Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 4 June 2020(1)

Case C‑823/18 P

European Commission

v

GEA Group AG

(Appeal — Agreements, decisions and concerted practices — Heat stabilisers — Annulment of the decision amending the fine imposed in the initial infringement decision — Application of the ceiling of 10% of turnover to one of the entities forming the undertaking — Impact on joint and several liability for payment of the fine — Concept of an ‘undertaking’ — Date on which the fine is payable in the event of amendment)

1.        By bringing the appeal which is the subject of this Opinion, the European Commission asks the Court of Justice to set aside the judgment of 18 October 2018, GEA Group v Commission (‘the judgment under appeal’). (2)

I.      Background to the dispute

2.        GEA Group AG (‘GEA’) was created by the merger, in 2005, of Metallgesellschaft AG (‘MG’) and another company. MG was the ultimate parent company which held, before 2000, directly or through subsidiaries, the companies Chemson Gesellschaft für Polymer-Additive mbH (‘OCG’) and Polymer Additive Produktions- und Vertriebs GmbH (‘OCA’). On 17 May 2000, MG sold OCG, which had been renamed Aachener Chemische Werke Gesellschaft für glastechnische Produkte und Verfahren mbH (‘ACW’). Following its dissolution in May 2000, the business of OCA was absorbed by a company named, from 30 August 2000, Chemson Polymer-Additive AG (‘CPA’), which no longer belongs to the group in respect of which GEA was the ultimate parent company.

3.        By decision of 11 November 2009 (‘the 2009 decision’), the Commission found that a number of undertakings had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in two sets of agreements and anticompetitive arrangements or concerted practices covering the territory of the EEA and concerning, first, the tin stabiliser sector and, secondly, the epoxidised soybean oil and esters sector (‘the ESBO/esters sector’). (3)

4.        Under Article 1(2)(k) of the 2009 decision, GEA was held liable for infringements committed in the ESBO/esters sector from 11 September 1991 to 17 May 2000. GEA was held liable for the entire period of infringement, as the successor of MG, on the one hand, for the infringement committed from 11 September 1991 to 17 May 2000 by OCG and, on the other, for the infringement committed from 13 March 1997 to 17 May 2000 by OCA. ACW was penalised, as the successor of OCG, for the infringement committed by OCG throughout the period of infringement, namely from 11 September 1991 to 17 May 2000, and for the infringement committed by OCA from 30 September 1999 to 17 May 2000, when the latter’s shares were wholly owned by OCG (Article 1(2)(m) of the 2009 decision). As the successor of OCA, CPA was penalised, on the one hand, for the infringement committed by OCA from 13 March 1997 to 17 May 2000 and, on the other, for the infringement committed by OCG from 30 September 1995 to 30 September 1999, when the latter’s shares were wholly owned by OCA (Article 1(2)(l) of the 2009 decision).

5.        Under points 31 and 32 of the second paragraph of Article 2 of the 2009 decision:

‘For the infringement(s) in the ESBO/esters sector … the following fines are imposed:

(31)      [GEA], [ACW] and [CPA] are jointly and severally liable for: EUR 1 913 971;

(32)      [GEA] and [ACW] are jointly and severally liable for: EUR 1 432 229.’

6.        GEA challenged the 2009 decision before the General Court. The General Court dismissed the action by judgment of 15 July 2015, GEA Group v Commission. (4)

7.        On 15 December 2009, ACW, which at the time the 2009 decision was adopted, was no longer a subsidiary of GEA, drew the European Commission’s attention to the fact that the fine imposed on it pursuant to the 2009 decision exceeded the ceiling of 10% of its total turnover laid down in Article 23(2) of Regulation (EC) No 1/2003. (5)

8.        On 8 February 2010, the Commission adopted a decision amending the 2009 decision (‘the 2010 decision’). (6) The Commission considered that the fine for which ACW had been found to be jointly and severally liable with, on the one hand, GEA and CPA and, on the other, GEA, exceeded the 10% ceiling, with the result that it was necessary to amend the 2009 decision (see recital 2 of the 2010 decision). The Commission also stated that the amount of the fine imposed on GEA and CPA remained unchanged, but that the amount of the fine imposed on ACW should be reduced and that the 2010 decision would have no consequences for the other addressees of the 2009 decision. Article 1 of the 2010 decision amended the second paragraph of Article 2 of the 2009 decision as follows:

‘Article 2, [point] 31 is replaced by the following text:

“(31)(a)      [GEA], [ACW] and [CPA] are [jointly and severally] liable for [EUR] 1 086 129;

(31)(b)      [GEA] and [CPA] are [jointly and severally] liable for EUR 827 842”.

Article 2, [point] 32 is replaced by the following text:

“(32)      [GEA] is liable for [EUR] 1 432 229”.’

9.        Following the action brought by GEA, by judgment of 15 July 2015, GEA Group v Commission, (7) the General Court annulled the 2010 decision, in so far as it concerned GEA. The General Court held that the Commission had infringed GEA’s rights of defence by adopting the 2010 decision without allowing it to submit its observations.

10.      By letter of 5 February 2016, the Commission informed GEA of its intention to adopt a new decision and invited it, along with ACW and CPA, to submit written observations. GEA submitted its written observations to the Commission on 24 March 2016. By letter of 2 May 2016, the Commission responded to GEA’s observations.

11.      On 29 June 2016, the Commission adopted a second decision amending the 2009 decision (‘the contested decision’). (8) Article 1 of that decision reproduced Article 1 of the 2010 decision without changes. Article 2 of the contested decision set the date by which the fines were due at 10 May 2010.

II.    Proceedings before the General Court and judgment under appeal

12.      On 8 September 2016, GEA brought an action for annulment of the contested decision. In that action, it claimed that the General Court should annul that decision and, in the alternative, reduce the amount of the fine and set a new date, after the adoption of the contested decision, for payment of the fine and for setting the starting point for establishing default interest.

13.      In support of its action, GEA put forward five pleas in law. In the first plea, it alleged a breach of the rules on limitation, in the second an infringement of Article 266 TFEU and the rights of defence, in the third an infringement of Article 23(2) and (3) of Regulation No 1/2003, in the fourth an infringement of the principle of equal treatment, and in the fifth the misuse of power and failure to state reasons. The Commission contended that the action was inadmissible on the ground that GEA had no legal interest in bringing proceedings.

