CJEU - T-265 / 12 Judgment Schenker v Commission

Key Facts of the Case

European Commission, represented initially by A. Dawes and N. von Lingen, and subsequently by A. Dawes and G. Meessen, acting as Agents, and by B. Kennelly and H. Mussa, Barristers,

defendant,

APPLICATION for annulment of Commission Decision C(2012) 1959 final of 28 March 2012 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/39462 — Freight forwarding), in so far as it concerns the applicant, and for variation of the fine imposed on it in that decision.

Results (sanctions) and key consequences of the case:

THE GENERAL COURT (Ninth Chamber)

hereby:

  1. Dismisses the action;

  2. Orders Schenker Ltd to pay the costs.

Paragraphs referring to EU Charter: 
  1. The fourth plea relates to an infringement of Article 101(1) TFEU, Article 296 TFEU, Article 41 of the Charter of Fundamental Rights of the European Union and Articles 4, 7 and 23(2) of Regulation No 1/2003, and also breach of the principles of personal liability and sound administration, in that only the applicant was held to be liable for the conduct of Bax Global (UK).
  1. The applicant argues that, by using the information and evidence contained in DP’s application for immunity, the Commission infringed Articles 4, 7 and 27(2) of Regulation No 1/2003, the rights of the defence and the right to a fair hearing, recognised by EU law and enshrined in Article 47 and Article 48(2) of the Charter of Fundamental Rights, and in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.
  1. By this plea in law, the applicant challenges the Commission’s decision to hold the applicant solely liable for the conduct of Bax Global (UK). The plea has three parts. By the first part, claiming, inter alia, an infringement of Article 101(1) TFEU and the principle of personal responsibility, the applicant argues that there is no legal basis for holding it liable for the conduct of Bax Global (UK). By the second part of the plea, claiming an infringement of Article 41 of the Charter of Fundamental Rights and the principle of sound administration, the applicant criticises the Commission for having failed to investigate whether Brink’s, the former parent company of Bax Global (UK), should, together with the applicant or alone, have been held liable for the conduct of Bax Global (UK). By the third part of the plea, claiming an infringement of Article 296 TFEU, the applicant complains that the Commission failed to state in the contested decision sufficient reasons for that purpose.

The second part, concerning a breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration, and the third part, concerning a breach of the duty to state reasons

  1. In these parts of this plea, first, the applicant argues that, by omitting to examine diligently and sufficiently whether it could hold Brink’s liable for the conduct of Bax Global (UK) and to what extent it was necessary and fair to take action against the applicant in order to ensure the effective enforcement of the European Union competition rules, the Commission was in breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration. Secondly, the applicant claims that the Commission did no more than make known that it had chosen not to hold Brink’s to be liable, whereas, under Article 296 TFEU, it ought to have stated reasons for the decision not to hold Brink’s, the former parent company of Bax Global (UK), liable either solely or jointly and severally. Consequently, the contested decision should be annulled, or, at the least, there should be imposed on the applicant only that proportion of the fine which it would ultimately have had to pay if it had been able to seek recovery from Brink’s as being jointly and severally liable.

The breach of Article 41 of the Charter of Fundamental Rights and the principle of sound administration

  1. Consequently, the second part of the plea, claiming a breach of Article 41 of the Charter of Fundamental Rights and of the principle of sound administration, must be rejected.
  1. In that regard, it must be observed that, under Article 49(3) of the Charter of Fundamental Rights, the severity of penalties must not be disproportionate to the infringement and, under Article 23(3) of Regulation No 1/2003, in order to determine the amount of the fine, the Commission must have regard to the gravity and duration of the infringement.