CJEU, 5th chamber, November 10, 2022, No C-385/21

THE COURT (Fifth Chamber),

1 This request for a preliminary ruling concerns the interpretation of Article 4(3) TEU and Article 101 TFEU, read in the light of the principle of proportionality.

2 The request has been made in proceedings between Zenith Media Communications SRL and the Consiliul Concurenței (Competition Council, Romania) concerning a decision imposing a fine on that company for infringement of the rules of competition law.

Legal context

European Union law

Regulation (EC) No 1/2003,

3 Article 3(1) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) provides:

‘Where the competition authorities of the Member States or national courts apply national competition law to agreements, decisions by associations of undertakings or concerted practices within the meaning of Article [101(1) TFEU] which may affect trade between Member States within the meaning of that provision, they shall also apply Article [101 TFEU] to such agreements, decisions or concerted practices. …’

4 Article 5 of that regulation provides:

‘The competition authorities of the Member States shall have the power to apply Articles [101 and 102 TFEU] in individual cases. For this purpose, acting on their own initiative or on a complaint, they may take the following decisions:

– requiring that an infringement be brought to an end,

– ordering interim measures,

– accepting commitments,

– imposing fines, periodic penalty payments or any other penalty provided for in their national law.

Where on the basis of the information in their possession the conditions for prohibition are not met they may likewise decide that there are no grounds for action on their part.’

5 Article 23(2) of that regulation provides that the European Commission may impose fines on undertakings and associations of undertakings for infringements of EU competition law. Those fines must not exceed 10% of the total turnover of the undertaking in the preceding business year.

6 As set out in Article 35(1) thereof:

‘The Member States shall designate the competition authority or authorities responsible for the application of Articles [101 and 102 TFEU] in such a way that the provisions of this regulation are effectively complied with. …’

Fourth Directive 78/660/EEC

7 The first subparagraph of Article 2(1) of Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article [50(2)(g) TFEU] on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11), as amended by Directive 2003/51/EC of the European Parliament and of the Council of 18 June 2003 (OJ 2003 L 178, p. 16), provides:

‘The annual accounts shall comprise the balance sheet, the profit and loss account and the notes on the accounts. These documents shall constitute a composite whole.’

8 It follows from Articles 22 to 26 of Fourth Directive 78/660, as amended by Directive 2003/51, that the net turnover is shown in the profit and loss account.

Romanian law

9 Article 2(3) of Legea concurenței nr. 21/1996 (Law on Competition No 21/1996) of 10 April 1996 (Monitorul Oficial al României, Part I, No 88 of 30 April 1996), in the version applicable to the dispute in the main proceedings (‘the Law on competition’), provides:

‘Where undertakings … participate in a grouping effected by agreement, understanding, pact, protocol, contract and the like, whether explicit, public or concealed, but without legal personality and whatever its form – alliance, coalition, group, bloc, federation and the like – with a view to the acts and facts referred to in paragraph 1, committed in the context of participation in such a grouping, the provisions of this Act shall apply to each undertaking, with due regard to the principle of proportionality.’

10 Article 5(1) of the Law on competition is worded as follows:

‘The following shall be prohibited: all agreements between undertakings, all decisions by associations of undertakings and all concerted practices of undertakings which have as their object or effect the prevention, restriction or distortion of competition in the Romanian market or a part thereof, in particular those which:

(a) directly or indirectly fix purchase or selling prices or any other trading conditions;

(b) limit or control production, markets, technical development, or investment;

(c) share markets or sources of supply;

(d) apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage;

(e) make the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.’

11 Article 55(1)(a) of the Law on competition provides as follows:

‘The following infringements, committed intentionally or negligently by undertakings or associations of undertakings, shall be punishable by a fine not exceeding 10% of the undertaking’s or association of undertakings’ total worldwide turnover in the business year preceding the penalty:

(a) infringement of Articles 5 and 6 of the present Law and of Articles 101 and 102 TFEU …’

12 Annexed to Ordinul nr. 420, pentru punerea în aplicare a Instrucțiunilor privind individualizarea sancțiunilor pentru contravențiile prevăzute la articolul [55] din legea concurenței nr. 21/1996 (Order No 420 on the implementation of the instructions for the individualisation of penalties for administrative infringements under Article [55] of the Law on competition) of 2 September 2010 (Monitorul Oficial al României, Part I, No 638 of 10 September 2010), are guidelines addressed to the Competition Council for the calculation of fines (‘the Guidelines for the individualisation of penalties’), Chapter II, point A, of which provides:

‘A. Determination of the exchange rate

1. The basic rate is determined according to the gravity and duration of the facts. The basic rate is obtained by adding the two amounts set out below, according to gravity and duration:

x severity + y duration = basic rate

2. The total turnover achieved by the offender in the financial year preceding the penalty, determined in accordance with the tax regulations in force, shall be taken as the starting point for determining the basic rate of the fine in the case of the contraventions referred to in Article [55] of the Law.’

13 Ordinul nr. 3055, pentru aprobarea Reglementarilor contabile conforme cu directivele europene (Order No 3055, approving the accounting rules in accordance with the European directives), of 29 October 2009 (Monitorul Oficial al României, Part I, No 766 of 10 November 2009, ‘the Order approving the accounting rules’), provides, in points 33, 46 and 253:

‘33. (1) “Net turnover” means the amounts derived from the sale of products and the provision of services that are part of the entity’s current activity after deducting sales rebates and value added tax and other taxes directly linked to turnover.

…

46. (1) Principle of substance over form. The presentation of values in the context of the balance sheet and profit and loss account items is carried out taking into account the economic substance of the notified transaction or operation and not only its legal form.

(2) The purpose of compliance with this principle is to ensure that economic-financial transactions are fairly accounted for and presented in accordance with the economic reality, highlighting the rights and obligations and the risks associated with those transactions.

…

(4) Entities are required to take into account all available information when accounting for economic-financial transactions, so as to make it extremely rare that the nature of the transaction, determined on the basis of the substance-over-form principle, differs from that which would be established in the absence of application of that principle.

…

253. …

(2) Amounts received by an entity on behalf of third parties, including in the case of agent, commission or commercial mandate contracts concluded in accordance with the law, are not income from ordinary activities, even if, from the point of view of value added tax, persons acting in their own name are considered to be purchaser-resellers. In that case, the income from the current activity is constituted by the commissions due.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

14 By decision of 3 December 2014, the Competition Council found that, between 26 March and 17 October 2012, a number of undertakings, including the applicant in the main proceedings, which offer advertising network services, had committed a single and continuous infringement of Article 5(1) of the Law on competition and Article 101(1) TFEU, by participating in a cartel with the object of eliminating competing advertising networks from the Romanian market (the ‘Competition Council’s decision’). The applicant in the main proceedings was fined 2 146 199 Romanian lei (RON) (approximately EUR 484 759, representing 2.52% of its turnover, as shown in the profit and loss account of its accounts for the financial year 2013.

15 The applicant in the main proceedings brought an action before the Curtea de Apel București (Court of Appeal, Bucharest, Romania) seeking the annulment of the Competition Council’s decision or, in the alternative, the reduction of the amount of the fine, taking into account the maximum limit which would result from the correct determination of its turnover. That application was dismissed by judgment of 8 June 2016.

16 In support of its appeal against that judgment before the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice, Romania), the referring court, the applicant in the main proceedings submits that, as an advertising agency, it acts as an intermediary between advertisers and providers of advertising services, such as television channels. Advertising agencies pay the providers of advertising services their remuneration, which they collect from the advertisers. Advertising agencies’ remuneration takes the form of commission received from the advertiser. Only that commission is part of the turnover of an advertising agency. As a basis for calculating the fine imposed, the Competition Council took into account, the turnover indicated in the applicant’s accounts, which included not only the commissions received but also the amounts paid through the applicant to the providers of advertising services. In so doing, the Competition Council disregarded point 253(2) of the Order approving the accounting rules and refused to apply the legal provisions and case-law on the calculation of turnover in the case of intermediaries, based on point 152 of its Guidelines of 5 August 2010 on the rules applicable to merger control. The applicant was thus penalised, not for the alleged infringement of competition law, but for the way in which it kept its accounts. In those circumstances, in dismissing the appeal against the decision of the Competition Council, the Curtea de Apel București (Court of Appeal, Bucharest), in disregard of the principle of proportionality, failed to take account of the actual income of the applicant in the main proceedings.