14.      In the judgment under appeal, the General Court, first of all, dismissed the plea of inadmissibility raised by the Commission. It found, first, that the 2010 decision, subsequently annulled, and the contested decision had impacted on the determination from an external perspective of joint and several liability as between GEA, ACW and CPA, thereby altering their legal situation, and secondly, that the action brought could have led to an allocation of the amount of the fines imposed on GEA that was more favourable to GEA. (9)

15.      On the substance, the General Court examined, first, the fourth plea in law, directed against Article 1 of the contested decision and alleging infringement of the principle of equal treatment, and upheld that plea. (10) Secondly, the General Court examined the first complaint of the fifth plea in law, relating to misuse of power which it was claimed had vitiated Article 2 of the contested decision, by which the Commission set as 10 May 2010 the date on which the fines imposed on GEA, ACW and CPA were due. The General Court also held that that complaint was well founded, and therefore annulled the decision in its entirety and ordered the Commission to pay the costs.

III. Procedure before the Court of Justice and forms of order sought

16.      By application lodged at the Registry of the Court of Justice on 27 December 2018, the Commission brought the appeal which is the subject of this Opinion. The written procedure involved a twofold exchange of pleadings. The Court of Justice put several questions to the parties for a written response, and the parties replied within the prescribed period. The parties presented oral argument at the hearing before the Court of Justice on 5 February 2020.

17.      In its appeal, the Commission claims that the Court of Justice should set aside the judgment under appeal and order GEA to pay the entirety of the costs of the proceedings before the Court of Justice and those at first instance. GEA contends that the Court of Justice should dismiss the appeal and order the Commission to pay the costs.

IV.    Legal assessment

A.      Admissibility

1.      Arguments of the parties

18.      GEA contends that the appeal is inadmissible on the ground that the Commission does not have a legal interest in bringing proceedings. It considers that, even if the Court of Justice were to uphold the appeal, the Commission would no longer be entitled to require payment of the fine. First, it argues that the 2009 decision does not constitute a valid legal basis for that purpose, since, in that decision, both the fine and the joint and several liability of ACW, CPA and GEA were determined incorrectly. Secondly, the 10-year limitation period provided for in Article 25(5) of Regulation No 1/2003 for fixing the amount of the fine had expired before the contested decision was adopted. (11)

19.      The Commission counters that GEA’s plea must be rejected as inadmissible since it raises the question of the unlawfulness of the judgment under appeal in the response and not as part of a separate appeal or cross-appeal, contrary to Article 174 of the Rules of Procedure of the Court of Justice. As to the substance, the Commission submits that it has a legal interest in bringing an appeal against the judgment under appeal, in so far as that judgment annulled a decision having legal effects on the undertakings to which it is addressed, and contained erroneous findings as to joint and several liability and the power of the Commission to set the date for payment of the fines.

2.      Appraisal

20.      The Court has consistently held that for an appellant to have a legal interest in bringing proceedings the appeal must be capable, if successful, of procuring an advantage for the party bringing it. (12)

21.      GEA considers, in the first place, that, since the power of the Commission to impose a fine was time-barred when the contested decision was adopted, the Commission would not procure any advantage if the appeal were granted. (13) In that regard, I note that, even assuming, as GEA maintains, that the contested decision was adopted after the 10-year period provided for in Article 25(5) of Regulation No 1/2003, that circumstance does not in itself lead to the conclusion that there was time-barring. According to that provision, the limitation period for the imposition of fines is to expire at the latest at the end of a period of 10 years from the day on which the infringement ceased, ‘without the Commission having imposed a fine …’. Now, in the present case, it is self-evident that GEA was penalised for the infringement committed on the ESBO/esters market by the 2009 decision, adopted within the 10-year period provided for in Article 25(5) of Regulation No 1/2003. The fact that the maximum amount of the penalty imposed was determined incorrectly for one of the entities that comprised the undertaking responsible for the infringement, by reason of the fact that the limit of 10% of turnover provided for in the second subparagraph of Article 23(2) of Regulation No 1/2003 was exceeded, and that therefore, the Commission decided to amend the operative part of the 2009 decision in order to correct the error, has no effect on the time when the Commission’s power to impose penalties was exercised for the purposes of applying the limitation periods. (14) Neither the 2010 decision nor the contested decision altered the Commission’s decision, contained in the 2009 decision and adopted in accordance with Article 23(2) of Regulation No 1/2003, to impose a fine on the undertaking composed of ACW, CPA and GEA, (15) nor did they alter the amount of the fine imposed on GEA, but merely reduced the amount for which ACW could be held liable, by redefining the relationships of joint and sole liability between the three entities in question. Since, therefore, the contested decision cannot be regarded as a new decision to impose a fine, GEA’s argument that the setting aside of the judgment under appeal, and therefore the reinstatement of that decision would not confer any advantage on the Commission because the limitation period had expired, must, inasmuch as it is based on an incorrect premiss, be rejected.

22.      In the second place, GEA contends that, since the judgment under appeal ‘revives’ in respect of GEA the operative part of the 2009 decision, as amended — with regard to CPA and ACW — by the 2010 decision, and since the Commission considers that the 2009 decision in itself constitutes the legal basis for the fine imposed on GEA, the Commission has no legal interest in seeking to have the judgment under appeal set aside. That argument, too, must be rejected. In that regard, it is sufficient to note that the setting aside of the judgment under appeal would reinstate the contested decision with which the Commission, by amending the 2009 decision, on the one hand, redefined GEA’s joint and sole liability for the fine imposed on it, CPA and ACW, following the reduction of ACW’s fine and the 2010 decision — which was annulled solely in respect of GEA — and, on the other, set a new date for the payment of GEA’s fine, aligning it with the one already applicable to CPA and ACW under the 2010 decision. Regardless of any other consideration, the contested decision primarily pursues the objectives of legal certainty and sound administration of justice. It cannot, therefore, be denied that the Commission has a legal interest in bringing proceedings against the judgment which annulled that decision.

23.      Lastly, the documents before the Court of Justice show that, on 22 July 2016, in accordance with the contested decision and on a provisional basis, pending the action before the General Court against that decision, GEA paid the amounts corresponding to the fine imposed on it. After the contested decision was annulled by the judgment under appeal, GEA requested the Commission to reimburse those amounts, but its request was refused. GEA challenged the Commission’s decision to refuse its request, (16) claiming, first, that, under Article 266 TFEU, the Commission was required to comply with the judgment under appeal by reimbursing the amounts paid in accordance with the contested decision and, secondly, that by refusing the reimbursement, the Commission was in fact continuing to apply that decision, even though it had been annulled by the General Court. However, if the Court of Justice were to set aside the judgment under appeal, the contested decision would once again have legal effect, thereby invalidating the factual and legal basis for GEA’s action. The Commission therefore also on that basis has a legal interest in bringing an appeal against the judgment under appeal.

