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OPINION OF ADVOCATE GENERAL
WATHELET
delivered on 12 February 2014 (1)
Case C-408/12 P
YKK Corp.,
YKK Holding Europe BV,
YKK Stocko Fasteners GmbH
v
European Commission
(Appeal – Cartels – Markets for zip fasteners and other fasteners, and also for attaching machines – Successive liabilities – Legal upper limit of the fine – Regulation (EC) No 1/2003 – Article 23(2) – Concept of ‘undertaking’ – Personal responsibility – Principle of proportionality – Multiplier for deterrence)
1. In the present appeal, YKK Corp., YKK Holding Europe BV (‘YKK Holding’) and YKK Stocko Fasteners GmbH (‘YKK Stocko’) seek the setting aside of the judgment of the General Court of the European Union of 27 June 2012. (2) The General Court dismissed their application, principally, for the annulment of Commission Decision C(2007) 4257 final (3) in so far as it concerned them, and, in the alternative, for the annulment of or the reduction in the amount of the fine imposed on them by that decision.
2. The appeal raises important questions of European Union competition law which have not yet been resolved by the Court, namely (a) the determination of the legal upper limit of the fine as provided for in Article 23(2) of Regulation (EC) No 1/2003 (4) in the event of successive liabilities within the context of the same cartel, and more precisely where an entity participating in the infringement comes under the control of another undertaking during the period of the cartel, and (b) the application of a deterrence multiplier when calculating the fine in such a context.
I – Background to the dispute
3. The background to the dispute and the contested decision are set out as follows in paragraphs 1 to 20 of the judgment under appeal:
‘1 The first applicant, YKK Corp., is a Japanese company. It is a global leader in the market for zip fasteners, but also operates in the “other fasteners” sector.
2 The second applicant, [YKK Holding], is an undertaking established in the Netherlands. It has 24 subsidiaries, [including] [YKK Stocko]. YKK Holding is a wholly-owned subsidiary of YKK Corp. Its subsidiaries manufacture buttons and fasteners. It is not active in the manufacturing, selling or distributing of any of those products, and is a purely financial holding company.
3 The third applicant, [YKK Stocko], formerly Stocko Fasteners GmbH and Stocko Verschlußtechnik GmbH & Co. KG, is a German company based in Wuppertal. It was created in 1901 and registered as YKK Stocko Fasteners in September 1995, when YKK Holding purchased 76% of its shares, before acquiring 100% ownership in March 1997.
…
10 On 16 September 2004 the Commission addressed a statement of objections (“the statement of objections”) concerning “other fasteners”, attaching machines and zip fasteners to Prym Fashion, William Prym, Éclair Prym, Fiocchi Prym, Fiocchi Snaps France, [YKK Stocko], YKK Holding, YKK Corp., Coats, A. Raymond, Berning & Söhne, Berning France, Scovill Fasteners Europe (formerly Unifast), Scovill Fasteners and to [Fachverband Verbindungs-und Befestigungstechnik (“VBT”)].
…
12 On 12 November 2004 the Prym group, relying on the [Commission notice on immunity from fines and reduction of fines in cartel cases (5) ], submitted an application for immunity or, in the alternative, a reduction in the amount of the fines relating to “other fasteners”.
…
14 On 18 February 2005 the YKK group, relying on the 2002 Leniency Notice, submitted an application for a reduction in the amount of the fines relating to “other fasteners”.
…
16 The evidence provided in support of the applications submitted by the Prym group and the YKK group pursuant to the 2002 Leniency Notice enabled the Commission to send, on 7 March 2006, a supplementary statement of objections (“the supplementary statement of objections”).
17 That supplementary statement of objections relating to “other fasteners”, attaching machines and zip fasteners was addressed to A. Raymond, Berning & Söhne and Berning France, Coats and Coats Deutschland, Éclair Prym, Prym Fashion, Fiocchi Prym, Scovill Fasteners Europe, Scovill Fasteners, William Prym, YKK Corp., YKK Holding, YKK Stocko …, and VBT. …
18 The supplementary statement of objections covered the same products as the statement of objections and, where necessary, corrected, refined, consolidated and widened the objections identified therein. ….
19 A hearing took place on 11 July 2006.
20 After consulting the Advisory Committee on Restrictive Practices and Monopolies and in the light of the final report of the hearing officer, the Commission adopted on 19 September 2007 [the contested d]ecision …’.
4. By the contested decision, the Commission stated that the appellants had participated in three infringements of the competition rules, namely:
– a cooperation between May 1991 and March 2001 in the metal and plastic fasteners (‘other fasteners’) and attaching machines market within the ‘Baseler-Wuppertaler Circle’ and the ‘Amsterdamer Circle’ (‘the BWA cooperation’). Within the framework of that cooperation, the participants reached an agreement during meetings on coordinated price increases and exchanged confidential information on prices and the implementation of price increases at German and European level;
– a cooperation between 1999 and 2003 in the ‘other fasteners’ market, in which the Prym and YKK groups participated (‘the bilateral cooperation between Prym and YKK’). That infringement consisted of agreements and concerted practices at European and world-wide level on the allocation of customers and the fixing of prices, notably minimum, average and target prices, and the monitoring of price increases by means of regular exchanges of price lists and frequent bilateral contacts, and, finally,
– a cooperation between April 1998 and November 1999 in the market for zip fasteners, in which the YKK, Coats and Prym groups (‘the tripartite cooperation’) participated. In that context, those three groups exchanged information on prices and agreed on a methodology to fix minimum prices for certain products on the European market.
5. As a consequence, the Commission imposed on the undertakings concerned fines for infringement of Article 81 EC (now Article 101 TFEU) (6) calculated on the basis of the method set out in the Guidelines (7) as well as in the Commission Notice on the non-imposition or reduction of fines in cartel cases (8) and the 2002 Leniency Notice.
6. As regards the BWA cooperation, the contested decision imposed the following fines:
– A. Raymond Sarl: EUR 8 325 000;
– Berning & Söhne GmbH & Co. KG: EUR 1 123 000;
– Scovill Fasteners Europe S.A. and Scovill Fasteners Inc., jointly and severally liable: EUR 6 002 000;
– William Prym GmbH & Co. KG and Prym Inovan GmbH & Co. KG, jointly and severally liable: EUR 24 913 000;
– YKK Stocko: EUR 68 250 000 (of which YKK Corp. and YKK Holding are held jointly and severally liable for the sum of EUR 49 000 000), and
– VBT: EUR 1 000.
7. In that regard, it must be noted that, according to the contested decision, the third appellant, YKK Stocko, participated in the infringement for all of its duration of nine years and nine months, whereas YKK Corp. and YKK Holding, the first and second appellants, started to take part in the infringement (directly or indirectly) only after the acquisition by YKK Holding of YKK Stocko in 1997 and therefore participated in the infringement for four years (recitals 466 to 468 of the contested decision). That is the reason why (a) YKK Corp. and YKK Holding were not held liable for payment of the whole of the fine imposed on YKK Stocko and (b) YKK Stocko was held solely liable for payment of the remaining EUR 19 250 000 of the fine imposed on it.
8. As regards the bilateral cooperation between Prym and YKK, YKK Corp., YKK Holding and YKK Stocko were held jointly and severally liable for a fine of EUR 19 500 000. By contrast, the Commission held in the contested decision that the Prym group qualified for total immunity from the fine.
9. Finally, as regards the infringements committed within the context of the tripartite cooperation, the following fines were imposed:
– YKK Corp. and YKK Holding, jointly and severally liable: EUR 62 500 000;
– Coats Holdings Ltd. and Coats Deutschland GmbH, jointly and severally liable: EUR 12 155 000, and
– William Prym GmbH & Co. KG and Prym Inovan GmbH & Co. KG, jointly and severally liable: EUR 6 727 500 (of which Éclair Prym Group S.A. is held jointly and severally liable up to EUR 5 850 000).
II – The procedure before the General Court and the judgment under appeal
10. In support of their action before the General Court for annulment of the contested decision, the appellants raised eight pleas. The General Court examined those pleas in a different order and divided them into three categories:
– the first category consisted of five pleas relating to the tripartite cooperation, alleging, in essence, firstly, an absence of evidence of the existence of the infringement (first plea); secondly, an erroneous assessment of the nature and implementation of the infringement, and of the actual impact of that infringement (second, third and fourth pleas); and, thirdly, an incorrect application of the 1996 and 2002 Leniency Notices (fifth plea);
– the second category consisted of two pleas relating to the BWA cooperation in which, without disputing the existence of the infringement, the applicants pleaded both an incorrect application of the limitation of the fine in so far as the Commission did not apply the 10% upper limit to the subsidiary YKK Stocko for the period prior to 1997, the date of the acquisition of YKK Stocko by YKK Holding (sixth plea), and an incorrect application of the multiplier when calculating the fine imposed on YKK Stocko for the same period prior to its acquisition (seventh plea), and, finally,
– the applicants raised an eighth plea which is common to the infringements related to the tripartite cooperation and the BWA cooperation and alleges an infringement of the principles of equal treatment and of proportionality in relation to the application of the 1.25 deterrence multiplier when calculating the fine.
11. In the judgment under appeal, the General Court rejected all of the pleas raised by the applicants, dismissed their actions and ordered the applicants to pay the costs.
III – The appeal
12. The appellants and the Commission took part in the written procedure before the Court and in the hearing which was held on 16 October 2013.
13. In support of their appeal, the appellants rely on four grounds of appeal which concern only the calculation of the fines imposed on them in consequence of the tripartite and BWA cooperations.
