Case T‑47/10

(publication by extracts)

Akzo Nobel NV and Others

v

European Commission

(Competition — Agreements, decisions and concerted practices — European markets in heat stabilisers — Decision finding two infringements of Article 81 EC and Article 53 of the EEA Agreement — Price fixing, market allocation and exchange of commercially sensitive information — Duration of the infringements — Limitation period — Duration of the administrative procedure — Reasonable time — Rights of the defence — Attribution of the infringements — Infringements committed by the subsidiaries, by a partnership without legal personality of its own and by a subsidiary — Calculation of the amount of the fines)

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

1.      Competition — Administrative procedure — Limitation period for fines — Expiry of the limitation period in respect of the subsidiary — No impact on the liability of the parent company

(Art. 81(1) EC; Council Regulation No 1/2003, Art. 25)

2.      Competition — Administrative procedure — Obligations of the Commission — Duty to act within a reasonable time — Infringement — Consequences — Reduction, by the Commission, of the amount of the fines imposed on the undertakings involved — Reduction refused to undertakings which brought legal actions against certain decisions adopted in respect of them in the context of the administrative procedure — Breach of the principle of effective judicial protection — Breach of the principle of equal treatment

(Art. 81 EC; Council Regulation No 1/2003)

1.      Subsidiaries having directly participated in infringements of Article 81(1) EC may legitimately invoke the expiry, in relation to them, of the limitation period laid down by Article 25(1)(b), where the Commission’s first actions for the purpose of the investigation or proceedings in respect of those infringements were taken after the expiry, for those subsidiaries, of the said limitation period.

However, expiry of the limitation period under Article 25 of Regulation No 1/2003 neither causes an infringement to cease to exist nor prevents the Commission from establishing, in a decision, liability for such an infringement, but merely enables those that benefit from the limitation period’s expiry to avoid proceedings aimed at imposing penalties. Furthermore, it is clear from a textual, contextual and purposive interpretation of Article 25 of Regulation No 1/2003 that the expiry of the limitation period under Article 25(1) benefits, and may be invoked by, each of the legal persons separately when they are the subject of proceedings brought by the Commission. Thus, the mere fact that a subsidiary of a group of companies, in the sense of an economic unit, benefits from the expiry of the limitation period does not result in the parent company’s liability being called into question and prevent proceedings being brought against that parent company.

(see paras 124-126, 128)

2.      By granting to all undertakings having participated in infringements of Article 81 EC a reduction in the amount of the fines imposed due to the excessive length of the administrative procedure, with the exception of undertakings which brought legal proceedings against certain decisions adopted in respect of them in the context of the said administrative procedure, the Commission mars its decision finding infringements of the competition rules and imposing fines with unjustified unequal treatment.

Irrespective of whether other undertakings would be deterred from exercising their rights to bring legal proceedings while they are involved in a Commission investigation for infringement of competition rules, the Commission’s argument, according to which that difference in treatment is justified by a difference in objectively comparable situations, in that, unlike the other undertakings, those in question had brought legal proceedings, is incompatible with the principle of effective judicial protection.

(see paras 326, 328, 329)