GC, 6th chamber, October 2, 2024, No T-181/22

THE GENERAL COURT (Sixth Chamber),

1 By its action under Article 263 TFEU, the applicant, Pharol, SGPS SA, seeks the annulment in part of Commission Decision C(2022) 324 final of 25 January 2022 amending Decision C(2013) 306 final of 23 January 2013 relating to a proceeding under Article 101 TFEU (Case AT.39839 – Telefónica and Portugal Telecom) (‘the contested decision’) and, in the alternative, the reduction of the amount of the fine imposed on it in the contested decision.

I. Background to the dispute

2 The present dispute originated in a clause (‘the clause’) inserted in Article 9 of the share purchase agreement (‘the agreement’) signed by Telefónica, SA and Portugal Telecom, SGPS SA, subsequently renamed Pharol, SGPS SA (‘PT’ or ‘the applicant’ and, together with Telefónica, ‘the parties’) on 28 July 2010, whereby Telefónica was to acquire exclusive control of the Brazilian mobile network operator Vivo Participações, SA (‘Vivo’). The clause is worded as follows:

‘Ninth – non-compete

To the extent permitted by law, each party shall refrain from engaging or investing, directly or indirectly through any affiliate, in any project in the telecommunications business (including fixed and mobile services, internet access and television services, but excluding any investment or activity currently held or performed as of the date hereof) that can be deemed to be in competition with the other [party] within the Iberian market for a period starting on the date [of the definitive conclusion of the transaction of 27 September 2010] until [31 December] 2011.’

A. The 2013 Decision

3 On 23 January 2013, the European Commission adopted Decision C(2013) 306 final relating to a proceeding under Article 101 TFEU (Case AT39.839 – Telefónica/Portugal Telecom) (‘the 2013 Decision’), by which it considered that the clause constituted a non-compete agreement and that, by participating in it, Telefónica and PT had infringed Article 101 TFEU.

4 As regards the scope of the clause, the Commission considered, in the light of its wording, that it covered any project regarding electronic communications services, on condition that the other party to the agreement rendered or might render that service. Consequently, the clause referred to fixed and mobile telephone services, internet access and television services and also broadcasting transmission services. On the other hand, the Commission found that any investment or activity carried out before the date of signature of the agreement, namely 28 July 2010, was excluded from the scope of the clause. In that regard, the Commission noted that global telecommunications services and wholesale international carrier services were excluded from the scope of the clause because each of the parties was present in the market for such services within the Iberian Peninsula at the time of signature of the agreement.

5 As regards the geographic scope of the clause, the Commission interpreted the expression ‘Iberian market’ as referring to the Spanish and Portuguese markets. Having regard to the parties’ commercial activities, which consisted of a presence on most of the electronic communications markets in the country of origin of each of them and little or no presence in the country of origin of the other party, the Commission considered that the geographic scope of the clause corresponded to Portugal for Telefónica and to Spain for PT.

6 The Commission concluded that the clause imposed a non-compete obligation on the parties and constituted a market-sharing agreement with the object of restricting competition in the internal market. According to the Commission, the clause thereby infringed Article 101 TFEU, in view of the content of the agreement and the economic and legal context of which it formed part (for example, the electronic communications markets, which were liberalised) and the actual conduct and behaviour of the parties (in particular, the fact that the agreement was terminated by the parties on 4 February 2011, following the initiation of proceedings by the Commission).

7 As regards the calculation of the amount of the fines, the Commission applied, in the 2013 Decision, the provisions of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’).

8 In order to determine the basic amount of the fine to be imposed, the Commission took into account the value of the services covered by the clause, as defined in paragraphs 4 and 5 above and, in particular, for each party, only the value of its own sales in its country of origin. It used the undertakings’ sales in 2011 and considered that the value of sales to be taken into consideration was 2% for the two undertakings concerned. It took account of the fact that the infringement had covered the period from 27 September 2010 (the date of the notarised deed of the transaction and thus of the definitive conclusion of the transaction) until 4 February 2011 (the date on which, after the Commission had initiated the proceedings on 19 January 2011, Telefónica and PT signed an agreement deleting the clause). Lastly, the Commission considered that the date of termination of the clause constituted a mitigating circumstance, since the clause was terminated only 16 days after the Commission initiated the proceedings and 30 days after it sent the first request for information to the parties and that it was not secret, so that the amount of the fine to be imposed on the parties should be reduced by 20%.