14. First of all, they claim that the judgment under appeal does not explain in an appropriate manner the reasons why the General Court rejected the plea relating to the disproportionate starting amount of the fine, since the tripartite cooperation had no impact on the market. In that regard, the General Court infringed Article 23(2) and (3) of Regulation No 1/2003 as well as the principle of proportionality (first ground of appeal). The appellants also claim that the General Court infringed its obligation to state reasons and the lex mitior principle in relation to the applicability of the 1996 and 2002 Leniency Notices (second ground of appeal). They maintain that, by relying on an erroneous interpretation of Article 23(2) of Regulation No 1/2003, the General Court did not respect the principles of proportionality and of equal treatment, or the principle of personal responsibility, when it refused to apply the 10% upper limit solely to YKK Stocko’s turnover for the period prior to its acquisition by YKK Holding (third ground of appeal). Finally, the appellants complain that the General Court also infringed the obligation to state adequate reasons, Article 23(2) of Regulation No 1/2003 and the principles of proportionality and of personal responsibility as regards the application of a deterrence multiplier for the infringement period preceding the acquisition of YKK Stocko (fourth ground of appeal).
A – The first ground of appeal, concerning the tripartite cooperation, alleging failure to state reasons for the judgment under appeal as to the fixing of the starting amount of the fine in relation to the impact of the infringement on the market and infringement of the principle of proportionality
1. The first part of the first ground of appeal
15. In this part, the appellants complain that the General Court did not duly state its reasons for rejecting their plea that the starting amount of the fine of EUR 50 million was disproportionate, having regard to the alleged lack of impact of the infringement in question on the market. The appellants allege that that failure to state reasons makes it impossible for them to know whether the General Court (a) rejected their plea on the ground that the Commission did sufficiently take account of the impact of the infringement on the market or (b) did not take account of it because it did not have to.
16. The appellants add that the reasoning of the General Court is confused because it mixes up the characterisation of the infringement as ‘very serious’ and the calculation of the starting amount of the fine.
17. I do not share their view.
18. At the outset, it must be noted that the appellants expressly abandoned the claim ‘that the tripartite cooperation could not be characterised as “very serious” in nature because the Commission did not take into account impact’ (paragraph 13 of the appeal). As the characterisation of the infringement is no longer in question, the present action relates therefore only to the fixing of the starting amount of the fine at EUR 50 million, which the General Court is said to have confirmed without giving sufficient reasons to explain how the Commission took appropriate account of the impact of the infringement in question on the market or whether or not the Commission has an obligation to take that impact into consideration.
19. In that regard, I consider that the General Court perfectly explained why, in its view, the Commission had been able to characterise the infringement in question as ‘very serious’ and to fix the starting amount of the fine at EUR 50 million without taking into account the impact of that infringement on the market, because the Commission did not have to.
20. The General Court points out first of all that ‘according to the first paragraph of Section 1.A of the Guidelines, in assessing the gravity of the infringement, account must be taken of its nature, its actual impact on the market, where this can be measured, and the size of the relevant geographic market’ (paragraph 125 of the judgment under appeal), but that the three factors in that assessment ‘do not have the same weight in the context of an overall assessment’ (paragraph 126 of the judgment under appeal). The most serious infringements, such as ‘agreements or concerted practices involving in particular, as in the present case, price-fixing and customer-sharing may be characterised as “very serious” on the basis of their nature alone, without it being necessary for such conduct to have a particular impact or cover a particular geographic area’ (the same paragraph 126 of the judgment under appeal).
21. As regards the taking into consideration of the actual impact on the market, the General Court continued its reasoning by stating in paragraph 140 of the judgment under appeal that that impact must be taken into consideration only ‘where this can be measured’, pointing out in paragraph 141 of that judgment that the Commission had not ‘attempted to demonstrate the precise effects of the infringement’. The Commission clearly stated that, having regard to the evidence included in its file regarding the tripartite cooperation in the market for zip fasteners, it did not possess sufficient evidence regarding the final implementation of the agreement to harmonise prices (9) (which was one of the aspects of the agreement and which consisted also of exchanges of sensitive information and discussions on price increases). (10) As the General Court states in paragraph 142 of the judgment under appeal, that did not prevent the Commission, however, from concluding that the agreement as a whole had probably had an impact on the market, even though that impact had been more limited or for a shorter duration than the participants had intended. (11)
22. I consider that, without any contradiction, the Commission was able to state that the agreement as a whole had been implemented and was likely to have had an impact on the market but also that that impact was not measurable because the relevant competitive parameters could not be determined with sufficient certainty in the absence of the infringements, as the General Court clearly explains in paragraphs 141 and 142 of the judgment under appeal.
23. I also point out that that reasoning of the General Court is perfectly in accordance with the case-law of the Court of Justice. The General Court only recalled ‘the principle that the actual impact of the infringement on the market is not a decisive factor for determining the level of fines’. (12)
24. The Court of Justice also held in Carbone-Lorraine v Commission (13) that ‘the effect of an anti-competitive practice is not, in itself, a conclusive criterion for assessing the proper amount of a fine. In particular, factors relating to the intentional aspect may be more significant than those relating to the effects, particularly where they relate to infringements which are intrinsically serious, such as market sharing’.
25. Moreover, the General Court held in Sachsa Verpackung v Commission (14) that ‘[t]he applicant’s argument that, in essence, the General Court should reduce the amount of the fine imposed by the Commission where the impact of the infringement on the market cannot be measured … cannot succeed’.
26. The appellants also state that the General Court did not take into consideration, as a separate complaint, their argument relating to the proportionality of the starting amount.
27. It is sufficient to point out in that regard that that argument on proportionality exists, in any event in the first part of the ground of appeal, only in conjunction with lack of impact on the market or the obligation to take account of any lack of impact on the market.
28. I conclude, therefore, that the first part of the first ground of appeal, alleging inadequate reasoning in the judgment under appeal, should be dismissed.
2. The second part of the first ground of appeal
29. In this part, the appellants submit that, if it should emerge from the judgment under appeal that the Commission did sufficiently take account of the impact of the infringement on the market, then, in so ruling, the General Court misinterpreted the contested decision and infringed European Union law, in particular Article 23(2) and (3) of Regulation No 1/2003 and the case-law of the Court of Justice, which requires the Commission, where it considers it appropriate to take account of the impact of the infringement on the market in order to increase the starting amount of the fine beyond the minimum likely amount of EUR 20 million laid down by the Guidelines, to provide specific, credible and adequate evidence with which to assess what actual influence the infringement may have had on competition in that market.
30. That argument is clearly based on an erroneous reading of the judgment under appeal and the contested decision.
31. As I have already pointed out, in assessing the criterion of the gravity of the infringement, account is to be taken of its actual impact on the market only where this can be measured.
32. In the present case, the Commission explained – in the same way as in its C(2004) 2826 decision (15) (which gave rise to three judgments, namely KME Germany and Others v Commission (C-272/09 P), Chalkor v Commission, and KME Germany and Others v Commission (C-389/10 P)) (16) – that it was not able to measure the exact actual impact of the tripartite cooperation (see recitals 507 and 509 of the contested decision).
33. Therefore, in the same way as the appellants in KME Germany and Others v Commission, the appellants in the present case misinterpreted the judgment under appeal in inferring ‘that the actual impact of the infringement on the market must have been taken into account for the purpose of calculating the starting amount of the fine that was imposed on them’. (17)
34. I am therefore of the opinion that, as in that case, the Commission was entitled to conclude in the contested decision that the infringement had probably had a certain (non-measurable) impact on the market, (18) which one must of course not confuse with a finding that there was an actual measurable impact, which is not required. (19) As explained above in the first part and as the Court has already stated in that case, (20) it is not contradictory to state that actual impact is not a decisive factor in assessing gravity and to hold that an infringement probably had a certain impact.
35. It follows that the General Court has not misread the contested decision and that that part of the second part of the first ground of appeal (namely paragraphs 17 to 22 of the appeal) is based on a false premiss.
36. I also agree with the Commission that that reasoning is not invalidated by Prym and Prym Consumer v Commission (in particular paragraphs 81 and 82 thereof), relied on by the appellants (see paragraphs 23 to 30 of the appeal).
37. The reason for that is simple. In Prym and Prym Consumer v Commission, (21) the General Court held that the Commission had not claimed that the actual impact was not measurable (22) and it was therefore in view of the Commission’s attempt to take into account and to measure an actual impact that the General Court held that it had not fulfilled its obligation to state reasons (23) (even though, in the end, the General Court did not reduce the amount of the fine). (24)
38. It is therefore clear that Prym and Prym Consumer v Commission is not capable of being applied to the present case.
39. In any event, Prym and Prym Consumer v Commission (in particular paragraphs 81 and 82 thereof cited by the appellants) cannot be interpreted as meaning that the finding and proof (by means other than presumptions) of an actual measurable impact constitute the only legitimate reasons to increase the starting amount beyond the minimum amount of EUR 20 million.
40. According to the fourth and sixth paragraphs of Section 1.A of the Guidelines, ‘[i]t will also be necessary to take account of the effective economic capacity of offenders to cause significant damage to other operators, in particular consumers, and to set the fine at a level which ensures that it has a sufficiently deterrent effect’ and ‘[w]here an infringement involves several undertakings (e.g. cartels), it might be necessary in some cases to apply weightings to the amounts determined within each of the three categories in order to take account of the specific weight and, therefore, the real impact of the offending conduct of each undertaking on competition, particularly where there is considerable disparity between the sizes of the undertakings committing infringements of the same type’.
41. Furthermore, it should be pointed out that in the judgments concerning the Copper plumbing tubes decision, the General Court and the Court accepted a starting amount which was higher than the ‘minimum’ amount of EUR 20 million (EUR 35 million in that case) although a (measurable) actual impact had not been taken into account.
42. In any event, it may be noted that ‘it is not for the [Court], when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the [General Court] exercising its unlimited jurisdiction to rule on the amount of fines imposed for infringements of [EU] law’. (25)
43. It follows from all the foregoing that the General Court did not err in considering, without having taken account of an actual impact of the infringement in question on the market, that a sum of EUR 50 million constituted, in the present case, an appropriate starting amount for the fine. The second part of the first ground of appeal must therefore be rejected.