17 The referring court points out that, prior to the adoption of that decision, all the undertakings involved argued that, for the purposes of determining the amount of the fine, the Competition Council should take account not of all their revenue but only of their actual revenue. However, the decision, the Law on competition and the Guidelines on the individualisation of penalties refer to the total turnover as shown in the annual accounts as the basis for the calculation of the fine, without distinguishing between the components of that turnover or the activities of the undertaking concerned. The Guidelines on the individualisation of penalties do not leave the Competition Council any discretion in order to avoid the risk of arbitrariness. Thus, a company involved cannot claim that the turnover shown in its profit and loss account fails to comply with the relevant accounting rules, since that figure results from its own decisions and accounting entries.

18 The referring court also points out that, according to point 253(2) of the Order approving the accounting rules, an agent’s income consists of the commissions which he or she receives as remuneration for the intermediary services which he or she offers and that, in a merger case, the Competition Council made its own assessment of the turnover of the applicant in the main proceedings in order to take account only of the commissions received in respect of its activity as an intermediary .

19 In particular, the national court considers that, in those circumstances, it must balance the principles of foreseeability and proportionality against the deterrent effect of the penalty, in order to determine whether the Competition Council is required to take into account only that part of the turnover representing the commissions received by the applicant in the main proceedings. That exercise should be carried out in the light of the duty of sincere cooperation and the obligation of Member States to refrain from any measure which might prevent the effective application of Article 101 TFEU.

20 In particular, the referring court questions whether the approach whereby the Competition Council is obliged to determine the basic rate of the fine by reference to the turnover shown in the profit and loss account of the applicant in the main proceedings, which includes, in addition to the commissions as remuneration for the activity of intermediary , the amounts collected from advertisers and paid to the providers of advertising services, is contrary to the principle of proportionality. To hold that the Competition Council is not entitled to take account of a different turnover might lead it to impose a fine which, while predictable and dissuasive, does not reflect the real economic situation of the undertaking concerned and thus breaches that principle.

21 In those circumstances the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘Must Article 4(3) TEU and Article 101 TFEU be interpreted as meaning that:

(1) imposing an obligation upon a Member State’s competition authority to interpret national law governing the fixing of fines in accordance with the principle of proportionality, in the sense that it is necessary to verify whether total turnover, as stated in the profit and loss account of the balance sheet for the previous financial year, faithfully reflects the economic and financial operations in accordance with the economic reality;

(2) precluding, in the light of the principle of proportionality, the practice of a Member State’s competition authority of imposing a fine in relation to the turnover stated in the profit and loss account of the balance sheet for the previous financial year, which includes the sums re-invoiced to final customers in connection with services for the purchase of media space by an intermediary, rather than just the commissions on the work of the intermediary;

(3) precluding the interpretation of a rule of national law as meaning that responsibility for the correct recording in the accounts and the faithful presentation of the economic and financial operations in accordance with the economic reality lies with the undertaking that is fined and that a Member State’s competition authority is bound by the manner in which the undertaking that is fined fulfils that obligation?’

Consideration of the questions referred

Admissibility

22 The Competition Council submits, first, that the questions referred for a preliminary ruling are inadmissible on the ground that the national court is in fact asking the Court of Justice to interpret the concept of ‘turnover’ contained in a rule of national law and to rule itself on the facts of the main proceedings.

23 In the procedure laid down by Article 267 TFEU, the functions of the Court of Justice and those of the referring court are clearly distinct, and it falls exclusively to the latter to interpret national legislation and to assess the facts of the dispute in the main proceedings (judgment of 14 November 2019, Spedidam, C‑484/18, EU:C:2019:970, paragraph 28 and the case-law cited).

24 However, contrary to the Competition Council’s submissions, the referring court does not ask the Court to interpret national law.

25 The questions referred by that court concern the interpretation of Article 4(3) TEU and Article 101 TFEU, read in the light of the principle of proportionality, in the context of a dispute concerning the legality of the amount of the fine imposed on the applicant in the main proceedings by the national competition authority for infringement of both national and EU competition law. That court seeks, in particular, considerations which are relevant for the purpose of interpreting EU law in order to determine the extent to which, for the purposes of calculating that amount, the turnover recorded in the accounts is binding.