9 The final amount of the fines came to EUR 66 894 000 for Telefónica and EUR 12 290 000 for PT. The Commission pointed out that those amounts did not exceed 10% of the total turnover of each of the undertakings concerned.

B. Annulment in part of the 2013 Decision

10 By judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), the Court annulled Article 2 of the 2013 Decision in that it sets the amount of the fine imposed on PT at EUR 12 290 000, in so far as that amount was set on the basis of the value of sales taken into account by the Commission. The Court held that, in order to determine the value of sales, the Commission should have determined the services for which the parties were not in potential competition within the Iberian market, by examining the material put forward by them in their replies to the statement of objections in order to demonstrate the absence of potential competition between them with respect to certain services during the period of application of the clause.

11 By judgment of 28 June 2016, Telefónica v Commission (T‑216/13, EU:T:2016:369), the Court annulled Article 2 of the 2013 Decision in that it sets the amount of the fine imposed on Telefónica at EUR 66 894 000, in so far as that amount was set on the basis of the value of sales taken into account by the Commission. The annulment is based on the same ground as in the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368).

12 By judgment of 13 December 2017, Telefónica v Commission (C‑487/16 P, not published, EU:C:2017:961), the Court of Justice dismissed the appeal brought against the judgment of 28 June 2016, Telefónica v Commission (T‑216/13, EU:T:2016:369). No appeal was brought against the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368).

C. Contested decision

13 Following the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), the Commission sent a number of requests for information to the applicant between January and November 2018. The purpose of those requests was to determine the value of the applicant’s sales.

14 On 5 November 2019, the Commission sent a letter of facts to the applicant. On 10 January 2020, the applicant submitted its observations on that letter.

15 On 25 January 2022, the Commission adopted the contested decision, in which it examined the material put forward by the parties in order to demonstrate the absence of potential competition between them with regard to certain services on the Iberian market during the period of application of the clause. The Commission concluded that, as regards the applicant, the value of sales to be taken into consideration corresponded to the value of sales used in respect of it in the 2013 Decision, from which it was appropriate to deduct the value of sales of the services for which the parties were not in potential competition during the period of application of the clause. The sales of the services to be deducted were, first, sales of wholesale (physical) network infrastructure access (LLU) services, second, sales of wholesale services for broadcasting digital television and, third, sales of wholesale analogue terrestrial television broadcasting services.

16 The final amount of the fine imposed on the applicant by the contested decision is EUR 12 146 000.

17 The operative part of the contested decision reads as follows:

‘Article 1

In Article 2, points (a) and (b) of [the 2013 Decision], the amounts for the fines are amended as follows:

(a) [Telefónica]: EUR 66 894 000

(b) [Pharol]: EUR 12 146 000

…’

II.  Forms of order sought

18 The applicant claims, in essence, that the Court should:

– annul Article 1(b) of the contested decision;

– in the alternative, reduce the amount of the fine imposed on it in Article 1(b) of the contested decision;

– order the Commission to pay the costs.

19 The Commission contends that the Court should:

– dismiss the action;

– order the applicant to pay the costs.

III. Law

A. The claims for annulment

20 In support of its application for annulment of Article 1(b) of the contested decision, the applicant raises three pleas in law, alleging, first, infringement of the principle of res judicata attaching to the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), second, infringement of its rights of defence and infringement of essential procedural requirements resulting from Article 27(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), and, third, errors of law and fact in the determination of the value of sales.

1. The first plea, alleging infringement of the principle of res judicata attaching to the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368)

21 By its first plea, the applicant submits that, by interpreting, in recitals 72 to 77 of the contested decision, the clause as prohibiting the parties from taking preparatory steps for market entry, the Commission infringed the principle of res judicata attaching to the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368). In the applicant’s view, the clause prohibits only shareholdings or investments, without precluding preparatory steps. An interpretation of the clause as prohibiting those steps was not envisaged in the 2013 Decision, nor was it discussed in the context of the case which gave rise to the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368). Accordingly, that interpretation runs counter to the principle of res judicata of that judgment.

22 The Commission disputes the applicant’s arguments.

23 It is apparent from settled case-law, first, that res judicata extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question and, second, that the force of res judicata attaches not only to the operative part of that decision, but also to the ratio decidendi of that decision which is inseparable from it (judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 44, and of 19 April 2012, Artegodan v Commission, C‑221/10 P, EU:C:2012:216, paragraph 87).

