JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
15 July 2015 (*) (1)
(Competition — Agreements, decisions and concerted practices — European markets for heat stabilisers — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Infringement committed by a jointly-held subsidiary — Fines — Joint and several liability of the subsidiary and the parent companies — Ten-year limitation period applicable to one of the parent companies — Decision readopted — Reduction of the amount of the fine imposed on one of the parent companies — Attribution to the subsidiary and the other parent company of the obligation to pay the reduced fine — Rights of the defence)
In Case T‑485/11,
Akzo Nobel NV, established in Amsterdam (Netherlands),
Akcros Chemicals Ltd, established in Warwickshire (United Kingdom),
represented by C. Swaak and R. Wesseling, lawyers,
applicants,
v
European Commission, initially represented by F. Ronkes Agerbeek and J. Bourke, and subsequently by Mr Ronkes Agerbeek and P. Van Nuffel, acting as Agents, and by J. Holmes, Barrister,
defendant,
APPLICATION for annulment of the Commission Decision of 30 June 2011 amending 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/38.589 — Heat Stabilisers) in so far as it was addressed to Akzo Nobel and Akcros Chemicals or, in the alternative, for a reduction of the amount of the fines imposed
THE GENERAL COURT (Fourth Chamber),
composed of M. Prek, President, I. Labucka (Rapporteur) and V. Kreuschitz, Judges
Registrar: S. Spyropoulos, Administrator,
having regard to the written procedure and further to the hearing on 23 September 2014,
gives the following
Judgment
Background to the dispute
1 The present dispute concerns the Commission Decision of 30 June 2011 (‘the contested decision’) amending, in so far as it was addressed to the applicants, Akzo Nobel NV and Akcros Chemicals Ltd, 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/38.589 — Heat Stabilisers; ‘the first decision’).
2 This dispute involves various companies belonging to two groups of companies, first, the Akzo group and, second, the Elementis group which, through their subsidiaries, entered into an agreement in March 1993 to set up a joint venture, Akcros Chemicals, in the context of which various partnerships were formed.
Undertakings and companies involved
Akzo group
3 Until 19 March 1993 the production and sale of heat stabilisers of the Akzo group were carried out by its subsidiaries, wholly-owned, indirectly, by, on the one hand, Akzo NV, which became Akzo Nobel NV (‘Akzo Nobel’), through Akzo Chemicals International BV, which became Akzo Nobel Chemicals International BV and, on the other hand, by Akzo Chemie GmbH and Akzo Chemicals GmbH, which both became Akzo Nobel Chemicals GmbH (‘Akzo GmbH’), in respect of tin stabilisers, and Akzo Chemie Nederland BV and Akzo Chemicals Nederland BV, which became Akzo Nobel Chemicals BV (‘Akzo BV’) in respect of ESBO/esters stabilisers.
Akcros partnership
4 On 19 March 1993 Akzo Chemicals International BV, a wholly-owned subsidiary of Akzo, and then of Akzo Nobel, entered into a framework agreement with Harrisons Chemicals (UK) Ltd, a wholly-owned subsidiary of Harrisons & Crosfield plc, which became Elementis, to combine the activities of their respective groups for the development, production and marketing of certain chemical products, including heat stabilisers (‘the 1993 framework agreement’).
5 The 1993 framework agreement provided for the transfer of the assets and personnel in the sector concerned to four partnerships, in the United Kingdom, Germany, the Netherlands and the United States of America, while the shareholding in each partnership and in the existing companies in France (Tinstab SA), Italy (Harcros Chemicals Italia SpA), Spain (Harcros Chemicals Iberia SA) and Denmark (Lankro Sandia ApS) was to be held on an equal basis by, first, the Akzo Chemicals International group, namely the Akzo group, and, second, the Harrisons Chemicals (UK) group, namely the Elementis group.
6 On 24 March 1993 Akzo Chemicals International and Harrisons Chemicals (UK) notified the 1993 framework agreement to the European Commission, pursuant to Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1) as rectified.
7 By decision of 29 April 1993 the Commission declared the 1993 framework agreement compatible with the common market.
8 Pursuant to the 1993 framework agreement, the Akcros Chemicals partnership (‘the Akcros partnership’) was formed in the United Kingdom on 28 June 1993 (see recital 536 of the first decision).
