Case T‑411/10

(publication by extracts)

Laufen Austria AG

v

European Commission

(Competition — Agreements, decisions and concerted practices — Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Coordination of price increases and exchange of sensitive business information — Attributability of unlawful conduct — Fines — 2006 Guidelines on the method of setting fines — Gravity of the infringement — Multipliers — Mitigating circumstances — Economic crisis — Pressure exerted by wholesalers — 2002 Leniency Notice — Reduction of the fine — Significant added value)

Summary — Judgment of the General Court (Fourth Chamber), 16 September 2013

Competition — Fines — Amount — Determination — Non-imposition or reduction of the fine in return for the cooperation of the undertaking concerned — Conditions — Parent company and subsidiaries — Assessment of the cooperation of those subsidiaries individually

(Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2002/C 45/03, points 20 and 21)

In competition matters, the Commission has set out in the 2002 Leniency Notice the conditions under which undertakings cooperating with it during its investigation into a cartel may be exempted from fines, or may be granted a reduction of the fine which would otherwise have been imposed upon them. An undertaking which applies for a reduction of the fine and which provides the Commission with evidence of the suspected infringement which represents significant added value may benefit from such a reduction. Thus, as a rule, only the undertaking which has applied for a reduction of the fine and, where relevant, the entities on whose behalf the application was made and which cooperate with the Commission may be granted a reduction of the fine on that account.

The Commission is not obliged to extend to another subsidiary the benefit of a reduction of the fine which has been granted to the first subsidiary, which has made an application under the 2002 Leniency Notice, merely because the two subsidiaries belong, together with their common parent company, to an undertaking within the meaning of EU law. Unlike the parent company’s liability, which can be regarded as purely derivative, secondary and dependent upon that of its subsidiary, a subsidiary’s liability is not derived from that of a fellow subsidiary, as the liability arises as a result of its own participation in the cartel.

In those circumstances, it is only when (i) an application for a reduction of the fine is made on behalf of the fellow subsidiary and (ii) that subsidiary has actually cooperated with the Commission, that the fellow subsidiary may benefit from a reduction of the fine upon the application of another subsidiary belonging to the same undertaking. That situation can thus be distinguished from the situation in which a parent company makes, on its own behalf and on behalf of its subsidiaries, an application for reduction of the fine, since, in such a situation, all the companies forming the undertaking within the meaning of the case-law are obliged to cooperate with the Commission.

(see paras 222, 226-229)