks to obtain a re-examination of the evidence taken into account by the General Court without demonstrating a distortion of that evidence or any other error in law. The Commission contends, in the alternative, that that ground of appeal is unfounded.

27 As far as concerns the first part of the first ground of appeal, which is based on an error of law in so far as the General Court considered that the Commission had discharged its burden of proof when it found that the infringement at issue extended to all projects involving underground power cables with voltages from 110 kV and below 220 kV, it should be noted, first, in so far as the appellants criticise the General Court for not having given sufficient reasons, in paragraph 48 of the judgment under appeal, for the finding that the infringement at issue also covered such projects, that such an argument constitutes a point of law capable of being raised in an appeal. However, in paragraphs 41 to 47 of the judgment under appeal, to which paragraph 48 of the judgment explicitly refers, the General Court examined all the evidence on which the Commission relied in the decision at issue to support its conclusion that the infringement at issue extended to projects involving underground power cables with voltages from 110 kV and below 220 kV. In those circumstances, the judgment under appeal cannot be considered to be vitiated by a failure to state reasons on that point.

28 Second, with regard to the appellants’ argument that the General Court reversed the burden of proof by considering, in paragraphs 76, 78, 95 and 141 of the judgment under appeal, that it was sufficient, in order to find that all such projects were covered by the infringement at issue, that the underground power cable projects with voltages from 110 kV and below 220 kV were not specifically excluded in certain documents, it is clear from the Court of Justice’s case-law that an alleged failure to have regard to the rules of evidence is a question of law which is admissible in an appeal (judgment of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraph 58 and the case-law cited).

29 However, that argument is based on a misreading of the judgment under appeal.

30 In fact, it was on the basis of its assessment, in paragraphs 41 to 48 of the judgment under appeal, of the evidence on which the Commission relied in that regard that the General Court reached the finding, in paragraph 49 of that judgment, that the Commission did not err in taking the view that that evidence demonstrated to the requisite legal standard that the cartel also covered underground power cable projects with voltages from 110 kV and below 220 kV. Paragraphs 76, 78 and 95 of the judgment under appeal, to which the appellants refer, appear in the sections of that judgment in which the General Court examined the arguments of the appellants which, in the General Court’s view, in paragraph 50 of the judgment under appeal, did not call into question the conclusion which it reached in paragraph 49 of that judgment. The General Court’s findings, in paragraphs 76, 78 and 95 of the judgment under appeal, are therefore not capable of demonstrating that it had reversed the burden of proof. The same applies to paragraph 141 of that judgment, also relied on by the appellants, which does not, however, concern the extent of the infringement at issue but whether the appellants participated in it.

31 Third, in so far as the appellants submit that the General Court could not have reached the finding, as set out in paragraph 49 of the judgment under appeal, on the basis of the evidence examined in paragraphs 41 to 48 of that judgment, that argument must be rejected as inadmissible. It should be pointed out in that regard that, in an appeal, the Court of Justice has no jurisdiction to find the facts or, as a rule, to examine the evidence which the General Court accepted 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 adduced before the General Court has been distorted, that assessment does not therefore constitute a point of law which is, as such, subject to review by the Court of Justice (judgment of 12 January 2017, Timab Industries and CFPR v Commission, C411/15 P, EU:C:2017:11, paragraph 153 and the case-law cited). However, the appellants have neither alleged nor established such distortion in that regard.

32 Fourth, the appellants’ argument that paragraph 71 of the judgment under appeal implies that, according to the General Court, it was not necessary for the decision at issue to contain any evidence in support of the finding that all underground power cable projects with voltages from 110 kV and below 220 kV were covered by the cartel at issue is unfounded, as is clear when that paragraph is read in context. In paragraphs 70 and 71 of that judgment, the General Court explained that the appellants’ line of argument was based on the false premiss that, for the purpose of establishing a restriction of competition, the Commission should have demonstrated that those projects were actually allocated among the cartel participants. It follows from paragraph 72 of the judgment under appeal that, according to the General Court, the relevant criterion to be taken into account in that regard was whether there was sufficient evidence to support the finding that the infringement at issue, which included not only the allocation of projects but also the discussion thereof, extended to underground power cable projects with voltages from 110 kV and below 220 kV. It further appears from paragraph 63 of the judgment under appeal that, according to the General Court, that applied in the present case. Those findings were not challenged by the appellants in their appeal.

