Provisional text
JUDGMENT OF THE GENERAL COURT (Ninth Chamber, Extended Composition)
7 December 2022 (*)
(Competition – Agreements, decisions and concerted practices – Retail food packaging – Decision amending the amount of a fine – Calculation of the fine – Imputability of the unlawful conduct – 2006 Guidelines on the method for setting fines – Ceiling of the fine – Proportionality – Equal treatment – Ability to pay)
In Case T‑130/21,
CCPL – Consorzio Cooperative di Produzione e Lavoro SC, established in Reggio Emilia (Italy),
Coopbox Group SpA, established in Bibbiano (Italy),
Coopbox Eastern s.r.o., established in Nové Mesto nad Váhom (Slovakia),
represented by E. Cucchiara and E. Rocchi, lawyers,
applicants,
v
European Commission, represented by P. Rossi and T. Baumé, acting as Agents,
defendant,
THE GENERAL COURT (Ninth Chamber, Extended Composition),
composed, during deliberations, of S. Papasavvas, President, and M.J. Costeira, M. Kancheva, P. Zilgalvis (Rapporteur) and I. Dimitrakopoulos, Judges,
Registrar: P. Nuñez Ruiz, Administrator,
having regard to the written part of the procedure,
having regard to the order of 22 July 2021, CCPL and Others v Commission (T‑130/21 R, not published, EU:T:2021:488),
further to the hearing on 16 June 2022,
gives the following
Judgment
1 By their action under Article 263 TFEU, the applicants – CCPL – Consorzio Cooperative di Produzione e Lavoro SC, Coopbox Group SpA and Coopbox Eastern s.r.o. – seek the annulment of Commission Decision C(2020) 8940 final of 17 December 2020 (‘the contested decision’), amending the amount of the fines imposed by Commission Decision C(2015) 4336 final of 24 June 2015 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39563 – Retail food packaging) (‘the 2015 Decision’).
Background to the dispute and events subsequent to the bringing of the action
2 The applicants are companies belonging to the CCPL Group that are active, in particular, in the food packaging sector.
3 CCPL is a cooperative company that holds stakes in operating companies through CCPL SpA, including stakes in Coopbox Group and Coopbox Eastern.
4 On 24 June 2015, the European Commission adopted the 2015 Decision, by which it found that companies working in the retail food packaging sector had been involved in five separate infringements of Article 101 TFEU and of Article 53 of the EEA Agreement during the period between 2000 and 2008. Under the terms of Article 2 of that decision, and in accordance with Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), the Commission imposed fines in a total amount of EUR 33 694 000, in particular, on the applicants and on two other companies forming part of the CCPL Group at the time.
5 The final amount of the fines was determined after the five companies concerned had been granted a 25% reduction, in accordance with paragraph 35 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’), of the final amount of fines that the Commission was entitled to impose on them, given their limited ability to pay.
6 By order of 15 December 2015, CCPL and Others v Commission (T‑522/15 R, EU:T:2015:1012), the President of the General Court suspended the obligation to provide a bank guarantee in favour of the European Commission to avoid the immediate recovery of the fines that had been imposed on the five companies concerned, provided that, first, they paid the Commission the sum of EUR 5 million as well as the entire revenue derived from the proposed transfer of certain holdings and, second, they submitted to the Commission every three months until adoption of the decision in the main proceedings and at each event liable to affect their future capacity to pay the fines imposed, a detailed written report on the implementation of the restructuring plan incorporated into the debt restructuring agreement concluded with their creditors (‘the restructuring plan’) and on the amount of revenue derived from the sale of assets both in performance of and ‘outside’ that plan.
7 CCPL, acting on behalf of the five companies concerned, made provisional payments to the Commission totalling EUR 5 942 000.
8 By judgment of 11 July 2019, CCPL and Others v Commission (T‑522/15, not published, EU:T:2019:500), the General Court held that the 2015 Decision was vitiated by a failure to state reasons, as regards the determination of the reduction of the amount of the fines imposed on the five companies concerned based on their limited ability to pay. Consequently, the Court annulled Article 2(1)(f) to (h), Article 2(2)(d) and (e) and Article 2(4)(c) and (d) of that decision.
9 By letter of 18 September 2019, the Commission informed CCPL of its intention to adopt a new decision imposing fines on the companies concerned in its group and invited those companies to submit any observations.
10 On 20 September 2019, the applicants lodged an appeal against the judgment of 11 July 2019, CCPL and Others v Commission (T‑522/15, not published, EU:T:2019:500).
11 On 4 October 2019, the companies concerned asked the Commission to consider their inability to pay under point 35 of the 2006 Guidelines with a view to reducing the amount of fines that it might apply at the end of the current proceedings. To assess that request, the Commission sent requests for information under Article 18(1) and (2) of Regulation No 1/2003 to the CCPL Group, which responded to those requests.
12 On 7 October 2019, in execution of the judgment of 11 July 2019, CCPL and Others v Commission (T‑522/15, not published, EU:T:2019:500), the Commission reimbursed to CCPL the amount of EUR 5 942 084 that CCPL had transferred to it as provisional payment.
13 On 17 December 2020, the Commission adopted the contested decision, by which, in essence, it dismissed the request for a reduction of the amount of the fines in question based on an inability to pay submitted by the applicants and imposed fines on those parties in a total amount of EUR 9 441 000.
14 By order of 20 January 2021, CCPL and Others v Commission (C‑706/19 P, not published, EU:C:2021:45), the Court of Justice dismissed the applicants’ appeal as manifestly inadmissible. In particular, the Court of Justice noted that the applicants could rely, if necessary, on the pleas and arguments rejected by the General Court in the judgment of 11 July 2019, CCPL and Others v Commission (T‑522/15, not published, EU:T:2019:500), in a possible new appeal against the decision to be adopted following the annulment of the contested decision by the General Court (order of 20 January 2021, CCPL and Others v Commission, C‑706/19 P, not published, EU:C:2021:45, paragraph 26).
15 By order of 22 July 2021, CCPL and Others v Commission (T‑130/21 R, not published, EU:T:2021:488), the President of the General Court dismissed the application for interim measures lodged by the applicants requesting a stay of execution of the contested decision and reserved the costs.
Forms of order sought
16 The applicants claim that the Court should:
– annul the fines imposed on them in the contested decision;
– in the alternative, reduce the fines;
– order the Commission to bear the costs of the proceedings.
17 The Commission contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
18 The applicants put forward three pleas in law in support of their action.
19 The first plea essentially alleges a breach of the obligation to state reasons and an infringement of Article 23(2) of Regulation No 1/2003. The second plea alleges a breach of the principle of proportionality and the principle of equal treatment. The third plea alleges, in essence, a breach of the obligation to state reasons and manifest errors of assessment in that the Commission did not take account of the data provided by the CCPL Group to demonstrate its inability to pay.