26 Second, the Competition Council submits that the questions referred for a preliminary ruling are hypothetical, on the ground that, during the administrative procedure, the applicant in the main proceedings failed to challenge the accuracy of the accounting entries which it had made in its profit and loss account, merely arguing that only part of its turnover should have been taken into account for the purposes of calculating the fine.

27 However, in that regard it must be recalled that, according to the Court’s settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling (judgment of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraph 32 and the case-law cited).

28 It follows that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraph 33 and the case-law cited).

29 In the present case, it is sufficient to observe, as already noted in paragraph 25 of the present judgment, that the questions raised concern the interpretation of EU law. First, it does not appear that the interpretation of that law sought bears no relation to the actual facts of the dispute in the main proceedings, since each of the questions appears capable of providing guidance to the national court so as to enable it to rule on the legality of the amount of the fine imposed on the applicant in the main proceedings and, consequently, to decide that dispute. Second, the order for reference contains all the factual and legal elements necessary to answer these questions. In those circumstances, it cannot be considered that those questions are irrelevant.

30 Consequently, the questions put by the Înalta Curte de Casaţie şi Justiţie (High Court of Cassation and Justice) are admissible.

Substance

31 By its three questions, which must be considered together, the national court asks, in essence, whether Article 4(3) TEU and Article 101 TFEU, read in the light of the principle of proportionality, must be interpreted as precluding national legislation or practice under which, for the purposes of calculating the fine imposed on an undertaking for infringement of Article 101 TFEU, a national competition authority is required, in all circumstances, to take account of the turnover as shown in the profit and loss account of that undertaking, without having the possibility of examining evidence put forward by that undertaking to show that that turnover does not reflect its real economic situation and that, consequently, another amount reflecting that situation should be taken into account as turnover.

32 In accordance with Article 35(1) of Regulation No 1/2003, the Member States are to designate the competition authority or authorities responsible for the application of Article 101 TFEU in such a way that the provisions of that regulation are effectively complied with. The authorities thus designated must, in accordance with the latter, ensure the effective application of that provision of the TFEU in the general interest (judgment of 7 December 2010, VEBIC, C‑439/08, EU:C:2010:739, paragraph 56).

33 To that end, Article 5 of Regulation No 1/2003 specifies that the national competition authority with the power to apply Article 101 TFEU may impose fines, periodic penalty payments or any other penalty provided for in its national law.

34 The reference in Article 5 of Regulation No 1/2003 to the provisions of national law providing for penalties for infringement of Article 101 TFEU implies that the Member States are obliged, under the second and third subparagraphs of Article 4(3) TEU, to take all appropriate measures to ensure the scope and effectiveness of that provision of the FEU Treaty. The Court has consistently held that in the absence of EU law on the matter, Member States must exercise their jurisdiction in compliance with it and, in particular, the principle of effectiveness. Accordingly, they may not render the implementation of EU law impossible in practice or excessively difficult and, specifically, in the area of competition law, they must ensure that the rules which they establish or apply do not jeopardise the effective application of Article 101 TFEU (see, to that effect, judgment of 21 January 2021, Whiteland Import Export, C‑308/19, EU:C:2021:47, paragraphs 47and 48 and the case-law cited). Therefore, whilst the choice of penalties remains within their discretion, the Member States must ensure in particular that infringements of Article 101 TFEU are penalised under conditions, both procedural and substantive, which are proportionate and dissuasive (see, to that effect, judgments of 14 September 2017, Autortiesību un komunicēšanās konsultāciju aģentūra – Latvijas Autoru apvienība, C‑177/16, EU:C:2017:689, paragraph 68, and of 3 April 2019, Powszechny Zakład Ubezpieczeń na Życie, C‑617/17, EU:C:2019:283, paragraph 37).

35 In the latter regard, it must be recalled that the principle of proportionality requires, first, that the penalty imposed should correspond to the gravity of the infringement and, second, that when setting the amount of the fine, account should be taken of the individual circumstances of the particular case (see, by analogy, judgment of 4 October 2018, Link Logistik N&N, C‑384/17, EU:C:2018:810, paragraph 45).