33 In so far as, the appellants appear to have revisited this point at the hearing, suggesting that the General Court has substituted its own statement of reasons for that of the Commission in that regard, it should be noted that, according to Article 127(1) of the Rules of Procedure of the Court of Justice, applicable to the appeal proceedings under Article 190(1) of those rules, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. However, it does not appear from the present proceedings that the appellants’ arguments at the hearing in that regard are based on matters of law or of fact which were not available to them at the date on which their appeal was lodged. Consequently, the appellants’ line of argument based on a substitution of grounds must be declared inadmissible.

34 Fifth, the appellants’ argument that the General Court distorted the evidence by holding, in paragraph 68 of the judgment under appeal, that there was a difference between, on the one hand, the observations they had submitted in their reply to the statement of objections as to whether the infringement at issue covered underground power cable projects with voltages from 110 kV and below 220 kV and, on the other, the observations made on that point in the application initiating the proceedings must be rejected as ineffective, since it does not concern the evidence on which the General Court relied in finding, in paragraph 49 of the judgment under appeal, that the cartel also covered such projects.

35 In any event, according to settled case-law of the Court of Justice, there is such distortion where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect (judgment of 26 January 2017, Masco and Others v Commission, C‑614/13 P, EU:C:2017:63, paragraph 36 and the case-law cited). However, that does not apply in the present case, since the General Court’s assessment that there was a difference between the appellants’ reply to the statement of objections and the application initiating the proceedings cannot, having regard to the content of that reply and of that application, be regarded as manifestly incorrect.

36 In the light of the foregoing, the first part of the first ground of appeal cannot be upheld.

37 As regards the second part of the first ground of appeal, alleging that the General Court misapplied the evidentiary requirements and reversed the burden of proof as to whether all power cable accessories for underground power cable projects with voltages from 110 kV and below 220 kV were covered by the infringement at issue, it should be noted that, in the light of the case-law cited in paragraph 28 above, that argument is admissible, contrary to what the Commission claims.

38 As far as substance is concerned, it should be borne in mind that, according to the case-law of the Court of Justice, in the field of competition law, where there is a dispute as to the existence of an infringement, it is for the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (judgment of 16 February 2017, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, C‑90/15 P, not published, EU:C:2017:123, paragraph 17 and the case-law cited).

39 In the present case, the General Court examined whether the infringement at issue covered power cable accessories for underground power cable projects with voltages from 110 kV and below 220 kV in paragraphs 147 to 149 of the judgment under appeal. In paragraph 147 of that judgment, the General Court pointed out, in essence, that the appellants did not seek to argue that all power cable accessories were excluded from the infringement at issue and did not dispute the existence of a collective refusal to supply cable accessories per se, but confined themselves to claiming that a specific class of accessories, defined by voltage below 220 kV, was not included in an aspect of the cartel. In paragraph 148 of the judgment under appeal, the General Court found that it was apparent from recital 492 of the decision at issue that the projects covered by the infringement at issue normally involved the sale of both cables and equipment, including power cable accessories, and that, in recital 643(f) of the decision at issue, the Commission had included ‘the implementation of practices to reinforce the cartel such as the collective refusal to supply accessories or technical assistance to certain competitors’ among the principal activities of the cartel. Lastly, in paragraph 149 of the judgment under appeal, the General Court considered that it was therefore necessary to conclude that that infringement covered power cable accessories for underground power cable projects below 220 kV, since they were part of the projects regarding which commercially sensitive information had been exchanged, or even of those that had been allocated.

40 In paragraph 150 of the judgment under appeal, the General Court held that that finding was not invalidated by the evidence relied on by the appellants. That evidence, as well as certain evidence identified by the Commission in that regard, was examined by the General Court in paragraphs 151 to 159 of the judgment under appeal.

41 First, as the General Court found in paragraph 148 of the judgment under appeal, in recital 643(f) of the decision at issue, the Commission included ‘the implementation of practices to reinforce the cartel such as the collective refusal to supply accessories or technical assistance to certain competitors’ among the principal activities of the cartel. Second, it is clear from recital 492 of the decision at issue that, subject to that reservation, that decision covers accessories only in so far as they form part of a power cable project. It must therefore be concluded that, by the second part of their first ground of appeal, the appellants criticise the General Court for having confirmed the Commission’s finding that accessories for underground power cables with voltages from 110 kV and below 220 kV were among the accessories covered by the collective refusal to supply referred to in recital 643(f) of the decision at issue.

