2019:966 Silec Cable and General Cable v Commission

ECLI:EU:C:2019:966

Findings of the Court

38      Concerning the appellants’ arguments criticising the assessment by the General Court of the emails of December 2005 and November 2006, it is important to recall that the Court of Justice in an appeal has no jurisdiction to establish the facts or, in principle, 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 appraisal does not therefore constitute a point of law which is subject to review by the Court of Justice (judgment of 12 January 2017, Timab Industries and CFPR v Commission, C‑411/15 P, EU:C:2017:11, paragraph 153 and the case-law cited).

39     In addition, 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. However, such distortion must be obvious from the documents in the case, without it being necessary to undertake a fresh assessment of the facts and the evidence. Moreover, where an appellant alleges distortion of the evidence by the General Court, he must indicate precisely the evidence alleged to have been distorted by that Court and show the errors of appraisal which, in his view, led to that distortion (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).

40      In this respect, so far as concerns, in the first place, the emails dated 21 and 22 December 2005, the appellants merely claim that they been distorted but have in no way explained or substantiated that claim.

41      So far as concerns, in the second place, the email sent by Mr K., one of Brugg Kabel’s employees, to Mr V. on 16 November 2006 and the reply of the latter of the same date, it is apparent from paragraph 123 of the judgment under appeal that Mr K.’s email contained a subject entitled ‘Quote’ and the text ‘Dear [Mr V.], Please note that we need to receive instruction by today’ and ‘If we do not receive anything we will quote as our convenience’. It is also apparent that Mr V. responded to that email as follows: ‘Dear [Mr K.], According to our phone conversation, I have noticed your agreement to receive instructions on Monday, November 20’.

42      In paragraph 131 of the judgment under appeal, the General Court concluded that that response was evidence that Silec continued to participate voluntarily in the cartel.

43      It must be held that the arguments relied upon by the appellants contain no information such as to show that, in reaching that conclusion, the General Court distorted the content of those two emails of 16 November 2006.

44    It is apparent from that evidence that Mr K. wrote to Mr V., an employee of Silec and therefore of one of Brugg Kabel’s competitors, in order to obtain ‘instructions’ in relation to a quote and that, following a telephone conversation between those two persons, Mr V. replied to Mr K. giving notice of such instructions for Monday, 20 November 2006. Contrary to what is claimed by the appellants, the content of those emails is therefore clear and not at all neutral from the perspective of the application of the rules of EU law on competition. In particular, and as the General Court correctly noted in paragraph 129 of the judgment under appeal, Mr V. had no legitimate business reason to put Mr J., coordinator of the European members of the cartel, in copy in his email.

45     Furthermore, the General Court was able, without distorting that evidence, to infer from the wording and informal tone of Mr K.’s email of 16 November 2006 that that exchange was part of a continuum, that the lack of detail on the quote concerned in that email suggested that Mr V. knew what it was about and that that email followed on from contacts between Silec and Brugg Kabel concerning that quote.

46      Accordingly, neither the fact that that exchange of emails was not initiated by Silec nor the fact that the Commission was unable to prove that Mr V.’s email had been acted upon are of any importance in this respect. Indeed, it must be recalled, in that context, that the Commission held that Silec’s participation in the cartel ended on 16 November 2006, the date on which that email was sent.

47      As regards the appellants’ argument in relation to another item of evidence, concerning LS Cable, it is sufficient to note that the appellants have not established that the wording of that document and its interpretation by the General Court prove that the assessment by that court of the email exchange which took place on 16 November 2006 was manifestly incorrect. In any event, the General Court noted in paragraphs 178 to 182 of the judgment under appeal, which are not contested by the appellants, that that other evidence was not comparable to the emails exchanged between Mr K. and Mr V. on 16 November 2006.

48      Lastly, the fact that, as the General Court noted in paragraph 85 of the judgment under appeal, first, a certain distrust had taken hold between Silec and the other European members of the cartel after Silec’s acquisition by General Cable and, secondly, evidence showed that complaints were made about Silec in relation to its disloyal attitude on numerous occasions, cannot have the consequence that Mr V.’s email of 16 November 2006 should be regarded as a neutral document from the point of view of EU competition law, as the appellants claim. Consequently, the General Court, in allowing the Commission to rely on that document in order to prove that Silec had continued to participate in the cartel until 16 November 2006, did not reverse the burden of proof.

49      The appellants’ arguments calling into question the assessment of the emails dated December 2005 and November 2006 must therefore be rejected as inadmissible.

51      It must be observed that the first part of the first ground of appeal, alleging that the General Court breached the rules relating to evidence by incorrectly holding that Silec’s open and public distancing from the cartel was necessary to demonstrate that it had not participated in the cartel, concerns a question of law which may be raised on appeal and therefore that part of the ground of appeal is admissible.