24 In the present case, it is true that, in recital 76 of the contested decision, the Commission stated that ‘[the clause] prevented … the Parties from taking up any [preparatory] steps that could eventually lead to entering any market [that it covered]’.

25 It is also true that recitals 72 to 77 of the contested decision, relating to the interpretation of the clause as prohibiting preparatory steps, do not appear in the 2013 Decision.

26 However, in the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), the Court did not rule on whether the clause prohibited only the applicant from entering into any of the Spanish telecommunications markets and prevented Telefónica from expanding its limited presence in the Portuguese telecommunications markets, or whether it also prohibited steps preparatory to such entry or development, such as obtaining the requisite licences or carrying out market research.

27 It is apparent from paragraph 182 of the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), that the scope of the clause was defined not in relation to the type of measures prohibited by the clause, actual entry into the market or preparation for such an entry, but in relation to the services covered by it, namely, as stated in paragraph 4 above, electronic communications services and television services in Spain and Portugal, with the exception of global telecommunications services and wholesale international carrier services.

28 Furthermore, it should be noted that, although, in certain paragraphs of the application, the applicant claims that the Court ruled on the prohibition of preparatory steps, it nevertheless acknowledges, in other paragraphs of the application and in the reply, that the Court did not rule on that issue. Thus, it submits, for example, that, ‘in [the] judgment [of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368)], the interpretation of the clause … as being intended to hinder steps preparatory to market entry after its expiry …. was never established’; that the prohibition of preparatory steps ‘was not the subject … of the judgment [of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368)]’ and that, in that judgment, ‘the Court adopted a position on the scope of the [clause], without, however, ruling on the question … whether the preparatory steps fell within the scope of that clause’.

29 It follows from the foregoing that, in the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), the Court did not rule on the issue whether or not the clause prohibited preparatory steps, with the result that it cannot be considered that, by interpreting the clause as prohibiting those steps, the Commission infringed the principle of res judicata attaching to that judgment.

30 The first plea must therefore be rejected.

2. The second plea, alleging infringement of the rights of the defence and infringement of essential procedural requirements resulting from Article 27(1) of Regulation No 1/2003, owing to the failure to adopt a supplementary statement of objections

31 By its second plea, the applicant submits that, by interpreting the clause as prohibiting preparatory steps, the Commission infringed its rights of defence and the essential procedural requirements resulting from Article 27(1) of Regulation No 1/2003. Such an interpretation of the clause in the contested decision extended the scope of that clause and amended the 2013 Decision. The inclusion of preparatory steps in the scope of the clause constitutes a new matter which is unfavourable to the applicant. Accordingly, the Commission should have adopted a supplementary statement of objections in order to give the applicant the opportunity to comment on that matter. However, the Commission adopted a simple letter of facts instead of a supplementary statement of objections. The applicant observes, in that regard, that the rights of the defence are neither exercised nor guaranteed in the same way in the event of the adoption of a statement of objections and in the event of the adoption of a simple letter of facts. Such a letter does not give the parties the right to request an oral hearing.

32 The Commission disputes the applicant’s arguments.

33 According to settled case-law, in all proceedings in which penalties, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of EU law which must be fully complied with by the Commission (see judgment of 16 June 2022, Sony Corporation and Sony Electronics v Commission, C‑697/19 P, EU:C:2022:478, paragraph 69 and the case-law cited).

34 Article 27(1) of Regulation No 1/2003 provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the proceedings in order to enable the parties concerned properly to identify the conduct complained of by the Commission and the evidence which it has at its disposal (judgment of 25 January 2023, GEA Group v Commission, T‑640/16 RENV, not published, EU:T:2023:18, paragraph 207; see also, to that effect, judgment of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraphs 66 and 67).

35 Communication to the parties concerned of further objections is necessary only where the result of the investigations leads the Commission to take new facts into account against the undertakings or to alter materially the evidence for the contested infringements (judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 192, and of 15 June 2022, Qualcomm v Commission (Qualcomm – exclusivity payments), T‑235/18, EU:T:2022:358, paragraph 310), that is to say, if additional objections are issued or the intrinsic nature of the infringement in question is altered (judgment of 29 September 2021, Nippon Chemi-Con Corporation v Commission, T‑363/18, EU:T:2021:638, paragraph 123 (not published)).