9 When it was formed, the Akcros partnership was held, in equal shares, by Pure Chemicals Ltd, a company initially wholly-owned by Akzo, which became Akzo Nobel, and, by various companies, including, ultimately, Elementis UK Ltd and Elementis Services Ltd, which were part of a group whose ultimate parent company was Elementis plc (together ‘Elementis’).
Akcros
10 On 15 July 1998, Akzo Nobel reached an agreement with Elementis to acquire, through its wholly-owned subsidiary Pure Chemicals, Elementis’s shareholding in the Akcros partnership, which became Akcros Chemical Ltd (‘Akcros’), and which was thus wholly-owned, indirectly, by Akzo Nobel as from 2 October 1998.
11 On 15 March 2007, Akzo Nobel sold Akcros to GIL Investments.
Administrative procedures
First decision
– Attribution of the infringements in the first decision
12 In Article 1 of the first decision the applicants were found to be liable for their participation in the infringement relating to tin stabilisers from 24 February 1987 until 21 March 2000 and for their participation in the infringement relating to ESBO/esters sector from 11 September 1991 until 22 March 2000.
13 In the first decision Akzo Nobel, as the ultimate parent company of a group of companies some of which had participated directly in the infringements, was held liable for the entire infringement period, that is to say, from 24 February 1987 until 22 March 2000.
14 For the period before 28 June 1993, the Commission considered that certain companies, held indirectly by Akzo NV which became Akzo Nobel, had participated directly in the infringements, namely, Akzo GmbH (‘Akzo GmbH’), for the infringement relating to tin stabilisers, and Akzo BV, for the infringement relating to the ESBO/esters sector (see recitals 512 to 519 of the first decision).
15 For the period from 28 June 1993 until 2 October 1998 (‘the second infringement period’), the Commission considered that the infringements had been committed by the Akcros partnership (see recitals 563 and 564 of the first decision).
16 For the period from 2 October 1998 until 22 March 2000, the Commission considered that the infringements had been committed by Akcros, wholly-owned, indirectly, by Akzo Nobel (see recitals 582 to 587 of the first decision).
– Attribution of the fines in the first decision
17 Article 2 of the first decision reads as follows:
‘For the infringement(s) in the tin stabiliser sector ... the following fines are imposed:
1) Elementis plc, Elementis Holdings Limited, Elementis Services Limited, [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 875 200;
2) Elementis Holdings Limited, Elementis Services Limited, [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 2 601 500
3) Elementis Holdings Limited, Elementis Services Limited and [Akzo Nobel] are jointly and severally liable for: EUR 4 546 300;
4) [Akzo Nobel], [Akzo GmbH] and [Akcros] are jointly and severally liable for: EUR 1 580 000;
5) [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 944 300;
6) [Akzo Nobel] and [Akzo GmbH] are jointly and severally liable for: EUR 9 820 000;
7) [Akzo Nobel] is liable for: EUR 1 432 700;
…
For the infringement(s) in the [ESBO/esters sector], the following fines are imposed:
18) Elementis plc, Elementis Holdings Limited, Elementis Services Limited, [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 1 115 200;
19) Elementis Holdings Limited, Elementis Services Limited, [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 2 011 103;
20) Elementis Holdings Limited, Elementis Services Limited and [Akzo Nobel] are jointly and severally liable for: EUR 7 116 697;
21) [Akzo Nobel], [Akzo BV] and [Akcros] are jointly and severally liable for: EUR 2 033 000;
22) [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 841 697;
23) [Akzo Nobel] and [Akzo BV] are jointly and severally [liable] for: EUR 3 467 000;
24) [Akzo Nobel] is liable for: EUR 2 215 303 …’
18 By application lodged at the Court Registry on 27 January 2010, Akzo Nobel, Akzo GmbH, Akzo BV and Akcros brought an action against the first decision in Case T‑47/10.
19 By application lodged at the Court Registry on 29 January 2010, Elementis and Elementis Holdings Limited brought an action seeking annulment of the first decision in Case T‑43/10.
Contested decision
20 By letters dated 30 May 2011 and 1 June 2011 the Commission informed Akzo Nobel and Akcros that it intended to amend the first decision (‘the Commission’s letters’).
