ORDER OF THE GENERAL COURT (Third Chamber)
8 November 2011 (*)
(Competition – Agreements, decisions and concerted practices – Markets for tin stabilisers and ESBO/esters heat stabilisers – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Withdrawal of the decision – Disappearance of the subject-matter of the proceedings – No need to adjudicate)
In Case T‑43/10,
Elementis plc, established in London (United Kingdom),
Elementis Holdings Ltd, established in London,
Elementis UK Ltd, established in London,
Elementis Services Ltd, established in London,
represented by T. Wessely, A. de Brousse, lawyers, A. Woods, Solicitor, and E Spinelli, lawyer,
applicants,
v
European Commission, represented by F. Ronkes Agerbeek and J. Bourke, acting as Agents, and by J. Holmes, Barrister,
defendant,
APPLICATION for annulment of Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/38589 – Heat stabilisers), in so far as it concerns the applicants, as well as, in the alternative, an application for a reduction in the fines imposed on the applicants under that decision,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1 By application lodged at the Registry of the General Court on 29 January 2010, the applicants, Elementis plc, Elementis Holdings Ltd, Elementis UK Ltd and Elementis Services Ltd, brought the present action for annulment of Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/38589 – Heat stabilisers) (‘the contested decision’) in so far as it concerns them, and, in the alternative, for a reduction in the level of the fines imposed on the applicants under that decision.
2 In the contested decision, the Commission of the European Communities found that the applicants had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating, with other undertakings, in anti-competitive agreements and concerted practises in the tin stabilisers sector and in the epoxidised soybean oil (ESBO) and esters sectors, and imposed fines on them for those infringements.
3 According to the contested decision, the applicants’ participation in the abovementioned infringements ended, at the latest, on 2 October 1998, that is to say more than 10 years before that decision was adopted. The Commission considered, nevertheless, that the limitation period of 10 years, under Article 25(5) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 EC and 82 EC (OJ 2003 L 1, p. 1), had been suspended, pursuant to Article 25(6) of the same regulation, by the judicial proceedings culminating in the judgment in Joined Cases T‑125/03 and T‑253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2007] ECR II‑3523 and which called into question some measures taken by the Commission in its investigation.
4 In particular, the Commission rejected the arguments put forward by the applicants, based in particular on the judgment in Case T‑405/06 ArcelorMittal Luxembourg and Others v Commission [2007] ECR II‑771, according to which the suspension resulting from the abovementioned procedure applied only to the parties in that procedure, namely Akzo Nobel Chemicals and Akcros Chemicals. The Commission stated that, on the contrary, that suspension had an erga omnes effect, so that the limitation had been suspended in respect of all the undertakings concerned by the investigation, including the applicants.
5 In their application, the applicants claimed, in particular, that the Commission’s assessment was incompatible with Article 25 of Regulation No 1/2003 as far as concerns limitation.
6 By order of the President of the Fourth Chamber of the General Court of 5 May 2010, after the parties had been heard, proceedings in the present case were suspended pursuant to Article 77(d) of the Rules of Procedure until delivery of final judgment by the Court of Justice in Joined Cases C‑201/09 P and C‑216/09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others.
7 The composition of the Chambers of the General Court changed and the Judge-Rapporteur was assigned to the Third Chamber, to which this case was accordingly assigned.
8 On 29 March 2011, the Court of Justice delivered its judgment in Joined Cases C‑201/09 P and C‑216/09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, not yet published in the ECR, and the proceedings in the present case were then recommenced.
9 By communication of 8 April 2011, the General Court invited the Commission, by way of measures of organisation of procedure, to submit its observations on the effects of the judgment in ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, paragraph 8 above, on the present case.
10 By Commission Decision C(2001) 4612 final of 30 June 2011, the contested decision was withdrawn in so far as it was addressed to the applicants.
11 By document lodged at the Registry of the General Court on 1 July 2011, the Commission made an application for an order that there was no need to adjudicate on the case, claiming that, in view of the withdrawal of the contested decision as regards the applicants, the present action had become devoid of purpose. Furthermore, it stated that it had made that withdrawal in order to take account of the interpretation of Article 25(6) of Regulation No 1/2003, according to which neither the actions against the final decisions imposing fines nor the actions against the measures referred to in Article 25(3) of that regulation have a suspensive effect erga omnes (ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, paragraph 8 above, paragraphs 141 to 148).
12 By document lodged at the Registry of the General Court on 24 August 2011, the applicants submitted their observations on the Commission’s request for an order that there was no need to adjudicate, which the applicants supported. Moreover, the applicants requested the General Court to order the Commission to pay the costs.
Law
13 By its request for an order that there is no need to adjudicate, the Commission raises a procedural issue on which, under Article 114(3) of the Rules of Procedure, a ruling should be given without opening the oral procedure, the Court considering that it has sufficient information available to it from the documents in the file.
14 The present action seeks primarily annulment of the contested decision in so far as it concerns the applicants.
15 Following submission of the action, Commission Decision C(2011) 4612 final of 30 June 2011 withdrew the contested decision in so far as it was directed at the applicants, in order to take account of the interpretation of Article 25(6) of Regulation No 1/2003 in ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, paragraph 8 above.
16 Moreover, in their observations on the request for an order that there is no need to adjudicate (see paragraph 12 above), the applicants point out that, in view of the adoption of the abovementioned decision, the subject-matter of the proceedings has ceased to exist and there is no longer any need to adjudicate on any of the grounds relied upon in support of their action.
17 It follows that the present application has become devoid of purpose.
18 In those circumstances, it must be held that there is no longer any need to adjudicate on this action.
Costs
19 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs shall be in the discretion of the Court.
20 In the present case, the Commission withdrew the contested decision after the action was brought, on a ground relied upon by the applicants both in the administrative procedure and in the action. In such circumstances, it is therefore appropriate to order the Commission to pay the costs in their entirety.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the action.
2. The European Commission shall pay the costs.
Luxembourg, 8 November 2011.