ArcelorMittal Luxembourg SA, ArcelorMittal Belval & Differdange SA and ArcelorMittal International SA v Commission of the European Communities.

• Jurisdiction: European Union
• Court: General Court (European Union)
• ECLI: ECLI:EU:T:2009:90
• Docket Number: T-405/06
• Date: 31 March 2009
• Procedure Type: Recurso de anulación - infundado

Case T-405/06

ArcelorMittal Luxembourg SA and Others

v

Commission of the European Communities

(Competition – Agreements, decisions and concerted practices – Common market in beams – Decision finding an infringement of Article 65 CS after the expiry of the ECSC Treaty, on the basis of Regulation (EC) No 1/2003 – Powers of the Commission – Imputability of the unlawful conduct – Limitation period – Rights of the defence)

Summary of the Judgment

1. Competition – Agreements, decisions and concerted practices – Agreements, decisions and concerted practices falling with the scope of the ECSC Treaty ratione materiae and ratione temporis – Expiry of the ECSC Treaty

(Art. 65(1) CS; Art. 81 EC; Council Regulation No 1/2003, Arts 7(1) and 23(2))

2. Acts of the institutions – Temporal application – Procedural rules – Substantive rules – Distinction – Retroactive effect of a substantive rule – Conditions

(Art. 65(1) CS; Art. 305 EC; Council Regulation No 1/2003, Arts 7(1) and 23(2))

3. Competition – Community rules – Infringements – Attribution – Parent company and subsidiaries – Economic unit – Criteria for assessment

(Arts 81 EC and 82 EC)

4. ECSC – Agreements, decisions and concerted practices – Prohibition – Infringement – Attribution – Rules applicable to infringements identical in Article 81 EC and Article 65 CS

(Art. 65(1) CS; Art. 81(1) EC)

5. Competition – Community rules – Infringements – Attribution – ‘Economic continuity’ test

(Art. 65(1) CS; Art. 81(1) EC)

6. Competition – Administrative procedure – Limitation periods in proceedings – Interruption – Scope

(Council Regulation No 1/2003, Art 25(3) and (4); General Decision No 715/78, Art. 2(1) and (2))

7. Competition – Administrative procedure – Limitation periods in proceedings – Interruption – Request for information

8. Competition – Administrative procedure – Limitation periods in proceedings – Suspension – Initiation of an action before the Community judicature

(Council Regulation No 1/2003; General Decision No 715/78)

9. Competition – Administrative procedure – Observance of the rights of the defence – Excessive duration of the administrative procedure

1. Although the succession of the legal framework of the EC Treaty to that of the ECSC Treaty has led, since 24 July 2002, to a change of legal bases, procedures and applicable substantive rules, that succession is part of the unity and continuity of the Community legal order and its objectives. In that regard, the introduction and maintenance of a system of free competition, within which the normal conditions of competition are safeguarded and which is at the origin of the rules on collusive conduct between undertakings, is one of the essential objectives of both the EC Treaty and the ECSC Treaty. In that context, although the rules of the ECSC and the EC Treaties governing the sphere of collusive conduct between undertakings diverge to a certain extent, the concepts of agreements and concerted practices within the meaning of Article 65(1) CS correspond with those on collusive conduct and concerted practices within the meaning of Article 81 EC and both provisions have been interpreted in the same way by the Community judicature. Thus, the pursuit of the aim of undistorted competition in the sectors which initially fell within the common market in coal and steel is not suspended by the fact that the ECSC Treaty has expired, since that objective is also pursued in the context of the EC Treaty, by the same institution, namely the Commission, the administrative authority responsible for implementing and developing competition policy in the general interest of the Community.

