Autorità Garante della Concorrenza e del Mercato v Ente tabacchi italiani - ETI SpA and Others and Philip Morris Products SA and Others v Autorità Garante della Concorrenza e del Mercato and Others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Ilešič
• ECLI: ECLI:EU:C:2007:775
• Date: 11 December 2007
• Docket Number: C-280/06
• Procedure Type: Reference for a preliminary ruling

Case C-280/06

Autorità Garante della Concorrenza e del Mercato and Others

v

Ente tabacchi italiani – ETI SpA and Others

(Reference for a preliminary ruling from the Consiglio di Stato)

(Competition – Imposition of fines where undertakings succeed each other – Principle of personal responsibility – Entities answering to the same public authority – National law referring to Community competition law as source of interpretation – Questions referred for a preliminary ruling – Jurisdiction of the Court of Justice)

Opinion of Advocate General Kokott delivered on 3 July 2007

Judgment of the Court (Grand Chamber), 11 December 2007

Summary of the Judgment

1. Preliminary rulings – Jurisdiction of the Court – Limits

(Art. 234 EC)

2. Competition – Community rules – Infringements – Attribution

(Art. 81(1), EC)

1. Neither the wording of Article 234 EC nor the aim of the procedure established by that article indicates that the Treaty makers intended to exclude from the jurisdiction of the Court requests for a preliminary ruling on a Community provision in the specific case where the domestic law of a Member State refers to that Community provision in order to determine the rules applicable to a situation which is purely internal to that State.

Where, in regulating purely internal situations, domestic legislation provides the same solutions as those adopted in Community law, it is clearly in the Community interest that, in order to avoid future differences of interpretation, provisions or concepts taken from Community law should be interpreted uniformly, irrespective of the circumstances in which they are to apply.

(see paras 21-22)

2. Where, irrespective of its legal status and the way in which it is financed, any entity engaged in an economic activity infringes competition rules, it falls, according to the principle of personal responsibility, to that entity to answer for that infringement. An entity that is not the author of the infringement can nevertheless be penalised for it in certain circumstances. That situation arises if the entity that has committed the infringement has ceased to exist, either in law or economically. Moreover, bearing in mind the objective of suppressing conduct that infringes the competition rules and preventing its reoccurrence by means of deterrent penalties, when an entity that has committed an infringement of the competition rules is subject to a legal or organisational change, that change does not necessarily create a new undertaking free of liability for the conduct of its predecessor when, from an economic point of view, the two are identical. The legal forms of the entity that committed the infringement and the entity that succeeded it are irrelevant, as is the fact that the decision to transfer an activity is taken not by individuals, but by the legislature in view of a privatisation.

Where the economic activities of an entity on the market affected by an infringement of the competition rules have been continued by another entity, the latter may be regarded, in the context of the procedure regarding that infringement, as the economic successor of the first entity, even if the first entity continues to exist as an economic operator on other markets. In that event, the fact that the first entity does not have legal personality is not a factor that can justify imposing a penalty for the infringement which it committed on its successor, although such an imposition may be justified by the fact that the two entities answer to the same public authority. Where two entities constitute one economic entity, the fact that the entity that committed the infringement still exists does not as such preclude imposing a penalty on the entity to which its economic activities were transferred. In particular, applying penalties in this way is permissible where those entities have been subject to control by the same person within the group and have therefore, given the close economic and organisational links between them, carried out, in all material respects, the same commercial instructions.

It follows that, in the case of entities answering to the same public authority, where conduct amounting to one and the same infringement of the competition rules was adopted by one entity and subsequently continued until it ceased by another entity which succeeded the first, which has not ceased to exist, that second entity may be penalised for the infringement in its entirety if it is established that those two entities were subject to the control of the said authority.

