Judgment of the Court (Fifth Chamber) of 16 February 2017

Acts of the institutionsObligation to state reasonsPurposeScope

(Art. 253 EC)

(see para. 18)

AppealGroundsMistaken assessment of the factsInadmissibilityReview by the Court of the assessment of the facts and evidencePossible only where the clear sense of the evidence has been distorted

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

(see paras 30-32, 98, 99)

CompetitionEU rulesInfringementsAttributionImputability to an undertaking of the conduct of its organsConditionsAction of a person authorised to act on behalf of the undertaking

(Art. 81 EC)

(see paras 33, 34)

CompetitionAgreements, decisions and concerted practicesConcerted practiceDefinition

(Art. 81(1) EC)

(see paras 37, 41)

CompetitionAdministrative procedureCommission decision finding an infringementBurden of proving the infringement and its duration on the CommissionExtent of the burden of proofProof adduced by a number of indicia and coincidences pointing to the existence and duration of continuous anti-competitive practicesLawfulness

(Art. 81 EC)

(see paras 38-40)

Judicial proceedingsMeasures of inquiryHearing of witnessesDiscretion of the General CourtRelevance of the principle of the right to a fair process

(Charter of Fundamental Rights of the European Union, Art. 47)

(see paras 44, 45)

AppealGroundsPlea submitted for the first time in the context of the appealInadmissibility

(Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

(see paras 54-56)

Acts of the institutionsGuidelines on the method of setting fines for infringements of the competition rulesMeasure of general scopeEffects

(Council Regulation No 1/2003, Art. 23(2); Commission Communication 2006/C 210/02, point 15)

(see paras 57, 58)

CompetitionFinesAmountDeterminationMaximum amountCalculationTurnover to be taken into considerationCumulative turnover of all the companies forming an economic entity acting as an undertaking

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2))

(see paras 61)

CompetitionFinesAmountDeterminationMethod of calculation laid down by the guidelines drawn up by the CommissionCalculation of the basic amount of the fineDetermination of the value of salesCriteriaMerger which came into being during the concerted practice

(Council Regulation No 1/2003, Art. 238(2); Commission Communication 2006/C 210/02, points 5 and 6)

(see paras 73-77)

CompetitionAdministrative procedureCommission decision finding an infringementJudicial reviewAdversarial nature of the procedure carried out before the EU CourtsObligations of the undertaking challenging the Commission’s decision

(Art. 81(1) EC)

(see paras 85-87)

AppealJurisdiction of the CourtWhether it may review, on grounds of fairness, the assessment by the General Court in regard to the amount of the fines imposed on undertakings which have infringed the competition rules of the TreatyNot includedChallenge to that assessment on grounds alleging breach of the principle of proportionalityLawfulness

(Arts 256 TFEU and 261 TFEU; Statute of the Court of Justice, Art. 58, first para.; Council Regulation No 1/2003, Art. 31)

(see para. 95)

CompetitionFinesAmountDeterminationCriteriaNeed to differentiate between the undertakings involved in the same infringement by reference to their overall turnoverObligation to differentiate on the basis of the percentage accounted for by the fine of the overall turnover of an undertakingNo such obligationNo breach of the principles of proportionality and equal treatment

(Art. 81 EC; Council Regulation No 1/2003, Art. 23(2))

(see paras 101, 102)

AppealGroundsPlea directed against the decision of the General Court on costsInadmissible where all other pleas are rejected

(Statute of the Court of Justice, Art. 58, second para.)

(see para. 109)

Operative

The Court:

1. Dismisses the appeal;

2. Orders H&R ChemPharm GmbH to pay the costs.