Akzo Nobel NV and Others v European Commission.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2017:314
• Court: Court of Justice (European Union)
• Docket Number: C-516/15
• Date: 27 April 2017
• Procedure Type: Recurso de casación - infundado
• Celex Number: 62015CJ0516

JUDGMENT OF THE COURT (Fifth Chamber)

27 April 2017 ( *1 )

‛Appeal — Agreements, decisions and concerted practices — European markets in tin stabilisers and in ESBO/esters heat stabilisers — Price fixing, market allocation and exchange of commercially sensitive information — Whether the unlawful conduct of the subsidiaries may be attributed to the parent company — Regulation (EC) No 1/2003 — Article 25(1) — Limitation period for the imposition of penalties on subsidiaries — Effects on the legal position of the parent company’

In Case C‑516/15 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 September 2015,

Akzo Nobel NV, established in Amsterdam (Netherlands),

Akzo Nobel Chemicals GmbH, established in Düren (Germany),

Akzo Nobel Chemicals BV, established in Amersfoort (Netherlands),

represented by C. Swaak and R. Wesseling, advocaten,

appellants,

the other parties to the proceedings being:

Akcros Chemicals Ltd, established in Warwickshire (United Kingdom),

applicant at first instance,

European Commission, represented by V. Bottka and P. Rossi, acting as Agents,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of J.L. da Cruz Vilaça (Rapporteur), President of the Chamber, M. Berger, A. Borg Barthet, E. Levits and F. Biltgen, Judges,

Advocate General: N. Wahl,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 21 December 2016,

gives the following

Judgment

1 By their appeal, Akzo Nobel NV, Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals BV ask the Court to set aside the judgment of the General Court of the European Union of 15 July 2015, Akzo Nobel and Others v Commission (T‑47/10, ‘the judgment under appeal’, EU:T:2015:506), by which the General Court upheld only in part their action for, principally, annulment of Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/38589 — Heat Stabilisers) (‘the decision at issue’), and, in the alternative, a reduction of the amount of the fines imposed on them.

Legal context

2 Article 7 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 [EC] (OJ 2003 L 1, p. 1), entitled ‘Finding and termination of infringement’, provides in paragraph 1: ‘Where the Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article 81 or of Article 82 [EC], it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end. ... If the Commission has a legitimate interest in doing so, it may also find that an infringement has been committed in the past.’

3 Article 23 of that regulation, entitled ‘Fines’, provides in paragraph 2: ‘The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a) they infringe Article 81 or Article 82 [EC] ... ...’

4 Article 25 of that regulation, entitled ‘Limitation periods for the imposition of penalties’, provides in paragraphs 1 to 3: ‘1. The powers conferred on the Commission by [Article 23] shall be subject to the following limitation periods: (a) three years in the case of infringements of provisions concerning requests for information or the conduct of inspections; (b) five years in the case of all other infringements. 2. Time shall begin to run on the day on which the infringement is committed. However, in the case of continuing or repeated infringements, time shall begin to run on the day on which the infringement ceases. 3. Any action taken by the Commission or by the competition authority of a Member State for the purpose of the investigation or proceedings in respect of an infringement shall interrupt the limitation period for the imposition of fines or periodic penalty payments. ...’

Background to the dispute

5 The background to the dispute is set out in paragraphs 1 to 50 of the judgment under appeal. In order to ensure that the present case is understood, it is important to note the following.

6 By the decision at issue, the Commission found that a number of undertakings had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) by participating in two sets of anticompetitive agreements and concerted practices covering the territory of the European Economic Area and relating, first, to the tin stabilisers sector and, secondly, to the epoxidised soybean oil and esters sector (‘the ESBO/esters sector’).

7 According to Article 1 of the decision at issue, both of the infringements found by the Commission, which related to those two categories of heat stabilisers, consisted of price fixing, allocation of markets through sales quotas, allocation of customers and exchange of commercially sensitive information, in particular on customers, production and sales.