3. The third part of the first ground of appeal
44. In this part, the appellants submit, first of all, that, on the assumption (which in my opinion is correct as opposed to the assumption in question in the second part above) that it were to be apparent from the judgment under appeal that the Commission did not take into account the impact of the infringement on the market because it was not required to do so, the General Court misapplied EU law, according to which penalties under national and EU law must not only be real and deterrent, but also be proportionate to the infringement committed. In that respect, the appellants claim, just as in their application before the General Court, that it is disproportionate to raise the minimum likely amount of EUR 20 million (as fixed in the Guidelines for the ‘very serious’ infringements) to EUR 50 million (that is to say a 250% increase) without taking account of the lack of impact which the agreement on the tripartite cooperation had on the market. Were it otherwise, the judgment under appeal would confer too much significance on the size of the undertaking as a factor in determining the fine and would thus be inconsistent with the Guidelines and the case-law of the Court.
45. According to the Commission, the appellants are trying to give the impression that the amount of EUR 20 million is the basic amount for the calculation and that the Commission ought to expressly justify any ‘increase’ beyond that amount, an increase of 250% in the present case or of 312.5% solely on the basis of the size of the undertaking. (26)
46. As the Commission has rightly pointed out, that argument is based on a confusion between the ‘starting amount’ – fixed on the basis of a number of factors particular to the case and linked to the infringement, including the size of the market concerned – and the classification of a participant in the cartel in a particular group (‘the group’) or the application of a ‘deterrence multiplier’ when calculating the fine to be imposed on a specific undertaking, which is the stage of the calculation when the size of the undertaking is taken into account.
47. In the present case, the value of the market for zip fasteners exceeded EUR 400 million (recital 12 of the contested decision) and the infringement was characterised as ‘very serious’ having regard to all of the specific facts and the circumstances of the present case. Having regard to all of those factors, the starting amount of the fine imposed on the first group of undertakings was fixed at EUR 50 million. (27)
48. Given that the appellants constituted the most significant participant in the cartel in terms of market shares for zip fasteners, they were placed in that first group (recital 530 of the contested decision). Up to that stage of the calculation, the overall size of the undertaking is not taken into account. A 1.25 deterrence multiplier was then applied to that amount on the basis of the considerable overall size of the YKK group (recitals 537 to 539 of the contested decision).
49. In any event, it should be noted that it is for the General Court to examine the assessment of the appropriate nature of those amounts and that, in principle, ‘it is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the [General Court] exercising its unlimited jurisdiction to rule on the amount of fines imposed for infringements of [EU] law’. (28)
50. The appellants also complain that the General Court did not envisage the possibility that the non-implementation of their agreement might be an attenuating circumstance.
51. It is sufficient to note in that regard, as the General Court has rightly already done so in its case-law, that ‘in order to assess any attenuating circumstances, including that relating to the non-implementation of agreements, it is necessary to take into account not the effects arising from the infringement as a whole, which must be taken into consideration in assessing the actual impact of an infringement on the market for the purposes of determining its gravity (first paragraph of Section 1.A of the Guidelines), but the individual conduct of each undertaking, for the purposes of examining the relative gravity of the participation of each undertaking in the infringement’ (my emphasis). (29)
52. In KME Germany and Others v Commission, the Court confirmed the General Court’s approach in so far as it held that ‘the first argument relates to paragraph 127 of the judgment under appeal, in which the General Court referred to the case-law under which, in order to benefit from the attenuating circumstance set out in the second indent of Section 3 of the Guidelines, the offenders must show that they adopted competitive conduct or, at the very least, that they clearly and substantially breached the obligations relating to the implementation of the cartel to the point of disrupting its very operation and did not give the appearance of complying with the agreement, thereby encouraging other undertakings to implement the cartel in question’. (30) Therefore, in paragraph 96 of that judgment, the Court holds that ‘[t]he General Court did not … err in law by interpreting strictly the conditions that must be fulfilled if an undertaking is to benefit from the attenuating circumstance referred to in the second indent of Section 3 of the Guidelines. As the General Court noted in paragraph 128 of the judgment under appeal, the appellants did not claim to have fulfilled those conditions. The first argument is therefore unfounded’.
53. As the appellants have not demonstrated – or even relied on – any of the requirements above in order to prove the existence of attenuating circumstances, their argument must be rejected.
54. As regards the comparison with the cases which gave rise to the judgments in Degussa v Commission (‘the methionine cartel’) and Prym and Prym Consumer v Commission (‘the Needles cartel’), (31) I (like the Commission) consider that the present case is different because it is not a question here of a complete non-implementation of the tripartite cooperation on the market for zip fasteners over a particular (and, moreover, relatively long) period, but simply of the lack of evidence of the final implementation of one of its elements (the agreement to harmonise prices). Furthermore, that specific circumstance was well and truly taken into account in the overall assessment of the gravity.
55. So far as concerns Decisions C(2006) 1766 and C(2006) 5700 final, (32) the appellants cannot dispute that the size of the markets in question was comparable as a whole (EUR 340 million for the hydrogen peroxide market and EUR 550 million for the combined butadiene rubber and emulsion styrene butadiene rubber market (BR/ESBR)) to that of the market for zip fasteners. In addition, the level of implementation by the participants and the assessment of a probable but non-measurable impact in those cartel decisions were not fundamentally different from those which characterise the present case. (33)
56. It follows that the third part of the first ground of appeal and, therefore, the first ground of appeal in its entirety must be rejected.
B – The second ground of appeal, relating to the tripartite cooperation, directed against the grounds of the judgment under appeal in so far as it refused to apply the 2002 Leniency Notice (first part) and misinterpreted the lex mitior principle (second part)
57. Like the Commission, I consider – even on the assumption, which the Commission disputes, that the 2002 Leniency Notice can be considered in that context as a ‘lex mitior’ in comparison with the 1996 Leniency Notice – that the General Court unambiguously rejected, albeit implicitly (in paragraph 184 et seq. of the judgment under appeal), the argument based on the lex mitior principle on the ground that that complaint was devoid of purpose, since the Commission had granted the appellants de facto partial immunity by considering the cooperation which they had displayed and which could not be taken into consideration on the basis of the 1996 Leniency Notice to be an attenuating circumstance. The General Court notes that that circumstance gave rise to a reduction in the fine of EUR 9 375 000 (paragraph 187 of the judgment under appeal).
58. Furthermore, the General Court clearly explained in what respect the appellants had not complied with the requirements of the 1996 Leniency Notice (paragraphs 170 to 180 of the judgment under appeal).
59. The Commission is correct when it claims that the only question which is relevant here (on reading the second part of the second ground of appeal) is whether the General Court ought to have expressly explained why the appellants were not entitled to obtain, apart from (de facto) partial immunity, an additional benefit under the 2002 Leniency Notice, namely an additional reduction in the amount of the fine for having provided information or evidence representing significant added value regarding the period from 28 April 1998 to 2 June 1999 (paragraph 21 of the 2002 Leniency Notice).
60. In that regard, the appellants take the view that, by not applying the 2002 Leniency Notice instead of the 1996 Leniency Notice, the General Court misinterpreted EU law, in particular the lex mitior principle as laid down by Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and by Article 49(1) of the Charter of Fundamental Rights of the European Union, in accordance with which the most lenient law must apply retroactively. They argue that, as the 1996 Leniency Notice, unlike the 2002 Leniency Notice, made the benefit of a reduction in the fine dependent on non-contestation of the facts, it is therefore contrary to the lex mitior principle (paragraphs 62 to 65 of the appeal) to refuse them the benefit on the basis of a factor which was no longer applicable. The appellants conclude that the evidence they submitted represented significant added value to the investigation in so far as it allowed the Commission to prove that the alleged infringement had lasted longer. Consequently, they ought to have been entitled on that basis to an additional reduction in the amount of the fine (in addition to the partial immunity which they had been granted for having proved the prolonged duration of the cartel), that is to say a ‘twofold benefit’ for the same information and evidence consisting, firstly, of a reduction and, secondly, of partial immunity.
61. It must be pointed out first of all that it is not the Leniency Notice (either that of 1996 or that of 2002) which constitutes the legal basis for the fines imposed in accordance with EU competition rules, but Article 23(2) and (3) of Regulation No 1/2003. As the Commission correctly pointed out, that article has not been amended and is indeed essentially identical to Article 15 of Regulation No 17. (34) The legal framework of the fines has therefore not been amended substantively.
62. That said, I note, first, that Prym and Coats had made their first leniency application before 14 February 2002 and that, pursuant to paragraph 28 of the 2002 Leniency Notice, (35) it is the 1996 Leniency Notice which was and remained applicable ratione temporis to the whole of the cartel on the market for zip fasteners.
63. Secondly, I note that the Court (36) has held that, ‘[w]ith respect to the cooperation which an undertaking provides to the Commission [whether pursuant to the 1996 or the 2002 Leniency Notice or as an attenuating circumstance], … such a contribution may justify a reduction in the fine under the Leniency Notice only if it actually allows the Commission to achieve its task of establishing the existence of an infringement and putting an end to it’.
64. In that context, it should be recalled that ‘the Commission has a wide discretion as regards the method of calculating fines and it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. In that context, the Commission is required to make complex assessments of fact, such as those relating to the cooperation provided by the individual undertakings concerned’. (37)
65. Thirdly, the file shows that, by not disputing paragraphs 170 to 181 of the judgment under appeal, the appellants are no longer claiming that the Commission misapplied the 1996 Leniency Notice.
66. Fourthly, it is important to emphasise that the qualitative requirements of the 1996 and 2002 Leniency Notices are comparable as a whole (the 2002 Leniency Notice is not, in any event, less stringent than the 1996 Notice (38) ), with the result that non-compliance with the conditions imposed by the 1996 Leniency Notice – particularly the fact that the appellants disputed the facts – results ipso facto in non-compliance with the similar requirements contained in the 2002 Leniency Notice.
67. As the Commission has stated, regardless of the partial immunity which is no longer disputed, it is in no way established that, as the appellants claim (see paragraph 56 of the appeal), the 2002 Leniency Notice is more lenient to them than the 1996 Leniency Notice.
