Case C‑238/12 P
FLSmidth & Co. A/S
v
European Commission
(Appeal— Competition— Agreements, decisions and concerted practices— Plastic industrial bags sector— Decision finding an infringement of Article81 EC— Unlimited jurisdiction of the General Court— Duty to state reasons— Attribution to the parent company of the infringement committed by the subsidiary— Liability of the parent company for payment of the fine imposed on the subsidiary— Proportionality— Proceedings before the General Court— Adjudication within a reasonable time)
Summary— Judgment of the Court (First Chamber), 30April 2014
1.Competition— European Union rules— Infringements— Attribution— Parent company and subsidiaries— Economic unit— Criteria for assessment— Presumption that the parent company exercises decisive influence over its wholly-owned subsidiaries— Rebuttable— Taking account of the presumption in compliance with the presumption of innocence— Burden of proof
(Art.81 EC; Charter of Fundamental Rights of the European Union, Art.48; Council Regulation No1/2003, Art.2)
2.Appeals— Pleas in law— Mistaken assessment of the facts— Inadmissibility— Review by the Court of the assessment of the facts and evidence— Possible only in the event of distortion
(Art.256(1) TFEU; Statute of the Court of Justice, Art.58, first para.)
3.Appeals— Pleas in law— Plea submitted for the first time in the context of the appeal— Inadmissibility
(Art.256(1) TFEU; Statute of the Court of Justice, Art.58; Rules of Procedure of the Court of Justice, Art.170(1))
4.Competition— Fines— Amount— Determination— Discretion of the Commission— Judicial review— Unlimited jurisdiction of the European Union judicature— Scope
(Art.261 TFEU; Council Regulation No1/2003, Art.31)
5.Competition— Fines— Amount— Determination— Criteria— Gravity and duration of the infringement— No obligation to impose a fine strictly proportional to the duration of the infringement
(Art.81(1) EC; Council Regulation No1/2003, Art.23(2))
6.Appeals— Jurisdiction of the Court— Challenge, on grounds of fairness, to the assessment by the General Court regarding the amount of fines imposed on undertakings which have infringed the competition rules of the Treaty— Excluded— Challenge to that assessment on grounds alleging breach of the principle of proportionality— Lawful
(Arts 258 TFEU and 261 TFEU; Statute of the Court of Justice, Art.58; Council Regulation No1/2003, Art.31)
7.Competition— European Union rules— Infringement committed by a subsidiary— Attribution to the parent company— Joint and several liability for payment of the fine— Scope— Parent company and subsidiary having formed a single undertaking at the time of commission of the infringement— Regard to the undertaking as a whole, and not to its constituent parts, when taking account of possible mitigating circumstances
(Art.81 EC; Council Regulation No1/2003, Art.23(2); Commission Notice 96/C 207/04)
8.Competition— Fines— Amount— Determination— Non-imposition or reduction of the fine for cooperation of the undertaking concerned— Conditions— Parent company and subsidiaries— Need to form an economic unit at the time of the cooperation
(Art.81(1) EC; Council Regulation No1/2003, Art.23(2); Commission Notice 96/C 207/04)
9.Competition— Fines— Amount— Determination— Criteria— Reduction of the amount of the fine for cooperation of the undertaking concerned— Conditions— Need for conduct which facilitated the finding of an infringement— Discretion of the Commission
(Council Regulation No1/2003, Art.23(2); Commission Notice 96/C 207/04)
10.Judicial proceedings— Duration of the proceedings before the General Court— Reasonable time— Proceedings concerning the existence of an infringement of the competition rules— Failure to adjudicate within a reasonable time— Consequences
(Charter of Fundamental Rights of the European Union, Art.47, second para.)
11.Non-contractual liability— Claim based on an excessive length of the proceedings before the General Court— Conditions— Unlawfulness— Harm— Causal link— Criteria for assessment— Composition of the chamber hearing the case
(Arts 256 TFEU, 268 TFEU and 340 TFEU; Charter of Fundamental Rights of the European Union, Art.47, second para.)
1.See the text of the decision.
(see paras 25-28, 31)
2.See the text of the decision.
(see paras 31, 100-102)
3.See the text of the decision.
(see para. 42)
4.See the text of the decision.
(see paras 56-60)
5.Whilst the General Court is required to ensure that the calculation of the amount of a fine imposed on an undertaking for its involvement in an infringement of the European Union competitions rules takes due account of the duration of the infringement and of that undertaking’s participation in it, the fact remains that the duration of an infringement is neither the only factor nor necessarily the most important factor that the Commission and/or the General Court must take into account for the purpose of calculating the fine.
Thus, the amount of the fine imposed does not need to be strictly proportional, or, in principle, reasonably proportional, to the duration of the undertaking’s participation in the infringement at issue, in so far as the amount appropriately reflects the gravity of the infringement committed.
(see paras 63, 64)
6.See the text of the decision.
(see para. 67)
7.See the text of the decision.
(see para. 71)
8.Only an undertaking which has cooperated with the Commission on the basis of the notice on the non-imposition or reduction of fines in cartel cases can be granted, under that notice, a reduction of the fine which would have been imposed without that cooperation. That reduction cannot be extended to a company which, for part of the duration of the infringement in question, had formed part of the economic unit constituted by an undertaking, but no longer formed part of it at the time when the undertaking cooperated with the Commission.
A contrary interpretation would mean generally that, in instances where one undertaking succeeds another, a company which participated initially in an infringement, as the parent company of a subsidiary directly involved in it, and which transferred that subsidiary to another undertaking would benefit, as the case may be, from a fine reduction granted to the latter undertaking in respect of its cooperation with the Commission, although that company neither contributed itself to the detection of the infringement in question nor exercised decisive influence at the time of that cooperation on its former subsidiary.
(see paras 83, 84)
9.See the text of the decision.
(see para. 103)
10.Having regard to the need to ensure that the competition rules of European Union law are complied with, the Court cannot allow an appellant to reopen the question of the amount of a fine which has been imposed upon it, on the sole ground that there was a failure to adjudicate within a reasonable time, where all of its pleas directed against the findings made by the General Court concerning the amount of that fine and the conduct that it penalises have been dismissed.
The sanction for a breach, by a Court of the European Union, of its obligation under the second paragraph of Article47 of the Charter of Fundamental Rights of the European Union to adjudicate on the cases before it within a reasonable time must be an action for damages brought before the General Court, since such an action constitutes an effective remedy. It follows that a claim for compensation for the damage caused by the failure by the General Court to adjudicate within a reasonable time may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself.
(see paras 115, 116)
11.When hearing a claim for compensation for the damage caused by its failure to adjudicate within a reasonable time, the General Court, sitting in a different composition from that which heard the dispute giving rise to the proceedings whose duration is criticised, has the task of assessing both the actual existence of the harm alleged and the causal connection between that harm and the excessive length of the legal proceedings at issue by examining the evidence submitted for that purpose.
Where proceedings before the General Court last more than six years and their duration cannot be justified by any of the particular circumstances of the case, whether it be the complexity of the dispute, the conduct of the parties or supervening procedural matters, that constitutes a sufficiently serious breach of a rule of law intended to confer rights on individuals and, therefore, according a right to such a claim for compensation, distinct from an appeal.
(see paras 116-119, 123)