JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
13 September 2010 (*)
(Competition – Agreements, decisions and concerted practices – Market for plastic industrial bags – Decision finding an infringement of Article 81 EC – Duration of the infringement – Fines – Gravity of the infringement – Mitigating circumstances – Cooperation during the administrative procedure – Proportionality – Joint and several liability – Principle of legal certainty)
In Case T‑40/06,
Trioplast Industrier AB, established in Smålandsstenar (Sweden), represented by T. Pettersson and O. Larsson, lawyers,
applicant,
v
European Commission, represented initially by F. Castillo de la Torre, P. Hellström and V. Bottka, and subsequently by F. Castillo de la Torre, L. Parpala and V. Bottka, acting as Agents,
defendant,
APPLICATION for the partial annulment of Commission Decision C(2005) 4634 final of 30 November 2005 relating to a proceeding pursuant to Article 81 [EC] (Case No COMP/F/38.354 – Industrial bags) and, in the alternative, an APPLICATION for the reduction of the fine imposed on the applicant,
THE GENERAL COURT (Sixth Chamber),
composed of A.W.H. Meij (Rapporteur), President, V. Vadapalas and L. Truchot, Judges,
Registrar: C. Kristensen, Administrator,
having regard to the written procedure and further to the hearing on 30 June 2010,
gives the following
Judgment
Background to the dispute
1 The applicant, Trioplast Industrier AB, is the parent company of the Trioplast group. It is the addressee of the decision which is the subject of the present action in its capacity as parent company of Trioplast Wittenheim SA, a company situated in Wittenheim (France) which produces industrial bags, film and sacks.
2 In 1999, the applicant purchased Trioplast Wittenheim, which was at that time called Silvallac, through the intermediary of its subsidiary Trioplanex France SA, from the Danish-law company Nyborg Plast International A/S, which has subsequently been renamed FLS Plast A/S. The sale and transfer took place on 19 January 1999 and had retrospective effect from 1 January 1999.
3 FLS Plast had itself acquired 60% of the share capital of Trioplast Wittenhein in December 1990 from the company Cellulose du Pin, a member of the group held by Compagnie de Saint-Gobain SA. The remaining 40% was sold by Cellulose du Pin to FLS Plast in December 1991.
The administrative procedure
4 In November 2001, the company British Polythene Industries informed the Commission of the existence of a cartel in the industrial bags sector (‘the cartel’) and expressed its wish to cooperate with the Commission under the Commission Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the Leniency Notice’).
5 On 26 and 27 June 2002, the Commission carried out investigations at the premises of 13 undertakings pursuant to Article 14(2) and (3) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87). One of those undertakings was Trioplast Wittenheim.
6 From 14 November 2002 to 21 February 2003, the Commission sent requests for information, pursuant to Article 11 of Regulation No 17, to several of those undertakings, including Trioplast Wittenheim.
7 By letter dated 19 December 2002, supplemented by letter dated 16 January 2003, Trioplast Wittenheim indicated that it too wished to cooperate in the Commission’s inquiry, pursuant to the Leniency Notice, and provided it with written explanations.
8 On 4 August 2003, the Commission sent a further request for information to Trioplast Wittenheim and to the other undertakings concerned.
9 On 29 April 2004, the Commission initiated the administrative procedure and adopted a statement of objections which it addressed to several of the undertakings, including Trioplast Wittenheim. A hearing took place from 26 to 28 July 2004.
The contested decision
10 On 30 November 2005, pursuant to 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), the Commission adopted Decision C(2005) 4634 final relating to a proceeding pursuant to Article 81 [EC] (Case No COMP/F/38.354 – Industrial bags) (the ‘contested decision’), a summary of which was published in the Official Journal of the European Union of 26 October 2007 (OJ 2007 L 282, p. 41). Among the addressees of the decision was Trioplast Wittenheim, which company the Commission regarded as having clearly been involved in the infringement, together with the applicant, which the Commission identified as belonging to the economic unit responsible for the infringement from 1999 to 2002. FLS Plast and FLSmidth & Co. A/S (‘FLSmidth’), the holding company of the FLS group, formerly called FLS Industries A/S, were also addressees of the contested decision, having formed an economic unit with Trioplast Wittenheim from 1990 to 1999.
11 In the contested decision, and more particularly in recitals 417 to 548 thereof, the Commission held that several undertakings had, in breach of Article 81 EC, participated in agreements or concerted practices of an anti-competitive nature extending to the territories of Belgium, Germany, Spain, France, Luxembourg and the Netherlands. According to recitals 549 to 576 of the contested decision, the infringement went on from January 1982 to June 2002, although the duration of the infringement varied from undertaking to undertaking.
12 Recitals 3 to 14 of the contested decision state that the products concerned, for the purposes of the contested decision, were plastic industrial bags used for packaging basic commodities, and more generally raw materials, fertilisers, polymers, building materials, agricultural and horticultural products and animal feedingstuffs. According to the contested decision, the bags, which are made from the same raw material, polyethylene, but are made using different procedures, may be divided into four categories, namely open mouth bags, valve bags, FFS (form, fill and seal) bags and block bags. The Commission concluded that, although these types of bags may display certain distinguishing features, they form a relatively homogeneous group.
13 According to recitals 165 to 186 of the contested decision, the cartel was organised on two levels, namely:
– the global level of the European Association of Plastic Valve Bag Manufacturers (‘Valveplast’) and the functional sub-groups within Valveplast, including the block bags sub-group, and
– the level of the regional sub-groups within Valveplast or outside it, namely the ‘Benelux’ sub-group, the ‘Germany’ sub-group, the ‘France’ sub-group, the ‘Belgium’ sub-group and the ‘Teppema’ group (an organisation created by Dutch manufacturers of open mouth bags mainly concerned with the Dutch market, and occasionally the Belgian market).
14 Recitals 187 to 416 of the contested decision state that the anti-competitive agreements and concerted practices in question took the following forms:
– a mechanism for the regular exchange of non-anonymous information on the sales volumes and market shares of the members of each group and sub-group;
– a general system for determining and monitoring sales quotas by geographic zone and, within each geographic zone, by undertaking;
– common models for calculating selling prices to customers;
– the application at group and sub-group level of leadership arrangements for major customers;
– penalties for exceeding quotas or sales volumes for specific customers;
– consultation and agreement on prices and sales volumes for specific customers, and
– the allocation of tenders and the submission of concerted bids coupled with shielding bids.
15 In recitals 443 and 459 of the contested decision, the Commission held that, with the exception of the company Stempher, the behaviour of all of the undertakings to which the contested decision was addressed, who all took part to varying degrees in the meetings of Valveplast or of one or more sub-groups, constituted a single and continuous infringement
16 In recital 765 of the contested decision, the Commission classified the infringement as very serious and held that, whilst it was not possible to measure with precision the actual impact that the various collusive arrangements had had on the market, it was nevertheless possible to confirm that they had been implemented and thus had necessarily had an effect on the market.
17 Next, in recitals 766 to 777 of the contested decision, the Commission subdivided the undertakings concerned into six categories according to their relative weight on the relevant market, taking as a basis the market shares achieved by each undertaking in 1996 for the product concerned in each relevant territory. On that basis, the Commission set the starting amounts of the fines at between EUR 5.5 million and EUR 35 million. The Commission set the starting amount of the fine imposed on Trioplast Wittenheim at EUR 8.5 million (category five) on the ground that its share of the relevant market in 1996 was 2.8%. Since the applicant and FLS Plast and FLSmidth were accountable in their capacity as parent companies of Trioplast Wittenheim, the same starting amount was fixed with respect to them also.
18 In recitals 779 to 783 of the contested decision, the starting amount of the fines was increased by 10% for every full year of the infringement and by 5% for any further period of six months or more but less than a year. Thus, in the case of Trioplast Wittenheim, the starting amount of the fine was increased by 200%, corresponding to an infringement lasting 20 years and 5 months, giving a basic amount of EUR 25.5 million. The starting amount of the fines imposed on the applicant and upon FLS Plast (and also FLSmidth) was increased by 30% and 80% respectively, giving basic amounts of EUR 11.05 million for the applicant and EUR 15.3 million for FLS Plast and FLSmidth.
19 As is clear from recitals 802 and 812 to 822 of the contested decision, the basic amounts of the fines imposed on Trioplast Wittenheim and its parent companies were neither increased nor reduced to take account of aggravating or mitigating circumstances or to reflect application of the rule laid down in Article 23(2) of Regulation No 1/2003 limiting the amount of the fine to 10% of the total turnover of the undertakings concerned achieved during the previous financial year (‘the 10% of turnover limit’). On the other hand, the Commission applied section D of the Leniency Notice, to take account of the cooperation offered by Trioplast Wittenheim. In recital 841 of the contested decision, the Commission held that Trioplast Wittenheim and the applicant were entitled to a 30% reduction in the amount of the fine that would have been imposed in the absence of such cooperation. The basic amount of the fine imposed on FLS Plast and FLSmidth was not, however, reduced on this ground.
20 The final amount of the fine imposed on Trioplast Wittenheim was consequently set at EUR 17.85 million. FLS Plast and FLSmidth were held jointly and severally liable for EUR 15.3 million of the total amount and the applicant was held jointly and severally liable for EUR 7.73 million of the total amount.
21 Lastly, the operative part of the contested decision included the following provisions:
‘Article 1
1. The following undertakings have infringed Article 81 of the Treaty by participating, during the periods indicated, in a complex of agreements and concerted practices in the plastic industrial bags sector in Belgium, Germany, Spain, France, Luxembourg and the Netherlands, consisting in the fixing of prices and the establishment of common price calculation models, the sharing of markets and the allocation of sales quotas, the assignment of customers, deals and orders, the submission of concerted bids in response to certain invitations to tender and the exchange of individualised information:
…
(g) Trioplast Wittenheim …, from 6 January 1982 to 26 June 2002, and [the applicant], from 21 January 1999 to 26 June 2002;
(h) FLS Plast … and FLSmidth …, from 31December 1990 to 19 January 1999;
…
Article 2
For the infringements referred to in Article 1, the following fines are imposed:
…
(f) Trioplast Wittenheim …: EUR 17.85 million. Of this amount, FLSmidth … and FLS Plast … shall be jointly and severally liable for the sum of EUR 15.30 million and [the applicant] shall be jointly and severally liable for the sum of EUR 7.73 million;
…
Article 3
The undertakings listed in Article 1 shall immediately bring to an end the infringements referred to in that Article, in so far as they have not already done so.