(see paras 38-49, 52, operative part)

JUDGMENT OF THE COURT (Grand Chamber)

11 December 2007 (*)

(Competition – Imposition of fines where undertakings succeed each other – Principle of personal responsibility – Entities belonging to the same group of undertakings or answering to the same public authority – National law referring to Community competition law as source of interpretation – Questions referred for a preliminary ruling – Jurisdiction of the Court of Justice)

In Case C‑280/06,

REFERENCE for a preliminary ruling under Article 234 EC, by the Consiglio di Stato (Italy), made by decision of 8 November 2005, received at the Court on 27 June 2006, in the proceedings

Autorità Garante della Concorrenza e del Mercato

v

Ente tabacchi italiani – ETI SpA,

Philip Morris Products SA,

Philip Morris Holland BV,

Philip Morris GmbH,

Philip Morris Products Inc.,

Philip Morris International Management SA,

and

Philip Morris Products SA,

Philip Morris Holland BV,

Philip Morris GmbH,

Philip Morris Products Inc.,

Philip Morris International Management SA,

v

Autorità Garante della Concorrenza e del Mercato,

Ente tabacchi italiani – ETI SpA,

and

Philip Morris Products SA,

Philip Morris Holland BV,

Philip Morris GmbH,

Philip Morris Products Inc.,

Philip Morris International Management SA,

v

Autorità Garante della Concorrenza e del Mercato,

Amministrazione autonoma dei monopoli di Stato,

Ente tabacchi italiani – ETI SpA,

THE COURT (Grand Chamber),

composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas, K. Lenaerts, G. Arestis and U. Lõhmus, Presidents of Chambers, E. Juhász, A. Borg Barthet, M. Ilešič (Rapporteur), J. Klučka, E. Levits and A. Ó Caoimh, Judges,

Advocate General: J. Kokott,

Registrar: B. Fülöp, Administrator,

having regard to the written procedure and further to the hearing on 15 May 2007,

after considering the observations submitted on behalf of:

– Ente tabacchi italiani – ETI SpA, by S. D’Alberti, A. Clarizia and L. D’Amario, avvocati,

– Philip Morris Products SA, Philip Morris Holland BV, Philip Morris GmbH, Philip Morris Products Inc. and Philip Morris International Management SA, by L. Di Via, C. Tesauro and P. Leone, avvocati,

– the Italian Government, by I. M. Bragulia and F. Arena, acting as Agents, assisted by D. Del Gaizo, avvocato dello Stato,

– the Commission of the European Communities, by F. Castillo de la Torre and V. Di Bucci, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 3 July 2007,

gives the following

Judgment

1 This reference for a preliminary ruling relates to the interpretation of Article 81 et seq. EC and the general principles of Community law.

2 The reference has been made in the course of proceedings between Autorità Garante della Concorrenza e del Mercato (national competition authority, ‘the Authority’), Ente tabacchi italiani – ETI SpA, Philip Morris Products SA, Philip Morris Holland BV, Philip Morris GmbH, Philip Morris Products Inc. and Philip Morris International Management SA (the last five companies together, ‘the companies in the Philip Morris group’) and the Amministrazione autonoma dei monopoli di Stato (the autonomous body administering State monopolies, ‘the AAMS’), relating to a cartel on the sale price of cigarettes.

Legal context

3 In Italian law, Law No 287 of 10 October 1990 adopting provisions for the protection of competition and the market (norme per la tutela della concorrenza e del mercato) (GURI No 240 of 13 October 1990, p. 3; ‘Law No 287/90’), contains in its Title I the following provisions in particular:

‘Article 1

…

1. The provisions of this Law, which is enacted under Article 41 of the Constitution for the purposes of protecting and guaranteeing the right to economic initiative, shall apply to cartels, abuses of a dominant position and concentrations of undertakings which do not come within the scope of application of Article 65 and/or Article 66 of the Treaty establishing the European Coal and Steel Community, Article 85 and/or Article 86 of the Treaty establishing the European Economic Community (EEC), Regulations of the EEC, or Community acts having the same legal effect.

…

4. The provisions in this Title shall be interpreted in accordance with the principles laid down in the...