Case T‑189/10

(publication by extracts)

GEA Group AG

v

European Commission

(Competition — Agreements, decisions and concerted practices — European markets in heat stabilisers — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Infringement committed by subsidiaries — Fines — Joint and several liability of the subsidiaries and the parent company — Exceeding the 10% ceiling for one of the subsidiaries — Decision readopted — Reduction of the fine for that subsidiary — Attribution to the other subsidiary and the parent company of the obligation to pay the reduced fine — Rights of the defence — Right to be heard — Right of access to the file)

Summary — Judgment of the General Court (Fourth Chamber), 15 July 2015      

1.      Competition — Administrative procedure — Observance of the rights of the defence — Access to the file — Subject-matter — Documents of use in the defence — Right to be heard — Scope

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 27(1))

2.      Competition — Administrative procedure — Observance of the rights of the defence — Right to be heard — Right of access to the file — Infringement — Consequences — Annulment of the Commission decision finding an infringement — Conditions — Possibility of the undertaking concerned better ensuring its defence in the absence of those irregularities — Assessment with regard to a decision reducing, for the benefit of a single subsidiary, the amount of a fine imposed jointly and severally on several companies constituting a single undertaking

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2))

3.      Competition — Fines — Joint and several liability for payment — Determination of the share of the fine to be borne by the joint and several co-debtors — Jurisdiction of the national courts

(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2))

4.      Competition — Union rules — Infringement committed by a subsidiary — Attribution to the parent company — Joint and several liability for payment of the fine — Scope

(Art. 101 TFEU)

1.      See the text of the decision.

(see paras 67-70)

2.      Where a fine is imposed by the Commission for infringement of the competition rules without the undertaking concerned having been heard and without it having had access to the file, the decision must be annulled in so far as the said undertaking has adequately demonstrated not that, without those procedural errors, the contested decision would have been different in content, but rather that it would have been better able to ensure its defence had there been no such errors, which is to be determined by reference to the time of the administrative procedure leading to the adoption of the contested decision.

In that regard, in the context of a Commission decision jointly and severally ordering several companies, constituting a single undertaking for the purposes of Article 101 TFEU, to pay a fine, the parent company concerned may challenge the fact that it did not benefit from a reduction granted, by a second decision, adopted without hearing it or giving it access to the file, to one of the subsidiaries jointly and severally liable. In such circumstances, the parent company concerned may better ensure its defence by raising the question what the Commission’s obligations were as to the determination of the respective shares of the various companies in the amounts for which they were held jointly and severally liable, that question not having been resolved by the case-law at the time of the administrative procedure.

Moreover, if the fine imposed on the said parent company proves higher than the fine imposed on its subsidiaries, whereas its liability is entirely derived from the liability of the latter, it may challenge the amount of the fine envisaged in its regard.

(see paras 72-74, 76, 80, 83)

3.      See the text of the decision.

(see para. 75)

4.      See the text of the decision.

(see paras 81, 82)