They shall refrain from repeating any act or conduct described in Article 1, and from any act or conduct having an identical or similar object or effect.
…’
Procedure and forms of order sought
22 By application lodged at the Registry of the General Court on 9 February 2006, the applicant brought the present action.
23 The applicant claims that the Court should:
– partially annul Article 1(1)(g) of the contested decision in so far as it relates to the period during which it was held liable for the infringement;
– partially annul the first paragraph, point (f), of Article 2 of the contested decision in so far as it relates to the amount of the fine imposed on it and, in the alternative, reduce the amount of the fine;
– order the Commission to pay the costs.
24 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
25 After a change in the composition of the Chambers of the Court, the Judge‑Rapporteur was attached to the Sixth Chamber, to which the present case was consequently assigned.
26 By order of 15 June 2010, the President of the Sixth Chamber of the Court decided, after hearing the parties, to join the present case with Case T‑26/06 (Trioplast Wittenheim v Commission) for the purposes of the oral procedure, in accordance with Article 50 of the Court’s Rules of Procedure.
27 The parties presented oral argument and replied to the questions put by the Court at the hearing on 30 June 2010.
Law
28 The applicant advances six pleas in law in support of its claim.
29 The first plea in law concerns both the lawfulness of Article (1)(1)(g) of the contested decision and the Commission’s calculation of the amount of the applicant’s fine. By the third limb of this plea, the applicant in fact disputes the lawfulness of the contested decision in so far as it is based on the Commission’s determination of the duration of the infringement which it committed. The first and second limbs of this plea concern, first, the lawfulness of the method which the Commission applied in order to calculate the fine and, secondly, the lawfulness of the Commission’s determination of the gravity of the infringement, in particular as regards its choice of the reference year. Consequently, it is appropriate to examine, first of all, the third limb of the first plea and then the first and second limbs of the plea.
30 The five remaining pleas in law concern annulment of Article 2, first paragraph, point (f), of the contested decision, in so far as it relates to the amount of the fine imposed on the applicant. By its second plea in law, the applicant in fact disputes the grounds of the Commission’s refusal to allow it the benefit of mitigating circumstances. The third plea is based upon non-compliance with the 10% of turnover limit. By its fourth plea in law, the applicant seeks to show that the Commission erred in its assessment under the Leniency Notice of the cooperation which the applicant offered. The fifth plea concerns infringement by the Commission of the principles of proportionality and equal treatment. Finally, the sixth plea alleges a failure to observe the principles of sound administration and legal certainty in the ascribing to the applicant of joint and several liability.
31 During the hearing the applicant withdrew its third plea, which it is therefore no longer necessary to examine.
1. The claim for partial annulment of the contested decision
First plea: errors in the determination of the duration of the infringement and the amount of the fine
Third limb: the lawfulness of the determination of the duration of the infringement
– Arguments of the parties
32 The applicant takes issue with the Commission’s analysis according to which the infringement committed by Trioplast Wittenheim went on for 20 years and 5 months, that is to say, from January 1982 to June 2002. It submits that its fine should be reduced to take account of the arguments which it puts forward concerning the duration of Trioplast Wittenheim’s involvement in the infringement.
33 First of all, the applicant argues that Trioplast Wittenheim’s participation in the anti-competitive practices came to an end at the Valveplast meeting on 23 March 1999. The duration of Trioplast Wittenheim’s infringement was therefore 17 years and 2 months and the period in respect of which the applicant should incur joint and several liability for the infringement is, it submits, from 21 January to 23 March 1999. Indeed, having purchased Trioplast Wittenheim only a few weeks earlier, the applicant’s attention was drawn to the anti-competitive practices in issue for the first time at the meeting on 23 March 1999. According to the applicant, Mr B., one of its directors, who was appointed chairman of the board of Trioplast Wittenheim and represented the company, took no part in any unlawful discussions, and the applicant subsequently put in place an internal directive requiring an end to be put to the infringement.
34 Whilst acknowledging the fact that Trioplast Wittenheim attended three meetings of Valveplast in 2001, the applicant submits that, during those meetings, Valveplast conducted side discussions concerning two projects which were considered to be lawful, namely a method, first of all, for calculating the price of FFS bags, so as to make it easier to switch to finer film and, secondly, the definition of parameters for Internet auctions. To the extent that those discussions proved to be anti-competitive in nature, Trioplast Wittenheim paid no attention to them. Its objective was not, therefore, to exploit the cartel to its own advantage.
35 Next, in the event that the Court should find that Trioplast Wittenheim did participate in the infringement by attending the three Valveplast meetings in 2001, the applicant asserts that the company withdrew from the cartel some time between 23 March 1999 and 27 March 2001 and ended its involvement in the cartel once and for all in July 2001. In that case, Trioplast Wittenheim’s infringement lasted a maximum of 17 years and 6 months.
36 As regards the submission that its subsidiary did not participate in the cartel between 1999 and 2001, the applicant states that, during that period, Trioplast Wittenheim’s objective was to put an end to the unlawful cooperation which the previous owners of the company, or its previous management, had initiated, to act independently and in accordance with the market, and consequently to increase its turnover and market share, and also to take no account, in the conduct of its business, of the information which it received in the context of the anti‑competitive practices in question.
37 Lastly, as regards its definitive withdrawal from Valveplast, the applicant points out that Trioplast Wittenheim attended no further meetings after the meeting of 12 July 2001. It adds that the Trioplast group implemented a competition law compliance programme in November 2001, which shows that it had distanced itself from all anti‑competitive conduct. It goes on to submit that Trioplast Wittenheim never took part in any coordination of Internet auctions, which subject had been addressed during the meetings it attended. Trioplast Wittenheim took part at that time in only one auction, which was not coordinated.
38 The Commission submits that this part of the first plea should be rejected.
– Findings of the Court
39 According to the case-law, the Commission must prove not only the existence of a cartel but also its duration. In this connection, it is important to observe that, if there is no evidence directly establishing the duration of an infringement, the Commission should adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that that infringement continued uninterruptedly between two specific dates (Case T‑43/92 Dunlop Slazenger v Commission [1994] ECR II‑441, paragraph 79, and Case T‑120/04 Peróxidos Orgánicos v Commission [2006] ECR II‑4441, paragraph 51). Furthermore, although the period separating two manifestations of infringing conduct is a relevant criterion in order to establish the continuous nature of an infringement, the fact remains that the question whether or not that period is long enough to constitute an interruption of the infringement cannot be examined in the abstract. On the contrary, it needs to be assessed in the context of the functioning of the cartel in question (Case T‑18/05 IMI and Others v Commission [2010] ECR II‑0000, paragraph 89).
40 However, the apportionment of the burden of proof is likely to vary, inasmuch as the evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged (Peróxidos Orgánicos v Commission, cited in paragraph 39 above, paragraph 53; see also, to that effect, Joined Cases 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 Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 79, and Case C‑413/08 P Lafarge v Commission [2010] ECR I‑0000, paragraph 21).
41 Against that background, it is considered that, where participation in a cartel, or the degree or even the duration of such participation, is in dispute, it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel. Where participation in such meetings has been established, it is for that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs (Aalborg Portland and Others v Commission, cited in paragraph 40 above, paragraph 81).
42 Indeed, where it participates in a meeting without publicly distancing itself from what is discussed, an undertaking gives the other participants to believe that it subscribes to what is decided there and will comply with it (Aalborg Portland and Others v Commission, cited in paragraph 40 above, paragraph 82).
43 In the present case, it is not in dispute that Trioplast Wittenheim participated in the cartel from January 1982 to 23 March 1999 and that the applicant infringed Article 81 EC from 21 January 1999 to 23 March 1999 by virtue of belonging to the same economic unit as Trioplast Wittenheim. The applicant does, however, dispute that Trioplast Wittenheim participated in the cartel from 23 March 1999 to June 2002. In the alternative, the applicant maintains that Trioplast Wittenheim withdrew from the cartel some time between 23 March 1999 and 27 March 2001 and ended its involvement in the Valveplast meetings once and for all on 12 July 2001.
44 Firstly, it should be observed that the applicant concedes that Trioplast Wittenheim attended the anti-competitive meetings of Valveplast on 23 March 1999 and 27 March, 8 June and 12 July 2001, which addressed, inter alia, the price calculation model for FFS bags and the coordination of Internet auctions. It is clear from the file that Mr B., at the time a director of the Trioplast group and chairman of the board of Trioplast Wittenheim, represented that company during those meetings, with the exception of the meeting on 12 July 2001, which was attended by a certain Mr W.
45 It must, therefore, be held that, since Trioplast Wittenheim’s attendance at those meetings is not in dispute, it was for the applicant to put forward evidence to establish that its participation in the meetings was without any anti-competitive intention. However, whilst the applicant puts forward the fact that Trioplast Wittenheim did not mean, by coming to the meetings in question, to participate in any unlawful cartel and that it took no part in unlawful discussions, it fails to show that Trioplast Wittenheim publicly distanced itself from what was discussed at the meetings. The applicant’s assertion that Trioplast Wittenheim ended its involvement in the cartel on 23 March 1999 cannot, therefore, be accepted.
46 Secondly, as regards the period between 23 March 1999 and 27 March 2001, it is clear from the contested decision, and particularly Annex 1 thereto, which sets out details of the Valveplast meetings, that the Commission is in possession of no direct evidence to show that Trioplast Wittenheim attended any Valveplast meetings during that period. The Commission does not dispute that finding.
47 It is, on the other hand, established that Trioplast Wittenheim was invited to attend those meetings and that it declined to do so on several occasions. Indeed, the Commission mentioned that fact in detail not only in its pleadings but also at the hearing, without being contradicted on the point by the applicant. Furthermore, the Commission’s assertion is supported by several documents in the file, the existence and content of which the applicant does not dispute. There are, in particular, the minutes of the meetings of 27 August and 25 November 1999 and of 23 March and 18 August 2000, which clearly show that Trioplast Wittenheim had offered its apologies for its absence. There is also a document relating to the meeting of 5 December 2000, from which it is clear that the applicant was at least invited to that meeting.
48 In the circumstances, it may be accepted, on the basis of the evidence furnished by the Commission, that the infringement continued in uninterrupted fashion between 23 March 1999 and 27 March 2001. Moreover, the applicant has adduced no evidence to show that Trioplast Wittenheim distanced itself from the cartel during the meeting of 23 March 1999 or in the period following that meeting. The applicant’s submission that Trioplast Wittenheim acted independently on the market, and took no account, in the conduct of its business, of the information which it received through its contacts with the other members of the cartel, does not call that finding into question.