8 The decision at issue states that the undertakings concerned participated in those infringements during various periods between 24 February 1987 and 21 March 2000, in relation to the tin stabilisers sector, and between 11 September 1991 and 22 March 2000, in relation to the ESBO/esters sector.

9 The decision at issue was addressed, with respect to each infringement, to 20 companies, which had either participated directly in the infringements involved or were liable as parent companies.

10 As regards attribution of the infringements, Article 1 of the decision at issue holds Akzo Nobel, Akzo Nobel Chemicals GmbH and Akcros Chemicals Ltd liable for their participation in the infringement relating to tin stabilisers from 24 February 1987 until 21 March 2000 in the case of Akzo Nobel, from 24 February 1987 until 28 June 1993 in the case of Akzo Nobel Chemicals GmbH, and from 28 June 1993 until 21 March 2000 in the case of Akcros Chemicals.

11 Similarly, Article 1 of the decision at issue holds Akzo Nobel, Akzo Nobel Chemicals BV and Akcros Chemicals liable for their participation in the infringement relating to the ESBO/esters sector from 11 September 1991 until 22 March 2000 in the case of Akzo Nobel, from 11 September 1991 until 28 June 1993 in the case of Akzo Nobel Chemicals BV, and from 28 June 1993 until 22 March 2000 in the case of Akcros Chemicals.

12 In addition, the Commission divided the participation of Akzo Nobel, Akzo Nobel Chemicals GmbH, Akzo Nobel Chemicals BV and Akcros Chemicals in the infringements into three separate infringement periods.

13 With regard to the infringement period before 28 June 1993 (‘the first infringement period’), the Commission found that some companies, which were indirectly wholly owned by Akzo NV, which became Akzo Nobel, had participated directly in the infringements, namely Akzo Nobel Chemicals GmbH, for the infringement relating to tin stabilisers, and Akzo Nobel Chemicals BV, for the infringement relating to the ESBO/esters sector.

14 With regard to the second infringement period, from 28 June 1993 to 2 October 1998, the Commission found that the direct participant in the infringements had been the Akcros Chemicals partnership, which had centralised the heat stabilisers production and sales activities of the Akzo Group, which did not have a legal personality in its own right.

15 With regard to the third infringement period, from 2 October 1998 to 21 March 2000, in the case of tin stabilisers, and from 2 October 1998 to 22 March 2000, in the case of the ESBO/esters sector, the Commission found that Akcros Chemicals, which had absorbed the business of the Akcros Chemicals partnership, had participated directly in the infringements.

16 Accordingly, in the decision at issue, Akzo Nobel, as the ultimate parent company of a group of companies, some of which had participated directly in the cartels, was held liable for the entire infringement period, that is to say, from 24 February 1987 until 22 March 2000.

17 As regards the attribution of the fines, Article 2 of the decision at issue states the following: ‘For the [infringement] in the tin stabiliser sector ..., the following fines are imposed: ... (4) [Akzo Nobel], Akzo Nobel Chemicals GmbH and [Akcros Chemicals] are jointly and severally liable for: EUR 1580000; ... (6) [Akzo Nobel] and Akzo Nobel Chemicals GmbH are jointly and severally liable for: EUR 9820000; (7) [Akzo Nobel] is liable for: EUR 1432700; ... For the [infringement] in the ESBO/esters sector ..., the following fines are imposed: ... (21) [Akzo Nobel], Akzo Nobel Chemicals BV and [Akcros Chemicals] are jointly and severally liable for: EUR 2033000; ... (23) [Akzo Nobel] and Akzo Nobel Chemicals BV are jointly and severally [liable] for: EUR 3467000; (24) [Akzo Nobel] is liable for: EUR 2215303; ...’

18 By decision of the Commission of 30 June 2011, the decision at issue was amended to the extent that it was addressed to Akzo Nobel and to Akcros Chemicals (‘the amending decision’).

19 In recital 1 of the amending decision, the Commission recalled that it had imposed fines in the decision at issue on Akzo Nobel and Akcros Chemicals ‘jointly and severally’ with Elementis plc, Elementis Holdings Limited...