2019:1025 LS Cable & System v Commission

Court Court of Justice
Date of ruling 28 November 2019
Case name (short version) LS Cable & System v Commission
Case Citation Case C-596/18 P

ECLI:EU:C:2019:1025

Key words Appeal — Competition — Agreements, decisions and concerted practices — European market for underground and submarine power cables — Market allocation in connection with projects — Fines — Burden of proof — Distortion of the evidence — Public distancing from the cartel
Basic context By its appeal, LS Cable & System Ltd seeks to have set aside the judgment of the General Court of the European Union of 12 July 2018, LS Cable & System v Commission (T‑439/14, not published, EU:T:2018:451) (‘the judgment under appeal’), by which the General Court dismissed its action seeking, first, the annulment of Commission Decision C(2014) 2139 final of 2 April 2014 relating to proceedings 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 concerns the appellant and, second, a reduction of the fine imposed on it.
Points arising – admissibility The third ground of appeal

30    In that regard, it must be noted that the appellant did not argue before the General Court that public distancing was not the only way to avoid liability arising from participation in an unlawful meeting. It has consistently been held that a plea raised for the first time in an appeal before the Court of Justice must be rejected as inadmissible (judgment of 10 July 2014, Telefónica and Telefónica de España v Commission, C‑295/12 P, EU:C:2014:2062, paragraph 99 and the case-law cited).

31    It is true that, in the present proceedings the appellant claimed, in its reply, that the third ground of appeal, properly construed, sought not to contest that public distancing was the only means of rebutting the presumption at issue, but to submit that the notion of public distancing included in its scope not only the expression of opposition to the cartel at the meeting itself but also the conduct of the undertaking after that meeting. However, that argument must be rejected since the interpretation suggested by the appellant in its reply is contradicted by the clear wording of that ground in its application for appeal.

32    Accordingly, the third ground of appeal must be considered inadmissible.

Points arising – substance The second ground of appeal

21    According to the case-law of the Court that an undertaking’s participation in a meeting having an anticompetitive object creates a presumption of the illegality of its participation, which that undertaking must rebut through evidence of public distancing, which must be perceived as such by the other parties to the cartel (judgment of 20 January 2016, Toshiba Corporation v Commission, C‑373/14 P, EU:C:2016:26, paragraph 71 and the case-law cited).

22    It should be noted, first, that the appellant does not deny participating in the Tokyo meeting. Second, in its appeal the appellant confirmed the General Court’s finding, in paragraph 50 of the judgment under appeal, that the ‘home territory’ principle, which was the basis for the A/R cartel configuration, was revealed to the appellant during that meeting. Third, as the Commission correctly observed, the appellant acknowledged in its application initiating proceedings that at the Tokyo meeting the European and Japanese producers had attempted to persuade it to subscribe to their cartel. It follows, contrary to what the appellant claimed in its reply, that the Tokyo meeting was an anticompetitive meeting. As the General Court stated, in essence, in paragraph 51 of the judgment under appeal, which is not challenged by the appellant, the appellant did not establish that it had distanced itself publicly from the cartel during that meeting.

23    As the Commission correctly observed, the second ground of appeal must therefore be considered to be ineffective, since the fact that the appellant participated in an anticompetitive meeting without distancing itself publicly from the cartel is sufficient to establish that it had begun to participate in the infringement at issue from the date of the Tokyo meeting.

24    In any event, in so far as the appellant claims, by that ground of appeal, that the General Court erred in law in finding that the Commission had proved that it had participated in the infraction in question during the period from 15 November 2002, the date of the Tokyo meeting, until the second half of October 2003, it must be borne in mind that, under the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is limited to questions of law. The General Court has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence does not, therefore, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal (judgment of 26 September 2018, Philips and Philips France v Commission, C‑98/17 P, not published, EU:C:2018:774, paragraph 40 and the case-law cited).

25    In that regard, it must, first, be stated that the appellant has not established that the General Court distorted the notes from the Tokyo meeting by considering that the observations recorded by its representatives during that meeting confirmed, in the light of the perception of the other participants present at that meeting, that the appellant had joined the cartel at that meeting. It is apparent from the Court’s case-law that the review carried out by it in order to assess a ground of appeal alleging a distortion of evidence is restricted to ascertaining whether or not, in relying on that evidence to find that an undertaking participated in a cartel, the General Court manifestly exceeded the limits of a reasonable assessment of that evidence. The task of the Court of Justice is not, therefore, to assess independently whether the Commission has established such participation to the requisite legal standard and thus discharged the burden of proof necessary to show that the rules of competition law were infringed, but to determine whether, in finding that that was actually so, the General Court misconstrued the evidence in a manner manifestly at odds with its wording (judgment of 19 December 2013, Siemens and Others v Commission, C‑239/11 P, C‑489/11 P and C‑498/11 P, not published, EU:C:2013:866, paragraph 44 and the case-law cited). However, that is not the case here, since the terms used by those representatives during the Tokyo meeting do not preclude the General Court’s interpretation.

The first ground of appeal

37    It should be noted that paragraph 107 of the judgment under appeal comes within paragraphs 105 to 109 of that judgment, in which the General Court considered and rejected the appellant’s claim that it made efforts to enter the EEA market. As the Commission correctly noted in its response, paragraph 107 of the judgment under appeal contains merely an additional consideration on which the General Court relied in this context, as is demonstrated by the fact that it begins with the word ‘moreover’. It is apparent, however, from the examination of the third ground of appeal that the appellant failed to demonstrate that the main consideration on which the General Court relied in that regard, namely the finding, in paragraph 106 of the judgment under appeal, that the appellant had not demonstrated that it had publicly distanced itself from the infringement at issue, is vitiated by an error of law. Accordingly, the first ground of appeal must be considered ineffective.

38     In any event, in actual fact, by this ground of appeal the appellant seeks a re-examination of the General Court’s assessment of the evidence in question, without establishing any distortion of that evidence by the General Court. The appellant expressly acknowledged that, as the General Court found in paragraph 107 of the judgment under appeal, the number of bids it submitted for EEA projects during the period it participated in the cartel, namely 15 November 2002 to 26 August 2005, was significantly lower than that outside the period of infringement. In addition, the appellant did not demonstrate that, in interpreting that evidence, the General Court exceeded the limits of a reasonable assessment thereof. Indeed, the appellant claims that the General Court erred by holding, in paragraph 107 of the judgment under appeal, that the data concerning those EEA bids were not supported by concrete evidence. However, given that the General Court nevertheless assessed the potential relevance of those bids, such an error, if it were established, would not affect the conclusion reached by the General Court as regards the importance of the bids in question.

Intervention
Interim measures
Order
  1. Dismisses the appeal;
  2. Orders LS Cable & System Ltd to pay the costs.
Fine changed
Case duration 1 year 2 months
Judge-rapporteur Xuereb
Advocate-general Kokott
Notes on academic writings

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