2018:590 Orange Polska v Commission

 

Court Court of Justice
Date of ruling 25 July 2018
Case name (short version) Orange Polska v Commission
Case Citation C-123/16 P

ECLI:EU:C:2018: 590

Key words 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
Basic context By its appeal, Orange Polska SA (‘Orange’) asks the Court, principally, to set aside the judgment of the General Court of the European Union of 17 December 2015, Orange Polska v Commission (T‑486/11, ‘the judgment under appeal’, EU:T:2015:1002), by which the General Court dismissed Orange’s action seeking, principally, annulment of Commission Decision C(2011) 4378 final of 22 June 2011 relating to a proceeding under Article 102 TFEU (Case COMP/39.525 — Telekomunikacja Polska) (‘the decision at issue’), and to annul that decision
Points arising – admissibility
Points arising – substance The first ground of appeal, alleging an error of law as regards the Commission’s obligation to demonstrate the existence of a legitimate interest in adopting a decision finding that an infringement was committed in the past

 

57      Those considerations, inasmuch as they refer, in essence, to the Commission’s implied power to find an infringement, stemming from its explicit power to impose fines, were furthermore sufficient to reject the plea put forward before the General Court. 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. As recalled in paragraph 49 above, the Court of Justice has already held that 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 (see, to that effect, judgment of 2 March 1983, GVL v Commission, 7/82, EU:C:1983:52, paragraph 23). The Court of Justice has also already held that the Commission’s power to impose penalties under Article 15 of Regulation No 17, to which, in essence, Article 23 of Regulation No 1/2003 corresponds, is in no way affected by the fact that the conduct constituting the infringement has ceased (judgment of 15 July 1970, ACFChemiefarma v Commission, 41/69, EU:C:1970:71, paragraph 175).

58     It follows from the foregoing 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.

59     It may also be noted that, 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, a power which the Commission moreover exercised in Article 3 of the decision at issue in so far as that cessation had not already taken place, and which Orange does not contest, 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, to that effect, judgment of 2 March 1983, GVL v Commission, 7/82, EU:C:1983:52, paragraphs 22 to 24).

The second ground of appeal, alleging errors of law and of assessment in the Commission’s examination of the impact of the infringement for the purpose of calculating the fine

75      According to the settled case-law of the Court, a distortion must be obvious from the documents in the Court’s file, without any need for a new assessment of the facts and evidence (judgments of 6 April 2006, General Motors v Commission, C‑551/03 P, EU:C:2006:229, paragraph 54, and of 19 April 2012, Tomra Systems and Others Commission, C‑549/10 P, EU:C:2012:221, paragraph 27).

86     Nor may paragraph 182 of the judgment under appeal be invoked in support of Orange’s position. In that paragraph, the General Court noted that ‘it is apparent from recitals 899 to 902, 904 and 905 of the [decision at issue] that the Commission took account of those elements in the assessment of the gravity of the infringement’, those ‘elements’ being identified in paragraphs 178 to 181 of the judgment under appeal as being the fact that ‘[Orange] had a dominant position which owed its origin to the former legal monopoly over both the wholesale market for LLU and BSA broadband access, where it was the sole supplier, and on the retail market’; the fact that ‘[Orange’s] infringement, whose existence is not contested as such, consisted of multiple, flagrant, persistent and intentional breaches of the regulatory framework’; the fact that ‘it [was] undisputed that [Orange] was aware of the illegality of its conduct, both in regulatory terms … and in terms of competition law, where its practices were designed to prevent or delay the entry of new entrants into the product markets concerned’; and the fact that ‘the product markets affected by [Orange’s] abusive practices, which … extend over the whole territory of one of the largest Member States of the European Union, are markets of great importance both from an economic point of view and from a social point of view, in that access to broadband internet constitutes the key element of the development of the information society’.

The third ground of appeal, alleging errors of law and of assessment relating to the failure to take investments made by Orange into account as mitigating circumstances

105    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 (see, to that effect, judgments of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 56, and of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraphs 72 and 73 and the case-law cited).

106    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, to that effect, judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 692; of 8 February 2007, Groupe Danone v Commission, C‑3/06 P, EU:C:2007:88, paragraph 61; and of 3 September 2009, Prym and Prym Consumer v Commission, C‑534/07 P, EU:C:2009:505, paragraph 86).

113    Therefore, in accordance with the case-law recalled in paragraph 106 above, the General Court was, on that basis, entitled to substitute its own reasoning for that of the Commission.

115    In the second place, inasmuch as, by the arguments set out in paragraphs 95 to 98 and 102 above, Orange and the PIIT challenge the merits of the General Court’s findings in paragraphs 196 to 207 of the judgment under appeal, it should be recalled that it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of EU law, and that it is only inasmuch as the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, that it would have to find that the General Court erred in law, on account of the inappropriateness of the amount of a fine (judgments of 22 November 2012, E.ON Energie v Commission, C‑89/11 P, EU:C:2012:738, paragraphs 125 and 126 and the case-law cited, and of 27 April 2017, FSL and Others v Commission, C‑469/15 P, EU:C:2017:308, paragraphs 77 and 78 and the case-law cited). In the present case, it must however be stated that this is not so. That argument must therefore be rejected as inadmissible.

118    Finally, inasmuch as, by their heads of claim in the further alternative, Orange and the PIIT ask the Court to remit the decision relating to the fine to the Commission and to order the Commission to adopt a new decision relating to the fine, it is sufficient to note that, in the context of an appeal, the Court has no power to issue directions to the institutions (see, to that effect, judgments of 8 July 1999, DSM v Commission, C‑5/93 P, EU:C:1999:364, paragraphs 34 to 37, and of 22 January 2004, Mattila v Council and Commission, C‑353/01 P, EU:C:2004:42, paragraphs 15 and 16), with the result that those heads of claim must be rejected as inadmissible.

 

Intervention
Interim measures
Order 1.      Dismisses the appeal;

 

2.      Orders Orange Polska SA to bear its own costs and to pay those incurred by the European Commission;

 

3.      Orders Polska Izba Informatyki i Telekomunikacji and the European Competitive Telecommunications Association AISBL (ECTA) to bear their own costs.

Fine changed
Case duration 29 months
Judge-rapporteur Jasašiūnas
Advocate-general Wathelet
Notes on academic writings
  1. Hödlmayr, Corneliu: EU-Wettbewerbsrecht: Polnische Vorleistungsmärkte für den Breitband-Internetzugang über das Festnetz – EuGH (Zweite Kammer), Urteil vom 25.7.2018 – C-123/16 P (Orange Polska SA / Kommission) – Anmerkung von Corneliu Hödlmayr, Europäische Zeitschrift für Wirtschaftsrecht 2018 p.904-915 (DE)
  2. Idot, Laurence: Pouvoir de la commission de constater une infraction passée, Europe 2018 Octobre Comm. nº 10 p.43-44 (FR)

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