Case C‑286/11 P

European Commission

v

Tomkins plc

(Appeal — Competition — Agreements, decisions and concerted practices — European market for copper and copper alloy fittings — Liability of the parent company stemming solely from the unlawful conduct of its subsidiary — Principle of ne ultra petita — Effect on the legal situation of the parent company of an annulment determined by a judgment concerning a subsidiary)

Summary — Judgment of the Court (Grand Chamber), 22 January 2013

Actions for annulment — Actions brought separately by a parent company and its subsidiary against a Commission decision imputing the unlawful conduct of the subsidiary to the parent company — Outcome of the action brought by the subsidiary taken into account, by the General Court, in the action brought by the parent company — Infringement of the prohibition on ruling ultra petita — None

(Art. 81(1) EC and 256 EC)

In the field of competition law, as regards an action for annulment brought by a parent company against a Commission decision which imputes to that company liability for the infringement committed by its subsidiary and orders it to pay the fine imposed, the European Union judicature does not rule ultra petita where it takes account of the judgment on the action for annulment brought in parallel by the subsidiary against the same decision, a judgment which, finding that there was an error in the determination of the duration of the infringement, partially annulled that decision and reduced the fine.

In order to impute liability to any entity within a group, it is necessary to prove that one entity at least has committed an infringement of the European Union competition rules and that that fact be noted in a decision which has become definitive. That is not the case where the joint and several liability of the parent company is based on the decision relating to the infringement by the subsidiary which was partially annulled having regard to the finding in respect of the duration of the infringement committed.

Therefore, in such a case, the European Union judicature is entitled, without ruling ultra petita, to take account of the outcome of the action brought by the subsidiary and to annul that decision in respect of the period at issue also in so far as the parent company is concerned, even if the scope of the applications lodged by those companies and of the arguments they have put forward is not identical.

(see paras 37, 38, 43, 49)