The first plea alleging, in essence, a breach of the obligation to state reasons and an infringement of Article 23(2) of Regulation No 1/2003
20 This plea is divided into two parts, the first alleging a failure to state reasons in relation to the liability of the parent company of the CCPL Group in connection with the conduct of the companies of that group, and the second alleging an infringement of Article 23(2) of Regulation No 1/2003 in that the Commission incorrectly relied on the assumption that CCPL exercised a decisive influence over the CCPL Group companies.
The first part of the first plea in law, alleging a failure to state reasons for liability of the parent company of the CCPL Group in connection with the conduct of the companies of that group
21 The applicants submit that the contested decision is vitiated by a failure to state reasons, as it does not indicate why liability for the conduct of Coopbox Group and Coopbox Eastern was attributed to CCPL.
22 The Commission contests that argument.
23 It should be noted that the statement of reasons required by Article 296 TFEU must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure in order to defend their rights and to enable the [EU] judicature to exercise its power of review (see judgment of 18 September 2003, Volkswagen v Commission, C‑338/00 P, EU:C:2003:473, paragraph 124 and the case-law cited).
24 Furthermore, where an initial Commission decision has been amended by a decision that states explicitly that it constitutes a decision which amends that decision, the adoption procedure for the amending decision amounts to an extension of the procedure which led to the initial decision (see, to that effect, judgment of 6 July 2017, Toshiba v Commission, C‑180/16 P, EU:C:2017:520, paragraph 22).
25 In such a situation, the grounds for the initial decision, in so far as they have not been affected by a judgment annulling the measure and are not contradicted by the wording of the amending decision, may be taken into account in the examination of the lawfulness of the amending decision (see, to that effect, judgment of 19 January 2016, Toshiba v Commission, T‑404/12, EU:T:2016:18, paragraph 95).
26 In the present case, it is clear from the title and content of the contested decision that it constitutes a decision amending the 2015 Decision as regards the fines imposed on the applicants.
27 Article 1 of the contested decision thus imposes fines on the applicants for the infringements described in Article 1 of the 2015 Decision.
28 Furthermore, it has not been alleged that the elements of the 2015 Decision other than those relating to the applicants’ ability to pay have been affected by the judgment of 11 July 2019, CCPL and Others v Commission (T‑522/15, not published, EU:T:2019:500), or that it would be contradicted by the contested decision as regards CCPL’s liability for the infringements committed by the CCPL Group companies, which is the subject of the present plea.
29 It follows that, in application of the case-law cited in paragraph 25 above, the reasoning underpinning the contested decision should be read in the light of the 2015 Decision in relation to CCPL’s liability for the infringements committed by the CCPL Group companies.
30 In recital 848 of the 2015 Decision, the Commission noted that CCPL was the ultimate parent company of the CCPL Group during the entire infringement period, and its direct or indirect shareholding in one or more of the entities, including Coopbox Group, directly involved in the infringement was 100% until 18 April 2006 and 93.864% between 18 April 2006 and the end of those infringements.
31 In recital 849 of the 2015 Decision, the Commission considered that a shareholding of 93.864% was sufficient to trigger the presumption that a parent company exercises a decisive influence over the conduct of its subsidiary. The Commission also stated that although it considered that the presumption of a decisive influence was sufficient to establish liability for the entities concerned, that presumption was further strengthened by the analysis of the legal, personal and economic links between the entities forming part of the Coopbox Group, which it undertook in recitals 850 to 855 of that decision.
32 Those factors were such as to enable the applicants to understand the reasoning that had led the Commission to hold CCPL liable in connection with the infringements committed by the companies within the CCPL Group and to enable the General Court to review the merits of those reasons.
33 The applicants’ argument as to the inadequate statement of reasons in the contested decision in relation to CCPL’s liability for the infringements committed by the CCPL Group companies should therefore be dismissed.
The second part of the first plea in law, alleging an infringement of Article 23(2) of Regulation No 1/2003 in that the Commission incorrectly relied on the assumption that CCPL exercised a decisive influence over the CCPL Group companies
34 The applicants consider, in essence, that the contested decision is vitiated by errors of law and a manifest error of assessment in that the Commission relied, for the purposes of applying Article 23(2) of Regulation No 1/2003, on the assumption that CCPL exercised a decisive influence over the CCPL Group companies.
35 The Commission contests that argument.
36 It must be recalled that, pursuant to Article 23(2) of Regulation No 1/2003, the Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently, they infringe Article 101 TFEU.
37 The Court of Justice has consistently held that the concept of an undertaking covers any entity engaged in an economic activity, regardless of the legal status of the entity or the way in which it is financed. In that regard, the Court of Justice has stated that in this context the term ‘undertaking’ should be understood as designating an economic unit even if in law that economic unit consists of several natural or legal persons, and that if such an economic entity infringes the competition rules, it is for that entity, consistently with the principle of personal liability, to answer for that infringement (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 53 and the case-law cited).
38 Furthermore, the conduct of a subsidiary can be imputed to its parent company, in particular where, although it has separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (see judgment of 27 January 2021, The Goldman Sachs Group v Commission, C‑595/18 P, EU:C:2021:73, paragraph 31 and the case-law cited).
39 It is also settled case-law that, in the particular case in which a parent company holds, directly or indirectly, all or almost all of the capital in a subsidiary which has committed an infringement of the competition rules, the parent company is able to exercise a decisive influence over the conduct of the subsidiary and there is a rebuttable presumption that the parent company does in fact exercise such influence. In those circumstances, it is sufficient for the Commission to prove that the entire capital, or virtually the entire capital, of a subsidiary is held by its parent company in order for it to be presumed that the parent company exercises decisive influence over the commercial policy of that subsidiary. The Commission will then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see judgment of 27 January 2021, The Goldman Sachs Group v Commission, C‑595/18 P, EU:C:2021:73, paragraph 32 and the case-law cited).
40 Unless it is rebutted, such a presumption therefore implies that the actual exercise of decisive influence by the parent company over its subsidiary is considered to be established and entitles the Commission to hold the parent company liable for the conduct of the subsidiary without having to produce any additional evidence. The implementation of the presumption of actual exercise of decisive influence is thus not conditional upon the production of additional indicia relating to the actual exercise of influence by the parent company (see judgment of 27 January 2021, The Goldman Sachs Group v Commission, C‑595/18 P, not published, EU:C:2021:73, paragraph 33 and the case-law cited).
41 In addition, the Commission is not in any way bound to rely exclusively on that presumption. There is nothing to prevent the Commission from establishing that a parent company actually exercises a decisive influence over its subsidiary by means of other evidence or by a combination of such evidence and that presumption (see judgment of 27 January 2021, The Goldman Sachs Group v Commission, C‑595/18 P, not published, EU:C:2021:73, paragraph 40 and the case-law cited).
