Kuwait Petroleum Corp., v European Commission [2013] EUECJ C-581/12 (21 November 2013)

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(Appeals – Agreements, decisions and concerted practices – Netherlands market in road pavement bitumen – Setting of the gross price of road pavement bitumen – Setting of a rebate for road builders – 2002 Leniency Notice – Last paragraph of point 23(b) – Partial immunity – Evidence relating to facts previously unknown to the Commission – Appeal manifestly inadmissible or manifestly unfounded)

European Commission, represented by F. Ronkes Agerbeek and P. Van Nuffel, acting as Agents, with an address for service in Luxembourg,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

1 By their appeal, Kuwait Petroleum Corp. (‘KPC’), Kuwait Petroleum International Ltd (‘KPI’) and Kuwait Petroleum (Nederland) BV (‘KPN’) seek to have set aside the judgment of the General Court of the European Union in Case T-370/06 Kuwait Petroleum and Others v Commission [2012] ECR II-0000 (‘the judgment under appeal’), by which the General Court dismissed their action for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 – Bitumen (Netherlands)(‘the contested decision’)) in so far as it concerns them, and, in the alternative, for reduction of the fine imposed on the appellants by that decision.

2 Points 21 and 23 of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’) provide:

‘21. In order to qualify [for a reduction of the fine], an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence.

(a) whether the evidence provided by an undertaking represented significant added value with respect to the evidence in the Commission’s possession at that same time;

(b) the level of reduction an undertaking will benefit from, relative to the fine which would otherwise have been imposed, as follows. For the:

In order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value. It may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission.

In addition, if an undertaking provides evidence relating to facts previously unknown to the Commission which have a direct bearing on the gravity or duration of the suspected cartel, the Commission will not take these elements into account when setting any fine to be imposed on the undertaking which provided this evidence.’

3 The background to the dispute was set out in paragraphs 1 to 15 of the judgment under appeal and may be summarised as follows.

4 Following a request by British Petroleum for immunity from fines in accordance with the 2002 Leniency Notice with respect to a suspected cartel relating to the supply of road pavement bitumen in the Netherlands, the Commission, on 1 and 2 October 2002, carried out surprise inspections, in particular at the premises of KPN and sent requests for information to several companies, including KPN, on 30 June 2003 and 5 April 2004. KPN replied to those requests on 16 September 2003 and 30 April 2004.

5 On 12 September 2003 KPN submitted an application under the 2002 Leniency Notice. It provided additional written information on 16 September 2003 and certain employees of that company who were involved in the cartel were heard by the Commission on 1 and 9 October 2003. During that procedure, Total, on 13 September 2003, and subsequently Nynas, on 2 October 2003, provided the Commission with a substantial amount of information by their replies to the first request for information.

6 On 14 October 2004, in accordance with the provisions of point 26 of the 2002 Leniency Notice, the Commission informed KPN that it intended to grant a reduction of 30% to 50% of the fine for which KPN should be liable, as the Commission had come to the provisional conclusion that the evidence which that company had provided constituted significant added value within the meaning of point 22 of that notice. Following a request from KPC and KPI, the Commission confirmed to them, by letter of 2 December 2004, that they would also benefit from the reduction of the fine granted to KPN under that notice.

7 On 13 September 2006, the Commission adopted the contested decision in which it stated that the companies to which it was addressed had participated in a single and continuous infringement of Article 81 EC, by regularly fixing collectively, for the periods indicated, for sales and purchases of road pavement bitumen in the Netherlands, the gross price, a uniform rebate on the gross price for participating road builders and a smaller maximum rebate on the gross price for other road builders.

8 The appellants were found guilty of that infringement, for the period from 1 April 1994 to 15 April 2002, and a fine of EUR 16.632 million was imposed on them jointly and severally.