24.      For the reasons set out above, I consider that GEA’s plea that the appeal is inadmissible due to a lack of legal interest of the Commission in bringing proceedings is unfounded and must, therefore, be rejected.

B.      Substance

25.      The Commission has raised two grounds in support of its appeal. By the first ground, it submits that the General Court did not correctly apply the principle of equal treatment and disregarded the case-law on the concept of an undertaking, joint and several liability and the consequences of a reduction in the fine granted to a subsidiary. By the second ground, it argues that the General Court erred in finding that the time limit for paying a fine starts anew, for all the legal entities of an undertaking with joint and several liability, from the date of notification of an amending decision reducing the fine for only one of them.

1.      The first ground of appeal

(a)    Judgment under appeal

26.      The first ground of appeal is directed against paragraphs 106 to 111 of the judgment under appeal.

27.      After noting, in paragraph 105 of that judgment, that, according to GEA, the Commission could have allocated the reduction of ACW’s initial fine differently between those held jointly and severally liable for payment (in other words, GEA itself, ACW and CPA), the General Court stated in the following paragraph 106 that ‘as account must be taken not only of the fine imposed jointly and severally on ACW, CPA and [GEA], but also of the fine imposed jointly and severally on ACW and [GEA] for the purposes of determining whether the parties concerned have been treated equally, it must be held that, in the present case, the Commission has failed to fulfil its obligations under the principle of equal treatment’. According to the General Court, first, GEA and CPA were in a comparable situation, in that they were both companies jointly and severally liable for payment of a fine with ACW. (17) Secondly, the Commission ‘could certainly have arrived at a different determination of the part of the fine for which ACW and [GEA] remained jointly and severally liable, in order to limit the part of the fine for which the latter could be solely liable’, (18) allocating the reduction of the amount of ACW’s fine ‘proportionately in both cases of joint and several liability in question’. (19) Thus, first ‘the total amount of the fines for which ACW could be liable vis-à-vis the Commission would not have exceeded 10% of its turnover and, second, that reduction would have been equally distributed between the fine imposed jointly and severally on ACW and [GEA] and the fine imposed jointly and severally on [GEA], ACW and CPA’. In paragraph 111 of the judgment under appeal, the General Court therefore concluded that, by applying the reduction of the amount of the fine granted to ACW only to the fine jointly and severally imposed on the applicant, CPA and ACW, the Commission had infringed the principle of equal treatment, without any objective justification.

(b)    Arguments of the parties

28.      The Commission submits that the reasoning of the General Court in paragraphs 106 to 111 of the judgment under appeal is insufficient and contradictory. According to the Commission, there is uncertainty as to the subject matter of the allocation between the two cases of joint and several liability proposed by the General Court in paragraph 109 of the judgment under appeal — whether the amount of the reduction of the fine granted to ACW or the amount of the reduced fine itself — or how that allocation was to be made.

29.      In so far as that judgment criticises the Commission for failing to reduce the part of the fine for which GEA is solely liable, by limiting the joint and several liability of GEA, CPA and ACW to the part of the fine common to those entities, the Commission notes that such an allocation would have been contrary to the concepts of an undertaking and joint and several liability. By adopting a reasoning similar to the theory on internal shares of joint liability put forward by the General Court in its judgment of 3 March 2011, Siemens and VA Tech Transmission & Distribution v Commission (20) (‘the Siemens judgment of the General Court’) — rejected by the Court of Justice in its two judgments of 10 April 2014, Commission v Siemens Österreich and Others (21) (‘the Siemens judgment of the Court of Justice’) and Areva and Others v Commission (22) (‘the Areva judgment’) — the General Court recommends, in the Commission’s view, the removal of joint and several liability from an external perspective between entities belonging to the same undertaking in respect of certain parts of the fine. The Commission states that, in its 2009 decision, it applied the following rule in all cases where legal entities belonging to the same undertaking are penalised by fines of different amounts, namely to hold all those entities jointly and severally liable for the amount of the lowest fine.

30.      The Commission further submits that, by artificially separating two groups of jointly and severally liable entities and applying the principle of equal treatment to those entities, the General Court has treated entities belonging to the same economic unit as different undertakings. First, in competition cases, that principle is normally applied only between separate undertakings which have been found liable for the same infringement in the same decision. Secondly, the General Court itself infringed that principle by treating comparable situations differently, in so far as it annulled the joint and several liability of GEA, CPA and ACW for part of the fine imposed.

31.      By criticising the Commission for failing to limit the part of the fine for which GEA could be held liable on an individual basis, the General Court also infringed the principle, upheld by the Court of Justice in its judgment of 26 November 2013, Kendrion v Commission (23) (‘the Kendrion judgment’), that a reduction in the fine granted to an entity belonging to an undertaking, owing to circumstances that apply solely to that entity, has no effect on the fine or the liability of the other legal entities that form the undertaking.

32.      In addition, the Commission clarifies that the maximum amount of the fine for which each company was held jointly and severally liable does not correspond to a certain period of participation in the infringement and that the contested decision did not alter the attribution of liability of GEA, CPA and ACW which emerges from the 2009 decision. In its reply, its answers to the written questions put by the Court and at the hearing, the Commission insisted, in particular, that points 31 and 32 of Article 2 of the 2009 decision ‘do not correspond to specific periods, but represent instead the different maximum amounts of the fine for which each of the legal entities composing the same undertaking could be held jointly and severally liable’. It argues that the apportionment of the fine was due to the fact that CPA participated in the infringement under two separate undertakings, GEA and Chemson. The maximum limit of its liability as a subsidiary of GEA corresponded to the fine fixed in point 31 of Article 2 of the 2009 decision, while the subsequent point 32 corresponded to the remaining fine imposed on the GEA group, for which only GEA and ACW could be held liable. The fine imposed in points 31 and 32 is, therefore, a single fine and is addressed to the undertaking formed of GEA and its subsidiaries, in the different configurations in which that undertaking participated in the infringement.

33.      Moreover, the Commission argues that, given that the 2010 decision had become final with regard to ACW and CPA, it could not alter the joint and sole liability of GEA without reducing the amount of the fine imposed on that company. Such a reduction would, however, run counter to the Kendrion judgment and call into question the final nature of the 2009 decision, as confirmed by the General Court.

34.      Lastly, the Commission submits that the fact that there are alternative methods of apportioning joint and several liability to the one used by the Commission in the contested decision does not in itself lead to the conclusion, as reached by the General Court, that the decision is unlawful. The judgment under appeal is insufficiently reasoned in that regard.

