Case T-382/06

Tomkins plc

v

European Commission

(Competition – Agreements, decisions and concerted practices – Copper and copper alloy fittings sector – Decision finding an infringement of Article 81 EC – Imputability of the infringement – Duration of the infringement)

Summary of the Judgment

1.      Competition – Fines – Joint and several liability for payment – Scope

(Art. 81(1) EC)

2.      Actions for annulment – Actions brought separately by a parent company and its subsidiary against a Commission decision imputing the subsidiary’s infringement to its parent company – Account taken by the Court in the action brought by the parent company of the outcome of the action brought by the subsidiary – Breach of the prohibition on ruling ultra petita – None

3.      Competition – Agreements, decisions and concerted practices – Proof – Evidence of an undertaking’s continuous participation in the cartel – Burden of proof

(Art. 81(1) EC)

1.      The liability of a parent company cannot exceed that of its subsidiary where it is not held liable for the cartel on account of its direct participation in the cartel’s activities, but is held liable for the infringement only as parent company by virtue of its subsidiary’s participation in the cartel. The duration of the subsidiary’s participation in the infringement is decisive as regards the extent of the parent company’s liability.

With regard to a Commission decision imputing the subsidiary’s infringement to its parent company and imposing a fine on the parent company, jointly and severally with its subsidiary, that joint and several liability puts the parent company and its subsidiary in a special position, with any annulment or alteration of the contested decision having consequences for the parent company to which the subsidiary’s infringement was imputed. If there had been no infringement on the part of the subsidiary, there could not have been any imputation to the parent company of the subsidiary’s conduct or any imposition of a fine, jointly and severally, on the parent company and its subsidiary.

(see paras 35, 37-38, 45)

2.      In an action for annulment, since the EU judicature cannot rule ultra petita, the scope of the annulment which they pronounce may not go further than that sought by the applicant. If the addressee of a decision decides to bring an action for annulment, the matter to be decided by the EU judicature relates only to those aspects of the decision which concern that addressee. Unchallenged aspects concerning other addressees, on the other hand, do not form part of the matter to be tried by the EU judicature.

In competition law, with regard to a Commission decision imputing the subsidiary’s infringement to its parent company and imposing a fine on the parent company, jointly and severally with its subsidiary, the Commission’s imputation of liability to the parent company means that the latter has the benefit of the partial annulment of that decision following an action for annulment brought by its subsidiary in a parallel case.

It follows that the General Court, which has before it actions for annulment brought separately by a parent company and by its subsidiary, is not ruling ultra petita if it takes into account, for the purpose of ruling on the action brought by the parent company, the outcome of the action brought by the subsidiary, if the form of order sought in the action brought by the parent company has the same object.

(see paras 35, 40-42, 44)

3.      It is for the Commission to prove the duration of each member’s participation in a cartel, which implies that the starting date and the end date of that participation are known.

In the absence of any proof or evidence capable of being interpreted as a declared intention on the part of an undertaking to distance itself from the object of the agreement, the Commission is entitled to conclude that it has adequate evidence that that undertaking’s participation in the cartel had continued until the date on which the Commission regarded the cartel as having come to an end, namely the date on which it carried out unannounced inspections.

(see paras 49, 53)