49 Thirdly, as regards the period between the meeting of 12 July 2001 and 26 June 2002, suffice it to observe that the applicant has failed to show that, either at the meeting or during the period following it, Trioplast Wittenheim expressly distanced itself, vis-à-vis the other participants, from the matters discussed at the meeting. Nor has it been established that Trioplast Wittenheim distanced itself from the cartel, within the meaning prescribed by case-law, during the period from 12 July 2001 to 26 June 2002.
50 In this context, account must also be taken of the fact that the file clearly shows that, on 10 December 2001, Mr T. sent a written invitation to Trioplast Wittenheim to attend the meeting that was to be held the following day in Paris. Furthermore, the notes taken at that meeting indicate that the other participants were unaware of Trioplast Wittenheim’s intentions regarding its participation in the cartel. Indeed, the introduction to those notes reads as follows: ‘Attendees: only Fardem, B-K, RKW, Cofira and ourselves, BPI will not continue, and as for TRIO [Trioplast], we do not know.’
51 The applicant’s assertion that Trioplast Wittenheim put an end to its involvement in the cartel once and for all on 12 July 2001 cannot, therefore, be accepted.
52 The applicant is therefore wrong to argue that the contested decision is vitiated by unlawfulness in so far as concerns the duration of the infringement committed by its subsidiary Trioplast Wittenheim and, as a consequence, as regards the establishment of its own infringement, in its capacity as parent company.
53 Consequently, the third limb of the first plea must be rejected, as must be rejected, as a consequence, the claim for partial annulment of Article 1(1)(g) of the contested decision.
First limb of the first plea: the lawfulness of the method used to calculate the fine
– Arguments of the parties
54 The applicant submits that the method employed by the Commission to calculate the amount of the fine imposed on it was fundamentally flawed and is, moreover, contrary to the case-law. According to the applicant, the said method had never before been applied.
55 The applicant points out that it was not found liable for having itself breached the competition rules, but was held jointly and severally liable only because of Trioplast Wittenheim’s involvement in anti-competitive practices that took place in the period during which it owned that company, namely from 21 January 1999 to 26 June 2002.
56 It goes on to say that the Commission’s mistake consisted in its failure, when calculating the fine, to take account of the fact that the infringement committed by Trioplast Wittenheim extended over three distinct periods, that is to say, the period during which it was owned by Compagnie de Saint-Gobain, the period during which it was owned by FLS Plast and FLSmidth and the period during which it belonged to the Trioplast group. The consequence for FLS Plast, FLSmidth and the applicant of the Commission’s calculation method is that the combined joint and several liability of those companies exceeds the total amount of the fine imposed on Trioplast Wittenheim, which is absurd. In addition, a joint fine was imposed on the said companies in respect of the period during which none of them owned Trioplast Wittenheim, which is in conflict with the case-law, and in particular the judgment of the Court of Justice in Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693.
57 The applicant observes, first, that, in accordance with the fundamental principles governing joint and several liability, the imputed liability of the second party must coincide with the primary liability of the first party and cannot be established separately. Consequently, its joint liability with Trioplast Wittenheim should have extended to that part of the fine imposed in respect of the period during which it owned the subsidiary, that is to say, a period of three years. Secondly, the applicant observes that the method applied by the Commission entails the three years during which it owned Trioplast Wittenheim being counted twice, as it has been imputed both to Trioplast Wittenheim and to itself.
58 With regard to its assertion that the calculation method had never before been applied, the applicant submits that the Commission’s argument that it was used in a series of decisions following the AstraZeneca case (Case No COMP/A.37.507/F3 – AstraZeneca (OJ 2006 L 332, p. 24), is irrelevant. Those decisions have not been examined by the Community courts and cannot constitute an established consistent practice.
59 The applicant argues that, given the shortcomings of the method employed, the Commission should instead have used the method which it used in certain earlier cases, including the Organic peroxides case (Case No COMP/E.2/37.857 – Organic peroxides, OJ 2005 L 110, p. 44). In that case, which involved a subsidiary that had participated in the infringement in question for longer that its parent company, the Commission fixed a single starting amount for the fine and, contrary to what it did in the case of Trioplast Wittenheim and its parent companies, divided that starting amount between the two economic units successively involved, namely the economic unit constituted by the subsidiary and that constituted by the subsidiary and the parent company. It then adapted the starting amount of the fine for each of the economic units by reference to the duration of their involvement, the aggravating and mitigating circumstances and the 10% of turnover limit. Having regard to the parameters fixed by the Commission in the applicant’s case, applying that earlier method would have resulted in the applicant’s being jointly and severally liable with Trioplast Wittenheim for an amount of EUR 2.58 million.
60 A second method which the Commission could have used would, according to the applicant, have consisted in dividing the total amount of the fine imposed on Trioplast Wittenheim, that is to say, EUR 17.85 million, by 20, corresponding to the total duration in years of the infringement, giving EUR 0.89 million per annum. In order to determine the amount in respect of which FLS Plast and FLSmidth, on the one hand, and the applicant, on the other, should be held jointly and severally liable, the Commission should, according to this method, have multiplied the annual amount of EUR 0.89 million by 8 (years) and 3 (years) respectively. The applicant would, under this method, have been held jointly and severally liable with Trioplast Wittenheim for a total of EUR 2.67 million.
61 In the event that the Court accepts the calculation method applied in the present case, the applicant submits that it has been discriminated against by comparison with the undertakings fined in accordance with the principles obtaining when the decisions given in the Organic peroxide case and the Copper plumbing tubes case (Case No COMP C.38.069, OJ 2006 L 192, p. 21) were adopted. Moreover, the applicant submits that it has been discriminated against by comparison with undertakings fined in accordance with 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 new guidelines on the setting of fines’), which, if they had been applied, would have resulted in a much lower fine being imposed on it.
62 The Commission submits that this part of the first plea should be dismissed.
– Findings of the Court
63 It must be recalled that Article 1 of the contested decision states that Trioplast Wittenheim, FLS Plast, FLSmidth and the applicant have infringed Article 81 EC. It states that Trioplast Wittenheim’s infringement went on from 6 January 1982 to 26 June 2002, FLS Plast and FLSmidth’s infringement from 31 December 1990 to 19 January 1999, and the applicant’s from 21 January 1999 to 26 June 2002. Under Article 2, first paragraph, point (f), of the contested decision, a fine of EUR 17.85 million was imposed on Trioplast Wittenheim, out of which amount FLS Plast and FLSmidth were held jointly and severally liable for EUR 15.3 million and the applicant for EUR 7.73 million.
64 In the context of this plea, the applicant disputes, in substance, the merits of the calculation method used by the Commission to set the amounts of the ‘fines’. In this connection, the Court would observe at the outset that, in recital 879 of the contested decision in particular, the Commission has set out, first, the fines imposed on certain of the addressees of the contested decision and, secondly, the amounts for which other addressees of the decision are held jointly and severally liable. What is noteworthy about recital 879 is that, in some cases, the Commission ascribes the amounts which it arrived at by applying its calculation method to the subsidiaries that participated directly in the cartel by way of a fine and also to their parent companies, by way of the limits up to which they are held jointly and severally liable, whereas in other cases it does the reverse, ascribing the amounts to the parent companies by way of a fine and to their subsidiaries that participated directly in the cartel by way of the limits up to which they are held jointly and severally liable for payment of the fine.
65 It should be observed, moreover, that the Commission uses the term ‘fine’ interchangeably to designate both the fine, as such, and the limit up to which the addressee of the decision is held jointly and severally liable for payment of the fine. That interchangeable usage of the word ‘fine’ is clear from recitals 784, 841 and 867 of the contested decision, in which the Commission sets out the amounts fixed, as shown in the operative part of the decision both as fines and as the limits of joint and several liability for payment of the fines.
66 The calculation method applied by the Commission is used solely to determine the amounts to be ascribed to the addressees of the contested decision, regardless of the reason for which the amount is ascribed to it. Thus, in so far as the calculation method does not reflect the reason for which the amounts set are imposed on the addressee of the decision, that is to say, by way of a fine or by way of the limit up to which the company is held jointly and severally liable for payment of the fine, the Court will confine itself to examining, in the context of the present plea, the merits of the calculation method used by the Commission solely in so far as it was used to determine the amounts ascribed to the addressees of the decision.
67 As regards, first of all, the calculation of the amount ascribed to Trioplast Wittenheim, the Court stated in paragraphs 17 to 20 above that the Commission arrived at the final amount of EUR 17.85 million by applying a differentiated approach, referring to the market share which the company had achieved with the product in question in the relevant territory, placing the undertaking in the fifth category and setting a starting amount for it of EUR 8.5 million. The Commission then increased that figure by 200% to reflect the duration of its participation in the infringement, which was 20 years and 5 months, giving a basic amount of EUR 25.5 million. Then, there being no aggravating or mitigating circumstances, and the 10% of turnover limit having no effect, the Commission merely reduced the basic amount by 30% in application of the Leniency Notice.
68 Next, as regards the calculation of the amount ascribed to the applicant, the Commission fixed the same starting amount as it did for Trioplast Wittenheim. It then increased that starting amount by 30% so that the basic amount would reflect the duration of the applicant’s involvement in the infringement, that is to say, three years. The basic amount of EUR 11.05 million was then reduced by 30% pursuant to the Leniency Notice, as a result of which the amount finally ascribed to the applicant was EUR 7.73 million.
69 The same method was applied to the former parent company of Trioplast Wittenheim, FLS Plast, and to its holding company, FLSmidth, to which companies an amount of EUR 15.3 million was ascribed. In their case there was no increase or reduction to take account of aggravating or mitigating circumstances, nor, by contrast with the applicant’s case, was there any reduction under the Leniency Notice.
70 In the light of those considerations, it must be held, subject to the Court’s assessment of the other pleas in law put forward by the applicant, that the latter has failed to establish that, in determining the amounts which it ascribed to Trioplast Wittenheim and the applicant, the Commission infringed Regulation No 1/2003 or departed from the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3, ‘the guidelines for the calculation of fines’). Indeed, under the present limb of the first plea, the applicant has advanced no argument which would enable the Court to find that the calculation method, as such, was fundamentally flawed or inconsistent with case-law.