52      As regards the substance, as the General Court observed in paragraphs 150 to 152 of the judgment under appeal, it is apparent from the Court of Justice’s case-law that two situations must be distinguished so far as public distancing from a cartel is concerned. First, a public distancing is necessary in order that an undertaking which participated in collusive meetings can prove that its participation was without any anti-competitive intention. Secondly, with regard to participation in a cartel which operated over several years rather than in individual anti-competitive meetings, the absence of public distancing forms only one factor amongst others to take into consideration with a view to establishing whether an undertaking has actually continued to participate in a cartel or has, on the contrary, ceased to do so (see, to that effect, judgment of 17 September 2015, Total Marketing Services v Commission, C‑634/13 P, EU:C:2015:614, paragraphs 20 to 23).

53      So far as the case at hand is concerned, in paragraph 153 of the judgment under appeal the General Court observed that, in the contested decision, the Commission had not relied solely on Silec’s lack of public distancing after its acquisition by General Cable to decide that Silec had not ceased its participation in the cartel before 16 November 2006, but that, on the contrary, it had demonstrated Silec’s direct and continued participation in the cartel until 16 November 2006 and had invoked Silec’s lack of public distancing only in combination with other evidence.

54      It follows that, implicitly but indisputably, the General Court held that, to prove Silec’s participation in the cartel, the Commission could not make do merely with Silec’s lack of public distancing but had to rely to that effect on other evidence. It is also apparent from paragraph 154 of the judgment under appeal that, according to the General Court, the emails exchanged on 21 and 22 December 2005 and 16 November 2006, respectively, were included, inter alia, among that other evidence.

55      Since it is common ground that Silec did not participate in any of the meetings which took place in connection with the cartel in the period covering the infringement at issue, it must be noted first of all that the General Court’s approach is consistent with the Court of Justice’s case-law referred to in paragraph 52 above.

56      Next, the appellants’ argument that the conclusion reached by the General Court in paragraph 153 of the judgment under appeal is manifestly incorrect on the ground that, with regard to each of the other items of evidence taken into account by the Commission in that connection, that court examined whether they showed Silec’s public distancing from the cartel, is unfounded. The appellants in this respect merely mention findings made by the General Court in paragraphs 95, 105 and 113 of the judgment under appeal concerning some of those other items of evidence. It is not apparent from those findings, having regard to the context of the judgment under appeal in which they were made, that the General Court held that Silec’s public distancing was necessary in order to demonstrate that the latter had not participated in the cartel. In particular, as regards the General Court’s finding, in paragraph 95 of the judgment under appeal and concerning an email dated 17 January 2006, that the appellants had not proved that Silec clearly and obviously opposed the implementation of the cartel at that date, the fact that that passage is introduced by the word ‘furthermore’ shows that it is merely a ground of the judgment under appeal stated for the sake of completeness.

The second ground of appeal

Findings of the Court

74      In that regard, it is true that the concept of an ‘undertaking’, within the meaning of EU competition law, designates an economic entity even if in law that economic entity consists of several natural or legal persons (judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 103 and the case-law cited). Such a definition does not, however, entail that, in order to set the penalties to be imposed on one of the companies involved in an infringement, the Commission may take account of the conduct of the economic entity constituted by those companies as a whole where, as in the present case, the liability of the company in question was upheld only so far as concerns its own participation in the cartel.

80      So far as concerns, secondly, the appellants’ argument that, had the General Court taken account of Silec’s individual conduct, it would have found that the latter participated neither in the creation of the cartel nor in meetings but behaved in a manner inconsistent with the cartel, it must be held that, as follows from the Court of Justice’s case-law cited in paragraph 38 above, that argument must be rejected as inadmissible given that by it the appellants are seeking a re-examination of the evidence submitted before the General Court, without claiming a distortion of that evidence.

83    Lastly, so far as concerns the appellants’ argument alleging the infringement of point 29 of the 2006 Guidelines, that argument is based on a misreading of the judgment under appeal. That judgment does not show that the General Court held that LS Cable was to be regarded as a fringe player in the cartel on the grounds of the limited duration of its participation in that cartel. In any event, and as the General Court correctly observed in paragraph 188 of the judgment under appeal, 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 (judgment of 9 March 2017, Samsung SDI and Samsung SDI (Malaysia) v Commission, C‑615/15 P, not published, EU:C:2017:190, paragraph 38 and the case-law cited).

1. Dismisses the appeal;
2. Orders Silec Cable SAS and General Cable Corp. to pay the costs.