Case C‑123/16 P
Orange Polska SA
v
European Commission
(Appeal — Competition — Article 102 TFEU — Abuse of dominant position — Polish wholesale market for fixed broadband internet access — Refusal to give access to the network and to supply wholesale products — Regulation (EC) No 1/2003 — Article 7(1) — Article 23(2) (a) — Legitimate interest in finding an infringement which has come to an end — Calculation of the fine — 2006 Guidelines on the method of setting fines imposed pursuant to Article 23(2) (a) of Regulation No 1/2003 — Gravity — Mitigating circumstances — Investments made by the infringing undertaking — Review of legality — Review exercising powers of unlimited jurisdiction — Substitution of grounds)
Summary — Judgment of the Court (Second Chamber), 25 July 2018
Competition — Administrative procedure — Powers of the Commission — Finding of an infringement that has ceased — Legitimate interest in making the finding
(Arts 101 TFEU and 102 TFEU; Council Regulation No 1/2003, Arts 7(1) and 23(2) (a))
Appeal — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted — Requirement that the distortion be obvious from the documents in the file
(Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.)
Actions for annulment — Jurisdiction of the EU judicature — Review of legality — Assessment of the content of the pleadings lodged by the defendant — Not included
(Art. 263 TFEU)
Competition — Fines — Amount — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope — Substitution of grounds for the contested decision
(Arts 101 TFEU, 102 TFEU, 261 TFEU and 263 TFEU; Council Regulation No 1/2003, Art. 31)
Appeal — Jurisdiction of the Court — Challenge, on grounds of fairness, of the General Court’s assessment exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of the competition rules of the Treaty — Not included — Challenge to that assessment on grounds alleging breach of the principle of proportionality — Lawfulness
(Arts 101 TFEU, 102 TFEU, 256(1) TFEU and 261 TFEU; Statute of the Court of Justice, Art. 58, first para.; Council Regulation No 1/2003, Art. 31)
Appeal — Grounds — Claim seeking that directions be issued to an institution — Inadmissibility
(Rules of Procedure of the Court of Justice, Art. 169(1))
Pursuant to Article 23(2) (a) of Regulation No 1/2003, the Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently, they infringe Article 101 or 102 TFEU. The Commission’s power to impose fines where there is an infringement and to take decisions to that effect necessarily implies a power to make a finding that the infringement in question exists. In that regard, the Commission’s power to impose penalties under Article 23 of Regulation No 1/2003 is in no way affected by the fact that the conduct constituting the infringement has ceased. It follows that the Commission’s use of its power to impose a fine confers on it an implicit power to find the infringement, without its being required to justify a legitimate interest for making that finding, including where it relates to an infringement committed in the past.
According to the first sentence of Article 7(1) of Regulation No 1/2003, where the Commission finds that there is an infringement of Article 101 or 102 TFEU, it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end. The Commission’s use of its power to order the infringement to be brought to an end in accordance with that provision therefore necessarily implies a power to make a finding of that infringement and, accordingly, also does not require the Commission to establish a legitimate interest in doing so.
(see paras 57-59)
See the text of the decision.
(see para. 75)
It is clear from the very wording of Article 263 TFEU that the review of legality under that provision cannot concern the content of the pleadings lodged by the defendant before the Court of the European Union responsible for carrying out that review.
(see para. 85)
The scope of judicial review provided for in Article 263 TFEU extends to all the elements of Commission decisions relating to proceedings under Articles 101 and 102 TFEU, which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicant at first instance and taking into account all the elements submitted by the latter. However, in the context of that review, the EU Courts may in no circumstances substitute their own reasoning for that of the author of the contested act. By contrast, when they exercise their unlimited jurisdiction laid down in Article 261 TFEU and Article 31 of Regulation No 1/2003, the EU Courts are empowered, in addition to merely reviewing the legality of the penalty, to substitute their own assessment in relation to the determination of the amount of that penalty for that of the Commission, the author of the act in which that amount was initially fixed. Consequently, the EU Courts may vary the contested act, even without annulling it, in order to cancel, reduce or increase the amount of the fine imposed, that jurisdiction being exercised by taking into account all the factual circumstances.
(see paras 105, 106, 113)
See the text of the decision.
(see para. 115)
See the text of the decision.
(see para. 118)