35.      GEA contends that the Commission’s claims are based on a misunderstanding of the judgment under appeal. First of all, contrary to the Commission’s submission, GEA argues that the General Court did not rely on the ‘theory on internal shares of joint liability’, but merely applied the principle of equal treatment, considering that CPA and GEA were in a comparable situation, that they had been treated differently and that there was no justification for such a difference of treatment. The General Court thus considered only the external liability; that is to say, the amount for which each of addressees can be held liable, jointly and severally or solely, by the Commission.

36.      GEA further contends that, according to the findings of the General Court, which cannot be contested on appeal, in its 2009 decision, the Commission did not impose a single fine, but two separate fines for two different groups of jointly and severally liable entities and for two different periods of the infringement. As stated in paragraphs 61 and 62 of the judgment under appeal, points 31 and 32 of Article 2 of the 2009 decision refer to the period from 30 September 1995 to 17 May 2000 and to the period from 11 September 1991 to 29 September 1995, respectively. That allocation is supposedly due to the fact that CPA participated in the infringement only during the period between 11 September 1991 and 29 September 1995. However, the Commission applied the reduction of ACW’s fine as if there were a single case of joint and several liability between ACW, CPA and GEA. The Commission was mistaken therefore in considering that, in those circumstances, the concept of undertaking precludes the application in the present case of the principle of equal treatment. GEA notes that the Commission is required to uphold that principle, as a general principle of EU law recognised by Articles 20 and 21 of the Charter of Fundamental Rights of the European Union, even when exercising the power to impose fines under Article 23(2) of Regulation No 1/2003. Contrary to the Commission’s claims, GEA contends that that principle applies not only to different undertakings, but also in relations between companies that form part of the same undertaking. (24)

37.      As regards the Commission’s contention that the General Court has infringed the Kendrion judgment, GEA states that that judgment does not preclude the application of the 10% cap to a former subsidiary from having any effect on the situation of the parent company, but only that the parent company cannot benefit from the same limit as the one applicable to the former subsidiary. Not even a possible reduction in GEA’s fine would be contrary to the Kendrion judgment, in so far as it does not consist of applying ACW’s 10% limit to GEA, but of applying that limit in accordance with the principle of equal treatment.

(c)    Legal assessment

38.      In the first place, the Commission’s complaint that the grounds of the judgment under appeal are insufficient and contradictory must be rejected. The grounds are undoubtedly concise, but they explain the reasoning followed by the General Court, which appears to be linear and without contradictions. It seems sufficiently clear to me, in fact, that in paragraphs 106 to 111 of the judgment under appeal, the General Court refers to an allocation of the reduction in the amount of the fine of ACW (25)proportionately (26) in the two cases of joint and several liability identified by the Commission in points 31 and 32 of Article 2 of the 2009 decision. This means, in essence, that, according to the General Court, the Commission should have, first, identified the part of the fine for which ACW was jointly and severally liable with CPA and GEA, as a proportion of the fine for which it was jointly and severally liable with GEA alone and, then, allocated the reduction of ACW’s fine between both cases of joint and several liability applying the same proportion. With regard to the allocation made in the 2010 decision and in the contested decision, the application of that method would have meant: (i) that ACW, CPA and GEA would have been jointly and severally liable for a lower amount than that stated in point 31(a) of Article 2 of the 2009 decision, as amended by those decisions; (ii) that CPA and GEA would have been jointly and severally liable for a higher amount than that stated in point 31(b); (iii) that GEA would have been solely liable for a lower amount than the one stated in point 32 of Article 2 of the 2009 decision, as amended, since ACW and GEA would have been jointly and severally liable for part of the fine fixed in that point. From the General Court’s point of view, the application of that method of allocating the reduction of the fine granted to ACW would have led to a fairer determination of joint and several liability for ACW’s reduced fine (paragraph 110), limiting ‘the part of the fine for which [GEA] could be solely liable’ (paragraph 108). Therefore, although succinct, I consider that the reasoning followed by the General Court is not vitiated by insufficient reasoning.

39.      In the second place, the Commission’s complaint that the judgment under appeal infringes the principles laid down by the Court of Justice in Kendrion must be rejected. (27) In that judgment, the Court of Justice stated that, where ‘two separate legal persons, such as a parent company and its subsidiary, no longer constitute an undertaking within the meaning of Article [101 TFEU] on the date on which a decision imposing a fine on them for breach of the competition rules is adopted, each of them is entitled to have the 10% ceiling applied individually to itself’ and that, in those circumstances, the parent company could not claim to benefit from the ceiling applicable to its former subsidiary. (28) Now, as GEA correctly observes, that judgment merely rules out the application of that ceiling to the parent company. Indeed, the parent company, being part of the economic entity which infringed Article 101 TFEU, must itself be deemed to have committed the infringement, (29) with the result that the fine for which it is jointly and severally liable with the subsidiary is not affected by the reduction applied to the subsidiary (30) for reasons that pertain to it alone. (31) On the other hand, it is not apparent from that judgment, as the Commission appears to believe, that, if, following the application of the 10% ceiling to the subsidiary, it is necessary to recalculate from an external perspective the joint and several liability between the subsidiary, the parent company and the other entities that form the undertaking, that recalculation cannot take into account the interests of all the parties involved, including the parent company. I note, moreover, that, whatever method the Commission uses, the recalculation of the joint and several liability between GEA, CPA and ACW following the reduction of the fine imposed on ACW would in any event have led, both for GEA and CPA, to a more unfavourable situation than that resulting from the 2009 decision. The question at issue here is not, therefore, whether such a reduction would be of benefit to GEA, but whether the reapportionment of joint and several liability between the entities in question as a result of the application of that reduction could, without infringing the principle of equal treatment, be more unfavourable to GEA than to CPA. We are therefore clearly outside the scope of the Kendrion judgment. As regards the Commission’s assertion that, if the judgment under appeal were to be upheld, it would be obliged to reduce GEA’s fine, since it would be unable to amend the operative part of the 2010 decision as this had become final for CPA and ACW, I would merely observe that, regardless of any other consideration, such a reduction would be the result of an infringement by the Commission of the principle of equal treatment, which the Commission would be required to remedy, and not the result of the extension to GEA of any benefits deriving from the application to ACW of the 10% ceiling. Once again, the principles laid down by the Court of Justice in Kendrion would not, therefore, be called into question.