21 By its letters, the Commission stated, on the basis of the judgment of 29 March 2011 in ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others (C‑201/09 P and C‑216/09 P, ECR, ‘the judgment in ArcelorMittal’, EU:C:2011:190), that its powers to impose fines were time-barred with respect to Elementis and that, accordingly, it intended to withdraw the first decision with respect to Elementis and to amend it with respect to the applicants, while making it clear that the amount of the fines that would be imposed on the applicants would not change.
22 The Commission’s letters invited the applicants to submit their comments by 6 June 2011.
23 By letters of 14 June 2011 the applicants replied to the Commission’s letters, stating that the amendment envisaged by the Commission meant that they would be required to pay the total amount of the fine which they had previously been ordered to pay jointly and severally with Elementis, even though the amount of the fine would not change.
24 In their letters, the applicants also stated that they were not in a position to express their views on the Commission’s letters, since they did not provide the applicants with enough information to assess their legal situation and the scope and consequences of the Commission’s intended amendments. They further stated that, to the extent they could tell what the Commission’s intended amendments were to be, they objected to those amendments and reserved their rights.
25 By e-mail of 15 June 2011 the Commission confirmed the applicants’ understanding of its intentions and invited them to submit their comments by 12 noon on 20 June 2011 (‘the Commission’s e-mail’).
26 By e-mail of 20 June 2011 the applicants reiterated that they were not in a position to make a correct assessment of their legal situation and again stated their objection to the Commission’s intention to hold them liable for the whole amount of the fines for which they had previously been held jointly and severally liable with Elementis. They added that they reserved ‘all rights to express their views at a later stage once … they can effectively exercise their rights of defence’.
27 The Commission adopted the contested decision on 30 June 2011.
28 By the contested decision, the Commission amended the first decision.
29 In the contested decision the Commission referred to (i) Article 7 and 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 TFEU] and [102 TFEU] (OJ 2003 L 1, p. 1) and (ii) the first decision, stating furthermore that it had given the undertakings concerned the opportunity to make their views known (see recitals 1 to 3 of the contested decision and the third, fourth and fifth citations).
30 In recital 1 of the contested decision the Commission recalled that in the first decision it had imposed fines on the applicants ‘jointly and severally’ with Elementis plc, Elementis Holdings Limited and Elementis Services Limited.
31 In recital 2 of the contested decision the Commission stated that, in the light of the judgment in ArcelorMittal, cited in paragraph 21 above (EU:C:2011:190), it had decided to repeal the first decision to the extent that it was addressed to Elementis and Elementis Holdings Limited, among others.
32 Accordingly, the Commission amended the first decision to the extent that it was addressed to the applicants, in so far as they had been held jointly and severally liable with Elementis for the fines imposed (see recital 3 of the contested decision).
33 Under Article 1 of the contested decision:
‘[The first decision] is amended as follows:
Article 2 No 4 is replaced by the following:
1) [Akzo Nobel], [Akzo GmbH] and [Akcros] are jointly and severally liable for: EUR 1 580 000;
Article 2 No 1, 2 and 5, are replaced by the following:
2) [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 4 421 000;
Article 2 No 6 is replaced by the following:
3) [Akzo Nobel] and [Akzo GmbH] are jointly and severally liable for: EUR 9 820 000;
Article 2, No 3 and 7 are replaced by the following:
4) [Akzo NV] is liable for: EUR 5 979 000;
Article 2 No 21 is replaced by the following:
18) [Akzo Nobel], [Akzo BV] and [Akcros] are jointly and severally liable for: EUR 2 033 000;
Article 2 No 18, 19 and 22 is replaced by the following:
19) [Akzo Nobel] and [Akcros] are jointly and severally liable for: EUR 3 968 000;
Article 2 No 23 is replaced by the following:
20) [Akzo Nobel] and [Akzo BV] are jointly and severally liable for: EUR 3 467 000;
Article 2 No 20 and 24 is replaced by the following:
21) [Akzo Nobel] is liable for: EUR 9 332 000 …’
34 By order of 8 November 2011 the Court held that there was no longer any need to adjudicate on the action brought by Elementis against the first decision, since the Commission had, by the contested decision, repealed the first decision, in so far as it was addressed to Elementis, in order to take account of the interpretation of Article 25(6) of Regulation No 1/2003 in the judgment in ArcelorMittal, cited in paragraph 21 above (EU:C:2011:190), (order of 8 November 2011 in Elementis and Others v Commission, T‑43/10, EU:T:2011:643).