71 In this connection, in the first place, it must be observed that the applicant’s assertion that it has not itself infringed the competition rules cannot be accepted. Indeed, the applicant, to which the anti-competitive actions of Trioplast Wittenheim from 21 January 1999 to 26 June 2002 were attributed, received a fine under Article 23(2) of Regulation No 1/2003 for its liability for an infringement which, as a result of that attribution of liability, it itself is deemed to have committed (see, to that effect, Case C‑294/98 P Metsä-Serla and Others v Commission [2000] ECR I‑10065, paragraph 28). It is worth emphasising in this connection that the attribution of Trioplast Wittenheim’s conduct to the applicant is in no way in dispute.
72 In the second place, the applicant is wrong to allege that the Commission failed to take into consideration the fact that, during the period over which the cartel operated, a period of more than 20 years, Trioplast Wittenheim belonged to three different successive parent companies. It is clear from the contested decision that, when determining the amounts to be attributed to the applicant as well as to FLS Plast and FLSmidth, the Commission made a direct link between those amounts and the duration of the involvement of each of the parent companies. As the Court noted in paragraph 68 above, in the case of the applicant, the Commission increased the starting amount of EUR 8.5 million by 30%, in other words by 10% for each full year in which the applicant owned the share capital of Trioplast Wittenheim, exactly as was done in the case of FLS Plast and FLSmidth.
73 Consequently, the applicant’s assertion that it is being held liable for an infringement different from the one which it committed is without basis. The judgment in Cascades v Commission, cited in paragraph 56 above, upon which the applicant relies, is not relevant because, by contrast with the present case, it concerns the liability of a parent company for anti-competitive offences which were committed by subsidiaries before those subsidiaries were purchased by the parent company.
74 Furthermore, in so far as the applicant seeks to argue that the Commission ought to have divided the starting amount by three before adapting it in accordance with other factors, suffice it to observe, first, that the applicant has failed to advance any rule or principle of law that puts the Commission under any such obligation. Second, the approach of ascribing to a parent company the same starting amount as that attributed to a subsidiary participating directly in a cartel, without dividing up that starting amount where there are several successive parent companies, is not in and of itself inappropriate. Indeed, the objective pursued by the Commission in using this calculation method is to make it possible to ascribe to a parent company which is liable for an infringement by virtue of the attribution of liability the same starting amount as would have been ascribed to it if it had been directly involved in the cartel. That is quite in line with the objective of competition policy and, in particular, with the objective of the instrument used to implement that policy, namely fines, which is to guide the conduct of undertakings towards observance of the competition rules (see, to that effect, Case C‑150/89 Martinelli v Commission [1995] ECR II‑1165, paragraph 59).
75 In any event, the mere fact that the starting amount was so divided in earlier cases, such as the Organic peroxides case, does not mean that the Commission is obliged to make such a division in the circumstances described in paragraph 74. The mere fact that the Commission can be said to have had, at the time of the decisions referred to by the applicant, one established practice with regard to the method for calculating the starting amounts of fines would not prevent it from departing from that practice in this case, or altering it. It is settled case-law that the Commission’s practice in previous decisions does not in and of itself constitute a legal framework for the calculation of fines in competition cases, since that framework is established solely by Regulation No 1/2003 (see, to that effect, Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Bank der österreichischen Sparkassen v Commission [2009] ECR I‑8681, paragraph 233 and the case-law cited, and, by analogy, Case T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, paragraph 234).
76 Thirdly, and following on from the points just made, it is important to emphasise that the fact that the combined value of the amounts ascribed to the applicant on the one hand and to FLS Plast and FLSmidth, on the other, is greater than the amount ascribed to their subsidiary Trioplast Wittenheim cannot, by itself, lead to the conclusion that the Commission’s calculation method was manifestly wrong. Given the methodology set out in the guidelines for the calculation of fines and the principle that penalties must be specific to the offender and to the offence, it is indeed permissible for the Commission, once it has proved that an economic unit has participated in an infringement, to hold one of the legal persons belonging to that economic unit, or once having belonged to it, whether it be a parent company or a subsidiary, liable for the payment of a greater sum than that for which the other legal person or persons forming, or having formed, that economic unit is or are liable. It follows that, where an infringement is committed by a subsidiary which has belonged to various successive economic units during the course of the infringement, it cannot be considered a priori inappropriate for the combined value of the amounts ascribed to the parent companies to be greater than the amount, or combined amounts, ascribed to the subsidiary.
77 Fourthly, in so far as concerns the applicant’s allegation that the Commission has breached fundamental principles of joint and several liability, it must be observed that it has not stated in any detail, in developing this plea, the nature or content of any such principles. If the applicant in fact seeks to contend that the three points argued in paragraphs 71 to 76 above actually constitute a breach of those principles, suffice it to reiterate that those points were not made out, regardless of the nature or content of the principles in question, and thus the plea cannot be upheld.
78 Furthermore, in so far as the applicant disputes the amount up to which it is held jointly and severally liable for payment of the fine imposed on Trioplast Wittenheim, on the ground that the combined value of its joint and several liability on the one hand, and that of FLS Plast and FLSmidth on the other, is greater than the principal fine imposed upon Trioplast Wittenheim, that complaint is part of the sixth plea in law and will be specifically addressed when the Court considers that plea.
79 Fifthly, as regards the allegation that the three-year period during which the applicant held Trioplast Wittenheim was taken into account twice by the Commission when applying its calculation method, it should be observed that there is nothing to stop the Commission taking that three-year period into account when setting both the amount which it ascribed to the applicant and that which it ascribed to Trioplast Wittenheim. In a case of joint and several liability, all creditors see the amount of the debt owed to them, as regards both the principal debtor and the parties co-liable with that debtor, diminish on any payment by any party. There is no double counting, therefore, in joint and several liability.
80 Lastly, the applicant’s argument that the calculation method had not been used before is factually incorrect. It is clear from the submissions made at the hearing that the Commission had actually used the same calculation method in a series of decisions prior to the contested decision. That finding is not called into question by the fact that, at the time, those decisions had not been examined by the Courts of the European Union. Furthermore, having regard to the case-law cited in paragraph 75 above, the circumstance that the Commission applied a different method in cases prior to the AstraZeneca case is irrelevant.
81 In view of the arguments put forward by the applicant in the first limb of its first plea, it cannot be said that it has established that the Commission was wrong to use the present calculation method in order to set the amount which it attributed to the applicant. Nor should the Court uphold the complaint that the Commission breached the principle of equal treatment and the new guidelines for the setting of fines, which, moreover, are not applicable in any event to the facts of the present case. Suffice it to recall the case-law cited in paragraph 75 above concerning the Commission’s practice in previous decisions, and the case‑law according to which the mere fact that applying the method laid down in the new guidelines for the setting of fines could lead to the attribution of a lower fine than the fine imposed by the contested decision, does not prove that the latter fine is disproportionate (see, to that effect, Case T‑329/01 Archer Daniels Midland v Commission [2006] ECR II‑3255, paragraph 380).
82 The first part of the first plea in law must therefore be rejected, without it being necessary to consider the calculation method proposed by the applicant.
Second limb of the first plea in law: the lawfulness of the determination of the gravity of the infringement in the context of the calculation of the fine
– Arguments of the parties
83 The applicant complains that, in setting the starting amount of the fine, the Commission took as a reference Trioplast Wittenheim’s market share in 1996, that, according to the contested decision, being the last year of the infringement in which all the companies to which the decision was addressed were still active in the industrial bag market.
84 The applicant submits that, by opting, within the scheme of differential treatment, for 1996 as the year of reference, the Commission departed from the practice which it had itself established for determining the gravity of an infringement. According to that practice, which has been accepted by the Community judicature, the reference year should be the last full year during which the infringement persisted, in order to give the best indication of the economic strength of each of the participants. In the present case, therefore, the reference year should have been 2001.
85 The applicant also argues that, if it was intended by the Commission’s method to attribute to FLS Plast and FLSmidth and to itself starting amounts that were specific to them, that is to say, distinct from that attributed to Trioplast Wittenheim, then those starting amounts should have related to the periods during which the parent companies were respective owners of Trioplast Wittenheim. The starting amount attributed to the applicant could not lawfully have been based on Trioplast Wittenheim’s market share in 1996, because it did not purchase the company until 1999.
86 In the event that the Court nevertheless approves the choice of 1996 as the reference year, the applicant submits that the Commission has breached the principle of proportionality. By taking as a reference Trioplast Wittenheim’s market share in 1996, that is to say, 2.8%, the Commission included the production of open mouth bags and valve bags, which Trioplast Wittenheim abandoned in 1997. Given Trioplast Wittenheim’s market share in 2001, which stood at approximately 0.4%, the Commission ought to have placed Trioplast Wittenheim in the sixth category, or even in a seventh category, but not in the fifth.
87 The Commission refers to the broad discretion it has in this connection and goes on to say that the choice of 1996 as the reference year was quite legitimate. Basing matters on the turnover achieved in that year enabled the Commission to assess the size and economic strength of each undertaking in the sector and the extent of the infringement committed by each of them. The principle of equal treatment requires the Commission to adopt a single reference year, even if the particular choice of year means that certain undertakings may then have higher or lower turnover figures than in other years.
88 According to the Commission, it was justified to opt for 1996 as the reference year, even if the applicant in fact purchased Trioplast Wittenheim from FLS Plast in 1999. Trioplast Wittenheim continued to participate in the cartel even after changing parent company. The Commission points out that the reference year might be a year when FLD Plast was involved, or a year when the applicant was involved, but not both.
89 As regards the alleged breach of the principle of proportionality, the Commission submits that the fact that Trioplast Wittenheim ceased a certain type of production in 1997 tends to plead in favour of the choice of 1996 as reference year, since it better reflects Trioplast Wittenheim’s position on the market as compared with the other members of the cartel over the longest part (approximately three quarters) of the infringement’s total duration.
– Findings of the Court
90 First of all, the Court would observe that, as is made clear in paragraph 75 above, the Commission is not bound by previous decisions. Thus, even if the way in which it chose the reference year in the present case amounts to a change in an established practice, that fact cannot, by itself, have any effect on the legality of the contested decision.
91 Next, it is settled case-law that, in assessing the gravity of an infringement, regard must be had to the economic reality as revealed at the time when that infringement was committed. The aspects relevant in that assessment are, inter alia, the size and economic power of each undertaking and the scale of the infringement committed by each of them (Case T‑334/94 Sarrió v Commission [1998] II‑1439, paragraph 397 and the case-law cited therein). When those factors are being assessed, it is necessary to refer to the turnover achieved at the time in question (Case C‑291/98 P Sarrió v Commission [2000] ECR I‑9991, paragraph 86 and the case‑law cited).