40.      Lastly, the Commission’s complaint that the judgment under appeal is based on a reasoning similar to that of the Siemens judgment of the General Court must be rejected. In that judgment, the General Court held that, since ‘it follows from the principle that penalties must be specific to the offender and to the offence concerned … that each company must be able to discern from the decision imposing a fine on it to be paid jointly and severally with one or more other companies the amount which it is required to bear in relation to the other joint and several debtors, once payment has been made to the Commission’, the Commission ‘is not free to determine the sums to be paid jointly and severally’, but ‘must … specify the periods during which the companies concerned were jointly liable for the unlawful conduct of the undertakings which participated in the cartel and, where necessary, the degree of liability of those companies for that conduct’. (32) In those circumstances, the General Court concluded, in paragraphs 157 and 158 of that judgment, that ‘it is … exclusively for the Commission, in exercising its power to impose fines under Article 23(2) of Regulation No 1/2003, to determine the respective shares of the various companies of the fines imposed on them jointly and severally, in so far as they formed part of the same undertaking …’, and that ‘in the absence of a contrary indication in the decision by which the Commission has imposed a fine jointly and severally on several companies for an infringement by an undertaking, that decision attributes that infringement to them in equal measure …’. (33) On appeal by the Commission, the Court of Justice set aside the Siemens judgment of the General Court, stating that ‘while it follows from Article 23(2) of Regulation No 1/2003 that the Commission is entitled to hold a number of companies jointly and severally liable for payment of a fine, since they formed part of the same undertaking, it is not possible to conclude on the basis of either the wording of that provision or the objective of the joint and several liability mechanism that that power to impose penalties extends, beyond the determination of joint and several liability from an external perspective, to the power to determine the shares to be paid by those held jointly and severally liable from the perspective of their internal relationship’. The Court of Justice found that the determination of those shares is ‘a contentious issue, to be resolved at a later stage, and, in principle, the Commission no longer has any interest in the matter, where the fine has been paid in full by one or more of those held liable’. (34) It is therefore ‘for the national courts to determine those shares, in a manner consistent with EU law’. (35)

41.      As GEA correctly observed, the judgment under appeal concerns only the determination from an external perspective of joint and several liability between GEA, CPA and ACW, a matter that unquestionably falls within the Commission’s power to impose penalties, (36) and criticises the Commission for exercising that power in a manner contrary to the principle of equal treatment. The question of the allocation of the fine imposed on those companies in the context of their internal relations is not touched upon in any way by the General Court.

42.      That said, I consider that, as the Commission correctly maintains, the same considerations that led the Court of Justice to overrule the General Court in Siemens regarding the effect of the concept of an undertaking under EU competition law on the rules governing the exercise of the Commission’s power to impose penalties are also relevant to the present appeal.

43.      The concept of an undertaking is used in the Treaties to designate the perpetrator of an infringement of competition law, who is liable to be punished pursuant to Articles 101 and 102 TFEU. (37) The Court of Justice has consistently held that ‘the concept of an undertaking covers any entity engaged in an economic activity, regardless of the legal status of the entity or the way in which it is financed. That concept must be understood as covering an economic unit, even if, from a legal perspective, that unit is made up of a number of natural or legal persons’. (38) It is settled case-law that ‘if the unlawful conduct of a subsidiary can be imputed to its parent company, those companies may be regarded, during the period of the infringement, as forming a single economic unit and thus a single undertaking within the meaning of the competition law of the European Union’. (39) When such an economic unit infringes the competition rules, it is for that unit, in accordance with the principle of personal responsibility, to answer for that infringement. (40) A Commission decision imposing fines cannot, however, be issued generically to an economic unit, but must, for purely practical reasons, necessarily be addressed to the legal persons comprising the undertaking. (41)

44.      Where several persons may be held personally responsible for participation in an infringement committed by one and the same undertaking for the purposes of competition law — whether their liability is direct or derived from that of a subsidiary — the Commission has the possibility, under Article 23(2) of Regulation No 1/2003, of holding them jointly and severally liable for payment of a fine. (42) As the Court of Justice has pointed out, the objective of joint and several liability resides in the fact that it constitutes an additional legal device available to the Commission to strengthen the effectiveness of the action taken by it for the recovery of fines imposed for infringement of the competition rules, since that mechanism reduces for the Commission, as creditor of the debt represented by such fines, the risk of insolvency. This furthers the objective of deterrence pursued generally by competition law. (43)

45.      In the present case, in its 2009 decision, the Commission made use of that instrument by finding GEA, CPA and ACW, as entities forming part of a single undertaking, jointly and severally liable for a fine for infringement of Article 81 EC (now Article 101 TFEU) resulting from that undertaking’s participation in a cartel in the ESBO/esters market. However, GEA contends that, in points 31 and 32 of Article 2 of that decision, the Commission actually imposed not one but two distinct fines, referring to different periods of the infringement, thereby identifying two separate undertakings. The Commission disputes this.

46.      At the outset, I should state that the reconstruction of the relationship between the two amounts referred to in those points is a central issue for the purposes of examining the first ground of appeal, which, unsurprisingly, is highly contested by the parties.

47.      In that respect, there is no doubt that points 31 and 32 of Article 2 of the 2009 decision reflect, at least indirectly, the different forms in which the undertaking found liable for the infringement participated in the cartel over a period. It is apparent from the 2009 decision that CPA, as the successor of OCA, formed part of a single economic unit together with GEA and ACW only for a certain period of the infringement imputed to that unit, namely from 30 September 1995 to 17 May 2000. (44) A relationship therefore exists between the amounts fixed in points 31 and 32 of Article 2 of the 2009 decision and the periods when CPA was part of the same undertaking with GEA and ACW and when the undertaking consisted solely of those two companies.

48.      However, that finding must not lead to the conclusion that those amounts do not form part of a single fine imposed on a single undertaking in its various and successive forms.

49.      In determining the joint and several liability between the various entities making up the undertaking found to have infringed Article 101 TFEU, the Commission must take into account not only the change of control among those entities, but also the changes in the composition of the undertaking. (45) The undertaking may, in fact, assume different forms during its participation in an infringement, depending on the different entities joining or leaving it. Such changes, which are liable to occur particularly where, as in the present case, the infringement continues for a long period, do not call into question either the fact that there is a single undertaking to which an infringement is imputable, or the fact that a single fine is imposed on it. This explains the distinction made by the Commission in points 31 and 32 of Article 2 of the 2009 decision, in determining the joint and several liability of GEA, CPA and ACW for the single fine imposed on the economic unit to which they belonged at various times.

