Corte di giustizia UE/2019

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 21 March 2019 ( * ) (Appeal — Agreements, decisions and concerted practices — Market for car battery recycling — [OSCURATO:PERSONA] finding an infringement of [OSCURATO:PERSONA] 101 TFEU and imposing fines — Correcting decision adding the value of purchases of the addressees which were not included in the initial decision — Time limit for bringing an action — Point from which time starts to run — Delay — Inadmissibility) [OSCURATO:PERSONA] C‑312/18 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 11 May 2018, Eco-[OSCURATO:PERSONA], established in Matlock ([OSCURATO:PERSONA]), [OSCURATO:PERSONA] GmbH, established in Braubach (Germany), Société traitements chimiques des métaux (STCM), established in Bazoches-les-Gallerandes ([OSCURATO:PERSONA]), represented by M. Brealey QC, I. Vandenborre, advocaat, and S. Dionnet, avocat, appellants, the other party to the proceedings being: [OSCURATO:PERSONA], represented by G. Conte, I. Rogalski, J. Szczodrowski and F. van Schaik, acting as Agents, defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of F. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], J. [OSCURATO:PERSONA] and C.G. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: G. [OSCURATO:PERSONA], [OSCURATO:PERSONA]: A. [OSCURATO:PERSONA], having regard to the written procedure, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following [OSCURATO:PERSONA] 1 By their appeal, Eco-[OSCURATO:PERSONA], [OSCURATO:PERSONA] GmbH and Société traitements chimiques des métaux (STCM) (together, ‘Eco-Bat’ or ‘the appellants’) seek to have set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 21 March 2018, Eco-[OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] (T‑361/17, not published, ‘the order under appeal’, EU:T:2018:173), by which the [OSCURATO:PERSONA] dismissed as inadmissible their action seeking, first, annulment of [OSCURATO:PERSONA] C(2017) 900 final of 8 February 2017 relating to a proceeding under [OSCURATO:PERSONA] 101 TFEU ([OSCURATO:PERSONA] AT.40018 — Car battery recycling) (‘the initial decision’), as corrected by [OSCURATO:PERSONA] C(2017) 2223 final of 6 April 2017 (‘the amended decision’), and, secondly, a reduction of the amount of the fine imposed on Eco-Bat. Background to the dispute 2 The background to the dispute, as set out in paragraphs 1 to 7 of the order under appeal, may be summarised as follows. 3 By the initial decision, notified to Eco-Bat on 10 February 2017, the [OSCURATO:PERSONA] found that Eco-Bat and three other undertakings had participated in an infringement of [OSCURATO:PERSONA] 101 TFEU in the sector for the purchase of scrap lead-acid car batteries used for the production of recycled lead and imposed a fine of EUR 32 712 000 on Eco-Bat. 4 In recital 2 of the amended decision, the [OSCURATO:PERSONA] stated that it was necessary to correct the omission in the initial decision of the reference to the value of purchases taken into account in determining the basic amount of the fines to be imposed. 5 [OSCURATO:PERSONA] 1 of the amended decision provides, inter alia, for the addition, at the end of recital 319 of the initial decision, of a sentence indicating the value of purchases for each of the addressees of the initial decision. The proceedings before the [OSCURATO:PERSONA] and the order under appeal 6 On 21 April 2017, the appellants brought an action for annulment of the initial decision. That action was registered as [OSCURATO:PERSONA] T‑232/17. 7 By letter lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 6 June 2017, the appellants discontinued proceedings in [OSCURATO:PERSONA] T‑232/17. 8 By application lodged that day at the [OSCURATO:PERSONA], the appellants brought a fresh action against the initial decision, as corrected by the amended decision. That action was registered as [OSCURATO:PERSONA] T‑361/17. 9 By separate document, lodged at the [OSCURATO:PERSONA] on 3 October 2017, the [OSCURATO:PERSONA] raised a plea of inadmissibility under [OSCURATO:PERSONA] 130(1) of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA]. On 15 November 2017, the appellants submitted their observations on that plea of inadmissibility. 