42 In the present case, it is important to note that, in recital 846 of the 2015 Decision, the Commission indicated that, in order to attribute liability for the infringements in question to CCPL as parent company, it relied on the presumption of liability whereby CCPL exercised a decisive influence during the period(s) in which at least one entity directly involved in the infringements was wholly (or almost wholly) controlled by that parent company.
43 As has been noted in paragraphs 30 and 31 above, in the 2015 Decision, the Commission held that CCPL was the parent company of the CCPL Group throughout the duration of the infringements and that its direct or indirect shareholding in one or more entities of that group involved directly in the infringements was sufficient for it to be presumed that it exercised a decisive influence over the conduct of its subsidiary. The Commission also stated that although it considered that the presumption of a decisive influence was sufficient to establish liability for the entities concerned, that presumption was further strengthened by the analysis of the legal, personal and economic links between the entities forming part of the group concerned.
44 Among the factors demonstrating the legal, personal and economic links between the entities forming part of the group concerned, the Commission mentioned, in particular, the fact that CCPL could appoint all the members of the board of directors and the managing director of CCPL SpA, that CCPL approved the budget of CCPL SpA and determined the responsibilities of the directors, that the board of directors of CCPL SpA had the broadest powers of ordinary management of the company and appointed a chair responsible for determining the company’s strategic direction while monitoring the correct implementation of the decisions of the board of directors, that the shareholders’ agreement explicitly recognised that CCPL had a controlling interest in CCPL SpA, that minority shareholders had no special rights and that the remaining 6.14% of CCPL SpA’s capital was held by the same shareholders that owned CCPL. The Commission noted that the same corporate model applied for Coopbox Group SpA.
45 In this context, in Article 1.1 of the 2015 Decision, the Commission held that Coopbox Group and CCPL had infringed Article 101 TFEU by participating from 18 June 2002 to 17 December 2007 in a single and continuous infringement, which consisted of several separate infringements relating to foam trays for the retail food packaging sector and covering the territory of Italy.
46 In Article 1.4 of the 2015 Decision, the Commission held that CCPL, from 8 December 2004 to 24 September 2007, and Coopbox Eastern, from 5 November 2004 to 24 September 2007, had infringed Article 101 TFEU by participating in a single and continuous infringement, which consisted of several separate infringements relating to foam trays for the retail food packaging sector and covering the territory of the Czech Republic, Hungary, Poland and Slovakia.
47 On that basis, in Article 1 of the contested decision, the Commission imposed a fine of EUR 4 627 000 jointly and severally on Coopbox Group and CCPL for the infringement described in Article 1.1 of the 2015 Decision, a fine of EUR 4 010 000 on CCPL for the infringement described in Article 1.2 of the 2015 Decision, and a fine of EUR 789 000 jointly and severally on Coopbox Eastern and CCPL for the infringement described in Article 1.4 of the 2015 Decision, along with a fine of EUR 15 000 on Coopbox Eastern.
48 It therefore held CCPL liable for the entire period of the infringements by reason of its direct or indirect stake in one or more entities of the CCPL Group, among other things.
49 First, the applicants submit that the Commission erred in law by imputing to CCPL practices carried out by Coopbox Group and Coopbox Eastern, which CCPL owns through CCPL SpA, without finding an infringement against CCPL SpA.
50 However, as is apparent from the case-law cited in paragraph 38 above, the conduct of a subsidiary may be imputed to the parent company in particular where, although it has separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities.
51 In such a situation, since the parent company and its subsidiary form part of a single economic unit and thus form a single undertaking for the purpose of Article 101 TFEU, the Commission may address a decision imposing fines to the parent company without being required to establish its individual involvement in the infringement (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 55 and the case-law cited). In other words, the factor which entitles the Commission to address the decision imposing fines to the parent company is not necessarily a parent-subsidiary relationship in which the parent company instigates the infringement; nor, a fortiori, is it because of the parent company’s involvement in the infringement; rather, it is because the companies concerned constitute a single undertaking for the purposes of Article 101 TFEU (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 88).
52 Moreover, according to the case-law, the presumption described in paragraph 39 above also applies where the parent company holds the capital of its subsidiary not directly but through other companies (see, to that effect, judgments of 20 January 2011, General Química and Others v Commission, C‑90/09 P, EU:C:2011:21, paragraph 86; of 8 May 2013 Eni v Commission, C‑508/11 P, EU:C:2013:289, paragraphs 48 and 49; and of 15 July 2015, GEA Group v Commission, T‑45/10, not published, EU:T:2015:507, paragraph 142).
53 It follows from the case-law that the Commission can attribute responsibility for the conduct of subsidiaries indirectly held by a parent company to that parent company, even without finding an infringement by the intermediate companies.
54 The fact that those subsidiaries are owned through a company to which no infringement has been attributed does not undermine the presumption that the parent company, by virtue of its indirect shareholding in those subsidiaries, effectively exercises a decisive influence over their conduct.
55 It also follows from the case-law cited in paragraph 37 above that an economic unit consisting of several natural or legal persons that infringes the competition rules must answer for that infringement, according to the principle of personal liability.
56 Contrary to what the applicants argue, the contested decision cannot therefore be considered to have been adopted in breach of the principle of personal liability on the basis that CCPL has been held liable for an infringement that it did not commit and which has not been imputed to the entity through which it owned the infringing entity.
57 Consequently, the contested decision is not vitiated by an error of law on the basis that the Commission imputed to CCPL practices carried out by Coopbox Group and Coopbox Eastern, which CCPL owns through CCPL SpA, without having found an infringement against CCPL SpA.
58 Second, the applicants assert that the presumption of liability on the part of CCPL for the actions of the CCPL Group companies was not applicable, since CCPL only held a 93.864% stake in CCPL SpA from 18 April 2006 until the end of the period when the infringements took place.
59 A parent company which holds almost all the capital of its subsidiary is, as a general rule, in a similar situation to that of a sole owner as regards its power to exercise a decisive influence over the conduct of its subsidiary, having regard to the economic, organisational and legal links which join it to that subsidiary. Consequently, the Commission is entitled to apply to that situation the same evidential regime, namely to rely on the presumption that that parent company makes effective use of its power to exercise a decisive influence over the conduct of its subsidiary. However, it cannot be excluded that, in certain cases, minority shareholders may have, in respect of the subsidiary, rights which call the abovementioned analogy into question.
60 On the one hand, because of its 93.864% stake in the capital of CCPL SpA, CCPL held almost all the capital of CCPL SpA during the period between 18 April 2006 and the end of the period when the infringements took place. On the other hand, the applicants have not alleged and, a fortiori, have not demonstrated that the minority shareholders had rights with regard to CCPL SpA that could undermine the presumption that CCPL actually exercised a decisive influence over the conduct of that subsidiary.
61 It follows that the contested decision is not vitiated by an error of law where the Commission relied on the presumption of liability on the part of CCPL for the conduct of the CCPL Group companies during the period in which CCPL held only a 93.864% stake in CCPL SpA.