42 It follows from paragraphs 147 to 149 of the judgment under appeal that, relying on recital 492 of the decision at issue, the General Court based its finding that that aspect of the infringement at issue covered power cable accessories for underground power cable projects with voltages from 110 kV and below 220 kV on three premisses, namely, first, that the projects covered by that infringement normally included power cable accessories, second, that the appellants had not contested the fact that projects involving underground power cables with a voltage equal to or higher than 220 kV normally included their accessories and, third, that projects involving underground power cables with voltages from 110 kV and below 220 kV were covered by the infringement at issue.

43 However, in that recital, the Commission had confined itself to explaining that the projects covered by the infringement at issue were generally global offers comprising the cables themselves and their accessories, and did not adduce any concrete evidence to support the claim that the collective refusal to supply power cable accessories covered accessories for underground power cables with voltages from 110 kV and below 220 kV.

44 It follows that, rather than ascertaining whether the Commission had established, to the requisite legal standard, that the collective refusal to supply the power cable accessories referred to in recital 643(f) of the decision at issue covered accessories for power cables with voltages from 110 kV and below 220 kV, the General Court effectively relied on an unsubstantiated presumption in that regard, while leaving it to the appellants to rebut that presumption in respect of those accessories.

45 In those circumstances, it must be held that the General Court failed to have regard to the evidential requirements in finding that the collective refusal to supply the power cable accessories referred to in recital 643(f) of the decision at issue covered accessories for underground power cables with voltages from 110 kV and below 220 kV.

47 As far as concerns the third part of the first ground of appeal, it must be borne in mind that the appellants maintain that they did not have the requisite awareness of the infringement at issue in so far as it concerned projects relating to underground power cables with voltages from 110 kV and below 220 kV and accessories for such power cables. Since it has been found in examining the second part of this ground of appeal that the General Court erred in law in finding that the collective refusal to supply the power cable accessories referred to in recital 643(f) of the decision at issue covered the accessories for such power cables, the examination of the third part of the first ground of appeal may be confined to ascertaining whether the appellants had the requisite awareness that the infringement at issue covered projects relating to underground power cables with voltages from 110 kV and below 220 kV.

48 In that regard, it should be borne in mind that, according to the case-law of the Court of Justice, an undertaking which has participated in a single and complex infringement, by its own conduct, which meets the definition of an agreement or concerted practice having an anticompetitive object within the meaning of Article 101(1) TFEU and was intended to help bring about the infringement as a whole, may also be responsible for the conduct of other undertakings in the context of the same infringement throughout the period of its participation in the infringement. That is the position where it is shown that the undertaking intended, through its own conduct, to contribute to the common objectives pursued by all the participants and that it was aware of the offending conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and was prepared to take the risk (judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 172 and the case-law cited).

49 It follows that, in order to find the appellants liable for the infringement at issue, in so far as it concerned underground power cable projects with voltages from 110 kV and below 220 kV, it was necessary for the Commission to prove that the appellants were aware of that aspect of the infringement or that they could reasonably have foreseen it.

50 Without it being necessary to examine whether the third part of the first ground of appeal is admissible, suffice it to note in that regard, as the General Court correctly stated in paragraph 108 of the judgment under appeal, that the appellants’ claim that they were not aware that the infringement at issue covered underground power cable projects with voltages from 110 kV and below 220 kV is contradicted by the fact that, in paragraph 44 of the application initiating proceedings, they conceded that they were aware of the fact that that infringement covered power cable projects with voltages below 220 kV and that they communicated to the coordinator of the cartel their non-participation in that aspect of the cartel, ‘save for exceptional cases’. As the General Court was fully entitled to find, the fact that the appellants were able to communicate such a position indicates that they were aware of that aspect of the infringement at issue.

51 Paragraphs 109 to 111 of the judgment under appeal, to which the appellants refer in that regard, do not affect that finding.