68. The appellants are attempting to argue in essence that, where an undertaking provides evidence on a particular infringement period and thereby allows the Commission to find that the cartel lasted for a longer period, it must be entitled not only to partial immunity for that period, but also to an additional advantage, namely a percentage reduction for the infringement it committed.
69. Apart from the fact that any double reward seem to me to be ruled out, such a proposition seems to me to be incompatible with the overall purpose of the reductions granted for cooperation. An undertaking should not be rewarded for having helped the Commission to establish the existence of the infringement if it has not provided any added value to the Commission’s investigation relating to the period for which it incurs liability (namely the period subsequent to that for which it obtained partial immunity).
70. In actual fact, the appellants seek the application of an inverted ne bis in idem principle, namely a reduction in the fine for having provided added value to the Commission’s investigation and immunity for the facts which they revealed!
71. It seems to me that the same information cannot be rewarded both under the Leniency Notice (to obtain a percentage reduction) and outside its framework (to obtain partial immunity as an attenuating circumstance for cooperation outside the leniency programme). (39)
72. In addition, I do not think that the appellants can effectively rely on precedents in this regard.
73. In the case which gave rise to the judgment in FRA.BO v Commission (40) (‘the Fittings cartel’), partial immunity was not combined with a reduction under the Leniency Notice for the same cooperation, because FRA.BO SpA obtained a reduction under the Leniency Notice (for the period prior to 2001) and partial immunity for cooperation outside the leniency programme (for another period between 2001 and 2004), and thus for cooperation relating to two different periods.
74. Contrary to the applicants’ assertions, the General Court clearly stated that there could not be any cumulative reward. (41) In any event, it may be added that, unlike FRA.BO SpA, the appellants in this case disputed the facts relating to the tripartite cooperation on the market for zip fasteners after 2 June 1999 and their legal classification as an infringement.
75. Finally, I do not think that the information provided by the appellants to the Commission for its investigation represented significant added value within the meaning of paragraph 21 of the 2002 Leniency Notice.
76. As regards the period prior to 2 June 1999, clearly that cooperation was rewarded by (de facto) partial immunity and there is no justification for granting a double reward. As regards the facts after that date, the appellants disputed them.
77. Therefore, I think that the General Court rightly held that the applicants’ cooperation for the period prior to 2 June 1999 had not helped the Commission to establish the facts and the infringement for the period after that date. That assessment is valid, be it in the light of the 1996 Leniency Notice or on the basis of the criteria set out in the 2002 Leniency Notice.
78. The second ground of appeal must therefore be rejected.
C – The third ground of appeal, concerning the BWA cooperation and incorrect application of the 10% of turnover upper limit for the period preceding the acquisition of YKK Stocko by YKK Holding
79. Under their third ground of appeal, the appellants claim that, by dismissing their plea alleging incorrect application of the 10% upper limit for the period preceding the acquisition of YKK Stocko by YKK Holding – a period during which YKK Stocko is considered to be exclusively liable – the General Court infringed Article 23(2) of Regulation No 1/2003, the principle of proportionality, the principle of equal treatment and the principle of the individuality of penalties.
80. As a matter of fact, the part of the fine relating to the initial period of the infringement amounts to EUR 19.25 million, which represents 55% of the total turnover of YKK Stocko in 2006 (which was EUR 34.91 million), is considerably more than the 10% upper limit laid down in the second subparagraph of Article 23(2) of Regulation No 1/2003.
81. The Commission contends that that argument is based on a legally incorrect understanding of the purpose of the 10% upper limit referred to in Article 23(2) of Regulation No 1/2003 and implies that where the structure of an undertaking changes (following the acquisition of a subsidiary by a parent company, for example) a separate fine should be calculated for each of the successive periods of that change (before and after the acquisition, for example).
82. The Commission contends that, on the contrary, a single fine must be imposed because the limit laid down in Article 23(2) of Regulation No 1/2003 is not an element of the fine linked to the collusive conduct during the infringement period, but a legal maximum linked to the financial capacity to pay the fine and aims primarily to protect the undertaking from a fine that is excessive, having regard to the undertaking’s size. The crucial factor is therefore the economic power of the undertaking (of which the overall turnover gives an indication) at the time of the adoption of the decision imposing the fine. Those considerations are the only ones capable of explaining why the provision in question expressly refers to that time for calculating the 10% upper limit. Consequently, the fact that the undertaking had less financial capacity at a time in the past, for example before its acquisition by another company, as in the present case, is irrelevant.
83. The Commission adds that, even if the parent company decides not to give any financial support to its subsidiary so far as concerns the part of the fine for which that subsidiary is held solely liable, which could threaten the viability of the subsidiary, this is merely a question of the realisation of an investment risk of the parent company linked to a legal person (the subsidiary) which, before (but also after) the acquisition, engaged in anti-competitive behaviour punishable by fines. By acquiring control over the subsidiary, the parent company assumes that risk, which it can nevertheless limit by providing for compensation in the contract of sale concluded with the initial owner.
84. In summary, for the Commission, only the undertaking liable during the last stages of the infringement and at the time of the adoption of the final decision is the appropriate reference entity for assessing questions of liability and of deterrent effect, in so far as the Commission establishes that that undertaking (that is to say the entity which consists of the new parent companies) itself participated in the infringement. For those same reasons, the Commission submits that the appellants cannot reasonably claim that the fine was imposed in breach of the principle of proportionality or that of equal treatment.
85. As I stated in the introduction to this Opinion, this ground of appeal raises an important question of competition law which has not yet been resolved by the Court, namely the determination of the legal upper limit of the fine as provided for in Article 23(2) of Regulation No 1/2003 in the event of successive liabilities within the context of the same cartel, and more precisely where an entity participating in the infringement comes under the control of another undertaking during the period of the cartel.
86. That provision of Regulation No 1/2003 provides that ‘[f]or each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10 % of its total turnover in the preceding business year’ (my emphasis).
87. The Court is therefore called upon to interpret for the first time the notion of ‘undertaking participating in the infringement’ within the meaning of Article 23(2) of that regulation – in particular in the light of the principle of personal responsibility (namely that the penalties must be specific to the offender as well as to the offence) – in a situation where the undertaking in question was held solely liable for payment of part of the fine for a particular period and was subsequently acquired by another undertaking.
88. It should be noted here that that question was also recently posed before the Court in Gascogne Sack Deutschland v Commission. Indeed, that question was dealt with thoroughly by Advocate General's Opinion which she delivered in that case. Pending the forthcoming judgment of the Grand Chamber (which was pronounced on 26 November 2013), the Opinion of the Advocate General was very naturally at the heart of the debate at the hearing in the present case on 16 October 2013. (42)
89. Unfortunately, the Grand Chamber did not resolve the question as it rejected the related arguments as inadmissible. It is a shame in particular as the Court has never had to interpret Article 23(2) of Regulation No 1/2003 in circumstances such as those in Gascogne Sack Deutschland v Commission (or those in the present case) and the Commission’s practice (and the related case-law of the General Court) are not uniform, which has inevitable consequences for legal certainty.
90. I will start from the reasoning of Miss Sharpston in Gascogne Sack Deutschland v Commission.
91. First, as she states in paragraph 83 of her Opinion, ‘the second subparagraph of Article 23(2) of Regulation No 1/2003 states that “[f]or each undertaking … participating in the infringement … the fine shall not exceed 10% of its worldwide turnover in the preceding business year.” The General Court did not make an express finding itself, but implicitly accepted the Commission’s finding in the decision that [Gascogne Sack Deutschland (GSD)] was wholly responsible for the infringement in the period before its acquisition by Groupe Gascogne …. Since GSD was the undertaking participating in the infringement during the period from 9 February 1988 to 1 January 1994, it alone appears to be the “undertaking” that falls within Article 23(2) of Regulation No 1/2003 in relation to the infringement committed during that period’. Furthermore, in paragraph 84 of her Opinion, she mentions that, ‘[f]or the later period, from 1 January 1994 to 26 June 2002, the “undertaking” participating in the infringement was Groupe Gascogne (by virtue of the presumption of decisive influence) as well as GSD (in actual fact). Accordingly, both companies are jointly and severally liable for that period’.
92. Secondly, in paragraph 85 of that Opinion, she notes that ‘where the identity of the perpetrator changes during the course of an infringement because the subsidiary is subsequently wholly acquired by a parent company, the word “undertaking” in the second subparagraph of Article 23(2) of Regulation No 1/2003 is sufficiently wide to encompass such a “variable geometry”’.
93. Thirdly, according to paragraph 86 of that Opinion, ‘although the penalty concerns the subsidiary’s past actions, in setting the 10% upper limit Article 23(2) of Regulation No 1/2003 requires the reference point to be set at the time of the Commission decision. In that respect a subsidiary’s position is no different from that of any other undertaking insofar as the 10% upper limit is set by reference to turnover in the business year preceding the Commission’s decision. Accordingly, it is important to distinguish the subsidiary’s turnover from that of its parent; and the 10% upper limit applied to that subsidiary in respect of a fine imposed for a period prior to its acquisition by the parent should be determined by reference to its turnover alone’.
94. Fourthly, as Advocate General's Opinion, ‘such an interpretation seems … more consistent with the objectives of Article 23(2) than the Commission’s approach [in Gascogne Sack Deutschland v Commission just like that in question here]. The purpose of the 10% upper limit is to protect an undertaking against excessive fines which could destroy it commercially. (43) Where a subsidiary is penalised for an infringement for which it is wholly liable, subject to an upper limit calculated on the basis of the worldwide turnover of an entire group, that is more likely to generate a higher figure (as 10% of the worldwide turnover of a corporate group will normally be greater than the 10% turnover of a single subsidiary). Thus, that method of calculation will result in the imposition of a higher fine than if the 10% upper limit were established by reference to the subsidiary’s sole turnover’.