62 Third, the Court must reject the argument whereby the Commission could not rely on the presumption that CCPL was liable for the conduct of the CCPL Group companies in so far as, at the time when the 2015 Decision was adopted, CCPL’s stake in the capital of CCPL SpA had again been reduced to approximately 90%.
63 The application of the presumption making it possible to impute the conduct of a subsidiary to its parent company implies that the liability of the parent company derives from the conduct of its subsidiary during the period in which the infringement was committed, and the size of the parent company’s shareholding in its subsidiary on the date of the decision establishing an infringement is therefore irrelevant.
64 Fourth, on the one hand, the applicants argue that it was the Commission's responsibility to demonstrate the actual exercise of a decisive influence by CCPL on the CCPL Group companies since it relied both on the presumption of the actual exercise of a decisive influence and on a set of indicative factors.
65 However, it is sufficient to note that, as is clear from the case-law referred to in paragraph 40 above, the application of the presumption that a decisive influence is effectively exercised is not conditional on the production of additional evidence that influence has effectively been exercised by the parent company.
66 It also follows from the case-law cited in paragraph 41 above that there is nothing to prevent the Commission from establishing that a parent company actually exercises decisive influence over its subsidiary by means of other evidence or by a combination of such evidence and that presumption.
67 Therefore, contrary to what the applicants argue, the fact that the Commission identified various factors to reinforce the finding that CCPL exercised a decisive influence over the CCPL Group companies did not impose a greater burden of proof on the Commission than it would have borne had it merely relied on the presumption that a decisive influence had effectively been exercised.
68 On the other hand, the applicants believe that the Commission committed a manifest error of assessment in that the presumption of the effective exercise of a decisive influence should have been rebutted, since CCPL did not actually exercise a decisive influence over the CCPL Group companies, not only in respect of the period when it held the entire share capital of the CCPL Group entities involved in the infringement, but also when CCPL’s shareholding was less than 100%.
69 To support that argument, the applicants state that CCPL has ceased all management activities in the food packaging sector and has granted the CCPL Group companies responsible for that sector complete autonomy in production and in commercial, industrial and management matters. They also state, in essence, that the managing director of Coopbox Group independently determines the company’s commercial and strategic management policies.
70 Furthermore, the applicants assert that CCPL is a cooperative company that acts mainly as a shareholder and holds stakes in the operating companies through CCPL SpA, whose role as a sub-holding company does not entail any involvement in the operational and day-to-day management of the companies it controls, and that CCPL does not play any active role in the day-to-day management of the CCPL Group companies.
71 Furthermore, the applicants point out that CCPL was the parent company of a group of undertakings operating in six different business sectors, and that neither Coopbox Group nor any of the other companies involved in the contested infringements ever informed CCPL of the illegal activities, and nor did they act with its prior consent.
72 The applicants also argue that none of the three CCPL board members who were simultaneously board members of the CCPL Group companies had any operational role in the CCPL Group companies or participated, directly or indirectly, in meetings with the competing undertakings.
73 In that regard, it is important to note, first, that, in order to rebut the presumption that a decisive influence was effectively exercised, a parent company must, in the context of the actions against a Commission decision, put before the EU judicature any evidence relating to the organisational, economic and legal links between its subsidiary and itself which are such as to demonstrate that they do not constitute a single economic entity (see judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 32 and the case-law cited).
74 Furthermore, on the basis of settled case-law, operational independence does not, in itself, prove that a subsidiary decides upon its conduct on the market independently of its parent company. The division of tasks between subsidiaries and their parent companies and, in particular, the fact that the local management of a subsidiary is entrusted with operational management is normal practice in large undertakings composed of a multitude of subsidiaries ultimately owned by the same holding company (see, to that effect, judgment of 11 July 2014, RWE and RWE Dea v Commission, T‑543/08, EU:T:2014:627, paragraph 49 and the case-law cited).
75 Furthermore, the fact that CCPL did not give instructions to CCPL SpA, Coopbox Group or Coopbox Eastern concerning the agreements in question or even that it was unaware of those agreements is not, as such, under the case-law, such as to rebut the presumption of a decisive influence (see, to that effect, judgment of 14 September 2016, Ori Martin and SLM v Commission, C‑490/15 P and C‑505/15 P, not published, EU:C:2016:678, paragraphs 59 and 60).
76 It follows that the assertions – which are in any case unsubstantiated – whereby CCPL has ceased all management activities in the food packaging sector and has given the CCPL Group companies responsible for that sector complete autonomy, without it or CCPL SpA playing any active role in the day-to-day management of Coopbox Group and Coopbox Eastern, are not capable of rebutting the presumption that a decisive influence has effectively been exercised.
77 Second, it should be observed that the Courts of the European Union consider that the fact that the parent company is represented in the management bodies of its subsidiary is relevant evidence that it exercises actual control over the subsidiary’s commercial policy (see judgment of 15 July 2015, Socitrel and Companhia Previdente v Commission, T‑413/10 and T‑414/10, EU:T:2015:500, paragraph 213 and the case-law cited).
78 The applicants’ arguments concerning the lack of any operational role assigned to the three CCPL board members who were simultaneously board members of the CCPL Group companies must therefore be rejected.
79 For the same reason, the argument that none of the documents in the file relating to the present proceeding contain data on the involvement of these CCPL board members in the management activities of any of the CCPL Group companies must also be dismissed.
80 Third, since a parent company may be held liable for an infringement committed by a subsidiary even where there is a large number of operating companies in a group (see judgment of 27 September 2012, Shell Petroleum and Others v Commission, Case T‑343/06, EU:T:2012:478, paragraph 52 and the case-law cited), the fact that CCPL was the parent company of a group of undertakings operating in six different business sectors does not preclude it from being held liable for the infringements committed by Coopbox Group and Coopbox Eastern.
81 In view of the above, the evidence put forward by the applicants, as such, is not sufficient to rebut the presumption applied by the Commission whereby CCPL exercised a decisive influence over the CCPL Group companies.
82 Consequently, the second part of the first plea is unfounded and the first plea must be dismissed.
The second plea, alleging breach of the principles of proportionality and equal treatment
83 According to the applicants, in essence, the contested decision is contrary to the principles of proportionality, fairness, rationality and equal treatment and the principles that fines should be specific to the individual and progressive, in that the Commission applied the 10% turnover ceiling laid down in Article 23(2) of Regulation No 1/2003 separately for each infringement and in that that method of applying the 10% turnover ceiling led the Commission to impose fines on the applicants that were much higher than the fines imposed on the other undertakings concerned.
84 The Commission contests that argument.
85 In that regard, first, in relation to the application in the contested decision of the 10% ceiling separately for each infringement, it should be noted that, under Article 23(2) of Regulation No 1/2003, for each undertaking participating in the infringement, the fine will not exceed 10% of its total turnover in the preceding business year.