9 For the purposes of the calculation of the fine, the Commission did not find any aggravating circumstances with regard to the appellants. It agreed, rather, that they should benefit from the 2002 Leniency Notice and on that basis granted them a reduction of 30% in the amount of their fine. It considered that the information provided on 12 and 16 September 2003 and on 1 and 9 October 2003 had strengthened, by its level of detail, the Commission’s ability to establish the existence of the infringement. The Commission considered, however, that it had to take account of the fact, first, that the application for leniency was not submitted until 11 months after the unannounced visits had been carried out and after its request for information had been sent, second, that it already had certain evidence provided in the meantime by other companies on 13 September and 2 October 2003, and, third, that KPN had revised some of its statements.

10 By application lodged at the Registry of the General Court on 4 December 2006, the appellants sought the annulment of the contested decision and, in the alternative, the reduction of the fine imposed.

11 In support of their application, the appellants put forward two pleas, alleging, first, infringement of the provisions of the last paragraph of point 23(b) of the 2002 Leniency Notice and, second, errors by the Commission in setting the percentage reduction of their fine.

– itself give final judgment in the matter by annulling Article 2(i) of the contested decision in so far as it imposes a fine on the appellants or by reducing the amount of that fine;

15 Under Article 181 of its Rules of Procedure, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal by reasoned order without opening the oral procedure. That provision must be applied in the context of the present appeal.

The first ground of appeal, alleging an error of law in the interpretation of the last paragraph of point 23(b) of the 2002 Leniency Notice

16 By their first ground of appeal, the appellants essentially complain that the General Court infringed the last paragraph of point 23(b) of the 2002 Leniency Notice by deciding, like the Commission, that that provision applies solely to a company party to a cartel which provides the Commission with new information relating to the gravity or the duration of the infringement and not to a company which has merely provided information which strengthens the evidence of the existence of the infringement.

17 That ground of appeal relates to paragraphs 33 to 37 and 39 to 40 of the judgment under appeal. Paragraphs 33 and 36 of that judgment are worded as follows:

‘33. The Court takes the view that it is necessary to adopt a restrictive interpretation of the last paragraph of point 23(b) of the 2002 Leniency Notice, by limiting it to cases in which a company party to a cartel provides the Commission with new information relating to the gravity or the duration of the infringement, and by excluding cases in which a company has merely provided information which strengthens the evidence of the existence of the infringement.

36. The interpretation advocated by the applicants, however, would deprive of all effect the distinction made by the Commission in the 2002 Leniency Notice between the sole undertaking which may benefit from immunity from a fine (Section A of the 2002 Leniency Notice) and those undertakings which may qualify only for a reduction of a fine (Section B of the 2002 Leniency Notice), since that interpretation would amount to also granting those undertakings total immunity from a fine. The 2002 Leniency Notice thus draws a distinction between an undertaking which is the first to submit evidence which may enable the Commission to find an infringement or to adopt a decision to carry out an investigation, which is eligible for total immunity, and other undertakings, which do not meet those conditions and which are eligible only for a maximum reduction of the fine of 50%.’

18 In the appellants’ submission, the words ‘facts previously unknown to the Commission’ used in the provision in question must be interpreted as referring not to facts of which the Commission was not aware but, as in the present case, to facts of which it might previously have been aware but that it was unable to prove, without undermining the effectiveness of its leniency programme, by discouraging companies which seek to benefit under that programme from providing as much information as possible. The appellants rely, in support of their argument, inter alia on the difference in wording as regards the criteria for the grant of ‘partial immunity’ that may be seen between the last paragraph of point 23(b) of the 2002 Leniency Notice and the last paragraph of point 26 of the Commission Notice on Immunity from fines and reduction of fines in cartel cases (OJ 2006 C 298, p. 17; ‘the 2006 Leniency Notice’).

19 It must be stated that the words ‘facts ... unknown to the Commission’ are unambiguous and allow the interpretation adopted by the General Court in paragraph 33 of the judgment under appeal.