52 First of all, it is in no way apparent from paragraph 109 of the judgment under appeal that, by referring to the structure and ‘general’ manner in which the cartel operated, the General Court implicitly acknowledged that the appellants did not have the requisite awareness of the specific aspects of the infringement at issue. Second, in paragraph 110 of the judgment under appeal, the General Court did not, contrary to what the appellants claim, consider that it was for the appellants to prove that they lacked the requisite degree of awareness, but was correct to confine itself to explaining that there was no principle pursuant to which the mere fact that an undertaking had not attended collusive meetings in connection with an infringement was sufficient to demonstrate that it did not possess the requisite degree of awareness to establish its participation in that infringement. Lastly, even if, as is submitted by the appellants, the General Court’s finding in paragraph 111 of the judgment under appeal that it did not appear that different rules were systematically applied for projects involving underground power cables with voltages from 110 kV and below 220 kV, has no bearing on whether the appellants were correctly deemed to have participated in that part of the cartel, that conclusion is not capable of calling into question the General Court’s finding in paragraph 108 of the judgment under appeal.

54 It follows from all the foregoing considerations that the first ground of appeal must be upheld in part.

55 By their third ground of appeal, which must be examined before the second, the appellants submit that the General Court failed to fulfil its obligation to state reasons for the judgment under appeal by wrongly finding, in paragraph 190 thereof, that, during the administrative procedure, they had accepted that different start dates should be set for, on the one hand, their participation in the infringement at issue and, on the other, Nexans France’s participation in it. In any event, given that, in the statement of objections, the Commission considered that Nexans France had begun to participate in that infringement in February 1999, the appellants did not have the opportunity to be heard on the reasons which led the Commission to find, in the decision at issue, that the date on which Nexans France began to participate in that infringement post-dated the date on which the appellants began to participate in it. Furthermore, the General Court erred in fact by stating, in paragraph 200 of the judgment under appeal, that the appellants had confirmed, ‘in their application for immunity’, that the statement of objections accurately reflected the information that they had provided, since the application for immunity naturally pre-dated the statement of objections.

56 The Commission contends that the appellants’ argument that they did not have the opportunity to be heard in relation to the date on which it was established that Nexans France’s participation in the infringement at issue began, namely on 13 November 2000, must be rejected as inadmissible and that the third ground of appeal is unfounded as to the remainder.

57 It must be recalled from the outset that the obligation to state reasons provided for in Article 296 TFEU constitutes an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (judgment of 14 September 2016, Trafilerie Meridionali v Commission, C‑519/15 P, EU:C:2016:682, paragraph 40 and the case-law cited).

58 In the present case, it should be noted that, whilst criticising the General Court for failing to fulfil the obligation to state reasons under Article 296 TFEU, the appellants confine themselves in that regard to maintaining that, in paragraph 190 of the judgment under appeal, the General Court relied on an erroneous consideration in holding that the Commission was entitled to adopt different start dates for the participation in the infringement at issue of the appellants and of Nexans France, and thereby raise the question of whether that judgment was well founded.

59 In that regard, it is true that paragraph 190 of the judgment under appeal, according to which the appellants were aware of those dates throughout the administrative procedure, is vitiated by an error, since it was only by the decision at issue that the appellants became aware of the difference in the dates used by the Commission in establishing the date on which their participation in the infringement at issue began and the date on which Nexans France’s participation began.

60 It should, however, be noted that, in paragraph 190 of the judgment under appeal, the General Court was not examining the reasons for establishing the date on which the appellants’ participation in the infringement at issue began as 1 April 2000, which is examined by the General Court in paragraphs 169 to 175 of that judgment, and which is the subject of the second ground of appeal, but it was examining whether the decision at issue was vitiated by a failure to state reasons in that regard. The appellants cannot therefore rely on the General Court’s finding in paragraph 190 of the judgment under appeal for the purposes of establishing that that judgment is vitiated by a failure to state reasons with regard to the General Court’s finding that the Commission was entitled to set 1 April 2000 as the date of the beginning of their participation in the infringement at issue. In any event, it should be noted that paragraph 190, as is clear from its wording, is a consideration in addition to the General Court’s principal line of reasoning in that regard, which is set out in paragraph 189 of the judgment under appeal, and that the appellants have not contested the latter paragraph.

61 In those circumstances, the appellants’ argument in respect of paragraph 190 of the judgment under appeal is ineffective.

62 In any event, it must be noted that, in paragraphs 171 to 175 of the judgment under appeal, the General Court stated, to the requisite legal standard, the reasons which led it to consider that the appellants had begun to participate in the infringement at issue on 1 April 2000.