Procedure and forms of order sought by the parties
35 By application lodged at the Court Registry on 12 September 2011, the applicants brought an action against the contested decision.
36 In view of the arguments which the parties put forward in relation to the conditions and effects of joint and several liability, the parties were invited, by request of the Court of 13 November 2012, to submit observations on a possible stay of the proceedings, pursuant to Article 77(d) of the Rules of Procedure of the General Court of 2 May 1991, pending delivery of the final judgment of the Court of Justice in Case C‑231/11 P, Commission v Siemens Österreich and Others.
37 The parties replied to that request within the prescribed periods.
38 The Court sent a copy of the applicants’ reply to the Commission on 28 November 2012.
39 The Court sent a copy of the Commission’s reply to the applicants on the same day.
40 By order of 12 December 2012, the President of the Third Chamber of the Court ordered, pursuant to Article 77(d) of the Rules of Procedure of 2 May 1991, that the proceedings be stayed until the Court of Justice had given final judgment in Case C‑231/11 P, Commission v Siemens Österreich and Others.
41 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Fourth Chamber, to which the present case was accordingly allocated on 3 October 2013.
42 On 10 April 2014, the Court of Justice gave judgment in Commission v Siemens Österreich and Others and Siemens Transmission & Distribution Ltd and Others v Commission (C‑231/11 P to C‑233/11 P, ECR, EU:C:2014:256; ‘the judgment in Siemens’).
43 On the same day, the Court of Justice gave judgment in Areva and Others v Commission (C‑247/11 P and C‑253/11 P, ECR, EU:C:2014:257; ‘the judgment in Areva’).
44 By way of measures of organisation of procedure, on 15 April 2014, the Court invited the parties to submit their written observations on the implications for the present case of the judgment in Siemens, cited in paragraph 42 above (EU:C:2014:256).
45 By fax sent to the Court Registry on 25 April 2014, the applicants requested that the Court extend the period prescribed for responding to the Court’s question of 15 April 2014.
46 That request was granted.
47 On 5 May 2014, the parties submitted their written observations on the implications for the present case of the judgment in Siemens, cited in paragraph 42 above (EU:C:2014:256).
48 The Court sent a copy of the applicants’ reply to the Commission on 19 May 2014.
49 The Court sent a copy of the Commission’s reply to the applicants on the same day.
50 Upon hearing the report of the Judge-Rapporteur, the Court decided, on 22 May 2014, to open the oral procedure and invited the parties to submit their written observations, first, on the possible joinder of the present case and Case T‑47/10 for the purpose of the oral procedure and the decision closing the proceedings, and, second, on the implications of the judgment in Areva, cited in paragraph 43 above, (EU:C:2014:257, paragraphs 132, 137 and 138).
51 On 6 June 2014, the parties submitted their observations on the implications for the present case of the judgment in Areva, cited in paragraph 43 above (EU:C:2014:257), and also on a possible joinder of the present case and Case T‑47/10 for the purposes of the oral procedure and the decision closing the proceedings.
52 On 11 June 2014, a copy of the Commission’s observations on the implications for the present case of the judgment in Areva, cited in paragraph 43 above (EU:C:2014:257), was sent to the applicants.
53 On the same day, a copy of the applicants’ observations on the implications for the present case of the judgment in Areva, cited in paragraph 43 above (EU:C:2014:257), was sent to the Commission.
54 By order of the President of the Fourth Chamber of the Court of 3 July 2014, the present case was joined with Case T‑47/10 for the purposes of the oral procedure.
55 The parties presented oral arguments and answered the oral questions put to them by the Court at the hearing on 23 September 2014.
56 In the present case, the applicants claim that the Court should:
– principally, annul the contested decision;
– in the alternative, reduce the amount of the fines imposed upon them;
– order the Commission to pay the costs.
57 The Commission contends that the Court should:
– dismiss the action;
– order the applicants to pay the costs.
Law
58 In support of their application, the applicants put forward three pleas in law.
59 By their third plea, the applicants claim that the Commission breached their rights of defence by failing to send them a new statement of objections even though it was required to do so before adopting the contested decision.
