Appeal brought on 7 June 2011 by European Commission against the judgment of the General Court (Eighth Chamber) delivered on 24 March 2011 in Case T-382/06: Tomkins plc v European Commission

(Case C-286/11 P)

Language of the case: English

Parties

Appellant: European Commission (represented by: F. Castillo de la Torre, V. Bottka, R. Sauer, Agents )

Other party to the proceedings: Tomkins plc

Form of order sought

The appellant claims that the Court should:

set aside the Judgment under Appeal;

dismiss the action before the General court in its entirety;

require the applicant to bear the entirety of the costs of these proceedings and those of the proceedings at first instance.

Pleas in law and main arguments

The Commission raises the following five grounds of appeal:

In the first ground of appeal it is submitted that by annulling part of the duration established in the Decision on the basis of elements never raised by Tomkins, the General Court clearly ruled ultra petita. The case law of the Union Courts does not recognise exceptions to the rule defined in the C-310/97 P AssiDomän case law on the basis that two applicants belonged to the same undertaking. Recently, the Court of Justice has made it clear in ArcelorMittal Luxembourg (Joined Cases C-201/09 P and C-216/09 P) that a case lodged by one entity within a group does not affect the legal position of other entities within the same undertaking.

In its second ground of appeal the Commission contends that the General Court equally erred in law in finding that the forms of order of Pegler (the subsidiary, in Case T-386/06) and Tomkins (the parent company, in Case T-382/06) had the "same object". Although, the period contested by Tomkins was much shorter than that contested in the separate case by Pegler, the same reduction in terms of duration was granted to both companies. However, Pegler not only challenged a much longer period, but it also based its Application on different and even opposing pleas to those of Tomkins. In contesting the initial period of the duration, Pegler's object was to exculpate itself and inculpate Tomkins, whereas Tomkins' aim was a rather limited one, i.e. to contest the evidence related to the first 38 days (which would not even have affected the duration taken into account for the fine).

Moreover the assessment of the General Court is based on the factually incorrect premiss that Tomkins would have claimed that "if that decision were to be annulled with respect to Pegler, it should also be annulled in so far as it relates to the applicant" (paragraph 42 of the Judgment under Appeal). Tomkins made no such plea either in the Application or in its Reply (which in any event would have been too late). This constitutes a distortion of the applicant's plea which is in itself sufficient to set aside the Judgment under Appeal

The third ground of appeal relates to disregarding that Tomkins was part of an undertaking which admittedly committed an infringement. The General Court committed an error of law because it reduced the liability of an entity (the parent company Tomkins) within the "Tomkins undertaking" for the reason that for another part of that undertaking, the subsidiary Pegler, the duration was reduced. However, the reduction of Pegler's liability for the infringement was based on Pegler's status as a "dormant company" and was not based on the fact that the group in question did not participate in the infringement. In the Commission's view the fact that this particular subsidiary (Pegler) of the group may not have been the right addressee within the group for a certain period concerns only that subsidiary and does not exonerate the entire "undertaking". This holds especially true in a situation where it was not contested by the General Court (nor by Tomkins itself) that the undertaking headed by Tomkins participated in the infringement during much of the relevant period.

The Commission bases its fourth ground of appeal on lack of motivation and contradictions in the judgment under appeal. The fourth ground of appeal is subsidiary to the first, that is even if the General Court did not act ultra petita, the judgment should still be annulled because it fails to provide sufficient and clear reasoning for the partial annulment (lack of motivation). There are at least two important instances on which the Judgment under Appeal lacks clarity.

o First, when describing the exception that the General Court considers should be made from the AssiDomän case law the conditions of such departure are unclear and contradictory.

o The second incoherence or unclear aspect in the reasoning of the General Court is the fact that at paragraph 57 of the Judgment under Appeal on the multiplier for deterrence the Commission is asked "in accordance with Article 266 TFEU, to draw the appropriate conclusions from that mistake and from the joint and several liability for the fine so far as concerns the applicant." However, at paragraph 59 the General Court exercises its unlimited jurisdiction on the fine and determines the fine amount applicable to Tomkins. The operative part of the Judgment under Appeal repeats the final amount of the fine without any mentioning of the need to modify that amount further. Regardless of the exact meaning of paragraph 57, the Commission notes that the annulment of the multiplier for deterrence in Case T-386/06 Pegler v Commission should be of no consequence for the multiplier of Tomkins.

Finally, in the fifth ground of appeal it is submitted that the General Court breached the "principe du contradictoire" and the right to a fair hearing because it failed to give an opportunity to the Commission to comment on its intention to reduce Tomkins' fine on the basis of pleas raised in a separate case by Pegler.

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