63 As regards the appellants’ argument that they did not have the opportunity to be heard in relation to the finding, in the decision at issue, that Nexans France’s participation in the infringement at issue began on 13 November 2000, it should be noted that, contrary to what the appellants claim in their reply, that argument was not raised before the General Court. According to settled case-law, since, in an appeal, the jurisdiction of the Court of Justice is confined to a review of the findings of law on the pleas and arguments debated before the General Court, a party cannot raise for the first time before the Court of Justice an argument that it did not put forward before the General Court (judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 42 and the case-law cited). It follows that the appellants’ arguments concerning their right to be heard must be rejected as inadmissible. In any event, as the Commission correctly observes, an undertaking involved in an infringement of EU competition law is not entitled to request a hearing on the determination of the date on which another undertaking is deemed to have begun to participate in that infringement.

64 Lastly, as far as concerns paragraph 200 of the judgment under appeal, it must be noted that the General Court’s finding that, ‘in their application for immunity’, the appellants themselves confirmed that, overall, the statement of objections accurately reflected the information which they had provided, is indeed erroneous, given that it was only in their reply to the statement of objections that the appellants provided that confirmation. Nevertheless, the appellants have not established that this clerical error, however regrettable it may have been, could have had an impact on the General Court’s assessment of the substance of the case in that regard.

66 The second ground of appeal, alleging breach of the principle of equal treatment and disregard for the presumption of innocence with regard to the date on which the appellants’ participation in the infringement at issue began, concerning paragraphs 171 to 175, 177 to 187, 197 and 203 of the judgment under appeal, is, in essence, comprised of two parts.

67 By the first part of the second ground of appeal, the appellants submit that, by taking the view that the Commission was entitled to consider that they had begun to participate in the infringement at issue on 1 April 2000, whereas the date on which Nexans France started to participate in it was established as from 13 November 2000, the General Court did not adequately take into account the principle of equal treatment.

68 In that context, in paragraph 184 of the judgment under appeal, the General Court was not entitled to rely on the case-law according to which an undertaking which has, by its conduct, infringed Article 101 TFEU, cannot escape being penalised on the ground that another economic operator was not fined.

69 First, contrary to the situation to which that case-law applies, the appellants maintain that they did not rely on the absence of a sanction for Nexans France or request a reduction or cancellation of their fine, but challenged the Commission’s finding on the company’s participation in the infringement at issue. Second, although the Court of Justice held, in its judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission (C‑615/15 P, not published, EU:C:2017:190), that an undertaking may be solely liable for an infringement of Article 101 TFEU for a given period of time, on the ground that a second undertaking which participated in that infringement was declared insolvent, in the present case, Nexans France could have been held liable for the infringement at issue for the period prior to 13 November 2000. Third, the General Court’s finding in paragraph 186 of the judgment under appeal that the Commission committed a possible unlawful act by not holding Nexans France liable for the period prior to 13 November 2000 is manifestly incorrect and inconsistent. Since the Commission, which has discretion in that regard, was not legally prevented from finding Nexans France liable for the infringement at issue in respect of the period before 13 November 2000, there was no potential breach of the principle of legality. Rather, the Commission’s decision not to find Nexans France liable in respect of that period is a prosecutorial decision, in relation to which the principle of equal treatment applies in full.

70 By the second part of the second ground of appeal, the appellants claim that the General Court disregarded the presumption of innocence by finding that they had begun to participate in the infringement at issue before the first date on which the Commission adduced any evidence. According to the appellants, the General Court’s finding in paragraph 197 of the judgment under appeal that the Commission held them liable for the infringement at issue ‘from the earliest date regarding which it had sufficient evidence to show participation in the cartel, namely 1 April 2000’, is a clear distortion of the evidence. None of the evidence to which the General Court referred in that regard refers to 1 April 2000 as the date on which the appellants’ participation in the infringement at issue began, the first date identified by the General Court, in paragraphs 170 to 175 of the judgment under appeal, being 10 April 2000.

71 The Commission submits that the second ground of appeal must be rejected as inadmissible, at least in part, since the determination of the date on which an undertaking’s infringement began is a question of fact. The appellants are therefore seeking, in that regard, to call into question the General Court’s assessment of the evidence without proving that the General Court distorted that evidence. It contends that, in any event, this ground of appeal is unfounded. First, there was no discrimination against the appellants, since their situation was not comparable to that of Nexans France, which did not exist before 13 November 2000. Second, the General Court, after having examined, in detail, the evidence on which the Commission had based its decision to establish the date on which the appellants’ participation in the infringement began, was fully entitled to conclude that the appellants should be found liable for that infringement from 1 April 2000. The General Court cannot therefore be criticised for disregarding the principle of the presumption of innocence.