92 Whilst, admittedly, as the applicant points out, the calculation method employed in the matters leading to the judgments in Cases T‑334/94 Sarrió v Commission and C‑291/98 P Sarrió v Commission, cited in paragraph 91 above, was based on turnover achieved in the last full year of the infringement, that circumstance does not mean that the same choice should always be made. As is made clear in the same case-law, a method should be chosen that permits account to be taken of the size and economic power of each of the undertakings concerned, as well as of the scope of the infringement committed by each of them, in light of the economic reality as it appeared at the time the infringement was committed (C‑291/98 P Sarrió v Commission, paragraph 91 above, paragraph 88). Moreover, the General Court has held that the period to be taken into consideration must be ascertained in such a way that the resulting turnovers are as comparable as possible (Case T‑319/94 Fiskeby Board v Commission [1998] ECR II‑1331, paragraph 42).
93 It follows that the applicant’s argument that the reference year must necessarily be the last full year in which the infringement persisted, cannot be upheld.
94 In the present case, however, it must be observed that the infringement went on for 20 years and that the number and configuration of each of the undertakings involved in it is liable to have changed over the course of those 20 years, as might have the size and economic strength of each of them. It must be held in this connection that the applicant, although identified individually among the addressees of the contested decision, is not, as recital 767 of the decision states, among the group of undertakings which, also addressees of the decision, were, in 1996, the year chosen as reference year, present on the market for industrial bags. Moreover, it is clear from the file that the economic unit to which the applicant belonged during the period 21 January 1999 to 26 June 2002, that is, near the end of the period of the infringement, was no longer actively producing two products in the industrial bags sector that Trioplast Wittenheim had been manufacturing earlier, and that its market share during that same period stood at only 0.4% or 0.5%. That being so, it cannot be held that the turnover and market share figures relied on by the Commission, namely those achieved by Trioplast Wittenheim in 1996, are likely to reflect the size and economic strength of the group to which the applicant belonged from 1999 onwards.
95 In similar vein, it must be observed that it is clear from the contested decision that the Commission adopted an individualised approach when calculating the fines, by which it intended to treat the addressees of the decision that were held liable only in their capacity as parent company in the same way as it did the companies directly involved in the infringement. However, since the applicant and Trioplast Wittenheim formed an economic unit which did not exist until 1999, to take the year 1996 as the reference year for such an economic unit is not likely, without additional relevant factors, to correspond to the economic reality as it appeared at the time when that undertaking was involved in the infringement. That reference year is not, therefore, indicative of the extent of the infringement that may be imputed to the applicant.
96 The arguments advanced by the Commission in this regard cannot call that conclusion into question. Even though the Commission has invoked its discretionary powers in the area, inter alia, in its replies to the Court’s questions, it is clear from paragraphs 94 and 95 above that, when applying its differentiated approach and placing the applicant in the category to which it assigned Trioplast Wittenheim on the basis of its market share in 1996, the Commission made a manifest error of assessment. Furthermore, given a situation which develops in the way in which the present matter has developed, to rely on the market share in a reference year that is not comparable with later years is likely to give rise to discrimination, in the sense of treating situations that are different by virtue of the passage of time by reference to the same single criterion.
97 Moreover, the argument that the year 1996 better reflects Trioplast Wittenheim’s position on the market throughout the duration of the infringement than does its position in 1997, after ceasing the manufacture of certain products in the industrial bags sector, ignores the fact that, in this case, the Commission attributed a different amount to the applicant when calculating the fine than it attributed to its subsidiary. The Commission’s argument that Trioplast Wittenheim’s market share was taken into account in the differentiated treatment of the applicant is irrelevant, inasmuch as that differentiated treatment was based on turnover in the achievement of which the applicant had no part. That turnover figure is consequently unlikely to correspond to the economic reality at the time the applicant formed an economic unit with Trioplast Wittenheim.
98 In light of the foregoing, the Court holds that the second limb of the first plea must be upheld. The contested decision must therefore be annulled in so far as the starting amount of the fine imposed on the applicant was based on the market share achieved by Trioplast Wittenheim in the reference year 1996.
Second plea: the grounds of the Commission’s refusal to allow the benefit of mitigating circumstances
Arguments of the parties
99 The applicant submits that, when determining the amount of the fine, the Commission ought to have taken into account the mitigating circumstances surrounding Trioplast Wittenheim’s involvement in the infringement.
100 The applicant maintains, first of all, that Trioplast Wittenheim’s attendance at the unlawful meetings was only sporadic. It refers to several sets of minutes of meetings which, it says, show in particular that the other operators had questioned Trioplast Wittenheim’s participation and that the company had regularly been absent from meetings. The same documents confirm, moreover, that Trioplast Wittenheim was only a marginal economic actor enjoying only a small share of the market; it did not take a proactive approach to the issues discussed in the context of the anti-competitive practices.
101 Secondly, the applicant emphasises that Trioplast Wittenheim participated in only three of the six sub-groups, namely the ‘France’, ‘Benelux’ and ‘block bags’ subgroups, and that the company left them by February 1997 at the latest. To the extent that participation in the sub‑groups did amount to an infringement of Article 81 EC, the applicant argues that the rules on limitation applied to that infringement on the part of Trioplast Wittenheim. In any event, both the fact of Trioplast Wittenheim’s limited involvement in the sub-groups and its relatively early withdrawal from them are factors which should have been recognised as mitigating circumstances.
102 Thirdly, in the event that the Court should find that Trioplast Wittenheim did participate in the infringement beyond 23 March 1999, the applicant submits that the particular role which the company played within Valveplast during the period when it was the applicant’s subsidiary should have been treated as a mitigating circumstance. The applicant emphasises in this context that it only became aware of Valveplast’s anti-competitive practices for the first time at the meeting held on 23 March 1999. So much is clear from the contract for the sale of share capital by FLS Plast to Trioplanex France and from the arbitration ruling arising from a set of proceedings concerning the possible breach of that contract. Indeed, after that meeting there was a change of attitude within Trioplast Wittenheim. Its employees were forbidden to engage in anti-competitive activities. Trioplast Wittenheim returned to only three meetings in 2001, hoping, in good faith, to discuss matters that were lawful.
103 Following on that argument, the applicant emphasises that the facts relied upon by the Commission when it disputes the existence of mitigating circumstances, such as participation in the sub-groups, are not relevant in this connection, since they relate to the period before it even purchased Trioplast Wittenheim. In the event that the Court upholds the calculation of the fine attributed to it, the applicant submits that the Commission should have taken account of the mitigating circumstances that prevailed after its acquisition of the company, at very least in so far as concerns its own liability.
104 The Commission contends that this plea should be dismissed.
– Findings of the Court
105 According to the case‑law, where an infringement has been committed by several undertakings, it is appropriate to consider the relative gravity of the participation of each of them (Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 623) in order to determine whether any aggravating or attenuating circumstances should be taken into account.
106 In accordance with Section 3, first indent, of the guidelines for the calculation of fines, an ‘exclusively passive or “follow-my-leader”’ role in the infringement will, where it is established, constitute a mitigating circumstance. A passive role implies that the undertaking adopts a ‘low profile’, that is to say, does not actively participate in the creation of any anti-competitive agreements (see, to that effect, Case T‑220/00 Cheil Jedang v Commission [2003] ECR II‑2473, paragraph 167).
107 It is clear from the case-law that, among the factors likely to demonstrate an undertaking’s passive role in a cartel, significantly more sporadic participation at meetings than that of the other ordinary members of the cartel can be taken into account, as well as the undertaking’s late entry on the market which is the subject of the infringement, independently of the duration of its participation in the infringement, and also the existence of express statements to that effect made by representatives of other undertakings which participated in the infringement (Cheil Jedang v Commission, paragraph 106 above, paragraph 168, and Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 331).
108 Moreover, the Court has already had occasion to say that the fact that other undertakings participating in a single cartel may have been more active than a given participant does not necessarily imply that the latter had an exclusively passive or follow-my-leader role. In fact, only complete passivity could be taken into account as a factor, and must be proved by the party alleging it (see, to that effect, Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02 and T‑126/02, T‑128/02 and T‑129/02, T‑132/02 and T‑136/02 Bolloré and Others v Commission [2007] ECR II‑947, paragraph 611).
109 In the present case, the Court finds it can uphold none of the arguments alleging the passive and follow-my-leader role in the cartel played by the applicant. They fall into three groups: first, arguments relating, in particular, to Trioplast Wittenheim’s non-attendance at Valveplast meetings and to its position on the market, secondly, relating to its participation in the sub-groups, and lastly, relating to circumstances which transpired in the period after 1999.
110 First of all, it is clear from Annex 1 to the contested decision, which sets out numerous details about meetings of Valveplast held between 1984 and 2002, that, leaving aside the period after 1999, which is discussed in paragraphs 44 to 50 above, Trioplast Wittenheim attended Valveplast meetings regularly, and on a number of occasions when it could not attend, apologised for its absence. Those facts are not in dispute, and so, without it being necessary at this stage to consider how often or not Trioplast Wittenheim attended sub-group meetings, the conclusion must be that the Commission should not be criticised for finding that Trioplast Wittenheim did not have a passive role simply because its attendance at Valveplast meetings was somewhat limited.
111 It must be stated in this connection that there were no grounds on which the Commission could assume that the other operators entertained real doubts about Trioplast Wittenheims’ involvement. The applicant has furnished no evidence on the matter, such as statements by other participants in the cartel concerning the particular role played by Trioplast Wittenheim. The applicant’s assertions rest entirely on the content of the minutes of Valveplast meetings, which do not, however, support the conclusions it wishes to draw from them. Indeed, the note contained in the minutes of the meeting of 2 March 1993, regarding the switch by Mr G., a representative of Trioplast Wittenheim, switch from ‘passive participation’ to ‘active participation’ does not necessarily betray doubt in the minds of the other cartel members about the company’s involvement as such, since it had been represented by other people up until 1992. In any event, the minutes indicate that Mr G.’s involvement developed into active adherence to the cartel from March 1993 onwards. The fact that, in 2000, a member of Valveplast was asked to contact Trioplast Wittenheim’s representative in order to discuss how the company would be represented in the future, also fails to cast doubt upon its participation in the cartel.