60 According to the applicants, the Commission could not adopt the contested decision without having heard their comments on a second — new or supplementary — statement of objections.
61 By failing to send them a second statement of objections, the Commission breached their right to be heard, which is an aspect of the rights of the defence that must be ‘fully respected in the proceedings’, in the words of Article 27(2) of Regulation No 1/2003; the right to be heard is also enshrined in Chapter V of Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101 TFEU] and [102 TFEU] (OJ 2004 L 123, p. 18).
62 In the present case the applicants submit that the Commission erred by failing to adopt a second statement of objections clearly setting out its intention to hold the applicants liable for the payment of all the fines imposed for the infringement over the second infringement period.
63 For its part, the Commission contends that the rights of the defence of the applicants were sufficiently protected by the letters which it sent to them before adopting the contested decision, informing them of the measures which it proposed to take, and by the opportunity which it gave to them to comment on its proposals.
64 The Commission submits that the applicants’ arguments do not support the claim that a new statement of objections was required, since the contested decision did not in any way alter the factual elements or legal analysis on which the Commission relied in support of the finding that the undertaking of which the applicants formed part had breached Article 81 EC, or the extent to which the various companies comprising the undertaking were implicated in the investigation.
65 According to the Commission, the only change made by the contested decision to the analysis found in the first decision was to draw the necessary inferences, in relation to the applicants’ liability, from the fact that Elementis could no longer be held liable for the unlawful conduct during the second infringement period. The Commission explained that change and it is clear from the applicants’ responses that they understood this.
66 In that regard, it must be recalled at the outset that the right to be heard, which is an essential component of the rights of the defence, constitutes a general principle of EU law which must be complied with in any procedure, even an administrative one, especially where penalties, in particular fines, may be imposed, and that that principle implies, inter alia, that the undertaking concerned must have the opportunity during the administrative procedure to make its views known (see, to that effect, judgments of 13 February 1979 in Hoffmann-La Roche v Commission, 85/76, ECR, EU:C:1979:36, paragraph 9; 7 June 1983 in Musique diffusion française and Others v Commission, 100/80 to 103/80, ECR, EU:C:1983:158; and 7 January 2004 in Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, ECR, EU:C:2004:6, paragraphs 64 to 66).
67 Article 27(1) of Regulation No 1/2003 reflects that principle in so far as it provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the procedure in order to enable the parties concerned properly to identify the conduct complained of by the Commission and the evidence which it has at its disposal (see, to that effect, judgments of 15 October 2002 in Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, ECR, EU:C:2002:582, paragraphs 315 and 316, and Aalborg Portland and Others v Commission, cited in paragraph 66 above, EU:C:2004:6, paragraphs 66 and 67).
68 Moreover, observance of the rights of the defence requires, in particular, that the undertaking under investigation has been afforded the opportunity during the administrative procedure to make known its views on the truth and relevance of the facts alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (judgments in Musique diffusion française and Others v Commission, cited in paragraph 66 above, EU:C:1983:158, paragraph 10; 25 January 2007 in Dalmine v Commission, C‑407/04 P, ECR, EU:C:2007:53, paragraph 44, and 10 May 2007 in SGL Carbon v Commission, C‑328/05 P, ECR, EU:C:2007:277, paragraph 71).
69 In the circumstances of the present case, and regardless of whether the Commission was obliged to send the applicants a fresh statement of objections before adopting the contested decision, it is clear that in the Commission’s letters and e-mail, referred to in paragraphs 20 to 22 and 25 above, the Commission did indeed invite the applicants to make their views known.
70 Nevertheless the applicants were afforded only four working days, namely from Wednesday 1 June to Monday 6 June 2011, following the Commission’s letters, and three working days, namely from Wednesday 15 June to Friday 17 June 2011, following the e-mail of the Commission, in which it could make those views known.
71 Such short periods are not compatible with respect for the rights of the defence.
72 Consequently, the contested decision must be annulled, provided that the applicants have sufficiently demonstrated not that, without that procedural irregularity — that is to say, if they had had a reasonable amount of time to make their views known — the contested decision would have been different in substance, but that they would have been better able to defend themselves without that irregularity (see, to that effect, judgment of 18 June 2013 in Fluorsid and Minmet v Commission, T‑404/08, ECR, EU:T:2013:321, paragraph 110 and the case-law cited), which is to be determined by reference to the time of the administrative procedure leading to the adoption of the contested decision, that is to say, before the date on which the decision was adopted, namely 30 June 2011 (see, to that effect, judgment of 27 September 2006 in Archer Daniels Midland v Commission, T‑329/01, ECR, EU:T:2006:268, paragraph 377).