36 Furthermore, as regards the imposition of a fine for infringement of Article 101 TFEU, it follows from the case-law of the Court of Justice relating to the powers of the Commission under the second subparagraph of Article 23(2) of Regulation No 1/2003 that the requirement that the fine imposed on an undertaking which has infringed Article 101 TFEU must not exceed 10% of the undertaking's total turnover in the preceding business year is intended specifically to ensure that, in accordance with the principle of proportionality, the impact on the undertaking concerned is assessed in each individual case, in particular by taking into account a turnover which reflects its real economic situation during the period in which the infringement was committed (see, to that effect, judgment of 23 April 2015, LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraphs 48 and 49 and the case-law cited). The concept of ‘turnover’ covers the value of the concerned undertaking’s sales of goods or services, thereby reflecting its real economic situation (see, to that effect, judgment of 14 September 2017, Autortiesību un komunicēšanās konsultāciju aģentūra – Latvijas Autoru apvienība, C‑177/16, EU:C:2017:689, paragraph 65).

37 It follows that, although the Member States are competent to lay down the penalties which a national competition authority may impose for an infringement of Article 101 TFEU, national legislation or a practice of the national competition authority, according to which the latter is in all cases obliged to calculate the amount of the fine by taking into account only the turnover entered in the profit and loss account, excluding the possibility of examining any justification or relevant data put forward by the undertaking concerned in order to demonstrate that the amount in question does not reflect economic reality, could lead to the imposition of fines which exceed the limits of what is necessary to achieve the objectives of Article 101 TFEU.

38 Subject to the legal and factual substantiation of the sufficiently precise and documented evidence put forward by the undertaking concerned, the fine imposed could, while being below the maximum limit laid down by the national legislation and determined on the basis of the turnover indicated in the profit and loss account, actually exceed that limit if the latter were determined on the basis of a calculation of turnover reflecting the undertaking’s real economic situation.

39 A national competition authority must therefore have the possibility to examine the legal and factual merits of any evidence that could credibly demonstrate that the amount of turnover shown in the profit and loss account does not reflect the real economic situation of the undertaking concerned. In the present case, it is thus for the national competition authority to ascertain whether the applicant in the main proceedings did in fact act, as it claims, as an agent which collected sums on behalf of third parties and whose remuneration took the form of commission, and to question the applicant as to the precise reasons why it did not consider it necessary to correct the amount of its turnover as shown in its profit and loss account. It will then be for that authority to draw the appropriate conclusions from the explanations provided by the applicant in order to ensure both that the fine is a deterrent and that it complies with the principle of proportionality.

40 Contrary to the Competition Council’s submissions, the need to set the fine on the basis of objective criteria and to ensure the predictability of the fine cannot justify a different interpretation.

41 On the one hand, every national competition authority is required to adjust the amount of the fine to the particularities of each individual case, taking into account objective criteria such as the gravity and duration of the infringement as well as any aggravating and mitigating circumstances, in order to ensure that the fine is effective, dissuasive and proportionate.

42 On the other hand, as regards the predictability of the fine, it must be observed that that is guaranteed by the provisions of national law, which allow the undertakings concerned to determine in advance the maximum amount of the fine which may be imposed on them by the national competition authority and the objective factors taken into account by that authority in calculating that fine, since those provisions are such as to provide a framework for the exercise of the power enjoyed by that authority (see, by analogy, judgment of 23 April 2015, LG Display and LG Display Taiwan v Commission, C‑227/14 P, EU:C:2015:258, paragraph 51).

43 In the light of the foregoing considerations, the answer to the questions referred is that Article 4(3) TEU and Article 101 TFEU, read in the light of the principle of proportionality, must be interpreted as precluding national legislation or practice under which, for the purposes of calculating the fine imposed on an undertaking for infringement of Article 101 TFEU, the national competition authority is required, in all circumstances, to take into account the turnover of that undertaking as shown in its profit and loss account, without having the possibility of examining evidence put forward by that undertaking to show that that turnover does not reflect its real economic situation and that, consequently, another amount which reflects that situation should be taken into account as turnover, provided that that evidence is precise and documented.

Costs

44 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

Article 4(3) TEU and Article 101 TFEU

must be interpreted as precluding national legislation or practice under which, for the purposes of calculating the fine imposed on an undertaking for infringement of Article 101 TFEU, the national competition authority is required, in all circumstances, to take into account the turnover of that undertaking as shown in its profit and loss account, without having the possibility of examining evidence put forward by that undertaking to show that that turnover does not reflect its real economic situation and that, consequently, another amount which reflects that situation should be taken into account as turnover, provided that that evidence is precise and documented.