112 As regards the assertion that Trioplast Wittenheim was only a marginal player on the market, it must be emphasised that that was really not the case. It was active on the relevant market and within Valveplast and the sub-groups. It is clear from recitals 134, 135 and 400 of the contested decision that Trioplast Wittenheim manufactured all four of the products that came under the cartel, open mouth bags, valve bags, FFS bags and block bags. It is also clear from recitals 173, 179, 185 and 205 of the contested decision that Trioplast Wittenheim participated not only in Valveplast’s activity, but also in the ‘block bags’, ‘France’ and ‘Benelux’ sub-groups.
113 The assertion that Trioplast Wittenheim did not take a proactive approach to the issues discussed in the context of the anti-competitive practices is also without foundation. As is clear from the contested decision, and particularly recital 802 thereof, Trioplast Wittenheim, which was a founder member of the cartel, participated on many occasions in several of the collusive practices in question, and in particular in the system for the exchange of information on sales volumes and market shares, and the allocation of customers.
114 Secondly, as regards the fact that Trioplast Wittenheim was involved in only three out of the six sub-groups, and that it had left those sub-groups by 1997 at the latest, the Court would observe, first, that participation in three sub-groups was not especially unusual among the members of the cartel, and indicates a degree of involvement that was comparable across the sub-groups. Indeed, it is clear from recitals 173 to 185 of the contested decision that only Wavin and Fardem Packaging attended the meetings of more than three sub-groups. Next, given that Trioplast Wittenheim did indeed participate in the three abovementioned sub‑groups for approximately three-quarters of the infringement’s duration, it cannot be held that its withdrawal from them implies that Trioplast Wittenheim had a passive role.
115 As for the applicant’s argument that Trioplast Wittenheim’s infringement was time-barred in so far as it related to its involvement in the sub-groups, suffice it to say that the applicant has not disputed the description of the infringement as being single and continuous. Since that single and continuous infringement came to an end on 26 June 2002 and cannot, therefore, be considered to be time-barred, Trioplast Wittenheim’s ending its involvement with the sub-groups is irrelevant.
116 Thirdly, it should be pointed out that, even if the applicant had been completely unaware of the anti-competitive practices going on within Valveplast when it purchased Trioplast Wittenheim in 1999, it has not demonstrated complete passivity, within the meaning of the case-law cited in paragraph 108 above, on the part of its subsidiary, in so far as concerns its involvement in the cartel during the period January 1999 to June 2002. As was made clear in the Court’s assessment of the third limb of the present plea, in particular in paragraphs 44 and 45 above, Trioplast Wittenheim attended three meetings in 2001, during which two important elements of the cartel were defined, namely the price calculation model and the coordination of Internet auctions.
117 Since the applicant has failed to establish that the Commission made a manifest error of assessment by not reducing the amount up to which the applicant is jointly and severally liable for payment of the fine to take account of mitigating circumstances, the second plea must be rejected.
Fourth plea:the leniency application
– Arguments of the parties
118 The applicant considers that the 30% reduction in the starting amount of the fine, allowed it by the Commission under Section D of the Leniency Notice, should have been greater.
119 The applicant points out, first of all, that, following its request for a reduction in the amount of the fine, it had cooperated effectively with the Commission, along with Trioplast Wittenheim. It claims to have supplied statements and documents to the Commission which were of use to it in its task of identifying the infringement, and submits that the fact of its taking issue, during the administrative procedure, with the presentation of certain facts in the statement of objections ought not to have given rise to a cap on the reduction in its fine. The applicant had merely pointed to certain facts which the Commission had misunderstood, without ever disputing the existence of anti-competitive practices. The Commission had subsequently made several changes in its presentation of those facts. The applicant considers, in this connection, that it ought to be entitled to express its own ‘marginal’ assessment of the facts alongside that of the Commission, without being penalised when it comes to assessing its request for leniency.
120 Next, the applicant points out that the Commission granted a 25% reduction to the company Bischof+Klein and that, according to the contested decision, the fact that it did not substantially contest the facts set out in the statement of objections contributed to the reduction in the fine for that undertaking. Since the applicant did not dispute the reality of the anti-competitive practices either, and furnished more evidence than Bischof+Klein, it should have been allowed a more substantial reduction.
121 The Commission contends that this plea should be dismissed.
– Findings of the Court
122 It should be recalled that the Commission has a broad discretion as regards the method of calculating fines and that it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. In that context, the Commission is required to make complex assessments of fact, such as those relating to the cooperation provided by the individual undertakings concerned (Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 81).
123 In this connection the Commission enjoys a broad discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings (SGL Carbon v Commission, paragraph 122 above, point 88). In exercising that discretion, however, the Commission cannot disregard the principle of equal treatment (Case T‑452/05 BST v Commission [2010] ECR II‑0000, paragraph 142).
124 In the Leniency Notice, the Commission sets out the conditions under which undertakings cooperating with it during its investigation into a cartel may be exempted from fines, or may be granted reductions in the fine which would otherwise have been imposed upon them.
125 Section D of the Leniency Notice provides:
‘1. Where an [undertaking] cooperates without having met all the conditions set out in Sections B or C, it will benefit from a reduction of 10% to 50% of the fine that would have been imposed if it had not cooperated.
2. Such cases may include the following:
– before a statement of objections is sent, an [undertaking] provides the Commission with information, documents or other evidence which materially contribute to establishing the existence of the infringement;
– after receiving a statement of objections, an [undertaking] informs the Commission that it does not substantially contest the facts on which the Commission bases its allegations.’
126 In the present case, firstly it should be observed that the Commission noted, in the contested decision, that the detailed explanations given by the applicant as to how the cartel operated within Valveplast and the sub-groups, in particular the ‘France’ sub-group, and regarding quotas, the mechanisms for allocating customers and the meaning of market share tables all helped confirm the existence of the infringement. Secondly, the Commission took into consideration the fact that the applicant had taken issue with the presentation of certain facts in the statement of objections. Those factors led it to reduce the applicant’s fine by 30%.
127 First of all, the Commission’s finding that the applicant had taken issue with the presentation of certain facts in the statement of objections, and its decision for that reason to grant a lesser reduction in the amount of the fine for which the applicant is jointly and severally liable, do not amount to a manifest error of assessment.
128 Indeed, it is clear from the contested decision that the applicant disputed facts in the statement of objections in a way that went beyond merely pointing out the factual data which the Commission was alleged to have misinterpreted. According to recitals 275 and 276 of the contested decision, the applicant maintained that Trioplast Wittenheim had not been involved in setting up an Internet auction coordination system. Yet it has been established that it attended the Valveplast meeting of 8 June 2001 during which that question was addressed, and that it did not distance itself publicly from what was discussed at that meeting. According to recital 301 of the contested decision, the applicant rejected any suggestion that Trioplast Wittenheim had been involved in designing the price calculation model for FFS bags, yet it is clear that it attended the Valveplast meeting on 15 September 2000 at which a working party was convened to look into the matter. Trioplast Wittenheim did not distance itself from the matters discussed at that meeting either.
129 Those observations of the applicant’s during the administrative procedure cannot be regarded as assessments of fact only ‘marginally’ different from those of the Commission. They relate to two essential components of the cartel, namely the coordination of Internet auctions and the price calculation model. Moreover, that finding is not called into question by the fact that, following the applicant’s response, the contested decision differs, in a number of respects, from the statement of objections in its presentation of the facts.
130 Next, as regards the comparison between the applicant’s position and that of Bischof+Klein, which company, moreover, was granted a lesser reduction than the 30% allowed the applicant, it should be observed that it is clear from recital 851 of the contested decision that Bischof+Klein indicated in its reply to the statement of objections that it did not substantially contest the facts as set out in the statement of objections. It therefore satisfied Section D.2, second indent, of the Leniency Notice, unlike the applicant, which, as is clear from the file, never made explicit reference to that provision.
131 Furthermore, whilst it has been established that the applicant disputed certain facts during the administrative procedure, it has put forward no evidence to show that, in spite of the statement contained in its reply to the statement of objections, Bischof+Klein did in fact substantially contest the facts during that procedure. Thus, even if the Commission had, on the one hand, granted a reduction in the fine imposed on Bischof+Klein, or allowed it a more significant reduction than it otherwise would have, for the reason that it did not substantially contest the facts and, on the other hand, failed to allow the applicant such a reduction, the Court cannot draw the conclusion that that was a case of manifest error of assessment.
132 Lastly, the Court notes that the applicant has neither alleged nor, a fortiori, demonstrated that the evidence which it provided to the Commission amounted to a more significant contribution in confirming the existence of the infringement than the contribution of Bischof+Klein. The Commission cannot therefore be held to have erred in this regard.
133 The fourth plea must therefore be rejected.
Fifth plea: observance of the principles of proportionality and equal treatment
– Arguments of the parties
134 The applicant alleges that the Commission has infringed the principles of proportionality and equal treatment.
135 First of all, it submits that it is disproportionate that the combined value of all the fines imposed on all the undertakings party to the infringement, that is to say, EUR 290.71 million after application of the 10% of turnover limit and the Leniency Notice (and more than EUR 600 million otherwise), is greater than the total annual turnover in the market, that is to say, approximately EUR 250 million. The applicant also reproaches the Commission for the fact that Trioplast Wittenheim’s fine, and its own, which was imposed on it by virtue of its joint and several liability, are too high compared with the turnover it achieved on the market. It disagrees that the ruling in Case T‑224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] (ECR II‑2597) applies to the present case because, unlike the applicant, Archer Daniels Midland had acted as leader of the cartel in question.
136 Secondly, it submits that the Commission has treated similar cases in a different manner and has failed to adhere to its own practices in matters of fines. The applicant refers, first, to other cases, including for example the Methionine case (Case No COMP C/37.519 – Methionine, OJ 2003 L 255, p. 1) in which there was a more reasonable relationship between the fines imposed and the turnover achieved on the relevant markets. Secondly, the applicant argues that the amount of Trioplast Wittenheim’s fine is disproportionate in relation to its turnover when compared with the fines of other addressees of the contested decision, such as Bischof+Klein, Nordenia International and Cofira-Sac.
137 The applicant adds that the relationship between the starting amounts of the fines imposed on the undertakings in the first category and those of the fines imposed on the undertakings in the fourth category is about four to one. The final amount of the fine imposed on Trioplast Wittenheim should, it alleges, have been reduced at least to a quarter (or thereabouts) of the final amount of the fine imposed on Bischof+Klein, a company classed in the first category.