10 By the order under appeal, the [OSCURATO:PERSONA] dismissed the action brought by the appellants as inadmissible. In that regard, it found that, as the initial decision was notified to the appellants on 10 February 2017, the time limit for bringing proceedings of two months, extended on account of distance by 10 days, had expired at midnight on 20 April 2017. The appellants’ application was lodged at the [OSCURATO:PERSONA] on 6 June 2017 and was therefore out of time. Forms of order sought by the parties before the [OSCURATO:PERSONA] of Justice 11 By their appeal, the appellants claim that the [OSCURATO:PERSONA] should: –        set aside the order under appeal; –        declare the action registered as [OSCURATO:PERSONA] T‑361/17 admissible; –        refer the case back to the [OSCURATO:PERSONA]; and –        order the [OSCURATO:PERSONA] to pay the costs. 12 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should dismiss the appeal and order the appellants to pay the costs. The application to open the oral part of the procedure 13 By letter of 15 February 2019, the appellants requested that the oral part of the procedure be opened. They claim that the holding of a hearing would allow the parties to discuss the recent case-law of the Courts of the [OSCURATO:PERSONA], would lead to a better understanding of the dispute and was necessary in order for them to secure their right to a fair trial. In addition, the novelty of the points of law raised in the present case justified the delivery of an Opinion by the [OSCURATO:PERSONA], in accordance with [OSCURATO:PERSONA] 82 of the [OSCURATO:PERSONA] of Procedure of the [OSCURATO:PERSONA] of Justice. The appellants also request the [OSCURATO:PERSONA] to order a measure of inquiry in order to ascertain the reasons why the [OSCURATO:PERSONA] adopted the amended decision. 14 [OSCURATO:PERSONA] 83 of the [OSCURATO:PERSONA] of Procedure, the [OSCURATO:PERSONA] may at any time, after hearing the [OSCURATO:PERSONA], order the opening or reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where a party has, after the close of that part of the procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of the [OSCURATO:PERSONA], or where the case must be decided on the basis of an argument which has not been debated by the parties. In addition, the [OSCURATO:PERSONA] may, pursuant to Articles 63 and 64 of those rules, decide to prescribe a measure of inquiry. 15 In the present case, the [OSCURATO:PERSONA] considers, having heard the [OSCURATO:PERSONA], that it has all the information necessary to rule on the present appeal. Accordingly, there is no need to order that the oral part of the procedure be opened or to prescribe the measure of inquiry requested by the appellants. The appeal Arguments of the parties 16 By their single ground of appeal, the appellants criticise the [OSCURATO:PERSONA] for having erred in law by finding that the date to be taken into account for determining the starting point of the period for bringing an action for annulment was the date of notification of the initial decision and not that of notification of the amended decision, even though only the latter decision made the initial decision complete and correct. By doing so, the [OSCURATO:PERSONA] infringed the appellants’ rights of defence. 17 In that regard, in paragraph 36 of the order under appeal, the [OSCURATO:PERSONA] erred in law in finding that the failure to indicate the value of purchases in the initial decision did not prevent that decision being challenged by way of an action for annulment. The determining factor for finding an infringement of the rights of the defence is not the impossibility of challenging a [OSCURATO:PERSONA] decision but uncertainty as to the basis for that decision. 18 In that context, the appellants criticise paragraph 35 of the order under appeal, arguing that, in the absence of any indication of the value of the purchases, the initial decision was not sufficiently clear, with the result that it fell to them to determine for themselves the precise basis of the penalty imposed. [OSCURATO:PERSONA] did not establish a sound basis for its finding, in that paragraph, that the appellants would have been able to understand the purchase value which was taken into account by the [OSCURATO:PERSONA] in the initial decision. 