86 Furthermore, according to the case-law, describing certain unlawful acts as constituting one and the same infringement or as a number of separate infringements is not, in principle, without consequence as regards the penalty that may be imposed, since a finding that a number of separate infringements have been committed may lead to the imposition of several separate fines, each time within the limits laid down in Article 23(2) of Regulation No 1/2003 and thus within the upper limit of 10% of turnover in the business year preceding the adoption of the decision (see judgment of 6 February 2014, AC-Treuhand v Commission, T‑27/10, EU:T:2014:59, paragraph 230 and the case-law cited).
87 Thus the Commission may find, in a single decision, two separate infringements and impose two fines the total amount of which exceeds the upper limit of 10% laid down in Article 23(2) of Regulation No 1/2003, provided that the amount of each fine does not exceed that upper limit. It is irrelevant, for the application of that upper limit of 10%, whether fines are imposed for the various infringements of the EU competition rules in a single set of proceedings or in separate proceedings at different points in time, as the maximum limit of 10% applies to each infringement of Article 101 TFEU (judgment of 6 February 2014, AC-Treuhand v Commission, T‑27/10, EU:T:2014:59, paragraphs 231 and 232).
88 Since the application of the 10% ceiling separately for each infringement is in line with Article 23(2) of Regulation No 1/2003 as interpreted by the case-law, the applicants’ argument fails to demonstrate that the contested decision is contrary to the principles of proportionality, fairness, rationality and equal treatment and the principles that fines should be specific to the individual and progressive.
89 As regards, second, the proportion of the fine imposed on the applicants in relation to their total turnover, which was significantly higher than the fines imposed on the other undertakings concerned, it must be observed that, according to the case-law, it is not contrary to the principles of proportionality and equal treatment that, through the application of the method of calculation of the fines laid down in the 2006 Guidelines, an undertaking may receive a fine which represents a proportion of its overall turnover that is greater than that represented by the fines imposed respectively on each of the other undertakings. It is inherent in that method of calculation, which is not based on the overall turnover of the undertakings concerned, that disparities may appear between those undertakings as to the relationship between their overall turnover and the amount of the fines imposed on them (see, to that effect, judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraph 64).
90 It is also apparent from the case-law that the Commission is not required, when determining fines, to ensure, where fines are imposed on a number of undertakings involved in the same infringement, that the final amounts of the fines resulting from its calculations for the undertakings concerned reflect any distinction between the undertakings concerned in terms of their overall turnover (see judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraph 65 and the case-law cited).
91 With regard to the alleged breach of the principle of equal treatment invoked by the applicants, it must be observed that the difference in the proportion represented by the fine in relation to the total turnover of the undertakings concerned does not, as such, constitute a sufficient justification for departing from the method of calculation that the Commission imposed on itself. That would be tantamount to conferring an advantage on certain undertakings on the basis of a criterion that is irrelevant in the light of the gravity and the duration of the breach. When the amount of the fine is determined, there cannot, by the application of different methods of calculation, be any discrimination between the undertakings which have participated in an agreement or a concerted practice contrary to Article 101(1) TFEU (see, to that effect, judgment of 7 September 2016, Pilkington Group and Others v Commission, C‑101/15 P, EU:C:2016:631, paragraph 66 and the case-law cited).
92 The existence of alleged disparities between, on the one hand, the ratio between the fines imposed on the applicants and their total turnover and, on the other hand, the ratio between the fines imposed on the other undertakings concerned and their turnover is therefore not likely to demonstrate that the contested decision was adopted in breach of the principles of proportionality and equal treatment.
93 Furthermore, with regard to the argument that the small amount of the fine imposed on the companies of the Vitembal Group in the 2015 Decision demonstrates that the contested decision was adopted in breach of the principle of equal treatment, it must be recalled that the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (judgment of 12 November 2014, Guardian Industries and Guardian Europe v Commission, C‑580/12 P, EU:C:2014:2363, paragraph 51).
94 In that regard, it must be observed that the applicants are not alleging that the Commission applied different calculation methods to the undertakings concerned. The only argument put forward by the applicants – which concerns the total amount of the fines imposed on the entities concerned in relation to their respective total turnover – is, as indicated in paragraph 92 above, insufficient to establish that the alleged discrimination occurred. Since the applicants have not put forward any other arguments concerning the factual and legal circumstances taken into account by the Commission in calculating the amount of the fines, they have failed to demonstrate that the financial situation of the other companies concerned, in particular the companies of the Vitembal Group, was comparable to their own situation, and therefore, in application of the case-law referred to in paragraph 93 above, their argument must be dismissed.
95 In view of the above, the applicants’ arguments do not demonstrate that the Commission erred in law by applying the 10% turnover ceiling laid down in Article 23(2) of Regulation No 1/2003 separately for each infringement.
96 The second plea must therefore be rejected.
The third plea in law, alleging, in essence, a breach of the obligation to state reasons and manifest errors of assessment of the applicants’ ability to pay
97 The applicants assert that the Commission’s assessment of their ability to pay was not supported by an adequate statement of reasons and that the Commission made manifest errors in assessing that ability to pay.
98 The Commission contests those arguments.
99 In that regard, it is worth noting that point 35 of the 2006 Guidelines states as follows, under the heading ‘Ability to pay’:
‘In exceptional cases, the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. It will not base any reduction granted for this reason in the fine on the mere finding of an adverse or loss-making financial situation. A reduction could be granted solely on the basis of objective evidence that imposition of the fine as provided for in these Guidelines would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value.’
100 According to settled case-law, in adopting rules of conduct such as guidelines and announcing by publishing them that they will henceforth apply to the cases to which they relate, the Commission imposes a limit on the exercise of its discretion and cannot depart from those rules under pain of being found, where appropriate, to be in breach of the general principles of law, such as equal treatment or the protection of legitimate expectations (see judgment of 15 July 2015, Westfälische Drahtindustrie and Others v Commission, T‑393/10, EU:T:2015:515, paragraph 287 and the case-law cited).
101 Furthermore, a reduction of the fine can be granted under point 35 of the 2006 Guidelines only in exceptional circumstances and on the conditions defined in those guidelines. Thus, it must be shown that the fine imposed ‘would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value’. Second, the existence of a ‘specific social and economic context’ must also be established. It should further be borne in mind that those two sets of conditions were initially identified by the Courts of the European Union (judgment of 15 July 2015, Westfälische Drahtindustrie and Others v Commission, T‑393/10, EU:T:2015:515, paragraph 288).
102 As regards the first set of conditions, it has been held that, in principle, the Commission is not required, when determining the amount of the fine, to take into account the poor financial situation of an undertaking concerned, since recognition of such an obligation would be tantamount to giving an unjustified competitive advantage to undertakings least well adapted to the market conditions (see judgment of 15 July 2015, Westfälische Drahtindustrie and Others v Commission, T‑393/10, EU:T:2015:515, paragraph 289 and the case-law cited).