36 By contrast, in accordance with paragraph 111 of the Commission notice on best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU (OJ 2011 C 308, p. 6), a simple letter (letter of facts) is sufficient if the objections raised against the undertakings concerned in the Statement of Objections are only corroborated by new evidence that the Commission intends to rely on.

37 In the present case, in the context of the procedure which led to the 2013 Decision, the Commission, on 21 October 2011, adopted a statement of objections (‘the 2011 statement of objections’). On 13 January 2012 Telefónica and the applicant replied to the statement of objections.

38 Following the annulment in part of the 2013 Decision by the Court, the Commission sent a letter of facts to Telefónica on 23 July 2019 and to the applicant on 5 November 2019. They replied on 18 October 2019 and 10 January 2020 respectively.

39 The Commission did not issue a supplementary statement of objections before adopting the contested decision. In that regard, in recitals 23 to 26 of that decision, the Commission stated that it had not upheld any new objection against Telefónica and the applicant. It stated, in those recitals, that it had merely recalculated the value of sales in accordance with the judgments of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), and of 28 June 2016, Telefónica v Commission (T‑216/13, EU:T:2016:369), and that the parties had had the opportunity to present their views on any new evidence put forward in the letter of facts, so that the contested decision did not materially alter the essential nature of the objections set out in the 2011 statement of objections.

40 In that regard, it is to be recalled that the annulment of an EU act does not necessarily affect preparatory measures, since the procedure for replacing the annulled measure may, in principle, be resumed at the very point at which the illegality occurred. The annulment of the act does not, in principle, affect the validity of the measures preparatory to that measure, which were taken before the stage at which the defect was observed. If it is found that the annulment does not affect the validity of the prior procedural measures, the Commission is not, as a result of that annulment alone, required to present the undertakings concerned with a new statement of objections (judgment of 6 July 2017, Toshiba v Commission, C‑180/16 P, EU:C:2017:520, paragraph 24).

41 It follows that the validity of the 2011 statement of objections, which was sent prior to the adoption of the 2013 Decision, is not called into question by the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), which annulled that decision only in so far as it sets the amount of the fine imposed on the applicant on the basis of the value of sales taken into account by the Commission.

42 Accordingly, the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), does not preclude the information provided in the 2011 statement of objections concerning the scope of the clause from being taken into consideration in order to review whether the applicant’s rights of defence were respected in the procedure which led to the contested decision.

43 The Court finds that the interpretation of the clause as prohibiting preparatory steps cannot be regarded as a new objection in relation to the objections notified in the 2011 statement of objections, an alteration of those objections or an alteration of the intrinsic nature of the infringement, within the meaning of the case-law cited in paragraph 35 above.

44 Although the 2011 statement of objections does not expressly state that the clause prohibits preparatory steps, such an interpretation is necessary in view (i) of the duration of the clause which is too short to allow actual entry to the markets in question and (ii) of the wording of the clause in its English-language version.

45 As regards the duration of the clause, as was confirmed at the hearing by the applicant and the Commission, because of the barriers to entry to the relevant markets, such as the obligation to obtain a licence or, in the case of the acquisition of an existing operator, the obligation to obtain the authorisation of the competent competition authority, actual entry was unlikely, if not impossible, for the duration of the clause, either as regards the duration provided for by the clause (from 27 September 2010 to 31 December 2011) or the period of application of the clause (from 27 September 2010 to 4 February 2011). Therefore, the clause can only be interpreted as also prohibiting steps preparatory to an actual entry which would take place after its expiry.

46 Such an interpretation of the clause is confirmed by its wording in English, that language being, as the Commission has argued without being contradicted, the language in which the agreement was drafted. In its English-language version, the clause stipulates as follows: ‘each party shall refrain from engaging or investing … in any project in the telecommunications business’. According to the Cambridge Dictionary, ‘engage in’ means ‘to become involved with something’ and, according to Merriam-Webster, ‘to begin and carry on an enterprise or activity’. The clause therefore prohibits the parties not only from pursuing (‘investing’) but also from initiating, becoming involved in or launching (‘engaging in’) a project in the telecommunications sector, under the conditions set out in the clause.

47 Accordingly, by expressly stating, in recitals 76 and 77 of the contested decision, that the clause prohibited preparatory steps, the Commission merely clarified, in view of the duration of the clause and its wording in English, its purpose.