Furthermore, in accordance with a principle common to the legal systems of the Member States, when legislation is amended, unless the legislature expresses a contrary intention, continuity of the legal system must be ensured. The continuity of the Community legal order and of the objectives which govern its function thus requires that, in so far as it succeeds the European Coal and Steel Community and in its own procedural framework, the European Community ensures, in respect of situations which came into being under the ECSC Treaty, compliance with the rights and obligations which applied eo tempore to both Member States and individuals under the ECSC Treaty and the rules adopted for its application. That requirement applies all the more in so far as the distortion of competition resulting from non-compliance with the rules on agreements and collusive conduct between undertakings is liable to extend its effects to a time after the expiry of the ECSC Treaty when the EC Treaty applies.

It follows from this that Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty and, more particularly, Article 7(1) and Article 23(2) thereof, must be interpreted as enabling the Commission to find and penalise, after 23 July 2002, agreements between undertakings arrived at in the sectors falling within the scope of the ECSC Treaty ratione materiae and ratione temporis, even though those provisions of Regulation No 1/2003 do not expressly refer to Article 65 CS.

(see paras 59-64)

2. Although procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, that is not the case with substantive rules. The latter must, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, be interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, objectives or general scheme that such an effect must be given to them.

From that point of view, the continuity of the Community legal order and the requirements relating to the principles of legal certainty and the protection of legitimate expectations require the application of substantive provisions drawn from the ECSC Treaty to the facts which fall within their scope of application ratione materiae and ratione temporis. The fact that, by reason of the expiry of the ECSC Treaty, the regulatory framework in question is no longer in force at the time when the assessment of the factual situation is carried out is irrelevant since that assessment concerns a legal situation which was definitively established at a time when substantive provisions adopted under the ECSC Treaty were applicable.

In the case of a Commission decision adopted, after the expiry of the ECSC Treaty, on the basis of Article 7(1) and Article 23(2) of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, following a procedure carried out in accordance with that regulation, since the provisions concerning the legal basis and the procedure followed until the adoption of the decision fall within the scope of procedural rules, the applicable rules are those contained in Regulation No 1/2003. Moreover, as regards the substantive rules, since that decision relates to a legal situation which had definitively come into being before the expiry of the ECSC Treaty, in the absence of any retroactive effect of material competition law applicable since 24 July 2002, Article 65(1) CS is the substantive rule applicable, since it follows precisely from the nature of lex generalis of the EC Treaty by comparison with the ECSC Treaty, laid down in Article 305 EC, that the specific regime of the ECSC Treaty and of the rules adopted for its application is alone, under the principle lex specialis derogat legi generali, applicable to situations which came into being before 24 July 2002.

(see paras 65-68)

3. The Commission is able to address a decision imposing a fine for breach of the competition rules by a subsidiary to the parent company of a group of companies not because of a relationship between the parent and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because those companies constitute an economic entity and therefore a single undertaking within the meaning of Articles 81 EC and 82 EC if they do not independently determine their own conduct on the market.

In the specific case of a parent company holding 100% of the capital of a subsidiary which has committed an infringement, there is a rebuttable presumption that the parent company actually exercises decisive influence over the conduct of its subsidiary and therefore constitutes with the subsidiary a single undertaking within the meaning of Article 81 EC. It is therefore for the parent company which is challenging before the Community judicature a Commission decision imposing a fine on it for the conduct of its subsidiary to rebut that presumption by adducing evidence to establish that its subsidiary was independent.

In other words, it is sufficient for the Commission to prove that the entire capital of a subsidiary is held by its parent company for the presumption that the parent company exercises decisive influence over the conduct of the subsidiary on the market to be established. The Commission will then be able to hold the parent company jointly and severally liable for payment of the fine imposed on its subsidiary, even where it is found that the parent company did not participate directly in the agreements, unless the parent company proves that its subsidiary acts independently on the market.

(see paras 88-89, 91)

4. Like the prohibition in Article 81(1) EC, the prohibition in Article 65(1) CS is addressed, in particular, to ‘undertakings’. The concept of undertaking has the same meaning in both of those provisions. Consequently, the rules on the imputation of liability for infringements of Article 81(1) EC also apply in the case of infringements of Article 65(1) CS.

(see para. 92)

5. A company which has been formed as a wholly‑owned subsidiary in order to carry out one of...