103 If that were the case, those undertakings might well be favoured at the expense of other, more effective and better-managed undertakings. For that reason, the mere finding that the undertaking concerned is in an unfavourable or poor financial situation cannot substantiate a request that the Commission should take account of its inability to pay in order to grant a reduction of the fine (judgment of 15 July 2015, Westfälische Drahtindustrie and Others v Commission, T‑393/10, EU:T:2015:515, paragraph 290).
104 Furthermore, it has consistently been held that the fact that a measure taken by an EU authority leads to the insolvency or liquidation of a given undertaking is not prohibited as such by EU law. Although such insolvency or liquidation may adversely affect the financial interests of the owners or shareholders, that does not mean that the personal, tangible and intangible elements represented by the undertaking would also lose their value (see judgment of 15 July 2015, Westfälische Drahtindustrie and Others v Commission, T‑393/10, EU:T:2015:515, paragraph 291 and the case-law cited).
105 It may be inferred from that case-law that only the hypothesis of a loss of the value of the personal, tangible and intangible elements represented by an undertaking, in other words, of its assets, might justify its possible insolvency or liquidation being [taken] into consideration when setting the amount of the fine (see judgment of 15 July 2015, Westfälische Drahtindustrie and Others v Commission, T‑393/10, EU:T:2015:515, paragraph 292 and the case-law cited).
106 The liquidation of a company does not necessarily entail the disappearance of the undertaking in question. That undertaking may continue to exist as such, either where it is re-capitalised or where all the elements of its assets are taken over by another entity. Such a takeover may arise either by a voluntary purchase or by a forced sale of the assets of the company as a going concern (see judgment of 15 July 2015, Westfälische Drahtindustrie and Others v Commission, T‑393/10, EU:T:2015:515, paragraph 293).
107 The reference in point 35 of the 2006 Guidelines to the deprivation of the assets of the undertaking concerned of all value must therefore be understood as envisaging the situation in which a takeover of the undertaking in the circumstances described in paragraph 106 above seems unlikely, or indeed impossible. In such a situation, the elements of that undertaking’s assets will be offered for sale separately and it is likely that many of them will not find a buyer or, at best, will be sold only at a considerably reduced price (see judgment of 15 July 2015, Westfälische Drahtindustrie and Others v Commission, T‑393/10, EU:T:2015:515, paragraph 294 and the case-law cited).
108 As for the second set of conditions, relating to the existence of a specific economic and social context, it refers, according to the case-law, to the consequences which payment of the fine could have, in particular by leading to an increase in unemployment or deterioration in the economic sectors upstream and downstream of the undertaking concerned (see judgment of 15 July 2015, Westfälische Drahtindustrie and Others v Commission, T‑393/10, EU:T:2015:515, paragraph 295 and the case-law cited).
109 Accordingly, if the cumulative conditions contemplated above are satisfied, the imposition of a fine that might cause the disappearance of an undertaking would be contrary to the objective pursued by point 35 of the 2006 Guidelines. The application of that point to the undertakings concerned thus constitutes a specific interpretation of the principle of proportionality in relation to penalties for infringements of competition law (see judgment of 15 July 2015, Westfälische Drahtindustrie and Others v Commission, T‑393/10, EU:T:2015:515, paragraph 296 and the case-law cited).
110 It is in the light of those principles that the applicants’ arguments challenging the legality of the contested decision must be examined.
111 In the present case, in paragraph 3.4.2 of the contested decision, after having carried out an economic and financial analysis of the applicants’ ability to pay and of the impact of a possible fine on their economic viability, the Commission concluded, in recital 90 of the contested decision, that, despite the weak solvency and profitability indices of the CCPL Group and the significance of the total amount of the contested fines in relation to the size of the group, the group had sufficient liquidity to pay the total amount of the fines and that the likelihood that the economic viability of the group itself would be threatened was low.
112 In support of its finding concerning the existence of sufficient liquidity, the Commission first stated in recital 90(a) of the contested decision that in the years 2018 and 2019, the CCPL Group had significant cash balances of EUR 18.6 million and EUR 22.8 million respectively. In recital 90(b) of that decision, the Commission stated that the average cash balance of the group over the period 2014-2018, namely approximately 11.6% of the group’s average annual turnover, was a good indicator that the level of liquidity was sufficient to meet short-term commitments and expenditures, to ensure the continuity of the business and to avoid temporary cash shortages. In recital 90(c) of that decision, it stated that the same conclusion could be drawn on the basis of the cash balance/sales ratio. In recital 90(d) of the same decision, the Commission noted that, since the liquidity was mostly held by the holding companies of the group in question, which had virtually no staff and very low turnover, it would be unlikely for payment of the fine from liquid assets available at group level to jeopardise the economic viability of the two main operating companies of the group. In recital 90(e) of the contested decision, it pointed out that, in its submissions and responses, CCPL had not mentioned any specific need for liquidity to deal with the difficulties arising from the COVID-19 pandemic or to pursue the restructuring plan for the period 2020-2023. Finally, in recital 90(f) of the contested decision, it stated that, although it had explicitly asked CCPL to comment on the group’s ability to raise financial resources to pay the fines, the group had neither replied nor indicated why it would not be able to use the liquidity available at group level for such a payment. In that context, the Commission added that account should also be taken of the amount of EUR 5 942 084 which it had repaid to CCPL on 7 October 2019, pursuant to the judgment of 11 July 2019, CCPL and Others v Commission (T‑522/15, not published, EU:T:2019:500).
First part of the third plea, alleging a breach of the obligation to state reasons
113 The applicants argue, in essence, that the contested decision does not contain a statement of reasons for the failure to take into account their negative net working capital, the adequate nature of the CCPL Group’s liquidity despite its significant debts, the impact of the forecast liquidity data provided on Coopbox Group and Coopbox Eastern, and the analysis made by the applicants in their reply to the fifth request for information as to whether the fine was sustainable.
114 The Commission contests that argument.
115 It should be borne in mind that, according to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 9 September 2015, Philips v Commission, T‑92/13, not published, EU:T:2015:605, paragraph 102 and the case-law cited).
116 In the present case, it must be observed that, as can be seen from recital 90 of the contested decision, discussed in paragraph 112 above, the Commission gave clear and unequivocal reasons for its finding that the applicants had not demonstrated that they would not be able to use the CCPL Group’s liquidity to pay the fines without jeopardising their viability. The Commission’s assessment of Coopbox Group’s and Coopbox Eastern’s cash flow forecasts is described in recitals 86 and 92 of the contested decision, which are partly based on the information provided by the applicants in their response to the fifth request for information. Moreover, the Commission does not have a general obligation to rule in the decision on all the documents or information it requested from the parties during the administrative procedure.
117 The Commission is not required to adopt a position on all the arguments relied on before it by the parties concerned; it is sufficient if it sets out the facts and legal considerations having decisive importance in the context of the decision (see judgment of 9 September 2015, Philips v Commission, T‑92/13, not published, EU:T:2015:605, paragraph 103 and the case-law cited).