50.      In other respects, the amounts fixed in those points reflect, in accordance with the principle that penalties must be specific to the offender and the offence, and pursuant to Article 23(3) of Regulation No 1/2003, the gravity and the duration of the infringement for which the undertaking concerned is held individually responsible. In that regard, the Court of Justice has clarified that the Commission must adhere to that principle, as well as the principle of legal certainty, in determining joint and several liability from an external perspective, based on which the various members of the undertaking may be required to pay the whole of the fine imposed on the undertaking. (46) In the present case, by distinguishing the amounts to be imputed jointly and severally to GEA, CPA and ACW and to GEA and ACW, the Commission took into account the fact that, for a certain period, CPA participated in the infringement as a subsidiary of a different parent company, with which it was ordered jointly and severally to pay a different fine, (47) thereby avoiding infringing the principle that penalties must be specific to the offender and the offence, an infringement for which it was criticised by the Court of Justice in the Areva judgment. (48)

51.      The applicant’s argument that points 31 and 32 of Article 2 of the 2009 decision correspond to the periods of participation of GEA, CPA and ACW in the cartel and identify two different fines must, therefore, be rejected. I note, moreover, that that argument was, at least in part, rejected by the General Court itself, which, in line with the Commission’s argument in its appeal, stated, in paragraph 102 of the judgment under appeal, that ‘the fine imposed on each company forming a single undertaking, within the meaning of Article 101 TFEU, does not reflect the participation of those companies in the infringement, but only the maximum amount that may, as the case may be, be claimed from them by the Commission for the participation of the undertaking, within the meaning of Article 101 TFEU, in the infringement’. Contrary to GEA’s contention, however, it is not equally clear whether the General Court considered that points 31 and 32 of Article 2 of the 2009 decision identify two distinct fines and two separate undertakings. It would seem that paragraphs 54 and 55 of the judgment under appeal should be interpreted in that sense. However, in the paragraphs of the judgment under appeal challenged by the Commission in its first ground of appeal, the General Court only distinguishes between two different cases of joint and several liability.

52.      In my view, the foregoing undermines the premiss of the General Court’s argument, namely that the cases of joint and several liability identified in points 31 and 32 of Article 2 of the 2009 decision correspond to the duration of the respective participation of GEA, ACW and CPA in the infringement and concern amounts fixed in proportion to that participation. As previously mentioned, and as the Commission maintains, those points do not reflect the participation of the individual entities in the infringement, but rather their membership of the same undertaking and thus their ability to be held jointly and severally liable for the payment of the amounts stated.

53.      The reduction of ACW’s fine has a direct impact on its joint and several liability from an external perspective, in the sense that the Commission cannot require ACW to pay an amount higher than the 10% ceiling applicable to it. However, it does not alter the joint and several liability from an external perspective of the other companies, which remain liable to the Commission within the limits applicable to them individually, either based on their respective 10% ceilings or based on the period in which they were part of the same undertaking that committed the infringement. The fact that GEA is liable for part of the fine alone is purely as an automatic result of the reduction applied to ACW and the fact that those entities formed a single undertaking for the entire duration of the infringement.

54.      It is for that reason that — as I believe the Commission correctly stated — the Commission was under no obligation to apportion the reduction granted to ACW or its reduced fine in any particular way. As the Court of Justice stated in Siemens, in so far as it is merely the manifestation of an ipso jure legal effect of the concept of an ‘undertaking’, the EU law concept of joint and several liability for payment of a fine concerns only the undertaking itself and not the companies of which it is made up. (49) In that context, it is pointless to compare the situations of CPA and GEA, since those companies were an integral part of the same economic unit and, as such, were penalised in the 2009 decision. (50)

55.      On the basis of the foregoing, I consider that the General Court erred in law in paragraphs 105 to 111 of the judgment under appeal, in so far as it found that the Commission had infringed the principle of equal treatment. Consequently, the Commission’s first ground of appeal must, in my view, be upheld.

2.      The second ground of appeal

(a)    Judgment under appeal

56.      The second ground of appeal is directed against paragraphs 119 to 126 of the judgment under appeal.

57.      In paragraphs 122 and 123 of that judgment, the General Court held that, at the date of entry into force of the 2010 decision and its notification, the provisions of points 31 and 32 of Article 2 of the 2009 decision, in their original version, no longer applied, since they had been replaced by the 2010 decision, and therefore could not serve as a basis for determining the date from which the fines in question were payable. According to the General Court, ‘only the date of receipt of the notification of the 2010 decision, which from that point forward constituted the legal basis for the obligation to pay those fines, could serve as a starting point for such a time limit’. (51) In paragraph 124 of the judgment under appeal, the General Court held that that decision had, however, been annulled by the judgment of 15 July 2015, GEA Group v Commission (52) and that, consequently, it could not serve as a legal basis ‘for both the applicant’s obligation to pay the fines in question and the determination of the date on which they were payable’. The General Court then noted, in paragraph 125 of the judgment under appeal, that although that annulment had the effect of reviving the original version of points 31 and 32 of Article 2 of the 2009 decision, that version was again replaced by the version imposed by Article 1 of the contested decision. It therefore concluded, in paragraph 126 of the judgment under appeal, that the ‘obligation to pay the fines arises only from Article 1 of the contested decision and that the time limit for payment of those fines could be determined only from the date of receipt of notification of that decision’.

(b)    Arguments of the parties

58.      The Commission submits that the General Court erroneously relied on points 31 and 32 of Article 2 of the 2009 decision as the basis for determining the date on which the fine was due. It argues that that date was in fact set in the second paragraph of Article 2 of the 2009 decision and thus in a different point of the operative part of that decision. If an article or part of an article in the operative part of a decision has not been affected by an amending decision, it continues to produce legal effects. It follows, according to the Commission, that the change in the starting date of the applicant’s fine in the 2010 decision (53) and in the contested decision is done at its discretion and does not automatically stem from the change in the provisions relating to the amount of the fine. Contrary to what emerges from the judgment under appeal, the Commission argues that amending a fine does not amount to replacing it — in other words, imposing a new fine. The Commission argues that, in the contested decision, it decided to align the due date of GEA’s fine with the date set for ACW and CPA following the 2010 decision, so as not to place GEA at a disadvantage compared with those companies. Lastly, the Commission observes that the error made by the General Court would result in the loss of default interest owed by all entities of an undertaking in all cases where a fine is amended in respect of only one of them, and would also risk unduly limiting the Commission’s margin of discretion whenever it was necessary to amend a fine.

