Key facts of the case:
APPLICATION for the full or partial annulment of Commission Decision C(2011) 4378 final of 22 June 2011 relating to a proceeding under Article 102 TFEU (Case COMP/39.525 — Telekomunikacja Polska) and for a reduction of the fine imposed by the Commission in Article 2 of that decision...
Results (sanctions) and key consequences of the case:
- Dismisses the action;
- Orders Orange Polska S.A. to bear its own costs and to pay those of the European Commission;
- Orders Polska Izba Informatyki i Telekomunikacji and the European Competitive Telecommunications Association to bear their own costs.
71. According to the applicant, that interpretation of Article 7 of Regulation No 1/2003 complies with the case-law of the Court of Justice, in particular the judgments of 2 March 1983 in GVL v Commission (7/82, ECR, EU:C:1983:52) and of 6 October 2005 in Sumitomo Chemical and Sumika Fine Chemicals v Commission (T‑22/02 and T‑23/02, ECR, EU:T:2005:349). It is also justified by the need to ensure respect for the procedural safeguards provided for by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’), signed in Rome on 4 November 1950, and Article 47 of the Charter of Fundamental Rights of the European Union.
82. The first plea is based on Article 6 of the ECHR and Article 47 of the Charter of Fundamental Rights. According to the applicant, it is apparent from those two articles read together that a fine may be imposed only by an ‘independent and impartial tribunal established by law’ which fulfils all the procedural safeguards provided for in Article 6 ECHR. Not only is the Commission not a court, but it combines prosecution and decision-making functions. The fines it imposes, which are indeed manifestly of a ‘criminal’ nature within the meaning of Article 6 of the ECHR, are therefore not imposed by a body which is truly independent of the administration and thus infringe the principle of impartiality enshrined in the above provisions.
83. The applicant declined to answer the question put by the Court by way of measures of organisation of procedure with respect to the appropriate conclusions to be drawn, in relation to that plea, from the judgments of 8 December 2011 in Chalkor v Commission (C‑386/10 P, ECR, EU:C:2011:815, paragraphs 62, 63 and 81) and 18 July 2013 in Schindler Holding and Others v Commission (C‑501/11 P, ECR, EU:C:2013:522, paragraphs 33 to 38), of which formal notice was taken at the hearing. The applicant nevertheless asked the Court to exercise its unlimited jurisdiction, in accordance with the principles established in the case-law cited above, and, accordingly, to take account of both Article 6 ECHR and Article 47 of the Charter of Fundamental Rights, as when examining the arguments put forward in support of the head of claim seeking adjustment of the amount of the fine.
85. The second plea alleges breach of the applicant’s rights of defence. By this plea, the applicant submits that Article 2 of the contested decision infringes its right to be heard and its rights of defence, enshrined in Articles 41 and 48 of the Charter of Fundamental Rights and Article 27 of Regulation No 1/2003 and in Articles 10 and 15 of Regulation No 773/2004.
86. According to the applicant, the case-law of the Court of Justice and of the General Court relating to the required content of the statement of objections is superseded by the provisions of the Charter of Fundamental Rights listed in the previous paragraph. Thus, since the entry into force of the Lisbon Treaty, the Commission is under an obligation to provide in the statement of objections both the factual and legal elements required to prove the infringement and the factual and legal elements which are relevant for the calculation of the amount of the fine. As regards the calculation of the amount of the fine, the Commission is under an obligation to present in the statement of objections not only the key elements required for the determination of the basic amount of the fine, but also the elements of which it takes account for adjustments to the basic amount, namely the facts capable of constituting aggravating and mitigating circumstances. Similarly, the final amount of the fine likely to be imposed on the undertaking in question should, according to the applicant, be set out in the statement of objections. The possibility for the applicant to contest the final amount of the fine before the Court is not sufficient to ensure that the rights flowing from Articles 41 and 48 of the Charter of Fundamental Rights are protected.
95. It is clear from the case-law of the Court of Justice, elaborated in the context of the application of Article 47 of the Charter of Fundamental Rights, that the entry into force of the Lisbon Treaty, incorporating the Charter of Fundamental Rights into European Union primary law, has not substantially changed the content of the right to a fair trial, as it derives inter alia from Article 6 ECHR and as recognised at EU level as a general principle of EU law (see, to that effect, judgment of 3 May 2012 in Legris Industries v Commission, C‑289/11 P, EU:C:2012:270, paragraph 36 and the case-law cited). Those considerations may be extended to the right to be heard and, more broadly, to the rights of the defence as a whole, relied on by the applicant, to the extent that those rights help to ensure that a fair trial is held.
108. Before examining those two parts, it should be noted, first, that pursuant to Article 49(3) of the Charter of Fundamental Rights, the severity of penalties must not be disproportionate to the offence.
115. The review provided for by the treaties, the limits of which are defined by the case-law referred to in paragraphs 65 to 67 and 114 above, which entails a review by the Court of both the law and the facts, and a power to assess the evidence, to annul the contested decision and to alter the amount of a fine, is, contrary to the applicant’s initial assertions, consistent with the requirements of the principle of principle of effective judicial protection set out in Article 47 of the Charter of Fundamental Rights (see, to that effect, judgment in Schindler Holding and Others v Commission, paragraph 83 above, EU:C:2013:522, paragraph 38 and the case-law cited).