138 Thirdly, the applicant maintains that Trioplast Wittenheim was only a modest economic actor, with no significant influence on the market, and that it drew no benefit from its participation in the anti-competitive practices. It points out in this connection that the fine amounting to EUR 7.3 million, for which it is held jointly and severally liable, is 21 times greater than the total profit achieved from the sale of the products concerned by the Trioplast group in 1999, 2000 and 2001. Furthermore, the Commission failed to take account, when setting the amount of the fine, of Trioplast Wittenheim’s actual ability to pay. The applicant submits that Trioplast Wittenheim’s bankruptcy might have been avoided if the Commission had taken its precarious position into consideration and had recognised, when adopting the contested decision, the direct financial liability of the previous owner, FLS Plast.
139 Fourthly, the applicant submits that the fines imposed in the present case would have been considerably less had the new guidelines for the setting of fines been applied.
140 The Commission contends that this plea should be dismissed.
– Findings of the Court
141 First of all, in so far as the fifth plea alleges a breach of the principle of proportionality, it is appropriate to recall the case-law according to which, when determining the amount of each fine, the Commission has a discretion and cannot be considered obliged to apply a precise mathematical formula for that purpose (Case C‑283/98 P Mo och Domsjö v Commission [2000] ECR I‑9855, paragraph 47, and Case T‑303/02 Westfalen Gassen Nederland v Commission [2006] ECR II‑4567, paragraph 151). Furthermore, under Article 23(3) of Regulation No 1/2003, the amount of the fine is to be determined on the basis of the gravity of the infringement and its duration. In addition, that amount is the result of a series of arithmetical calculations performed by the Commission in accordance with the guidelines for the calculation of fines. That amount is set, inter alia, on the basis of various factors linked to the individual conduct of the undertaking in question, such as the existence of aggravating or mitigating circumstances (see, to that effect, Case T‑304/02 Hoek Loos v Commission [2006] ECR II‑1887, paragraphs 82 and 85).
142 It cannot be inferred from that legal framework that the Commission must ensure a proportion between the total amount of the fines, as thus calculated and imposed on the members of the cartel, and the volume of the relevant product market, in any given year of the infringement, when the infringement in question lasted more than 20 years and when the amounts of the fines also depend on other factors linked to the individual conduct of the undertaking. (see, to that effect, Case T‑410/03 Hoechst v Commission [2008] ECR II‑881, paragraph 342).
143 In so far as what is at issue is the relationship between the applicant’s annual turnover and the amount of the fine imposed on it, the Court must observe, on the one hand, that the Commission did in fact rely on the turnover figure for 1996 when determining the gravity of the infringement committed by the applicant and, on the other hand, that the starting amount of EUR 8.5 million which flowed from that was less than the starting amount that the Commission might have set under Section A, third indent, of the guidelines for the calculation of fines, that is to say, EUR 20 million (see, to that effect, Case T‑446/05 Amann & Söhne and Cousin Filterie v Commission [2010] ECR II‑1255, paragraph 180). The fact that the Commission should have taken into consideration the turnover figure for a year in which the applicant was present on the relevant market is not, in and of itself, capable of altering that analysis.
144 In any event, the purpose of Article 23(2) of Regulation No 1/2003 is to prevent fines from being disproportionate. Given that, in the present case, the final amount of the fine did not exceed the 10% of turnover limit, it cannot be considered disproportionate by virtue of the fact that the combined value of the fines exceeds the overall volume of the relevant market, or the fact that Trioplast Wittenheim’s fine and that of the applicant exceed the annual turnover which they each achieve with the product in question (see, to that effect, Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission, paragraph 135 above, paragraph 200). Contrary to the applicant’s submission, the 10% of turnover limit must be applied without any regard being had to the particular role played by the undertaking in the cartel.
145 Secondly, in so far as concerns the alleged breach of the principle of equal treatment, the Court must hold, first, that as regards the applicant’s comparisons with other Commission decisions imposing fines, and in particular in light of the relationship between the combined value of the fines and the volume of the market concerned, those decisions can be relevant from the point of view of observance of the principle of equal treatment only if it is demonstrated that the facts of the cases in those other decisions, such as the markets, products, the countries, the undertakings and periods concerned, are comparable to those of the present case (see, to that effect, Case T‑59/02 Archer Daniels Midland v Commission [2006] ECR II‑3627, paragraph 316).
146 The applicant’s mere reference to the overall fines and turnover figures in the relevant markets in the decisions in question is not a sufficient basis on which to conclude that the same conditions obtained in the present case. The applicant has failed to establish that the markets, products, countries, undertakings and periods concerned were comparable to those of the present case.
147 Next, as regards the comparison which the applicant makes with other addressees of the contested decision, the 10% of turnover limit applied, in this case, to the companies Bischof+Klein, Nordenia International and Cofira-Sac. The limit did not, on the other hand, lead to any reduction in the amount of the fine for which the applicant is jointly and severally liable, which explains to a large extent what the applicant regards as a lack of proportion as between the final amounts of the fines. However, according to the case-law, that circumstance cannot be regarded as discriminatory. The difference in treatment is the direct consequence of the maximum limit placed on fines by Regulation No 1/2003, the lawfulness of which has not been called into question and which clearly applies only where the fine envisaged exceeded 10% of the turnover of the undertaking concerned (Case T‑31/99 ABB Asea Brown Boveri v Commission [2002] ECR II‑1881, paragraph 185).
148 Thirdly, as for the lack of any benefit derived by the applicant from the cartel, the fact that an undertaking did not benefit from an infringement cannot preclude the imposition of fines, since otherwise they would cease to have a deterrent effect. It follows that the Commission is not required, for the purpose of setting fines, to establish that the infringement brought about an unlawful advantage for the undertakings concerned, or to take into consideration, where applicable, any lack of benefit from the infringement in question (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraph 4881). The argument is therefore ineffective.
149 As regards the complaint that the Commission failed to have regard to the precarious financial situation of Trioplast Wittenheim at the time of the administrative procedure, it should be recalled that, according to the case‑law, the Commission is not required, when determining the amount of the fine, to take account of the poor financial situation of an undertaking, since recognition of such an obligation would have the effect of conferring an unfair competitive advantage on the undertakings least well adapted to market conditions (Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ International Belgium and Others v Commission [1983] ECR 3369, paragraphs 54 and 55).
150 Furthermore, without it being necessary to examine the reference made by the Commission, but not raised by the applicant, to Section 5(b) of the guidelines for the calculation of fines, which states that an undertaking’s real ability to pay must be taken into consideration, it must be observed that the case-law is in no way called in question by Section 5(b). The ability to pay can be relevant only in a ‘specific social context’, namely the consequences which payment of a fine could have, in particular, by leading to an increase in unemployment or a deterioration in the economic sectors upstream and downstream of the undertaking concerned (Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraphs 105 and 106). In the present case, however, no evidence to indicate the existence of such a specific social context was produced during the administrative procedure.
151 As regards the applicant’s reference to FLS Plast’s situation, it must be observed that, despite being invited by the Court to state its position at the hearing, the applicant has failed to produce evidence to establish a link between Trioplast Wittenheim’s going into liquidation and the way in which the Commission treated FLS Plast.
152 Fourthly, there are no grounds for drawing a comparison between the fines imposed in the present case and any hypothetical fines that might have been calculated in accordance with the new guidelines on the setting of fines, as the applicant recommends. It is the guidelines for calculating fines that provide the relevant legal framework for the present case and the Commission’s subsequent publication of the new guidelines on the setting of fines has no bearing on the applicability, ratione temporis of the earlier guidelines.
153 It follows from all the foregoing that the fifth plea in law must be rejected.
Sixth plea: observance of the principles of sound administration and legal certainty
– Arguments of the parties
154 The applicant complains, first, that the Commission infringed the provisions of Regulation No 1/2003 and the principles underlying Article 23(1) thereof and, secondly, that it breached the principle of sound administration, as expressed in the case-law and in the Charter of Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1). According to the applicant, it follows from those principles that every act of the institutions that produces legal effects must be clear and precise and must be brought to the attention of the addressee in such a way that the addressee can be certain of the effects and consequences of the act in question.
155 The applicant maintains, in this connection, that the contested decision gives no clear definition of the extent to which it is liable for Trioplast Wittenheim’s infringement or the precise amount of the fine that it must pay in the end. It fails to state how payment of the fine of EUR 17.85 million imposed on Trioplast Wittenheim is to be shared between the applicant on the one hand and FLS Plast and FLSmidth on the other, given that the combined total of the sums for which those parent companies are held jointly and severally liable is greater than the amount ascribed to Trioplast Wittenheim. The contested decision has thus created legal uncertainty of a kind that could lead to a dispute between the various parent companies being brought before the national courts or an arbitrator, since it still remains for them to decide how to apportion their mutual responsibilities.
156 The applicant considers that, since the combined value of the sums for which the successive parent companies are held jointly and severally liable exceeds the amount of the fine imposed on Trioplast Wittenheim, the Commission cannot invoke its discretion to require payment of the fine by the company that is in all likelihood in a position to pay. It points out in this context that each parent company is jointly and severally liable with Trioplast Wittenheim for a different part of the infringement. According to the applicant, the joint and several liability of the parties merely enables the Commission to demand payment of parts of the fine, by reference to the period under consideration, either from FLS Plast and FLSmidth or from the applicant or from Trioplast Wittenheim. In the present case the Commission has invented a de facto joint and several liability between FLS Plast and FLSmidth, on the one hand, and the applicant, on the other, for which there is no legal basis.
157 Beyond that, the applicant reiterates the arguments which it advanced in the context of the first limb of the first plea, concerning the failure to take into account the fact that Trioplast Wittenheim once belonged to Compagnie de Saint-Gobain and that the combined joint and several liability of the parent companies exceeds the total amount of the fine imposed on Trioplast Wittenheim. It emphasises that the Commission should have used one of the calculation methods it suggests.
158 The Commission points out, first of all, that it is clear from the contested decision that Trioplast Wittenheim is liable for a fine of EUR 17.85 million, out of which amount FLS Plast and FLSmidth must pay, in accordance with their joint and several liability, a maximum of EUR 15.3 million and the applicant a maximum of EUR 7.73 million. Any payment by any of the four companies must, according to the Commission, be deducted from the total amount of EUR 17.85 million. The Commission claims that it has discretion to demand payment from the undertaking that is most likely to acquit itself of that obligation. Once one or more of the undertakings that are jointly and severally liable has paid, it is for them to determine what proportion of the payment each addressee must take responsibility for and what, if any, compensation payments must be made among them.