59.      According to GEA, the starting point for default interest cannot be set at the Commission’s discretion at an earlier date than the date of notification of the decision that determines the fine. Since, in the present case, as correctly stated in the judgment under appeal, that decision could only be the contested decision, the General Court correctly concluded that the date on which the fine was due could not have been earlier than the date of notification of that decision. GEA also observes that contrary to the Commission’s claim, the contested decision did not merely amend points 31 and 32 of Article 2 of the 2009 decision, but replaced them and that that replacement concerns the entire operative part imposing the fine. Lastly, GEA states that, in the event of an amendment to a decision imposing a fine on the various entities of the same undertaking, the loss of default interest would concern only the entities affected by that amendment and not the others.

(c)    Appraisal

60.      Although the principle applied by the General Court, whereby the date on which a fine becomes payable and from which any default interest is due cannot be fixed at a date earlier than the date of notification of the decision setting the fine, is in itself correct, the same cannot be said, in my view, of how that principle was applied in the judgment under appeal.

61.      For the reasons set out in point 21 of this Opinion, contrary to what the General Court states in paragraphs 123 to 126 of the judgment under appeal, I consider that it is the 2009 decision, and not the subsequent amending decisions, which constitutes the legal basis for the fine imposed on GEA, CPA and ACW. (54)

62.      Moreover, as the Commission rightly submits, the amendment of points 31 and 32 of Article 2 of the 2009 decision, first by the 2010 decision, and then by the contested decision, did not automatically amend the final paragraph of Article 2, according to which ‘the fines shall be paid in euro within three months of the date of the notification of this decision’. That amendment concerned only the amount of the fine imposed on ACW and the reapportionment of the joint and several liability from an external perspective between GEA, CPA and ACW, but did not affect the date on which the amended fine was due.

63.      In the letter of notification of the 2010 decision and then in the operative part of the contested decision, the Commission decided — although it was not required to do so — to postpone that date, as set out in the final paragraph of Article 2 of the 2009 decision, until 10 May 2010.

64.      The question may arise as to whether that decision infringes the principle of equal treatment with regard to the other undertakings penalised for the same infringement, for whom the due date, unlike GEA, CPA and ACW, remained the same as the one fixed in the last paragraph of Article 2 of the 2009 decision, and whether therefore, as the Commission claims, it is in fact free to change at its discretion the date by which a fine is due in the decision amending the amount of the fine in order to take into account the 10% ceiling applicable to one of the legal entities penalised. However, I do not consider, for the reasons already mentioned, that the decision can be regarded as unlawful for the reasons given by the General Court.

65.      Consequently, on the basis of the foregoing, I am of the view that the second ground of appeal must also be upheld.

3.      Interim conclusions

66.      In my estimation, both grounds put forward by the Commission are well founded and should be upheld. Consequently, the judgment under appeal should be set aside.

67.      In accordance with Article 61(1) of the Statute of the Court of Justice of the European Union, if the appeal is well founded, the Court of Justice must quash the decision of the General Court. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. Since the General Court ruled only on the fourth plea in law and on the first part of the fifth plea in law, the state of the proceedings does not permit the Court of Justice to give final judgment. The case must, therefore, be referred back to the General Court for judgment.

V.      Costs

68.      Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded or where the appeal is well founded and the Court of Justice itself gives final judgment in the case, the Court of Justice is to make a decision as to costs. Since the case has to be referred back to the General Court, it is appropriate to reserve the costs.

VI.    Conclusion

69.      On the basis of all the foregoing considerations, I propose that the Court should:

–        declare the Commission’s appeal admissible;

–        set aside the judgment of 18 October 2018, GEA Group v Commission (T‑640/16, EU:T:2018:700);

–        refer the case back to the General Court for judgment;

–        reserve the costs.

1      Original language: Italian.

2      T‑640/16, EU:T:2018:700.

3      Decision C(2009) 8682 final relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (COMP/38589 — Heat stabilisers).

4      T‑45/10, not published, EU:T:2015:507.

5      Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 [EC] (OJ 2003 L 1, p. 1).

6      Decision C(2010) 727 final amending [the 2009 decision].

7      T‑189/10, EU:T:2015:504.

8      Decision C(2016) 3920 final, amending the 2009 decision.

9      See paragraphs 51 to 77 of the judgment under appeal.

10      See paragraphs 97 to 113 of the judgment under appeal.

11      According to GEA’s calculations, the limitation period provided for in Article 25(5) of Regulation No 1/2003 started to run on 18 May 2000, the date on which the infringement ended and, taking into account the suspensions due to GEA’s actions against the 2009 and 2010 decisions, expired on 10 August or 3 November 2015.

12      Judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce (C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 46).

13      Since GEA’s argument overlaps with that made in its first plea in law before the General Court, it should be clarified that the verification of the assumption on which that argument is based — namely that the 2009 decision does not constitute a valid decision under Article 23(2) of Regulation No 1/2003 — is carried out, in the context of this Opinion, in order to answer GEA’s plea of inadmissibility, and is not an examination of the legality of the contested decision.

14      Clearly this does not mean that the application of those time limits might not have a different outcome if the amendment of the amount of the fine is the result of altering the parameters for applying the limitation rules — for example, if the Commission subsequently decides to set an earlier date for the end of the infringement period for one of the participating entities, thus bringing forward the date from which the limitation period begins to run for that entity. See, in that regard, judgment of 6 October 2015, Corporación Empresarial de Materiales de Construcción v Commission (T‑250/12, EU:T:2015:749, paragraphs 46 to 48).

15      See, to that effect, with regard to the annulment by the General Court of the amount of the fine fixed by the Commission, judgment of 6 October 2015, Corporación Empresarial de Materiales de Construcción v Commission (T‑250/12, EU:T:2015:749, paragraph 74). Moreover, that view is also supported by Article 26(3) of Regulation No 1/2003 on the basis of which a decision varying the original amount of the fine interrupts the limitation period for the enforcement of penalties, and is not, therefore, relevant for the purposes of the time-barring of the power to impose the fine, at least for as long as the parameters determining when the limitation periods start to run remain unchanged.

16      That action is the subject of Case T‑195/19, currently pending before the General Court. At the Commission’s request, the case was suspended by the President of the Fifth Chamber of the General Court pending the outcome of the appeal which is the subject of this Opinion.

17      See paragraph 107 of the judgment under appeal.

18      See paragraph 108 of the judgment under appeal.

19      See paragraph 109 of the judgment under appeal.

20      T‑122/07  to T‑124/07, EU:T:2011:70.

21      C‑231/11 P to C‑233/11 P, EU:C:2014:256.

22      C‑247/11 P and C‑253/11 P, EU:C:2014:257.

23      C‑50/12 P, EU:C:2013:771.

24      In that regard, GEA cites the judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission (C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 59), and the order of 18 September 2014, Sasol and Others v Commission (T‑541/08 REC, not published, EU:T:2014:823, paragraph 181 et seq.).