19 The appellants also consider that the [OSCURATO:PERSONA] misinterpreted the [OSCURATO:PERSONA]’s duty to state reasons and the principle of sound administration. In that regard, they argue that the absence of any indication of the value of the purchases in the initial decision constitutes a failure to state reasons and that the amended decision was crucial for the purpose of allowing the appellants to understand fully the reasoning behind the initial decision and the [OSCURATO:PERSONA] to exercise its powers of review of the legality of and justification for the fine imposed. 20 In support of their arguments, the appellants rely on the case which gave rise to the judgment of 9 December 2014, SP v [OSCURATO:PERSONA] (T‑472/09 and T‑55/10, EU:T:2014:1040). They claim that, in that case, the [OSCURATO:PERSONA], which had made limited changes to its decision through an amending decision, had nevertheless informed the applicants in that case that the period for bringing proceedings started to run from the date of notification of that amending decision. 21 Furthermore, the appellants take the view that the [OSCURATO:PERSONA] was wrong to rely on the judgments cited in paragraph 34 of the order under appeal because, in the cases which gave rise to those judgments, it was a question of purely formal or clerical errors, which is not the case here. 22 [OSCURATO:PERSONA] contends that the appeal is inadmissible, in so far as, in order to challenge the factual assessments made by the [OSCURATO:PERSONA], the appellants rely in essence on the factual assumptions that, first, the amended decision was essential for the purpose of enabling them to fully understand the reasoning behind the initial decision and, secondly, that decision alone enabled them to know with certainty the precise value of purchases which the [OSCURATO:PERSONA] took into account when calculating the fine imposed. In any event, according to the [OSCURATO:PERSONA], the appeal is unfounded. Findings of the [OSCURATO:PERSONA] 23 As regards the plea of inadmissibility raised by the [OSCURATO:PERSONA], it is clear from the appeal that the appellants contend, in essence, that it is not sufficient, for the purpose of securing their rights of defence, that the value of Eco-Bat’s purchases could have been ascertained by reading the initial decision, as the [OSCURATO:PERSONA] found in the light of the considerations set out in paragraph 35 of the order under appeal, and that in fact they should have had certainty in respect of that value, which would have required its express inclusion in the initial decision. 24 By those arguments, seeking, in essence, a finding that the [OSCURATO:PERSONA] infringed their rights of defence, the appellants claim that that court erred in law. Therefore, and notwithstanding the possible inadmissibility of certain arguments advanced by the appellants in support of their plea, the plea of inadmissibility cannot be upheld. 25 As regards the substance, it is without erring in law that, after recalling that, under the sixth paragraph of [OSCURATO:PERSONA] 263 and the third subparagraph of [OSCURATO:PERSONA] 297(2) TFEU, the date to be taken into account for determining the starting point of the period prescribed for bringing annulment proceedings is the date of notification of the act in question where it specifies the person to whom it is addressed, the [OSCURATO:PERSONA], in paragraph 33 of the order under appeal, considered, referring to paragraph 47 of the judgment of 17 May 2017, Portugal v [OSCURATO:PERSONA] (C‑337/16 P, EU:C:2017:381), that a decision is properly notified if it is communicated to the person to whom it is addressed and the latter is put in a position to become acquainted with it. 26 With regard to the latter condition, the [OSCURATO:PERSONA] considers that it is fulfilled when the person to whom a decision is addressed was in a position to become acquainted with the content of that decision and the grounds on which it is based (see, to that effect, judgment of 17 May 2017, Portugal v [OSCURATO:PERSONA] , C‑337/16 P, EU:C:2017:381, paragraph 48). 