20 In that regard, the General Court did not err in law, in paragraph 36 of the judgment under appeal, where it replied to the appellants’ argument based on the purpose of the leniency programme and the loss of effectiveness of that programme if the last paragraph of point 23(b) of the 2002 Leniency Notice were interpreted in the manner advocated by the Commission.

21 Moreover, the appellants’ argument that the difference in wording as regards the criteria for the grant of ‘partial immunity’ that may be seen between the 2002 Leniency Notice and the 2006 Leniency Notice is irrelevant, since it is common ground that the 2006 Leniency Notice is not applicable ratione temporis to this case.

22 In the light of that interpretation of the last paragraph of point 23(b) of the 2002 Leniency Notice, the General Court did not, after making assessments of fact which do not fall to be reviewed by the Court of Justice, err in law by concluding, in paragraph 40 of the judgment under appeal, that KPN did not provide any evidence relating to facts previously unknown to the Commission which might have had a direct bearing on the gravity or duration of the infringement.

23 Accordingly, the first ground of appeal relied on in support of this appeal must be rejected as manifestly unfounded.

The second ground of appeal, alleging infringement of the second paragraph of point 23(b) of the 2002 Leniency Notice

24 By their second ground of appeal, the appellants complain that the General Court erred in law in holding, in paragraphs 65 and 66 of the judgment under appeal, that the Commission did not commit an error of assessment in taking the view that it was entitled to limit the reduction of their fine to 30% of its basic amount on the ground that the added value of the evidence provided by KPN had been diluted by the added value of the evidence previously supplied by other undertakings.

25 In support of their ground of appeal, the appellants maintain that, in order to confirm the level of the reduction of the fine adopted by the Commission, the General Court only based its assessment on the antecedence of the supply of some of the evidence by those other undertakings, without taking into consideration the items of evidence submitted by KPN which, as such, show that the evidence adduced by those other undertakings did not contain any significant added value diluting the value of the evidence supplied subsequently by KPN. Accordingly, the General Court infringed the second paragraph of point 23(b) of the 2002 Leniency Notice.

26 It must be observed at the outset that this ground of appeal results from a manifest misreading of the judgment under appeal. It is apparent from paragraphs 60 to 62, 64 and 66 and 67 to 69 of that judgment that the General Court took into consideration not only the antecedence of the supply of evidence by undertakings other than KPN, but also the date on which KPN lodged its leniency application, the content of the evidence provided by that company and the fact that KPN changed its position as regards the participation in the cartel of an undertaking.

27 In addition, it is apparent from paragraphs 64 and 66 of the judgment under appeal that the General Court undertook an assessment of both a quantitative and qualitative nature of the evidence provided by KPN and the other undertakings respectively, thus finding that the evidence provided by KPN in October 2003 did not provide decisive new information in view of the substantial amount of information provided previously by the other undertakings.

28 In any event, inasmuch as this ground of appeal contests the assessment of the evidence carried out by the General Court, it should be borne in mind that that assessment falls within the exclusive jurisdiction of the General Court, so that it is not subject to review by the Court of Justice, unless the appellants complained that the General Court had distorted the evidence before it. 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 lies on points of law only. The General Court thus has exclusive jurisdiction to assess the evidence. The appraisal of the facts and the assessment of the evidence thus do not, save where the facts or evidence have been distorted, constitute a point of law which is subject as such to review by the Court of Justice on appeal (order of 21 March 2013 in Case C-393/12 P Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi v OHIM, paragraph 38 and the case-law cited).

29 Consequently, the second ground of appeal must be rejected as in part manifestly unfounded and in part manifestly inadmissible.

31 Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

32 Since the Commission has applied for costs and KPC, KPI and KPN have been unsuccessful, they must be ordered to pay the costs.

2. Orders Kuwait Petroleum Corp., Kuwait Petroleum International Ltd and Kuwait Petroleum (Nederland) BV to pay the costs.

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