72 As regards the second part of the second ground of appeal, which must be examined in the first place and which alleges that the General Court disregarded the presumption of innocence in so far as the latter adopted 1 April 2000 as the date on which the appellants’ participation in the infringement at issue began, as a preliminary remark, it should be noted, as the General Court did in paragraph 202 of the judgment under appeal, that the appellants confirmed in their reply to the statement of objections that the latter accurately reflected the information they had provided. In that regard, it should be noted that, according to that statement of objections, the appellants had participated in the infringement at issue from 1 April 2000. It should, however, be noted that it is clear from the case-law of the Court of Justice that, although an undertaking’s express or implicit acknowledgement of matters of fact or of law during the administrative procedure before the Commission may constitute additional evidence when determining whether an action is well founded, it cannot restrict the actual exercise of a natural or legal person’s right to bring proceedings before the General Court under the fourth paragraph of Article 263 TFEU (judgment of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 90 and the case-law cited). Given that the appellants dispute that they had begun to participate in the infringement at issue on 1 April 2000, their reply to the statement of objections is insufficient to show that the General Court was entitled to adopt that date.

73 In that regard, it should be noted that, as the Commission correctly observed, the determination of the date on which an undertaking starts to participate in an infringement is a question of fact. In the light of the case-law cited in paragraph 31 above, save where the clear sense of the evidence adduced before the General Court has been distorted, that assessment does not therefore constitute a point of law which is, as such, subject to review by the Court of Justice.

74 Paragraph 197 of the judgment under appeal constitutes such a distortion of the evidence adduced.

75 It must be noted, in that regard, that it is apparent from that paragraph that the General Court found, in the light of the evidence which it examined in paragraphs 170 to 175 of the judgment under appeal, that the date of 1 April 2000 was the earliest date for which there was sufficient evidence to demonstrate the participation of the appellants in the cartel. However, the earliest date for which such evidence exists is 10 April 2000, namely the date of an email the content of which proves, as the General Court found in paragraph 173 of the judgment under appeal, that the appellants were already informed, at that time, of the allocation mechanism within the cartel. Although paragraph 171 of the judgment under appeal also refers to a meeting which, according to statements made by the appellants, took place ‘between April and June 2000’, during which the allocation of projects was discussed, the General Court could not, on the basis of that statement, which did not contain any further detail, have found that the appellants had begun to participate in the infringement at issue on 1 April 2000.

76 It should, however, be borne in mind that paragraph 197 of the judgment under appeal refers to paragraphs 170 to 175 of that judgment, in which the General Court examined the evidence put forward by the Commission to establish the date on which the appellants’ participation in the infringement at issue began. In that regard, first, in paragraph 173 of the judgment under appeal, the General Court considered, having regard to an email dated 10 April 2000, that the appellants were already informed of the allocation mechanism within the cartel at that time. Second, in paragraph 174 of that judgment, the General Court referred to a record of a meeting dated 14 April 2000 which, according to the General Court, proves that, on that date, the appellants were aware of the application of a system allocating the award of contracts and customers in Europe. Third, in paragraph 175 of that judgment, the General Court found that, in the light of that evidence, the Commission was entitled to establish the beginning of the appellants’ participation in the infringement ‘as 1 April 2000, shortly before the dates of 10 and 14 April 2000 mentioned above, on which it has been shown that the [appellants] had already been participating in the cartel for some time, in the light of their proven awareness of the allocation mechanism within the cartel’. The appellants have not challenged those findings of the General Court.

77 In those circumstances, the General Court was entitled, without disregarding the presumption of innocence, to endorse the Commission’s finding that the appellants began to participate in the infringement at issue on 1 April 2000, that is to say on a date which was very slightly earlier than the earliest dates on which it was common ground that the appellants had already been participating in the agreement for some time.

78 It follows that the second part of the second ground of appeal cannot be upheld.

79 As regards the first part of the second ground of appeal, it is clear from the appellants’ arguments that, in essence, they criticise the General Court for having disregarded the principle of equal treatment.

