Case T‑146/09 RENV
Parker Hannifin Manufacturing Srl, formerly Parker ITR Srl
and
Parker-Hannifin Corp.
v
European Commission
(Competition — Agreements, decisions and concerted practices — European market for marine hoses — Price-fixing agreements, market-sharing and the exchange of commercially sensitive information — Attributability of unlawful conduct — Principle of economic continuity — Principle of personal liability — Fines — Aggravating circumstances — Role of leader — Ceiling of 10% — Unlimited jurisdiction)
Summary — Judgment of the General Court (Sixth Chamber), 14 July 2016
1. Judicial proceedings — Judgment of the Court of Justice binding the General Court — Conditions — Reference back following an appeal — Points of law finally determined by the Court of Justice in the context of the appeal — Res judicata — Scope
(Statute of the Court of Justice, Arts 53, first para., and 61; Rules of Procedure of the General Court, Art. 215)
2. Actions for annulment — Grounds — Infringement of essential procedural requirements — Infringement of the duty to state reasons — To be considered of the Court’s own motion
(Art. 263 TFEU)
3. Judicial proceedings — Introduction of new pleas during the proceedings — Conditions — Amplification of an existing plea — Admissibility
(Rules of Procedure of the General Court, Art. 84(1))
4. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Principle of economic continuity — Intra-group transfer of activities in breach — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Rebuttable — Burden of proof
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2))
5. Acts of the institutions — Statement of reasons — Obligation — Scope — Assessment of the duty to state reasons by reference to the circumstances of the case — No need to specify all the relevant factual and legal elements
(Art. 296 TFEU)
6. EU law — Principles — Equal treatment — Concept
7. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Role as leader of the cartel — Concept — Criteria for assessment
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 28)
8. Competition — Fines — Amount — Determination — Commission’s margin of discretion
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 28)
9. Competition — Fines — Amount — Determination — Criteria — Gravity of the infringement — Aggravating circumstances — Role as leader of the cartel — Undertaking not able to plead in its favour an illegality committed in favour of another undertaking which participated in the cartel
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission Notice 2006/C 210/02, point 28)
10. Competition — Fines — Joint and several liability for payment — Scope — Attribution to the parent company of the infringing conduct of its subsidiary — Determination of the amount of the fine payable by the parent company — Compliance with the principle that penalties must be specific to the offender and the offence — No joint and several liability of the parent company for infringements committed by its subsidiary prior to its acquisition
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(3))
11. Competition — Fines — Amount — Determination — Maximum amount — Calculation — Turnover to be taken into consideration — Undertaking acquired by another undertaking which constituted a distinct economic entity at the time of the infringement — Account taken of the individual turnover of each of those economic entities
(Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2))
12. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope
(Arts 101 TFEU and 261 TFEU; Council Regulation No 1/2003, Art. 31)
1. See the text of the decision.
(see paras 21, 22)
2. See the text of the decision.
(see para. 38)
3. See the text of the decision.
(see paras 39, 40)
4. See the text of the decision.
(see paras 45-49, 54)
5. See the text of the decision.
(see para. 82)
6. See the text of the decision.
(see para. 88)
7. See the text of the decision.
(see paras 98-102, 124, 125)
8. See the text of the decision.
(see para. 126)
9. See the text of the decision.
(see para. 138)
10. As regards infringement of the principle of personal liability, if the unlawful conduct of a subsidiary can be imputed to its parent company, those companies may be regarded, during the period of the infringement, as forming a single economic unit and thus a single undertaking for the purposes of EU competition law. In those circumstances, the Commission will be entitled to hold the parent company jointly and severally liable for the unlawful conduct of its subsidiary during that period and, as a consequence, for payment of the amount of the fine imposed on the subsidiary.
Moreover, in determining joint and several liability from its external perspective, namely the liability imposed by the Commission on the various persons comprising the undertaking who may be required to pay the whole of the amount of the fine imposed on the undertaking, the Commission is subject to certain restrictions, inter alia, adherence to the principle that penalties must be specific to the offender and the offence, which requires, in accordance with Article 23(3) of Regulation No 1/2003, that the amount of the fine to be paid jointly and severally must be determined by reference to the gravity of the infringement for which the undertaking concerned is held individually responsible and the duration of the infringement.
A definition of joint and several liability permitting the Commission to require one of the parent companies to pay a fine punishing infringements for another part of the infringement period, for which an undertaking of which it has never formed part is responsible, is at odds with the principle that the penalty must be specific to the offender and the offence.
More specifically, a company cannot be held to be responsible for infringements committed independently by its subsidiaries before the date of their acquisition, since the latter must themselves answer for their unlawful conduct prior to that acquisition, and the company which has acquired them cannot be held to be responsible.
Consequently, the Commission errs in law where, contrary to the principle of personal liability, it applies an increase of 30% to the amount of the fine jointly and severally payable by the parent company, on the basis of the aggravating circumstance of the role of leader played by its subsidiary during a period in which the two companies were not yet linked.
(see paras 141-144, 154)
11. See the text of the decision.
(see paras 160, 161, 166, 174)
12. See the text of the decision.
(see paras 169, 170)