95. Advocate General's Opinion that ‘it seems reasonable to assume that, in circumstances like the present, the Commission divides up responsibility for the periods before and after acquisition by the parent company in order to reflect the principle of personal responsibility. (44) It is because the subsidiary’s anti-competitive behaviour during the earlier period was committed before it and the parent comprised the same undertaking that the parent company is not held jointly and severally liable for that period of the infringement. By analogy, however, it seems to me very difficult to justify taking account of the worldwide turnover of the group to determine the 10% upper limit in relation to a fine that the subsidiary alone must pay, imposed in respect of an infringement which the parent company did not itself commit and which is not attributed to it for the period in question’.
96. I agree with Advocate General Sharpston’s assessments in that respect for the following reasons.
1. The notion of ‘undertaking’ within the meaning of Article 23(2) of Regulation No 1/2003
97. First of all, the notion of ‘undertaking’ within the meaning of Article 23(2) of Regulation No 1/2003 must be the same as the notion of the undertaking liable under Article 81 EC.
98. I observe that the Commission held that YKK Stocko was solely liable for payment of part of the fine, namely EUR 19 250 000. Article 1(1) and Article 2(1) of the contested decision imposed a fine of EUR 68 250 000 on YKK Stocko, of which YKK Corp. and YKK Holding are held jointly and severally liable for payment amounting to EUR 49 000 000. The EUR 19 250 000 correspond therefore to around 55% of YKK Stocko’s turnover in 2006. (45)
99. The contested decision clearly indicates that the Commission held YKK Stocko exclusively liable for payment of that part of the fine because YKK Stocko was also considered to be solely liable for part of the period during which the infringements committed within the framework of the BWA cooperation were established.
100. Recital 429 of the contested decision states that YKK Corp., YKK Holding Europe BV and YKK Stocko ‘should be held jointly and severally liable for the infringements committed within the framework of the [BWA] cooperation, described in section 4.2 of this Decision, as of the moment [YKK Stocko] became a wholly owned subsidiary of [YKK Holding] and, therefore, [YKK Corp.], that is to say from March 1997 until 15 March 2001. [YKK Stocko] should be held responsible for the whole period it participated in the [BWA] cooperation, that is to say 24 May 1991 until 15 March 2001’ (my emphasis).
101. Then, in footnote 586 of the contested decision, as regards the determination of the fine, under the title ‘increase of the fines for duration’, the Commission states that ‘the increased starting amount of 40% concerns the period for which [YKK Stocko], [YKK Holding] and [YKK Corp.] are held jointly and severally liable [namely four years]. The rest of the increase in percentage terms concerns the period for which [YKK Stocko] is held exclusively liable’ (46) (namely the remaining 55%, that is to say five years and nine months).
102. The Commission therefore properly apportioned the responsibilities of each undertaking, given that before March 1997 (date of acquisition of YKK Stocko by YKK Holding), YKK Stocko and the YKK group were two separate companies, thus constituting two ‘economic entities’ or undertakings within the meaning of Article 81 EC and Article 23(2) of Regulation No 1/2003. (47)
103. As the Commission held YKK Stocko solely liable for the first five and a half years of the BWA cooperation (and for payment of part of the fine), that necessarily implies that it was ‘a single economic unit’ (an independent economic entity) during that period.
104. On that basis, instead of calculating the 10% upper limit on the basis of the turnover of the largest of the two undertakings (the one which arose in 1997 from the purchase of YKK Stocko by the YKK group), the Commission should logically have applied two separate 10% upper limits.
105. Article 23(2) of Regulation No 1/2003 requires that ‘[f]or each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10 % of its total turnover in the preceding business year’ (my emphasis).
106. The Court has stated (48) that ‘[the] limit [of 10% relating to the turnover provided for in Article 23(2) of Regulation No 1/2003] [rightly] seeks to prevent fines [imposed by the Commission] from being disproportionate in relation to the size of the undertaking’ and that ‘[the] sum [of the fine may] not [exceed] 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement’ (my emphasis).
107. When interpreting that article, it is necessary to bear in mind the fundamental link between liability and the fine. I am of the opinion that that provision requires (a) that only the turnover of the undertaking held liable may be taken into consideration for the purposes of calculating the 10% upper limit and (b) that, in a case where different undertakings have in turn participated in a cartel, the 10% upper limit be calculated on their respective turnovers.
108. I further note that the Commission’s decision-making practice in that respect is inconsistent.
109. In other decisions, the Commission has already applied various 10% upper limits according to the infringement period in question.
110. Accordingly, in Decision 2005/349/EC (49) (the ‘Organic peroxides decision’), the Commission calculated the 10% on the turnover of the subsidiaries for the period during which they were considered exclusively liable, whereas for the period of joint liability of the parent company and the subsidiaries, it relied on the turnover of the group.
111. In Gascogne Sack Deutschland v Commission, Advocate General Sharpston indeed considered that ‘[i]t seems to [her] that the approach applied in the Organic peroxides decision is more consistent with the wording and objectives of Article 23(2) of Regulation No 1/2003 than the approach adopted in the present case’.
112. In 2011, the Commission followed the same approach in a decision (the ‘Prestressing Steel decision’). (50)
113. In that decision, the Commission implicitly acknowledged the merits of the ground of appeal relied upon by the appellants in the present case (namely the ground of appeal alleging incorrect application of the 10% upper limit) and amended its initial decision by reducing the fines imposed on several entities whose exclusive liability had been established for the period prior to their acquisition by the group. The Commission made that reduction ‘in order to ensure that the level of those fines was not disproportionate to their own size and turnover. … The Commission reduced the relevant fines to [10%] of the legal entities’ own turnovers’ (my emphasis). (51)
114. The variable practice of the Commission shows at least that it has no reason in principle to decide as it did in this case. Furthermore, the arguments which it puts forward to apply one rather than two separate 10% upper limits are hardly convincing.
115. At the hearing, the Commission mentioned that in the cases concerning the Organic peroxides and Prestressing Steel decisions, the parent company was jointly and severally liable only for seven of the 27 and three of the 17 years, respectively, that the infringement had lasted, suggesting that the corresponding figures in the present case, namely four years out of nine years and nine months of infringement, required a different approach.
116. Besides the difficulty of determining or drawing such a boundary in precise figures, I cannot see any reason in principle (nor any grounds in the present case) for not applying two separate 10% upper limits, which in my opinion constitutes a correct interpretation of Article 23(2) of Regulation No 1/2003.
117. Nor is that analysis called into question by the other arguments put forward by the Commission (namely the complexity of the calculations or the risks of abuse). Why are the calculations more complex in this case than in the Organic peroxides and Prestressing Steel decisions? (52) As for the risk that the parent or acquiring company will artificially reduce the turnover of the subsidiary held liable, the Commission did not refer to it in the contested decision nor did it provide the slightest prima facie evidence in the file in question.
118. It follows from the foregoing that the General Court infringed Article 23(2) of Regulation No 1/2003 because only the subsidiary (YKK Stocko) ought to have been considered to be the ‘undertaking participating in the infringement’ for the first period and, therefore, its turnover and not that of the group should have been taken into account when calculating the 10% upper limit.
2. The principle of personal responsibility and of the individualisation of penalties
119. I also think that the approach adopted by the Commission and the General Court in the present case runs counter to the principles of personal responsibility and the individualisation of penalties.
120. It is clear that the Commission can order an undertaking to pay a fine only if it is in a position to prove that that undertaking committed an infringement within the meaning of Article 81 EC or participated in it. The logical and legal link between fault and liability, on the one hand, and the penalty, on the other, necessarily implies that a fine must be determined in relation to the undertaking responsible (that is to say the undertaking which participated in the infringement).
121. According to that basic principle, which is the subject of settled case-law and which, in any event, applies to any administrative procedure that may give rise to penalties under EU competition rules, an undertaking may be penalised only for acts imputed to it individually. (53)
122. The penalties must be individualised in the sense that they must relate to the individual conduct and specific characteristics of the undertakings concerned. (54)
123. Furthermore, it falls, in principle, to the legal or natural person managing the undertaking in question when the infringement was committed to answer for that infringement, even though, at the time of the decision finding the infringement, the operation of the undertaking was no longer its responsibility. (55)
124. In particular, the Court has already had occasion to rule that an acquiring company cannot be held liable for infringements committed independently by two of its subsidiaries before their acquisition, since those subsidiaries have to answer themselves for their unlawful activity prior to their acquisition by the acquiring company, which cannot be held responsible for it. (56)
125. The Court has confirmed on several occasions that ‘[w]here … an economic entity infringes the rules of competition, it falls to that entity, in accordance with the principle of personal responsibility, to answer for that infringement’. (57)
126. Therefore, it follows from Article 23(2) of Regulation No 1/2003 (in accordance with which the Commission may only impose a fine on undertakings which it holds liable) and the fundamental principle of the individuality of penalties that the imposition of a fine is subject to the recognition of the undertaking’s liability (whether that liability be direct or imputed) and that the level of the fine intended to penalise the undertaking’s participation in the infringement must be determined on the basis of that liability. In my opinion, that principle applies to the calculation of the 10% of turnover upper limit which the fine cannot exceed.
127. In other words, where, as is the case in the present case, the infringement is, for a certain period, attributed to a subsidiary and not to the parent company, only the turnover of the subsidiary liable is relevant for the purposes of calculating the 10% upper limit.
128. In Hoek Loos v Commission, (58) the General Court held that ‘in applying the 10% upper limit, the Commission must take into account the turnover of the undertaking concerned, namely the undertaking to which the infringement was attributed, which was therefore declared [liable] and notified of the decision imposing the fine’ (my emphasis).