73 In that regard, first, it should be noted that, at the time of the administrative procedure leading to the adoption of the contested decision, it was a matter of debate as to what the Commission’s obligations were in respect of the joint and several liability between companies that were joint and several debtors, inasmuch as they had formed a single undertaking within the meaning of Article 101 TFEU.
74 In its judgment of 3 March 2011, less than four months before the date of the adoption of the contested decision, the Court held that it is exclusively for the Commission, in exercising its power to impose fines under Article 23(2) of Regulation No 1/2003, to determine the various companies’ respective shares of the fines imposed on them jointly and severally in so far as they formed part of the same undertaking, and that that task could not be left to the national courts (judgment of 3 March 2011 in Siemens and VA Tech Transmission & Distribution v Commission, T‑122/07 to T‑124/07, ECR, EU:T:2011:70, paragraph 157).
75 That point was all the more debatable at the time of the administrative procedure leading to the adoption of the contested decision in that subsequently the judgment in Siemens and VA Tech Transmission & Distribution v Commission, cited in paragraph 74 above (EU:T:2011:70), was set aside by the Court of Justice on the grounds that the allocation of the fine between joint and several debtors fell exclusively within the jurisdiction of the national courts (judgment in Siemens, cited in paragraph 42 above, EU:C:2014:256, paragraph 62).
76 Accordingly, during the administrative procedure leading to the adoption of the contested decision and, thus, before the delivery of the judgment in Siemens, cited in paragraph 42 above (EU:C:2014:256), the applicants could have argued they were entitled to be granted a reduction of the amount of the fine imposed on Elementis with which they had been held to be jointly and severally liable for the infringement committed by the Akcros partnership since, at the time of the infringement, they together had formed an undertaking within the meaning of Article 101 TFEU.
77 Therefore, the applicants could, at the time of the administrative procedure leading to the adoption of the contested decision, have defended themselves better if they had had sufficient time to make their views known.
78 Second, it is undisputed that, in the contested decision, the Commission’s intention was to draw the appropriate inferences from the judgment in ArcelorMittal, cited in paragraph 21 above (EU:C:2011:190).
79 Thus, the Commission, in the contested decision, considered that the suspension of the limitation period in respect of the applicants was not effective erga omnes, but only inter partes, that is to say, in the circumstances of the present case, that that suspension did not apply to Elementis.
80 First, it should be recalled that the Court of Justice, in the case which gave rise to the judgment in ArcelorMittal, cited in paragraph 21 above (EU:C:2011:190), gave a ruling on the inter partes effects of a suspension of the limitation period for several undertakings, within the meaning of Article 101 TFEU, which participated in the same infringement (judgment in ArcelorMittal, cited in paragraph 21 above, EU:C:2011:190, paragraph 148).
81 Second, in the present case, Elementis and the applicants constituted, during the second infringement period, a single undertaking within the meaning of Article 101 TFEU, as has been held in paragraph 405 of today’s judgment in Case T‑47/10.
82 Thus, regardless of whether the Commission was entitled to extend the approach adopted by the Court of Justice in the case which gave rise to the judgment in ArcelorMittal, cited in paragraph 21 above (EU:C:2011:190), which related to several undertakings involved in the same infringement, to a situation, such as that in the present case, relating to several companies which constituted a single undertaking during the second infringement period, it must be held that, in particular in relation to that question, the applicants could, at the time of the administrative procedure which led to the adoption of the contested decision, have defended themselves better if they had had sufficient time to make their views known.
83 Accordingly, the third plea in law must be upheld and the contested decision annulled, without there being any need to rule on the other pleas in law.
Costs
84 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. Since the Commission has failed in its submissions and the applicants have applied for costs, the Commission must be ordered to pay the costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1. Annuls the Commission Decision of 30 June 2011 amending 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/38.589 — Heat Stabilisers);
2. Orders the European Commission to pay the costs.
Delivered in open court in Luxembourg on 15 July 2015.
[Signatures]