118 The Commission’s assessment of the applicants’ ability to pay is therefore not vitiated by a failure to state reasons.
119 The first part of the third plea in law must therefore be dismissed as unfounded.
The second part of the third plea in law, alleging manifest errors of assessment of the applicants’ ability to pay
120 As a preliminary point, it must be observed that, as is clear from the case-law referred to in paragraphs 102 to 107 above, in order to establish that the contested decision is vitiated by a manifest error of assessment of their ability to pay, it is for the applicants to show that, contrary to the Commission’s view, payment of the fines totalling EUR 9 441 000 would irretrievably jeopardise their economic viability and result in their assets losing all value.
121 First, the applicants essentially argue that the findings in recital 90(a), (e) and (f) of the contested decision are incorrect. According to those findings, they did not provide the requested forecast data for the period 2020-2023, which justified consideration of the liquidity available in 2018 and 2019, and the CCPL Group did not indicate why it would not be able to use the liquidity available at group level to pay the fine.
122 The applicants first cite the content of their correspondence with the Commission to dispute the finding in the contested decision that CCPL did not mention any specific need for liquidity to address the difficulties arising from the Covid-19 pandemic or to pursue the restructuring plan for the period 2020-2023.
123 The applicants then claim to have provided forecast data up to 2023 for Coopbox Group and Coopbox Eastern, with sales representing 94% of the consolidated turnover for the 2019 financial year, which the Commission did not analyse.
124 They add, in essence, that no forecast data were available for the whole of the CCPL Group on the date of the contested decision, in particular since the other group companies were no longer operating on the market and were simply disposing of their assets and using the sums obtained and those distributed to repay their debts under the restructuring plan.
125 Finally, the applicants note the content of their correspondence with the Commission, disputing the finding in the contested decision that the CCPL Group had neither replied nor indicated why it could not use the liquidity available at group level to pay the fine.
126 The Commission contests those arguments.
127 In that regard, it must be observed that the applicants acknowledge that they only provided forecast data for the period 2020-2023 for Coopbox Group and Coopbox Eastern during the administrative procedure, as forecast data for the whole of the CCPL Group were not available or relevant.
128 The Commission cannot therefore be criticised for finding that the applicants had not provided the consolidated forecast data requested for the period 2020-2023.
129 As regards the applicants’ argument that the forecast data for the whole CCPL Group were not relevant, it is important to emphasise that, when assessing the ability to pay of a group of companies, the Commission has to take into account the financial situation of all the entities in the group to the extent that the resources of all those entities can be mobilised to make payment of fines (see, to that effect, judgments of 16 September 2013, Rubinetteria Cisal v Commission, T‑368/10, not published, EU:T:2013:460, paragraph 118, and of 11 July 2019, Italmobiliare and Others v Commission, T‑523/15, not published, EU:T:2019:499, paragraphs 180 to 182).
130 This is all the more so because, as the Commission points out, at the end of 2019, 96% of the CCPL Group’s liquid assets were outside Coopbox Group and Coopbox Eastern.
131 Therefore, contrary to what the applicants maintain, the forecast data relating to the group companies other than Coopbox Group and Coopbox Eastern, in particular the data relating to the disposal of assets, were relevant to the assessment of the CCPL Group’s ability to pay.
132 For the same reason, the applicants’ argument that CCPL SpA’s resources could not be taken into account in assessing the CCPL Group’s ability to pay since CCPL SpA was not an addressee of the contested decision must be rejected.
133 Furthermore, the applicants argue that it is clear from their responses to the requests for information that the financial resources of the CCPL Group could not be mobilised to pay the fine. However, it should be noted that the applicants’ response of 31 July 2020 to the Commission’s fifth request for information, provided in Annex A.22 and referred to by the applicants, merely presents a statement of bank debt and net assets, as well as an assessment of the CCPL Group’s profitability, capitalisation, solvency and liquidity, without illustrating the reasons why the applicants considered that the CCPL Group’s liquidity and resources could not be allocated to the payment of the fines as a result of the restructuring plan.
134 In those circumstances, it cannot be held that the finding in the contested decision that the CCPL Group did not indicate why it could not use the liquidity available at group level to pay the fine is incorrect.
135 The applicants’ arguments whereby the contested decision is vitiated by a manifest error of assessment on the grounds that the Commission relied on erroneous factual findings in stating in the contested decision that the applicants had not produced the requested consolidated forecast data for the period 2020-2023 and that the CCPL Group had not indicated why it would not be able to use the liquidity available at group level to pay the fine must therefore be rejected.
136 Second, the applicants argue, in essence, that the contested decision is vitiated by a manifest error of assessment in that the Commission took into account the CCPL Group’s cash balances for the years 2018 and 2019 without considering its debts and the fact that those cash balances were not available for purposes other than the repayment of debts imposed by the restructuring plan, even though the evidence demonstrating a level of liabilities well in excess of assets had been presented in detail during the administrative procedure.
137 The applicants also claim, in essence, that the consideration of the average cash balance from 2014 to 2018 was also incorrect, as that cash did not represent immediately and freely available funds and had to be used to repay their debts resulting from their obligations under the restructuring plan.
138 For the same reason, the applicants also state that the contested decision is incorrect in that it relies on the cash balance/sales ratio to establish the existence of liquidity to pay the fines.
139 The CCPL Group now comprises only holding or sub-holding companies not operating on the market, other companies without activity and only engaged in the disposal of their respective real estate assets, which generate liquidity almost exclusively by disposing of their assets in execution of the restructuring plan, and two single operating companies (Coopbox Group and Coopbox Eastern), which are the only ones generating operating funds from a normal activity involving selling goods and services to third parties.
140 On the one hand, the applicants state that the liquidity generated by asset disposals is unavailable, as it is intended to repay debt in execution of the restructuring plan, and that the liquidity generated by the operating companies amounted to only EUR 1.4 million.
141 On the other hand, the applicants argue that the cash balance/sales ratio does not allow for an assessment of their ability to meet liquidity needs, since liquidity depends on the actual possibility of disposing of residual assets, the obligation to allocate almost all disposals to the restructuring plan and the small number and limited attractiveness of the remaining saleable assets.
142 The Commission contests those arguments.
143 In that regard, it should be noted that, as indicated in paragraph 135 above, the applicants have not produced the requested consolidated forecast data for the period 2020-2023 and have not indicated why they would not be able to use the liquidity available at group level to pay the fines imposed by the contested decision.
144 In those circumstances, the Commission cannot be criticised for having taken into account the CCPL Group’s cash balances for the financial years 2018 and 2019 without considering its debts and the fact that those cash balances are unavailable for purposes other than the repayment of debts imposed by the restructuring plan.
145 Furthermore, in accordance with the case-law cited in paragraph 102 above, in principle, the Commission is not required, when determining the amount of the fine, to take into account the poor financial situation of an undertaking concerned, since recognition of such an obligation would be tantamount to giving an unjustified competitive advantage to undertakings least well adapted to the market conditions.