80 In that regard, it should be noted that in paragraphs 183 to 187 of the judgment under appeal the General Court examined the appellants’ argument that, in finding them liable for the infringement from 1 April 2000, the Commission discriminated against them in relation to Nexans France, which was found liable only from 13 November 2000.

81 In paragraph 183 of the judgment under appeal, the General Court noted that, according to settled case-law, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 51 and the case-law cited).

82 In paragraph 184 of the judgment under appeal, the General Court stated that, in paragraphs 37 and 38 of its judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission (C‑615/15 P, not published, EU:C:2017:190), the Court of Justice held that, when an undertaking has, by its conduct, infringed Article 101 TFEU, it cannot escape being penalised on the ground that another economic operator has not been fined and that an undertaking on which a fine has been imposed for its participation in a cartel in breach of the competition rules cannot request the annulment or reduction of that fine on the ground that another participant in the same cartel was not penalised in respect of a part, or all, of its participation in that cartel. In paragraph 185 of the judgment under appeal, the General Court held that, in that judgment, the Court of Justice confirmed the case-law according to which observance of the principle of equal treatment, relied on by the appellants, must be reconciled with the principle of legality, according to which a person may not rely, to his benefit, on an unlawful act committed in favour of a third party (judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 58 and the case-law cited).

83 In paragraph 186 of the judgment under appeal, the General Court held that, in the present case, even if the Commission had committed a possible unlawful act by not holding Nexans France liable, as successor in law to another undertaking, for the period prior to 13 November 2000, such a possible unlawful act, which was not the subject of the proceedings before the General Court, cannot, in the light of the case-law cited in paragraphs 81 and 82 above, under any circumstances lead it to find that the appellants have been the subject of discrimination and therefore of an unlawful act.

85 It is true that the appellants do not seek, by criticising the General Court for having disregarded the principle of equal treatment, to obtain the reduction or annulment of a penalty, in contrast to the situation in the case which gave rise to the judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission (C‑615/15 P, not published, EU:C:2017:190), since no fine was imposed on them in the decision at issue. That absence of a penalty stems from the fact that ABB AB and, indirectly, its parent company ABB Ltd were granted immunity from fines on the ground of their cooperation with the Commission.

86 Nevertheless, the fact remains that, as the General Court stated, in essence, in paragraph 185 of the judgment under appeal, the judgment cited in the preceding paragraph of this judgment forms part of the more general line of case-law, cited in paragraph 82 above, according to which a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party. However, by their arguments based on the principle of equal treatment, the appellants seek to obtain an advantage, namely the annulment of the decision at issue in so far as they were found liable for the infringement at issue during the period from 1 April to 12 November 2000. Therefore, the case-law cited in the preceding paragraph is applicable to the present case.

87 As regards the appellants’ argument that, in the case which gave rise to the judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission (C‑615/15 P, not published, EU:C:2017:190), the company to which the appellants in that case referred had been declared insolvent, it does not follow from that judgment or the case-law cited in paragraph 82 above that the need, recognised in that case-law, to reconcile compliance with the principle of equal treatment with compliance with the principle of legality depends on the existence of such a fact.

88 Lastly, the appellants’ argument that, in the present case, the Commission did not act unlawfully by not finding Nexans France liable for the period before 13 November 2000 and that therefore the case-law on which the General Court relied in the judgment under appeal should not apply, cannot be upheld.

89 It should be noted in that regard that it is common ground that Nexans France participated directly in the infringement at issue only from 13 November 2000. It appears from the appellants’ observations in that regard that they consider that the Commission would nevertheless have been entitled to find that company liable for that infringement for the period before 13 November 2000, as the successor in law to another undertaking which participated in the infringement during that period.

90 Even assuming, first, that such a possibility existed and, second, that the Commission did not act unlawfully by failing to make use of that possibility, the fact remains that any potential liability of Nexans France for the infringement committed during the period prior to 13 November 2000 was based on the participation in that infringement, during that period, of the undertaking to which Nexans France was to become the successor in law, and not on the direct participation of Nexans France in the infringement. However, unlike Nexans France, the appellants were found liable on the basis of ABB AB’s direct participation in the infringement at issue from 1 April 2000. In those circumstances, the appellants cannot claim that, until 13 November 2000, they were in a position comparable to that of Nexans France and that, by treating them differently from Nexans France, the General Court disregarded the principle of equal treatment.

92 It follows that the second part of the first ground of appeal must be upheld and the appeal dismissed as to the remainder.