129. Bearing in mind that the objective of the 10% upper limit is to ensure that the fine does not exceed the ability of the undertaking found guilty of an infringement of competition law to pay the fine, the taking into account of the total turnover of the group in order to calculate that upper limit in the case and for the period in which the infringement was committed only by a subsidiary before its integration in the group either deprives it of the protection intended by the establishment of that upper limit, or imposes a penalty on the new parent company (which was, however, not liable for that infringement) if the subsidiary is not able to pay the fine, exactly as if the group had been considered jointly and severally liable for the whole of the infringement. (59)
130. At the hearing, the Commission stated that it would have calculated the 10% upper limit solely on the turnover of the undertaking YKK Stocko if the other undertakings of the group had not participated at all in the infringement after the integration of YKK Stocko into the group. I do not see how the fact that the other undertakings of the group are or are not co-perpetrators of the infringement after the integration of YKK Stocko can alter the calculation of the fine for the period in which YKK Stocko was independent and therefore exclusively responsible for the infringement committed at that time.
131. Also at the hearing, the Commission relied on the judgment of the General Court in Tokai Carbon and Others v Commission (60) to disavow the approach which it had adopted in the Organic peroxides and Prestressing Steel decisions and prefer the approach which it adopted in Gascogne Sack Deutschland v Commission or in the present case.
132. However, as Advocate General's Opinion), Tokai Carbon and Others concerned a considerably different, or even opposite, situation. In Tokai Carbon and Others v Commission, the parent and the subsidiary were part of the same undertaking at the time of the infringement, but their relationship had changed in the year taken as the reference point for calculating the 10% upper limit. At that stage the parent was no longer responsible for its former subsidiary: they had become sister companies. The two companies were held jointly and severally liable for the period of the infringement, but the decision was addressed separately to the former subsidiary and to the former parent and the 10% upper limit was applied to each addressee. (61)
133. That judgment of the General Court therefore did not respect the principle of personal responsibility and the principle of the individuality of penalties when applying the 10% upper limit provided for in Article 23(2) of Regulation No 1/2003.
3. The principles of equal treatment and of proportionality
134. Finally, I think that the principles of equal treatment and of proportionality are not respected by the approach which the Commission adopted and which was confirmed by the General Court.
135. According to the case-law of the Court, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. (62)
136. However, the judgment under appeal treats similar situations differently, since two undertakings which are both recognised as being exclusively liable for the same infringement are treated differently solely on the ground that one of them was acquired at a later stage by a group of undertakings.
137. In addition, the ratio legis of the provision in question (namely the prohibition of excessive fines in relation to the size and the turnover of the undertaking in question) and the underlying fundamental principle of proportionality cannot objectively justify the difference in treatment of similar situations.
138. In Dansk Rørindustri and Others v Commission, the Court held that the 10% upper limit provided for in Article 23(2) of Regulation No 1/2003 is ‘[a] limit … which is uniformly applicable to all undertakings and arrived at according to the size of each of them and seeks to ensure that the fines are not excessive or disproportionate. That upper limit thus has a distinct and autonomous objective by comparison with the criteria of gravity and duration of the infringement’. (63)
139. Likewise, in Tokai Carbon and Others v Commission, the General Court held in paragraph 389 that ‘the [upper limit] aims inter alia to protect undertakings against excessive fines which could destroy them commercially’. In other words, the 10% upper limit seeks to ensure that the level of the penalty does not jeopardise the viability of the undertaking liable.
140. Finally, I take the view, like the appellants, that the judgments relied on by the General Court to reject their plea (that is HFB and Others v Commission (64) and Tokai Carbon and Others v Commission) are irrelevant and that the General Court incorrectly assessed the relevance of the judgment of the Court of Justice in Cascades v Commission.
141. In the case which gave rise to the judgment in HFB and Others v Commission, the Commission had held several legal persons belonging to an economic entity classified as an undertaking to be jointly and severally liable. Thus, not being seised of a case in which one of those undertakings was held solely liable for an infringement for the period prior to its integration into a group, the General Court consequently did not examine in HFB and Others v Commission whether two 10% upper limits should be taken into account.
142. Furthermore, far from supporting the Commission’s reasoning, the reference to paragraph 390 of Tokai Carbon and Others v Commission (see paragraph 193 of the judgment under appeal) on the contrary confirms the appellants’ argument. In Tokai Carbon and Others v Commission, all the addressees of the Commission decision had been considered to be jointly and severally liable for all the duration of the infringement. In that context, the General Court stated that ‘the objective sought by the introduction of the 10% [upper limit] can be realised only if that [upper limit] is applied initially to each separate addressee of the decision imposing the fine’ and that ‘[i]t is only if it subsequently transpires that several addressees constitute the “undertaking”, that is the economic entity responsible for the infringement penalised … that the [upper limit] can be calculated on the basis of the overall turnover of that undertaking’ (my emphasis). Consequently, Tokai Carbon and Others v Commission confirms that, where an undertaking is solely responsible for an infringement for the period prior to its acquisition by a wider group, the 10% upper limit must be calculated on the basis of the turnover of the undertaking in question, and not that of the group to which it belongs at the date of the adoption of the decision (since the other legal persons belonging to that group were not in any way liable for the infringement).
143. Furthermore, like the appellants, I am of the opinion that the General Court erred in law by stating, without further explanation, in paragraph 194 of the judgment under appeal that the appellants could not rely on Cascades v Commission (65) ‘since YKK Holding and YKK Corp. are not held jointly and severally liable for the payment of the whole of the fine of YKK Stocko Fasteners’. On the contrary, as I have already pointed out in paragraph 124 of this Opinion, Cascades v Commission is relevant, given that it states that a subsidiary has to answer for the infringements committed before its acquisition, since the new parent company cannot be held liable. The subsidiary is therefore obliged, on its own, to pay the fine imposed on it as a separate economic entity.
144. It follows from all of the foregoing that the third ground of appeal is well founded in so far as the General Court misinterpreted Article 23(2) of Regulation No 1/2003 and infringed the general principles of personal responsibility, the individuality of penalties, proportionality and equal treatment. Therefore, the fine imposed on YKK Stocko for the BWA cooperation must be capped at EUR 3 491 million, which represents 10% of its turnover in the business year of the calendar year preceding the adoption of the contested decision.
145. In addition, the appellants claim that they should benefit – on the revised amount of 10% of their turnover – from the 20% reduction for leniency which the Commission had granted to the YKK group, which had requested it on behalf of all the appellants (see recitals 657 to 664 of the contested decision). I consider that the fact that the 10% upper limit has to be calculated differently in no way affects the application of a reduction for leniency and that it is therefore necessary to allow the appellants’ claim, which the Commission has not, moreover, disputed – not even in the alternative – in its pleadings or at the hearing, before the General Court or before the Court of Justice. It is all the more logical that, under the 1998 Guidelines, the Commission’s practice (66) was to apply the reduction for leniency (sixth stage) after verification that the 10% upper limit had not been exceeded (which corresponds to the fifth stage of the process). That 20% reduction for leniency must therefore be applied to the revised amount. Therefore, the amount of the fine imposed on YKK Stocko is EUR 2 792 800.
D – The fourth ground of appeal, concerning the BWA cooperation and the application of a deterrence multiplier for the period prior to the acquisition of YKK Stocko
146. In their fourth ground of appeal, the appellants submit, firstly, that the General Court did not duly state the reasons why it rejected their plea alleging incorrect application of the multiplier for the period preceding the acquisition of YKK Stocko. They take the view, secondly, that the General Court in any event infringed Article 23(2) of Regulation No 1/2003, the principle of proportionality, the principle of the individuality of penalties as well as the principle of equal treatment in holding that an increase in deterrent effect was justified for the period prior to the acquisition of YKK Stocko by YKK Holding (the period during which YKK Stocko is considered to be exclusively liable).
147. The Commission disputes that line of argument. As regards the alleged failure to state reasons, it submits, in particular, that paragraph 114 of the appeal shows that the appellants perfectly understood the reasoning of the General Court set out, in particular, in paragraph 204 of the judgment under appeal, namely that the element which is taken into account for the purposes of the deterrent effect is the economic capacity of the undertaking concerned at the time of the adoption of a decision imposing a fine. As regards the arguments on the substance, the Commission explains that the deterrence multiplier had not been imposed for a specific duration – for example, for the period for which YKK Stocko was held solely liable – but was applied to the starting amount common to the whole of the YKK group (including YKK Stocko) which had been set for the infringement as a whole. The Commission adds that the deterrent effect which it is important to ensure concerns the impact on the single economic entity (undertaking) at the time of the adoption of the decision imposing the fines. At the date of the adoption of the decision (and, in fact, four years before the end of the infringement itself), the undertaking liable had grown since it had integrated not only YKK Stocko, but also its two parent companies. After its acquisition by YKK Holding and YKK Corp., YKK Stocko could no longer be considered in isolation for the purposes of assessing the impact of the fine, not even for the parts of the fine for which it was solely liable for payment.
148. I am of the opinion that the same considerations as those put forward in my Opinion regarding the third ground of appeal should apply, mutatis mutandis, here.
149. As the appellants rightly state, the case-law of the Courts of the European Union has identified two reasons why a deterrent multiplier may be applied, namely, firstly, the need to ensure that the fine has a significant effect, including for undertakings with large financial resources at the date of the adoption of the decision, and, secondly, the fact that the large undertakings, during the infringement period, (67) were able to have available to them greater resources than their competitors, and were therefore in a better position than their competitors to know the law and act within the limits it imposes.
150. That implies that the Commission may take into account only the resources and the financial means of the undertaking which it holds liable for an infringement. (68)
151. In the contested decision, the Commission applied a 1.25 multiplier on the basis of (a) the greater legal and economic knowledge and infrastructures that the undertakings referred to possessed in comparison to their competitors and (b) their ‘large financial resources’.
152. In that regard, recital 538 of the contested decision refers, firstly, to the ‘size’ of the YKK group and, secondly, to its ‘global resources’, an expression which the General Court itself used in Groupe Danone v Commission (69) – a judgment indeed cited by the Commission in recital 537 of the contested decision to justify the application of the multiplier not only to the part of the fine imposed jointly and severally on the appellants, but also to the fine imposed on YKK Stocko for the infringement period in which it was held solely liable, that is to say before March 1997.
153. I am of the opinion that although, for those reasons, the application of the 1.25 multiplier could be justified for the period after March 1997 (since YKK Stocko was part of the YKK group), such a multiplier is not justified for the period preceding the acquisition of YKK Stocko.