25      The General Court refers to the allocation of the ‘reduction’ of ACW’s fine, not only in paragraph 105, but in paragraphs 109, 110 and 111, whereas nowhere in the grounds is there any mention of the allocation of ACW’s ‘reduced fine’.

26      The Commission submits that there is a contradiction between paragraph 109 of the judgment under appeal, in which — in the version in the language of the case (English) — the General Court uses the adverb ‘proportionately’, and the subsequent paragraph 110, in which the adverb ‘equally’ is used. However, a comparison with the French version of the judgment under appeal, which, while not authentic, is the original language of drafting, in which the word ‘équitablement’ (‘equamente’ in the Italian version) appears in paragraph 110, suggests that this term may have been incorrectly rendered in the English version. In any event, given the wider sense of paragraph 110 and its context, the adverb in question can, in my view, only be read as a reference to a ‘fair distribution’ and not to an ‘equal distribution’. The contradiction alleged by the Commission does not, therefore, exist.

27      The proceedings that gave rise to that judgment concerned an appeal brought by the company Kendrion, which had been jointly and severally ordered with its subsidiary to pay a fine for infringement of Article 101 TFEU, against the judgment by which the General Court had, inter alia, rejected Kendrion’s argument that the Commission had infringed the concept of joint and several liability by imposing on Kendrion a fine higher than that imposed on its subsidiary, as reduced following the application of the 10% ceiling provided for in Article 23(2) of Regulation No 1/2003.

28      See paragraphs 55 to 58 of the Kendrion judgment.

29      See paragraph 55 of the Kendrion judgment; see also, inter alia, judgment of 27 April 2017, Akzo Nobel and Others v Commission (C‑516/15 P, EU:C:2017:314, paragraph 56).

30      Moreover, the General Court correctly applied those principles in paragraphs 99 to 101 of the judgment under appeal.

31      A reduction that affects the liability of the subsidiary is a different matter, however. The Court of Justice has clarified in that regard that, in a situation where the liability of a parent company is purely derivative of that of its subsidiary and in which no other factor individually reflects the conduct for which the parent company is held liable, the liability of that parent company cannot exceed that of its subsidiary (see, to that effect, judgments of 22 January 2013, Commission v Tomkins (C‑286/11 P, EU:C:2013:29, paragraphs 37, 39, 43 and 49), and of 17 September 2015, Total v Commission (C‑597/13 P, EU:C:2015:613, paragraph 38).

32      See paragraph 153 of the Siemens judgment of the General Court.

33      See paragraph 158 of the Siemens judgment of the General Court.

34      See paragraph 60 of the Siemens judgment of the Court of Justice; see also judgment of 26 January 2017, Villeroy & Boch v Commission (C‑625/13 P, EU:C:2017:52, paragraphs 151 to 153).

35      See paragraph 62 of the Siemens judgment of the Court of Justice; judgment of 26 January 2017, Villeroy & Boch v Commission (C‑625/13 P, EU: C:2017:52, paragraphs 151 to 153).

36      See the Siemens judgment of the Court of Justice, paragraph 68.

37      See paragraph 42 of the Siemens judgment of the Court of Justice and the case-law cited.

38      See in particular judgments of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission (C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 42 and the case-law cited); of 17 September 2015, Total v Commission (C‑597/13 P, EU:C:2015:613, paragraph 33); of 27 April 2017, Akzo Nobel and Others v Commission (C‑516/15 P, EU:C:2017:314, paragraph 48); and the Siemens judgment of the Court of Justice, paragraph 43.

39      See, inter alia, the Areva judgment, paragraph 49 and the case-law cited.

40      See Siemens judgment of the Court of Justice, paragraph 44 and, inter alia, judgments of 10 September 2009, Akzo Nobel and Others v Commission (C‑97/08 P, EU:C:2009:536, paragraph 56), and of 27 April 2017, Akzo Nobel and Others v Commission (C‑516/15 P, EU:C:2017:314, paragraph 49).

41      See paragraph 55 of the Siemens judgment of the Court of Justice.

42      See paragraphs 47 to 51 of the Siemens judgment of the Court of Justice.

43      See paragraph 59 of the Siemens judgment of the Court of Justice.

44      CPA continued to participate in the infringement after 17 May 2000 and until 26 September 2000, but within a different economic unit with Chemson GmbH, with which it was found jointly and severally liable for payment of EUR 137 606 (see point 33 of Article 2 of the 2009 decision).

45      In paragraph 51 of its judgment in Siemens, the Court of Justice stated that the Commission’s determination of the amount of the fine to be imposed jointly and severally on entities forming part of the same undertaking ‘– in so far as it is based, in any particular case, on the concept of an undertaking, which is a concept of EU law — is subject to certain limitations, which require due account to be taken of the characteristics of the undertaking concerned, as constituted during the period in which the infringement was committed’. See also the Areva judgment, paragraphs 129 to 133.

46      See the Areva judgment, paragraphs 126 to 128.

47      Chemson GmbH, with which CPA was ordered jointly and severally to pay EUR 137 606; see point 33 of Article 2 of the 2009 Decision.

48      See the Areva judgment, paragraph 129 et seq. In the present case, the Commission acted exactly as recommended in paragraph 133 of that judgment.

49      See paragraph 57 of the Siemens judgment of the Court of Justice. See, to the same effect, judgment of 17 September 2015, Total v Commission (C‑597/13 P, EU:C:2015:613, paragraph 71), regarding the application of mitigating circumstances.

50      Such a comparison would only make sense in so far as it could be found that, in the 2009 decision, the Commission imposed two distinct fines on two separate undertakings. However, it is my view that, as we have seen, that hypothesis must be rejected.

51      See paragraph 123 of the judgment under appeal.

52      T‑189/10, EU:T:2015:504.

53      The Commission states that it was only in the letter in which it notified ACW, CPA and GEA of the 2010 decision that it stated that the fine was payable within three months of the date of that decision. The 2010 decision does not, therefore, contain a specific provision on the due date, contrary to the contested decision.

54      On the fact that the amendment of the amount of a fine is not necessarily a fine different in law, see also, mutatis mutandis, judgment of 14 July 1995, CB v Commission (T-275/94, EU:T:1995:141, paragraph 65), cited by the Commission in its appeal.

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