The Court of First Instance handed down a couple of judgments dealing with antitrust. We won't cover them all. So let's just look at one for now, Case T-69/04 Schunk and Schunk Kohlenstoff-Technik v Commission.
It is quite an odd case because the Commission, as defendant, lodged a "counterclaim" to have the antitrust fine it had imposed on the undertaking increased by the Court of First Instance. Of course, counterclaims don't figure in the Rules of Procedure.
What happened was this. The Commission adopted a decision in 2003 fining five companies for participating in a carbon and graphite products cartel, one of which was Schunk. Schunk benefited from a 10% reduction in its fine because it coöperated with the Commission during the course of the investigation and admitted the facts set out in the statement of objections. But then it sprung a surprise and contested the facts set out in the statement of objections for the first time in its application to the Court of First Instance. As a consequence, the Commission introduced what it optimistically called a "counterclaim" asking the Court to exercise its unlimited jurisdiction under Article 229 EC to increase the fine by 10%, that is to say to remove the benefit of the reduction that Schunk had obtained.
Schunk naturally argued that such a counterclaim was inadmissible.
The Court of First Instance - rather surprisingly - held that the counterclaim was admissible and that it could reappraise the fine to cancel, reduce or even increase it (see Case C-3/06 P Groupe Danone v. Commission, paragraph 61). The Court also referred to the 1996 Leniency Notice which stated that if a company has benefited from a reduction in a fine for not substantially contesting the facts but then contests them for the first time before the Court, the Commission can ask the court to increase the fine. The Court pointed out that its counterclaim was based precisely on that "provision". The problem with that reasoning is that a Leniency Notice does not contain a "provision" of law that can serve as a basis for a claim or counterclaim not provided for in the Rules of Procedure.
The Court of First Instance dismissed the counterclaim on its merits. It pointed out that it had rejected the pleas challenging the findings of the Commission which it had previously admitted on the basis of the case law according to which facts which an undertaking has expressly acknowledged during the administrative procedure must be regarded as established, since that undertaking is barred from putting forward pleas disputing those facts in proceedings before the Court.
The Court recalls that the Court of Justice held in Case C‑297/98 P SCA Holding v Commission, paragraph 37, that where an undertaking does not expressly acknowledge the facts, the Commission will have to prove them and the undertaking is free to put forward, at the appropriate time and in particular in the procedure before the Court, any plea in its defence which it deems appropriate. But, it went on, that cannot be the case where the undertaking acknowledges the facts (Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v. Commission, paragraph 227; Joined Cases T‑236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T‑252/01 Tokai Carbon and Others v. Commission; ‘Tokai I’, paragraph 108).
Because the Court of First Instance had summarily dismissed the pleas in which Schunk challenged the findings it had previously admitted to, it did not find any grounds for cancelling the reduction of 10% which Schunk had benefited from.
The Court of First Instance also clarified that that case-law does not restrict the ability of an undertaking sanctioned by the Commission from bringing of actions, but serves to identify the scope of the challenge which may be brought before the Court, in order to prevent the determination of the facts at the origin of the infringement concerned from being shifted from the Commission to the Court. When an action under Article 230 EC is brought before the Court, it has jurisdiction to review the legality of the decision imposing the fine and to alter it, where necessary, by virtue of its unlimited jurisdiction (order in Case T‑252/03 FNICGV v Commission, paragraph 24).
For a case in which the Court of First Instance did actually increase the fine - albeit in different circumstances - see our post here.
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