154. It is apparent from the file that, until its acquisition, YKK Stocko was a small undertaking with limited resources and did not have a legal service. It is clear that before March 1997, YKK Stocko did not have large financial resources.
155. Both in the light of the principle of equal treatment (having regard to the considerable difference in resources which (a) YKK Stocko had during the infringement period in which it was declared exclusively liable and which (b) the whole of the YKK group (including YKK Stocko) had during the infringement period in which they were declared jointly and severally liable, that is to say after the acquisition of YKK Stocko) and in the light of the principle of the individualisation of penalties, which requires that those penalties be adapted to the conduct and characteristics of the undertakings concerned, (70) the General Court should not have accepted the application by the Commission of the same multiplier to the two infringement periods in question.
156. It is interesting to draw a parallel between the present case and the decision taken by the Commission with regard to the ‘Monochloroacetic acid cartel’. (71) In that decision, the Commission imposed a fine only on Arkema SA (‘Arkema’) (formerly Atofina SA, ‘Atofina’), a subsidiary of the ELF/Total group, for repeated infringement.
157. In calculating that fine, the Commission made sure to take into account – for the purposes of adjusting the starting amount of the fine for deterrence – a multiplier which reflected only the economic capacity of Arkema (assessed independently of its parent company, Elf Aquitaine SA (‘Elf’)), regardless of the fact that Arkema and Elf formed a single economic entity at the time of the adoption of the decision in question.
158. The Commission states in footnote 222 of that decision that ‘[t]he multiplying factor applied to Elf, namely 2.5 is not included in the calculation. Instead a multiplying factor of 1.5, which would have been applied had Atofina been the sole addressee of the Decision (given its worldwide turnover of EUR 17.8 thousand million), will be used for the purposes of calculating recidivism. A separate fine will accordingly be addressed to Atofina alone for this amount’.
159. In other words, in calculating the fine imposed solely on the subsidiary, the Commission applied a 1.5 multiplier – which was different from the 2.5 multiplier applied when calculating the fine imposed jointly and severally on the parent company (Elf) and on the subsidiary (Arkema) – in order to take account of the lesser economic capacity of the subsidiary considered independently of its parent company.
160. The Commission has not put forward any reasons here which would explain why that approach was not chosen when calculating the fine for which YKK Stocko was solely liable.
161. In apportioning the liability of the appellants within the context of the BWA cooperation, the contested decision explicitly acknowledged that, before March 1997, YKK Stocko constituted an undertaking which was separate from the YKK group. In addition, the contested decision establishes the existence of infringements of a different duration committed by (a) YKK Stocko and (b) YKK Stocko in conjunction with the YKK group. (72) None the less, for the purposes of calculating the fine, and in particular for the purposes of establishing a deterrence multiplier, the Commission took into account only the global resources of the YKK group, including for the infringement period in which the undertaking held liable did not have those resources.
162. However, the undertaking whose size and global resources must be taken into account for the purposes of determining a possible deterrence multiplier is the undertaking responsible pursuant to Article 81 EC.
163. The General Court therefore erred in law in holding that the Commission could apply a 1.25 multiplier when calculating the fine imposed exclusively on YKK Stocko.
164. As is apparent from the foregoing considerations, I am of the opinion that, in the present case, no multiplier is justified with respect to YKK Stocko. Therefore, the amount of the fine for the period prior to the acquisition of YKK Stocko by the YKK group should be fixed at EUR 2 792 800.
IV – Costs
165. Under Article 184(2) of the Rules of Procedure of the Court, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs. Under Article 138(3) of those rules, applicable to the procedure on appeal pursuant to Article 184(1) thereof, where each party succeeds on some and fails on other heads, the parties are to bear their own costs.
166. In this case, it should be noted, first of all, that although, in my opinion, two of the four grounds of appeal relied on by the appellants must be upheld and, in that respect, the judgment under appeal must be set aside, on the other hand, I propose that the other two grounds of appeal be rejected.
167. Next, with regard to the action at first instance, it must be observed that, in reducing the fine, the Court will also grant two of the eight grounds of appeal at first instance relied on by the appellants. (73)On the other hand, it is apparent from the judgment under appeal, which should not be set aside by the Court on those points, that the appellants were unsuccessful with the other pleas it put forward at first instance.
168. In those circumstances, and since the parties have each been partially unsuccessful in their submissions, both at first instance and on appeal, they must each be ordered to bear their own costs.
V – Conclusion
169. I therefore propose that the Court should:
– reject the first and second grounds of appeal as unfounded;
– set aside the judgment of the General Court of the European Union of 27 June 2012 in YKK and Others v Commission (T-448/07), in so far as, when calculating the fine imposed on YKK Stocko Fasteners GmbH, it made errors of law in applying the 10% upper limit provided for in Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 EC] and [82 EC] and in applying the deterrence multiplier;
– set the fine imposed on YKK Stocko Fasteners GmbH for the infringement period in which it is exclusively liable at EUR 2 792 800 instead of EUR 19 250 000;
– order the European Commission to bear its own costs at first instance and on appeal, and, finally,
– order YKK Corp., YKK Holding Europe BV and YKK Stocko Fasteners GmbH to bear their own costs at first instance and on appeal.
1 – Original language: French
2 – Case T-448/07 YKK and Others v Commission [2012] ECR (‘the judgment under appeal’).
3 – Decision of 19 September 2007 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/39.168 – PO/Hard Haberdashery: Fasteners) (‘the contested decision’). Its summary is published in the Official Journal of the European Union (OJ 2009 C 47, p. 8). The contested decision is part of a series of three Commission decisions concerning the haberdashery sector – namely Decision C(2005) 3765 final of 14 September 2005 (Case 38.337 – PO/Thread), Decision C(2004) 4221 final of 26 October 2004 (Case 38.338 – PO/Needles), and the contested decision – which were all adopted following inspections carried out in November 2001 at the premises of several producers of hard haberdashery.
4 – Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 EC] and [82 EC] (OJ 2003 L 1, p. 1).
5 – OJ 2002 C 45, p. 3 (‘the 2002 Leniency Notice’).
6 – I will use the old numbering in this Opinion since the contested decision was taken under the EC Treaty
7 – Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3, ‘the Guidelines’).
8 – OJ 1996 C 207, p. 4, ‘the 1996 Leniency Notice’.
9 – See first paragraph of Section 1.A of the Guidelines, which was recalled by the Court in paragraph 38 of Case C-389/10 P KME Germany and Others v Commission [2011] ECR I-13125, and in paragraph 140 and case-law cited of the judgment under appeal.
10 – See recital 508 of the contested decision.
11 – See recital 509 of the contested decision.
12 – See KME Germany and Others v Commission, paragraph 44 (‘the market for copper industrial/plumbing tubes’ cartel). See also paragraph 97 et seq. of the Opinion of Advocate General Sharpston in Case C-40/12 P Gascogne Sack Deutschland v Commission [2013] ECR).
13 – Case C-554/08 P Le Carbone-Lorraine v Commission [2009] ECR I-189, paragraph 44. See also Case C-194/99 P Thyssen Stahl v Commission [2003] ECR I-10821, paragraph 118, and Case C-534/07 P Prym and Prym Consumer v Commission [2009] ECR I-7415, paragraph 96).
14 – Case T-79/06 Sachsa Verpackung v Commission [2011] ECR II-406, paragraph 118. See also Gascogne Sack Deutschland v Commission.
15 – Decision of 3 September 2004 relating to a proceeding pursuant to Article [81 EC] and Article 53 of the EEA Agreement (Case COMP/E-1/38.069 – Copper plumbing tubes) (‘the Copper plumbing tubes decision’). See recital 629 of the Copper plumbing tubes decision, which states that, ‘[a]lthough there are certain elements in the file that allow a careful estimation, for a limited time period, of the impact of the cartel on prices, it is impossible for the Commission to determine precisely what the evolution of prices during the entire period of infringement would have been in the absence of the cartel’.
16 – Case C-272/09 P KME Germany and Others v Commission [2011] ECR I-12789; Case C-386/10 P Chalkor v Commission [2011] ECR I-13085; and KME Germany and Others v Commission, respectively.
17 – KME Germany and Others v Commission (paragraph 45).
18 – See recitals 629 and 673 of the Copper plumbing tubes decision, and recital 507 of the contested decision.
19 – KME Germany and Others v Commission (paragraph 41).
20 – Ibidem (paragraph 44).
21 – Case T-30/05 Prym and Prym Consumer v Commission [2007] ECR II-107.
22 – See paragraph 109 of that judgment, which refers to recitals 318 to 320 of the decision contested in that case. See also Prym and Prym Consumer v Commission (paragraph 78).
23 – Prym and Prym Consumer v Commission (paragraphs 111 and 112).
24 – Ibidem (paragraph 190).
25 – Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraph 245.
26 – According to the appellants, a starting amount of the fine of EUR 50 million corresponds to 250% of the minimum starting amount for the infringements characterised as ‘very serious’, or even to 312.5% with the 1.25 multiplier.
27 – Recitals 496, 497, 507 to 509, 514 to 516, 529 and 530 of the contested decision.
28 – Dansk Rørindustri and Others v Commission (paragraph 245).
29 – Case T-38/02 Groupe Danone v Commission [2005] ECR II-4407, paragraph 384. See also KME Germany and Others v Commission, paragraphs 93 and 96; and Case T-208/06 Quinn Barlo and Others v Commission [2011] ECR II-7953, paragraph 244.
30 – See paragraph 93 of that judgment. See, in this context, Case T-50/00 Dalmine v Commission [2004] ECR II-2395, paragraph 292, and Case T-26/02 Daiichi Pharmaceutical v Commission [2006] ECR II-713, paragraph 113.
31 – Case T-279/02 Degussa v Commission [2006] ECR II-897, and Prym and Prym Consumer v Commission, respectively.