146 Therefore, contrary to what the applicants argue, the existence of evidence that the level of liabilities far exceeds assets is not in itself sufficient to demonstrate that the imposition of fines would irretrievably jeopardise the economic viability of the undertakings concerned and would be likely to deprive the assets of the undertakings concerned of any value within the meaning of point 35 of the 2006 Guidelines.
147 It should be noted that, as stated in recital 84 of the contested decision, the Commission took into account the level of the applicants’ debts in its assessment of their ability to pay.
148 Third, the applicants dispute that it was possible to use, for payment of the fine, all the resources remaining outside the restructuring plan, including the EUR 5 942 084 repaid by the Commission and referred to in paragraph 12 above, the proceeds of the sale of Erzelli Energia Srl (valued at EUR 1.4 million in recital 91 of the contested decision), and the sale of Refincoop Srl’s stakes during the possible sale of the company.
149 Those resources left outside the plan would essentially be the only sums available to ensure the survival of Coopbox Group and Coopbox Eastern, allowing them to make investments given the absence of alternative sources of financing.
150 The applicants also point out that the only liquidity that could be considered – valued for the period 2020-2023 at EUR 1.8 million – was the liquidity generated by the CCPL Group’s only two operating companies, Coopbox Group and Coopbox Eastern, which had an extremely limited capacity to generate cash flow that could be used for purposes other than the management of operations. The applicants state in that respect that the liquidity provided by Coopbox Group and Coopbox Eastern is not sufficient to cover their current business operations.
151 According to the applicants, the payment of fines, especially through the use of resources not covered by the restructuring plan, would prevent those companies from meeting certain essential operational expenses, but also from making the investments necessary to modernise their plants, develop their technologies and ensure their survival.
152 The applicants also contest the Commission’s finding in recital 90(d) of the contested decision that it would be unlikely that payment of the fine using liquidity available at group level would jeopardise the economic viability of the group’s two main operating companies.
153 First, the applicants point out that the liquid assets as at 31 December 2019 represent barely one sixth of the financial debt alone, and that does not include non-financial debt, including debts to suppliers.
154 Second, the applicants point out that almost the entire CCPL Group is made up of companies that are no longer active on the market, are not generating revenues and are dedicating their very limited residual cash to the ongoing business of completing the restructuring plan.
155 Third, the fact that the two operating companies (Coopbox Group and Coopbox Eastern) have financial debts more than ten times greater than the value of their liquid assets, which are not sufficient to cover day-to-day operations, would necessitate cash injections from CCPL, such that the use of the holding companies’ liquidity to pay the fine would necessarily be detrimental to the profitability of Coopbox Group and Coopbox Eastern.
156 The Commission contests those arguments.
157 In that regard, it is important to note that, in line with the case-law cited in paragraph 101 above, for a reduction of a fine to be granted under point 35 of the 2006 Guidelines, it must be demonstrated that the fine imposed would irretrievably jeopardise the economic viability of the undertaking concerned and result in its assets losing their value.
158 Since a reduction of a fine can only be justified by the objective of avoiding a situation where the economic viability of the undertaking concerned is irretrievably jeopardised and the value of its assets lost, the intention to make investments to develop the CCPL Group’s operating companies or payments so as not to impair their profitability cannot in principle justify such a reduction.
159 The applicants have not argued that such investments were indispensable for their operation and that they could not be postponed without irretrievably jeopardising the economic viability of the companies concerned. The same applies to payments made in order to avoid damaging the profitability of the undertakings concerned.
160 Consequently, the applicants’ argument that the resources not covered by the restructuring plan should be used to make investments in Coopbox Group and Coopbox Eastern in order to ensure their operation or profitability must be rejected.
161 Similarly, the arguments that the Commission committed a manifest error of assessment by not taking into account the CCPL Group’s negative net working capital, considering that the provision of EUR 16.4 million envisaged in the 2018 budget to pay the fines cannot be considered as new liquidity, or the greater impact of the fines on their turnover in relative terms compared to the fines imposed in the 2015 Decision must be dismissed.
162 The evidence identified by the Commission in recital 90 of the contested decision and noted in paragraph 112 above, such as the cash balances for 2018 and 2019 amounting respectively to EUR 18.6 million and EUR 22.8 million and the average cash balance over the period 2014-2018 (namely approximately 11.6% of the group’s average annual turnover), which have not been meaningfully contested by the applicants, constitute, according to the Commission, a good indication that the level of liquidity was sufficient to meet short-term commitments and expenses, to ensure the continuity of the business and to avoid temporary cash shortages.
163 Furthermore, it should be emphasised that, after being informed by the Commission of its intention to adopt a new decision imposing fines on them, the applicants received the sum of EUR 5 942 084 on 7 October 2019 as reimbursement of the sum they had provisionally paid in execution of the order of 15 December 2015, CCPL and Others v Commission (T‑522/15 R, EU:T:2015:1012). The additional amount to be paid to reach the total sum of the fines in question amounts to less than EUR 3.5 million.
164 In view of the overall financial situation of the CCPL Group, and in particular the existence of resources not covered by the restructuring plan, which has not been meaningfully contested by the applicants, the applicants’ arguments are not sufficient to demonstrate that the payment of the fines was likely to irretrievably jeopardise the economic viability of the CCPL Group.
165 Moreover, it is important to note that the applicants’ assertion that the liquidity generated by Coopbox Group and Coopbox Eastern is not sufficient to cover their day-to-day operations has not been sufficiently substantiated, so this cannot be considered as established by the Court.
166 In view of the above, the applicants have still failed to demonstrate that, contrary to what the Commission considered, the payment of the fines totalling EUR 9 441 000 would irretrievably jeopardise their economic viability and result in their assets losing all value.
167 The third plea in law must therefore be dismissed.
168 In the alternative, the applicants request that the Court recalculate the amount of the fines imposed by the contested decision based on their actual ability to pay.
169 However, in so far as the arguments put forward by the applicants in support of their third plea in law have not shown that the contested decision was vitiated by a manifest error of assessment, and nor have they relied on any substantial change in their situation – in particular their financial position – since that decision was issued, there is no need for the General Court to exercise its full jurisdiction.
Costs
170 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission, including the costs of the proceedings for interim measures.
On those grounds,
THE GENERAL COURT (Ninth Chamber, Extended Composition)
hereby:
1. Dismisses the action;
2. CCPL – Consorzio Cooperative di Produzione e Lavoro SC, Coopbox group SpA and Coopbox Eastern s.r.o. shall bear their own costs and shall pay those incurred by the European Commission, including the costs of the proceedings for interim measures.
Papasavvas | Costeira | Kancheva |
Zilgalvis | | Dimitrakopoulos |
Delivered in open court in Luxembourg on 7 December 2022.
[Signatures]