27 It follows that an error or omission which, even if it is not purely formal in nature, does not prevent the addressee of the decision notified from becoming acquainted with the content and grounds of that decision, does not affect the period for bringing proceedings laid down in the sixth paragraph of [OSCURATO:PERSONA] 263 TFEU. 28 [OSCURATO:PERSONA] did not therefore err in law when it held, in paragraph 34 of the order under appeal, that an omission which does not affect the understanding of the reasons for the decision in question cannot prevent the application of the periods laid down by [OSCURATO:PERSONA] 263 TFEU. 29 As regards, in the present case, the failure to state the value of Eco-Bat’s purchases in the initial decision, the [OSCURATO:PERSONA], in paragraphs 35 and 36 of the order under appeal, found, on the basis of factual evidence, that that value could be understood by reading the text of the initial decision and that, consequently, the failure to state that value in that decision did not prevent an understanding of the grounds for that decision or make it impossible for that decision to be challenged by way of an action for annulment. 30 Those findings, which form part of an assessment of a factual nature, cannot be called into question by the appellants’ argument that the [OSCURATO:PERSONA] did not, in the order under appeal, set out a sound basis for its finding that the appellants would have been able to understand the purchase value which was taken into account by the [OSCURATO:PERSONA] in the initial decision. 31 In that regard, it should be noted that, under the second subparagraph of [OSCURATO:PERSONA] 256(1) TFEU and the first paragraph of [OSCURATO:PERSONA] 58 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], an appeal lies on points of law only. [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] of Justice on appeal (judgment of 26 September 2018, [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑98/17 P, not published, EU:C:2018:774, paragraph 40 and the case-law cited). 32 Since the appellants have not established or even alleged such distortion, the argument by which they claim that there is no solid basis for the [OSCURATO:PERSONA] conclusion that they would have been able to understand the purchase value taken into account in the initial decision must therefore be rejected as inadmissible. 33 As regards the appellants’ argument that the failure to indicate the value of Eco-Bat’s purchases in the initial decision constitutes a failure to state reasons, it must be held that, even if that were correct, it has no bearing on the issue. It follows from a combined reading of the second and sixth paragraphs of [OSCURATO:PERSONA] 263 TFEU that the period laid down in the sixth paragraph applies to an action against an EU act for infringement of essential procedural requirements. 34 As for the appellants’ argument based on the case which gave rise to the judgment of 9 December 2014, SP v [OSCURATO:PERSONA] (T‑472/09 and T‑55/10, EU:T:2014:1040), it is sufficient to observe that they confine themselves, in essence, to repeating an argument already put forward before the [OSCURATO:PERSONA], without indicating what error of law that court made in its response to that argument in paragraph 37 of the order under appeal. 35 Pursuant to [OSCURATO:PERSONA] 169(2) of the [OSCURATO:PERSONA] of Procedure, the pleas in law and legal arguments relied on in an appeal must identify precisely those points in the grounds of the [OSCURATO:PERSONA] decision which are contested. That requirement is not satisfied by an appeal which, without even specifically identifying the error of law allegedly vitiating the judgment which is the subject of that appeal, confines itself to reproducing the pleas in law and arguments previously submitted to the [OSCURATO:PERSONA] (judgment of 18 June 2015, Ipatau v Council , C‑535/14 P, EU:C:2015:407, paragraphs 56 and 57 and the case-law cited). 36 It follows that that argument must also be rejected as inadmissible. 37 Having regard to the foregoing considerations, the single ground of appeal must be dismissed as partly inadmissible and partly unfounded. 38 The appeal must therefore be dismissed. Costs 39 [OSCURATO:PERSONA] 138(1) of the [OSCURATO:PERSONA] of Procedure, which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 40 Since the [OSCURATO:PERSONA] has applied for costs and the appellants have been unsuccessful as regards their single ground of appeal, the appellants must be ordered to bear their own costs and to pay the [OSCURATO:PERSONA]’s costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the appeal; 2. [OSCURATO:PERSONA][OSCURATO:PERSONA], [OSCURATO:PERSONA] GmbH and Société de traitements chimiques des métaux (STCM) to pay the costs. [OSCURATO:PERSONA] in open court in Luxembourg on 21 March 2019. A. [OSCURATO:PERSONA] F. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.