32 – Commission Decision of 3 May 2006 relating to a proceeding under Article [81 EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, EKA Chemicals AB, Degussa AG, Edison SpA, FMC Corporation, FMC Foret S.A., Kemira OYJ, L’Air Liquide SA, Chemoxal SA, Snia SpA, Caffaro Srl, Solvay SA/NV, Solvay Solexis SpA, Total SA, Elf Aquitaine SA and Arkema SA (Case COMP/F/C.38.620 — Hydrogen Peroxide and perborate), summary of that decision published in the Official Journal of the European Union (OJ 2006 L 353, p. 54), available on the internet site of the Directorate-General for ‘Competition’ of the Commission, and Commission Decision of 29 November 2006 relating to a proceeding under Article [81 EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 — BR/ESBR), summary of that decision published in the Official Journal of the European Union (OJ 2008 C 7, p. 11), available on the internet site of the Directorate-General for ‘Competition’ of the Commission.
33 – See, as regards Decision C(2006) 1766, recital 455 of that decision, and, as regards Decision C(2006) 5700 final, recital 462 of that decision.
34 – Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87).
35 – Namely, ‘[f]rom 14 February 2002, this notice replaces the 1996 notice for all cases in which no undertaking has contacted the Commission in order to take advantage of the favourable treatment set out in that notice’.
36 – See Case C-328/05 P SGL Carbon v Commission [2007] ECR I-3921, paragraph 83. See, to that effect, Case C-297/98 P SCA Holding v Commission [2000] ECR I-10101, paragraph 36, and Dansk Rørindustri and Others v Commission, paragraph 399.
37 – See SGL Carbon v Commission, paragraph 81.
38 – See paragraphs 21 and 22 of the 2002 Leniency Notice in comparison with Section 1.D of the 1996 Leniency Notice. How, for example, could it be reasonably asserted that information which does not satisfy the condition that it must ‘materially contribute to establishing the existence of the infringement’ (Section D of the 1996 Leniency Notice) could constitute evidence representing ‘significant added value with respect to the evidence already in the Commission’s possession’ (paragraph 21 of the 2002 Leniency Notice)?
39 – See Case T-15/02 BASF v Commission [2006] ECR II-497, paragraph 588, which mentions that ‘a reduction under that provision [namely the sixth indent of Section 3 of the Guidelines on the method of setting fines, which deals with cooperation outside the framework of the 1996 Leniency Notice] would necessarily mean that the cooperation in question was not capable of reward under the Leniency Notice’.
40 – Case T-381/06 FRA.BO v Commission [2011] ECR II-66.
41 – FRA.BO v Commission (paragraphs 93, 105 and 106).
42– For that reason, as the date of that judgment was not known, I was not able to announce the date of my Opinion at the hearing.
43 – The Opinion cites at this point Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I-5425, paragraphs 280 and 281.
44 – Advocate General's Opinion that ‘for an explanation of personal responsibility where liability for an infringement committed by a subsidiary is attributed to its parent, see [Joined Cases C-628/10 P and C-14/11 P Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others [2012] ECR] … paragraph 42’. She also refers to points 36 to 40 of her Opinion in Case C-50/12 P Kendrion v Commission [2013] ECR.
45 – According to the contested decision, the third appellant, Stocko, participated in the infringement for the whole of its duration, that is to say nine years and nine months, whereas YKK Corp. and YKK Holding, the first and second appellants, started to take part in the infringement (directly or indirectly) only after the acquisition of YKK Stocko Fasteners GmbH (now YKK Stocko) in 1997 and participated in the infringement for four years (recitals 466 to 468 of the contested decision). That is the reason why YKK Corp. and YKK Holding are not held liable for payment of the whole of the fine imposed on YKK Stocko and YKK Stocko was held solely liable for payment of the fine amounting to EUR 19 250 000.
46 – My emphasis.
47 – See, inter alia, Case C-196/99 P Aristrain v Commission [2003] ECR I-11005, paragraphs 95 to 99, and Dansk Rørindustri and Others v Commission, paragraph 118.
48 – Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraphs 119 and 118 respectively.
49 – Decision of 10 December 2003 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-2/37.857 – Organic peroxides) (C(2003) 4570 final and corrigendum C(2004) 4). A summary is published in the Official Journal of the European Union (OJ 2005 L 110, p. 44).
50 – Commission Decision of 30 June 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement against the undertakings ArcelorMittal, Emesa/Galycas/ArcelorMittal (España), GlobalSteelWire/Tycsa, Proderac, Companhia Previdente/Socitrel, Fapricela, Nedri/HIT Groep, WDI/Pampus, DWK/Saarstahl, voestalpine Austria Draht, Rautaruukki/Ovako, Italcables/Antonini, Redaelli, CB Trafilati Acciai, I.T.A.S., Ori Martin/Siderurgica Latina Martin, Emme Holding (Case COMP/38.344 – Prestressing Steel), as amended by Commission Decision of 30 September 2010 and Commission Decision of 4 April 2011. A summary is published in the Official Journal of the European Union (OJ 2011 C 339, p. 7) (recital 8).
51 – See Prestressing Steel decision (recital 8). See recital 1072a of the original version of the decision of 30 June 2010 notified under document number C(2010) 4387 final.
52 – Even if Article 23(2) of Regulation No 1/2003 requires, for calculating the 10% upper limit, the starting point to be the business year of the calendar year preceding the Commission decision sanctioning an infringement, that does not prevent that upper limit being determined solely on the basis of the turnover of the subsidiary, as regards the fine imposed exclusively on it for a period prior to its acquisition by the parent company. It should be added in that context that, within the framework of the present appeal, the appellants have not, however, questioned that the relevant year to be taken into account in the assessment at issue is the year preceding the contested decision.
53 – Joined Cases T-45/98 and T-47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II-3757, paragraph 63).
54 – See, to that effect, Case C-76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I-4405, paragraph 44.
55 – Case C-248/98 P KNP BT v Commission [2000] ECR I-9641, paragraph 71; Case C-279/98 P Cascades v Commission [2000] ECR I-9693, paragraphs 78 and 79; Case C-286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I-9925, paragraph 37; SCA Holding v Commission, paragraph 27; and Case C-352/09 P ThyssenKrupp Nirosta v Commission [2011] ECR I-2359, paragraph 143.
56 – See Cascades v Commission, paragraphs 78 to 80.
57 – See, to that effect, Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 145; Cascades v Commission, paragraph 78; Case C-280/06 ETI and Others [2007] ECR I-10893, paragraph 39; and Case C-97/08 P Akzo Nobel and Others v Commission [2009] ECR I-8237, paragraph 56.
58 – Case T-304/02 Hoek Loos v Commission [2006] ECR II-1887, paragraphs 116 and 120.
59 – Furthermore, I would like to note that – contrary to the Commission’s arguments – the application to a subsidiary, for an infringement which it committed independently, of a legal upper limit calculated on its turnover alone does not seem to me to undermine the objective of deterring infringements. That does not prevent the turnover of the group from also being taken into account when calculating the fine, as regards the fine to be imposed on that group for the part of the infringement which it committed.
60 – Judgment of 15 June 2005 in Joined Cases T-71/03, T-74/03, T-87/03 and T-91/03 Tokai Carbon and Others v Commission. A summary of the judgment is published. Full versions are available in German, English and French on the website of the General Court.
61 – Tokai Carbon and Others v Commission, paragraphs 389 to 391.
62 – Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633, paragraph 56, and Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraph 95.
63 – Paragraphs 281 and 282 (my emphasis). See also Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 121, and Case T-33/02 Britannia Alloys & Chemicals v Commission [2005] ECR II-4873, paragraph 35.
64 – Case T-9/99 HFB and Others v Commission [2002] ECR II-1487.
65 – More precisely paragraphs 77 to 80 of that judgment.
66 ‘In setting fines under the 1998 Guidelines the Commission took a seven-stage approach. First, it evaluated the “objective” gravity of the infringement taken as a whole […] Second, it determined an “individual starting amount” for each member of the cartel […] Third, the Commission applied, when appropriate, an increase percentage to those individual starting amounts, which reflected the additional impact caused by the duration of the infringement committed by each cartel participant […] Fourth, the Commission considered the “subjective” responsibility of each cartel participant […] Fifth, it considered whether the upper limit of 10 per cent of the annual turnover applicable to the fine had been exceeded. Sixth, where relevant and as appropriate, it reduced the fine, in application of the Leniency Notice. Finally, the Commission took account of any exceptional circumstances justifying an adjustment to the final amount of the fine’ (my emphasis) (Faull, J., and Nikpay, A. (editors), The EC law of competition, Oxford University Press, 2007, pp. 1025-1026, that commentary being written by officials of the Directorate-General for Competition). See, also, another leading commentary: Bellamy, C., and Child, G. (editors), European Union Law of Competition, Oxford University Press, 2013, pp. 1095-1097.
67 – Paragraphs 379 and 382 of Case T-410/03 Hoechst v Commission [2008] ECR II-881 confirm that, as regards the second ground for increasing, the size of the undertakings concerned must relate to their situation at the time of the infringement.
68 – See Case T-38/05 Agroexpansión v Commission [2011] ECR, paragraph 215.
69 – Paragraph 175, which states that ‘the applicant had legal and economic knowledge and infrastructures which enabled [them] more easily to recognise that [their] conduct constituted an infringement and be aware of the consequences stemming from it under competition law’.
70 – See, to that effect, Britannia Alloys & Chemicals v Commission, paragraph 44.
71 – Commission Decision 2006/897/EC of 19 January 2005 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals BV, Akzo Nobel Functional Chemicals BV, Akzo Nobel Base Chemicals AB, Eka Chemicals AB, and Akzo Nobel AB, jointly and severally, Clariant AG and Clariant GmbH jointly and severally, Elf Aquitaine SA and Arkema SA, jointly and severally, and Hoechst AG (Case No C.37.773 – MCAA) (OJ 2006 L 353, p. 12).
72 – Recital 541 of the contested decision.
73 – See the second indent of point 10 of this Opinion.
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