48 It follows from the foregoing that, by interpreting the clause as prohibiting preparatory steps, the Commission did not raise a new objection against the parties, alter the objections notified in 2011 or alter the intrinsic nature of the infringement.

49 Accordingly, the Commission was not required to adopt a supplementary statement of objections in order to hear the parties on that interpretation.

50 Furthermore, it should be recalled that it was in order to recalculate the value of sales in accordance with the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), that the Commission interpreted the clause as prohibiting preparatory steps. The determination of the value of sales is not one of the matters in respect of which the Commission is required to hear the parties.

51 According to the case-law, in order to fulfil its obligation to respect the right of undertakings to be heard, the Commission is required to indicate expressly in the statement of objections that it will consider whether it is appropriate to impose fines on the undertakings concerned and to set out the principal elements of fact and of law that may give rise to a fine, such as the gravity and the duration of the alleged infringement and whether it has been committed intentionally or negligently. It is also apparent from that case-law that the Commission is not, however, required, once it has indicated the main factual and legal criteria on which it will base its calculation of the amount of the fines, to specify the way in which it will use each of those elements in order to determine their level (judgment of 6 July 2017, Toshiba v Commission, C‑180/16 P, EU:C:2017:520, paragraph 21).

52 The identification of the services in respect of which the parties are not potential competitors and whose sales must, for that reason, be excluded from the calculation of the fine cannot be regarded as one of the principal elements of fact and of law on which the Commission will base its calculation of the amount of the fine. The right to be heard does not cover such an element related to the method for determining the amount of the fine (see, by analogy, judgments of 28 June 2005, Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraphs 438 and 439, and of 6 July 2017, Toshiba v Commission, C‑180/16 P, EU:C:2017:520, paragraph 33).

53 Accordingly, the Commission was not required to adopt a supplementary statement of objections in order to hear the parties on the determination of the value of sales.

54 In addition, the applicant complains, in essence, that the Commission did not give it the opportunity to develop its arguments at an oral hearing.

55 It is true that the adoption of the contested decision was not preceded by an oral hearing. Nor had the adoption of the 2013 Decision been preceded by any oral hearing.

56 In that regard, it should be noted that, under Article 12 of its Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18), the Commission is to give the parties to whom it has addressed a statement of objections the opportunity to develop their arguments at an oral hearing, if they so request in their written observations.

57 It must be stated, however, that the right to an oral hearing provided for in Article 12 of Regulation No 773/2004 exists only after the Commission has issued a statement of objections. There is no right to an oral hearing in respect of a letter of facts.

58 Therefore, since the Commission was not required to adopt a supplementary statement of objections instead of the letter of facts, it was not required to hold an oral hearing before adopting the contested decision.

59 In any event, the applicant did not request an oral hearing before the adoption of the contested decision, as required by Article 12(1) of Regulation No 773/2004. Nor had it requested an oral hearing in the procedure leading to the 2013 Decision.

60 It follows from the foregoing that, by not adopting a supplementary statement of objections instead of the letter of facts, the Commission did not infringe either the applicant’s rights of defence or Article 27(1) of Regulation No 1/2003.

61 The second plea in law must therefore be rejected.

3. The third plea, alleging errors of law and fact in the determination of the value of sales

62 By its third plea, the applicant submits that the Commission erred in law and in fact in the choice and application of the criterion for determining the services for which the parties were potential competitors and which should, as such, be included in the determination of the value of sales within the meaning of point 13 of the 2006 Guidelines.

63 This plea consists of two parts, alleging, first, an error of law on the part of the Commission in the choice of the criterion for assessing the existence of potential competition between the parties for the purposes of determining the value of sales and, second, errors of law and fact on the part of the Commission in the assessment of the existence of potential competition between the parties on some of the markets covered by the clause.

(a)  The first part, alleging an error of law on the part of the Commission in the choice of the criterion for assessing the existence of potential competition between the parties for the purposes of determining the value of sales

64 By the first part, the applicant claims that the Commission erred in law by assessing the existence of potential competition between the parties on the basis of the criterion of insurmountable barriers to entry.