93 It follows from the foregoing that the judgment under appeal is vitiated by an error of law in so far as the General Court rejected the argument concerning the Commission’s finding in the decision at issue that the collective refusal to supply the power cable accessories referred to in recital 643(f) of that decision covered accessories for underground power cables with voltages from 110 kV and below 220 kV.

94 In those circumstances, the judgment under appeal should be set aside to the extent that the General Court dismissed the action in respect of that assessment.

95 In accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court of Justice is to quash the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits.

96 In the present case, the Court should give final judgment in the case, as the state of the proceedings so permits.

97 In that regard, it should be noted that it was incumbent on the Commission, pursuant to the case-law cited in paragraph 38 above, to set out evidence capable of demonstrating, to the requisite legal standard, that the collective refusal to supply the power cable accessories referred to in recital 643(f) of the decision at issue covered accessories for underground power cables with voltages from 110 kV and below 220 kV.

98 However, as was stated in paragraph 43 above, the Commission had confined itself to explaining in that regard, in recital 492 of the decision at issue, that the projects covered by the infringement at issue were generally global offers comprising the cables themselves and their accessories, and did not adduce any concrete evidence to support the claim that the collective refusal to supply power cable accessories covered accessories for underground power cables with voltages from 110 kV and below 220 kV.

99 In addition, one of the documents relied on by the appellants before the General Court, which is referred to in paragraph 151 of the judgment under appeal, expressly distinguishes those accessories from accessories for power cables with a minimum voltage of 220 kV. In paragraph 152 of the judgment under appeal, the General Court considered that that document seemed to concern a proposal made by two participants in the cartel to control fully the supply of electric cable accessories by the addition of a system of regular declarations by the cartel members on electric cable accessories and that that proposal had been limited to projects with voltages of 220 kV and above. The document in question describes the situation in relation to 110 kV power cable accessories as ‘too complicated’.

100 In those circumstances, that evidence is capable of raising doubts as to whether the collective refusal to supply power cable accessories covered accessories for underground power cables with voltages from 110 kV and below 220 kV. According to the case-law of the Court of Justice, having regard to the presumption of innocence which applies to procedures relating to infringements of the competition rules that may result in the imposition of fines or periodic penalty payments, the benefit of any doubt must be given to the undertaking to which the decision finding an infringement was addressed (see, that effect, judgment of 16 February 2017, Hansen & Rosenthal and H&R Wax Company Vertrieb v Commission, C‑90/15 P, not published, EU:C:2017:123, paragraph 18 and the case-law cited).

101 It follows that the decision at issue must be annulled in so far as it finds ABB Ltd and ABB AB liable for an infringement of Article 101 TFEU and of Article 53 of the Agreement on the European Economic Area of 2 May 1992 in respect of a collective refusal to supply accessories for underground power cables with voltages from 110 kV and below 220 kV.

102 Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.

103 Under Article 138(3) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.

104 Since the appellants and the Commission have each succeeded on some and failed on other heads of claim, they must be ordered to bear their own costs at first instance and on appeal.

1. Sets aside point 1 of the operative part of the judgment of the General Court of the European Union of 12 July 2018, ABB v Commission (T‑445/14, not published, EU:T:2018:449), in so far as the General Court dismissed ABB Ltd and ABB AB’s actions for the annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case AT.39610 — Power cables), in so far as that decision finds those companies liable for an infringement of Article 101 TFEU and of Article 53 of the Agreement on the European Economic Area of 2 May 1992 in respect of a collective refusal to supply accessories for underground power cables with voltages from 110 kV and below 220 kV, as well as point 2 of the operative part of that judgment;

3. Annuls Decision C(2014) 2139 final in so far as it finds ABB Ltd and ABB AB liable for an infringement of Article 101 TFEU and of Article 53 of the Agreement on the European Economic Area of 2 May 1992 in respect of a collective refusal to supply accessories for underground power cables with voltages from 110 kV and below 220 kV;

4. Orders ABB Ltd, ABB AB and the European Commission to bear their own costs at first instance and on appeal.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> ABB v Commission (Competition - European market for underground and submarine power cables - Judgment) [2019] EUECJ C-593/18P (28 November 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C59318P.html Cite as: [2019] EUECJ C-593/18P, [2020] 4 CMLR 2, EU:C:2019:1027, ECLI:EU:C:2019:1027

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