159 The Commission does not, it says, claim that there is any joint and several liability between FLS Plast and FLSmidth on the one hand and the applicant on the other. The applicant is, it says, jointly liable with Trioplast Wittenheim only in respect of that part of the infringement’s duration that concerns it. Moreover, the Commission submits that it was unnecessary for it to state precisely how the payment obligation should ultimately be allocated between the applicant and Trioplast Wittenheim or between FLS Plast and FLSmidth and Trioplast Wittenheim.
160 Next, referring to the points it made in the context of the first limb of the first plea, the Commission refutes the arguments relating to liability in respect of the period during which Trioplast Wittenheim belonged to Compagnie de Saint‑Gobain and relating to the excess over the amount of the fine imposed on Trioplast Wittenheim.
– Findings of the Court
161 It must be recalled that the principle of legal certainty constitutes a general principle of EU law and requires, inter alia, that any act of the institutions of the European Union, in particular when it imposes or permits the imposition of sanctions, must be clear and precise so that the persons concerned may know without ambiguity what rights and obligations flow from it and may take steps accordingly (see, to that effect, Case C‑266/06 P Evonik Degussa v Commission and Council [2008] ECR I‑0000, paragraph 43, and Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 66).
162 The applicant’s complaints are essentially that, since the combined value of the sums for which the applicant, on the one hand, and FLS Plast and FLSmidth, on the other, are jointly and severally liable exceeds the amount of the fine imposed on Trioplast Wittenheim, the contested decision fails to define the precise amount of the fine which it must in the end pay and that the Commission has invented a de facto joint and several liability between FLS Plast and FLSmidth on the one hand and the applicant on the other.
163 In this connection, it must be recalled that, where a parent company and a subsidiary form or have formed an economic unit which has participated in an infringement, the Commission may hold them jointly and severally liable for the infringement of the competition rules (see, that effect, Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraphs 58 and 59).
164 In the present case, it must be observed that Trioplast Wittenheim formed an economic unit successively with FLS Plast and FLSmidth, from 31 December 1990 to 19 January 1999, and with the applicant, from 21 January 1999 to 26 June 2002. There is therefore nothing to prevent the Commission from holding both FLS Plast and FLSmidth and the applicant jointly and severally liable for payment of the fine imposed on their subsidiary Trioplast Wittenheim. Thus, the Commission imposed on Trioplast Wittenheim a fine of EUR 17.85 million and held FLS Plast and FLSmidth, on the one hand, and the applicant, on the other, jointly and severally liable for payment of that fine up to maxima of EUR 15.3 million and EUR 7.73 million respectively.
165 Moreover, as the Commission points out, Article 2, first paragraph, point (f), of the contested decision allows the institution an unfettered discretion to recover the fine from one or other of the legal persons concerned according to their ability to contribute. Thus, the Commission may decide to recover all or part of the fine from the subsidiary or from one or all of the parent companies that successively had control over the subsidiary, until its right to recover is extinguished. Should the Commission choose to recover the whole amount of the fine from the parent companies, it might, if appropriate, be persuaded to recover from the applicant the maximum amount in respect of which it is jointly and severally liable, that is to say, EUR 7.73 million, and to recover the remainder of the fine from FLS Plast and FLSmidth, which will necessarily be less than the EUR 15.3 million in respect of which those companies are held jointly and severally liable. Conversely, the Commission might prefer to recover from FLS Plast and FLSmidth the maximum amount for which they are jointly and severally liable, in which case it will be able to recover from the applicant only a lesser sum than the amount for which it is jointly and severally liable.
166 It would thus appear, before any justification based on the dissuasive nature of fines can be suggested, that the Commission’s discretion in the execution of Article 2, first paragraph, point (f), of the contested decision, means that the amount actually recovered from the applicant will depend on the amounts recovered from FLS Plast and FLSmidth, and vice versa.
167 However, it must be observed that the applicant, on the one hand, and FLS Plast and FLSmidth, on the other, have never together formed a common economic unit. Instead they formed, together with Trioplast Wittenheim, two different, successive economic units each of which is individually liable for the cartel over different periods of time and in different circumstances. Since the successive parent companies cannot, for this reason, be bound together by any joint and several liability, the contested decision cannot allow the Commission to make the amount actually recovered from the applicant depend upon the amount recovered from the other parent companies, or vice versa.
168 Admittedly, the contested decision establishes the personal responsibility of each of the parent companies in the commission of the infringement in question, taking account of the length of time for which they controlled Trioplast Wittenheim, the absence of aggravating and mitigating circumstances regarding them, and their cooperation with the Commission during the investigation, as is made clear in recitals 782, 783, 785 to 812, 836 to 841 and 862 to 865 thereof. Nevertheless, the amounts thus established constitute the limits up to which the Commission fixed the successive parent companies’ respective joint and several liabilities with Trioplast Wittenheim.
169 Since the applicant has never formed a single economic unit with FLS Plast and FLSmidth, the principle that penalties should be specific to the offender and to the offence requires that the amount actually paid by the applicant does not exceed its share of the joint and several liability. That share corresponds to the proportion of the amount ascribed to the applicant in relation to the total of the limits up to which the successive parent companies are jointly and severally liable for payment of the fine imposed on Trioplast Wittenheim. It is important to note, in this connection, that the principle that penalties should be specific to the offender and to the offence, in accordance with which an economic unit may be penalised only for acts imputed to it individually, applies in any administrative procedure that may lead to the imposition of sanctions under competition law (see, to that effect, Case T‑62/02 Union Pigments v Commission [2005] ECR II‑5057, paragraph 119).
170 Article 2, first paragraph, point (f), of the contested decision fails to indicate the share which falls to the applicant, whilst at the same time allowing the Commission full discretion in calling on the respective joint and several liabilities of the successive parent companies which never together formed an economic unit. That provision is therefore inconsistent with the obligation which rests upon the Commission, in accordance with the principle of legal certainty, to enable the applicant to know for certain the exact amount of the fine which it must pay in respect of the period for which it is held jointly and severally liable with Trioplast Wittenheim for the infringement. The contested decision thus breaches both the principle of legal certainty and the principle that penalties should be specific to the offender and to the offence.
171 In view of all the foregoing, the sixth plea in law must be upheld. Consequently, without it being necessary to consider this plea from the point of view of sound administration, Article 2, first paragraph, point (f), of the contested decision must be annulled in so far as it concerns the applicant.
2. The claim made in the alternative for a reduction in the amount of the fine
172 In so far as the pleas which the applicant puts forward are also relied upon in support of its claim in the alternative for reduction of the fine, it is clear from paragraphs 94 to 98 above that the contested decision contains a manifest error of assessment in that, with regard to the applicant, the Commission took the year 1996 as the reference year in determining the gravity of the infringement. The Court must, therefore, in the exercise of its unlimited jurisdiction under Article 31 of Regulation No 1/2003, set a new starting amount on which to base the calculation of the limit up to which the applicant is held jointly and severally liable for payment of the fine imposed on its subsidiary. Having regard to the foregoing considerations, the Court considers it a just reflection of the circumstances of the present case, as they appear from the file, to set the starting amount for the applicant at EUR 3 million.
173 Next, taking into account both the increase on account of the duration of the applicant’s participation in the cartel and the reduction under the Leniency Notice, both of which must be applied, the amount ascribed to the applicant should be set at EUR 2.73 million. It follows from the conclusion, drawn in paragraph 171 above, that the sixth plea in law must be upheld, that that amount is the basis on which the applicant’s share in the joint and several liability of the successive parent companies for payment of the fine imposed on Trioplast Wittenheim must be determined.
174 Given that the other elements which are necessary to calculate the share falling to the applicant, as mentioned in paragraph 169 above, including in particular the amount ascribed to the other parent companies of Trioplast Wittenheim, have not become final and cannot be established in the present proceedings, it will fall to the Commission, pursuant to its duty under Article 266 TFEU to take the necessary measures to comply with the present judgment, to determine the share falling to the applicant by reference to the necessary elements, once they are final.
Costs
175 Pursuant to Article 87(3) of the Rules of Procedure, the Court may order that the costs be shared where each party succeeds on some and fails on other heads or where the circumstances are exceptional.
176 In the present case, the applicant’s action has been partially upheld and the Court therefore finds that the applicant should be ordered to pay half of its own costs and half of the Commission’s costs. The Commission shall pay half of its own costs and half of the applicant’s costs.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Annuls Article 2, first paragraph, point (f), of Commission Decision C(2005) 4634 final of 30 November 2005 relating to a procedure pursuant to Article 81 EC (Case No COMP/F/38.354 – Industrial bags) in so far as it relates to Trioplast Industrier AB;
2. Sets at EUR 2.73 million the amount ascribed to Trioplast Industrier, on the basis of which its share of the joint and several liabilities of the successive parent companies for payment of the fine imposed on Trioplast Wittenheim SA must be determined;
3. Dismisses the action as to the remainder;
4. Orders Trioplast Industrier to bear half of its own costs and to pay half of the Commission’s costs;
5. Orders the Commission to bear half its own costs and to pay half of the applicant’s costs.
Delivered in open court in Luxembourg on 13 September 2010.
[Signatures]
Table of contents
Background to the dispute
The administrative procedure
The contested decision
Procedure and forms of order sought
Law
1. The claim for partial annulment of the contested decision
First plea: errors in the determination of the duration of the infringement and the amount of the fine
Third limb: the lawfulness of the determination of the duration of the infringement
– Arguments of the parties
– Findings of the Court
First limb of the first plea: the lawfulness of the method used to calculate the fine
– Arguments of the parties
– Findings of the Court
Second limb of the first plea in law: the lawfulness of the determination of the gravity of the infringement in the context of the calculation of the fine
– Arguments of the parties
– Findings of the Court
Second plea: the grounds of the Commission’s refusal to allow the benefit of mitigating circumstances
Arguments of the parties
– Findings of the Court
Fourth plea:the leniency application
– Arguments of the parties
– Findings of the Court
Fifth plea: observance of the principles of proportionality and equal treatment
– Arguments of the parties
– Findings of the Court
Sixth plea: observance of the principles of sound administration and legal certainty
– Arguments of the parties
– Findings of the Court
2. The claim made in the alternative for a reduction in the amount of the fine
Costs