65 In that regard, the applicant disputes the Commission’s position that the same criterion must be used in order to establish the existence of a restriction by object and in order to calculate the amount of the fine. As regards establishing the existence of a restriction by object, it is apparent from paragraph 181 of the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), that the Commission is required only to examine whether there are barriers to entry. As regards the calculation of the amount of the fine, the absence of insurmountable barriers is not sufficient to establish the existence of potential competition. The existence of such competition can be inferred only from demonstrating that there are real and concrete possibilities of entering the market in question. That follows, in particular, from paragraphs 230 and 243 of the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), and from the judgment of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52); see also judgments of 29 June 2012, E.ON Ruhrgas and E.ON v Commission (T‑360/09, EU:T:2012:332); and of 12 December 2018, Servier and Others v Commission (T‑691/14, EU:T:2018:922).

66 The applicant concludes that, on the basis of the factual evidence which it had submitted to the Commission, the Commission ought to have examined whether Telefónica, which was not present on any of the Portuguese markets covered by the clause on 27 September 2010, was a potential competitor during the period of application of the clause, that is to say, between 27 September 2010 and 4 February 2011. In the applicant’s submission, the Commission was therefore required to determine whether there were insurmountable barriers to entry to those markets and, if that was not the case, whether there were real and concrete possibilities for Telefónica to enter one of those markets. Accordingly, by merely examining whether there were insurmountable barriers in order to determine whether the parties were in potential competition for the purposes of calculating the fine, the Commission erred in law.

67 The Commission disputes the applicant’s arguments.

68 It should be noted that, in the contested decision as in the 2013 Decision, the Commission applied the 2006 Guidelines.

69 According to point 13 of the 2006 Guidelines, ‘in determining the basic amount of the fine to be imposed, the Commission will take the value of the undertaking’s sales of goods or services to which the infringement directly or indirectly … relates in the relevant geographic area within the EEA.’

70 According to the case-law, while the concept of the value of sales referred to in point 13 of those guidelines cannot, admittedly, extend to encompassing sales made by the undertaking in question which do not fall, directly or indirectly, within the scope of the alleged cartel, it would nonetheless be contrary to the goal pursued by that provision if that concept were understood as applying only to turnover achieved by the sales in respect of which it is established that they were actually affected by that cartel (judgment of 19 March 2015, Dole Food and Dole Fresh Fruit Europe v Commission, C‑286/13 P, EU:C:2015:184, paragraph 148).

71 It follows from that finding that sales by the infringer on a market which is not open to competition, such as the market in question in the judgment of 29 June 2012, E.ON Ruhrgas and E.ON v Commission (T‑360/09, EU:T:2012:332, paragraphs 105 and 155), must be excluded from the value of sales that are the subject of an infringement, to the extent that such a market cannot be affected by an anticompetitive practice under Article 101 TFEU, or sales made by one of the parties to a cartel on markets on which the other parties to that cartel are not present and cannot be regarded as potential competitors (judgment of 25 March 2021, Lundbeck v Commission, C‑591/16 P, EU:C:2021:243, paragraph 188).

72 In the present case, in the 2013 Decision, in order to determine the value of sales within the meaning of point 13 of the 2006 Guidelines, the Commission took into account the services covered by the clause, namely electronic communications services and television services in Spain and Portugal, with the exception of global telecommunications services and wholesale international carrier services. For each party, it took into account only the value of its own sales in its country of origin.

73 In the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), the Court annulled Article 2 of the 2013 Decision in that it sets the amount of the fine imposed on the applicant, but only in so far as that amount was set on the basis of the value of sales taken into account by the Commission. The ground for annulment is that the Commission failed to examine the factual material put forward by the parties to show that they were not in potential competition for certain services. In that judgment, the Court held that the services for which the parties were not in potential competition should be excluded from the determination of the value of sales within the meaning of point 13 of the 2006 Guidelines because they did not directly or indirectly relate to the infringement.

74 In the contested decision, the Commission therefore recalculated the value of sales by excluding sales of services in respect of which it considered that the parties were not in potential competition, that is to say, wholesale (physical) network infrastructure access services, wholesale services for broadcasting digital television and wholesale analogue terrestrial television broadcasting services.

75 In that regard, the applicant maintains that, in order to assess whether the parties were potential competitors for the purposes of determining the value of sales, the Commission could not merely establish the absence of barriers to entry, but that it ought to have demonstrated that there were real and concrete possibilities for Telefónica to enter the markets in question in Portugal.

76 That line of argument cannot be accepted.

77 In the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), the Court addressed the question of the existence and relevance of potential competition between the parties on two occasions, first with regard to the finding of the infringement and then with regard to the calculation of the fine.

78 As regards the finding of the infringement, the Court noted, in paragraph 174 of the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), that, in order to assess whether the clause constituted a restriction of competition by object, it was necessary to have regard, inter alia, to the economic and legal context of which it formed part and, when determining that context, to take into consideration the real conditions of the functioning and structure of the markets in question. According to paragraph 181 of the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), in the case of a market-sharing agreement, the Commission ‘[was] not required to analyse … the question whether entry to [the] market would [have corresponded] to a viable economic strategy for each of the parties …, but … [was] required to examine whether there [were] insurmountable barriers to entry to the market that would [have ruled] out any potential competition’.

79 As regards the calculation of the fine, the Court held, in paragraphs 239 and 241 of the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), that sales which did not directly or indirectly relate to the infringement should be excluded from the determination of the value of sales within the meaning of point 13 of the 2006 Guidelines. According to paragraphs 230 and 243 of that judgment, the sales which did not directly or indirectly relate to the infringement were sales of services not falling within the scope of the clause, that is to say, sales of services for which the parties were not in potential competition.

80 However, in the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), the Court did not specify the criterion for assessing the existence of potential competition for the purposes of calculating the fine, whereas it stated that, for the purposes of establishing the infringement, the criterion for assessing the existence of such competition was that of insurmountable barriers to entry to the market.

81 In the contested decision, the Commission identified that criterion. In recitals 58 and 71 of that decision, the Commission considered that the criterion for assessing potential competition was the same whether it was a matter of establishing the infringement or calculating the amount of the fine, and that that criterion was the existence of insurmountable barriers to entry and not that of real and concrete possibilities of entry.

82 It should be noted that, in the present case, to require the Commission, in order to determine the value of sales, to go beyond the examination of whether there are insurmountable barriers to entry in order to determine whether the parties have real and concrete possibilities of entering the market would amount to imposing on it, for the purposes of calculating the fine, an obligation which it does not have for the purposes of establishing the infringement.

83 It follows from the case-law referred to in paragraph 181 of the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), that, where the relevant market has been liberalised, as in the present case, the Commission is not required to analyse the structure of the market concerned and the question whether entry to that market would correspond to a viable economic strategy for each of the parties, but that it is required to examine whether there are insurmountable barriers to entry to the market that would rule out any potential competition.

84 Moreover, as the General Court noted in paragraph 240 of the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), it is apparent from paragraph 64 of the judgment of 3 September 2009, Prym and Prym Consumer v Commission (C‑534/07 P, EU:C:2009:505), that an obligation cannot be imposed on the Commission in respect of the method of calculating fines to which it is not subject for the purposes of applying Article 101 TFEU where the infringement in question has an anticompetitive object.

85 It follows that the Commission was not required, for the purposes of calculating the fine pursuant to the judgment of 28 June 2016, Portugal Telecom v Commission (T‑208/13, EU:T:2016:368), to determine whether the parties had real and concrete possibilities of entering the markets in question, since such an obligation was not imposed on it for the purposes of applying Article 101 TFEU.

86 The applicant’s argument that the real and concrete possibilities criterion is the only criterion compatible with, inter alia, the judgments of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraphs 36 to 38 and 58), and of 25 March 2021, Lundbeck v Commission (C‑591/16 P, EU:C:2021:243, paragraphs 54 and 55), cannot be accepted. Those judgments both deal with the assessment of the existence of potential competition for the purposes of establishing the infringement and not, as in the present case, for the purposes of calculating the fine.

87 It follows from the foregoing that the Commission did not err in law in applying the criterion of insurmountable barriers to entry in order to assess whether there was potential competition between the parties for the purposes of calculating the fine.

88 The first part of the third plea must therefore be rejected.

(b)  The second part, alleging errors of law and of fact on the part of the Commission in the assessment of the existence of potential competition between the parties on some of the markets covered by the clause

89 By the second part of its third plea, the applicant submits that the Commission erred in law and fact in the assessment of potential competition on, first, the fixed telephone markets, second, the leased lines markets, third, the mobile telephone markets, fourth, the markets for internet access and, fifth, the market for retail pay TV services.

…

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1. Dismisses the action;

2. Orders Pharol, SGPS SA to pay the costs.