FLS Plast A/S v European Commission.

• Jurisdiction: European Union
• Celex Number: 62012CJ0243
• ECLI: ECLI:EU:C:2014:2006
• Date: 19 June 2014
• Docket Number: C‑243/12
• Court: Court of Justice (European Union)
• Procedure Type: Recurso contra una sanción

JUDGMENT OF THE COURT (First Chamber)

19 June 2014 ( *1 )

‛Appeal — Competition — Agreements, decisions and concerted practices — Plastic industrial bags sector — Decision finding an infringement of Article 81 EC — Unlimited jurisdiction of the General Court — Obligation to state reasons — Attribution to the parent company of the infringement committed by the subsidiary — Liability of the parent company for payment of the fine imposed on the subsidiary — Proportionality — Proceedings before the General Court — Adjudication within a reasonable time’

In Case C‑243/12 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 16 May 2012,

FLS Plast A/S, established in Valby (Denmark), represented by M. Thill-Tayara and Y. Anselin, avocats,

appellant,

the other party to the proceedings being:

European Commission, represented by F. Castillo de la Torre and V. Bottka, acting as Agents, and M. Gray, Barrister, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (First Chamber),

composed of A. Tizzano, President of the Chamber, A. Borg Barthet, E. Levits, M. Berger (Rapporteur) and S. Rodin, Judges,

Advocate General: P. Mengozzi,

Registrar: L. Hewlett, Principal Administrator,

having regard to the written procedure and further to the hearing on 16 January 2014,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By its appeal, FLS Plast A/S (‘FLS Plast’) asks the Court to set aside the judgment of the General Court of the European Union in Case T‑64/06 FLS Plast v Commission EU:T:2012:102 (‘the judgment under appeal’) by which the General Court dismissed in part its action for annulment of Commission Decision C(2005) 4634 final of 30 November 2005 relating to a proceeding pursuant to Article 81 [EC] (Case COMP/F/38.354 — Industrial bags) (‘the decision at issue’) or, in the alternative, for reduction of the fine which was imposed upon it by that decision.

The background to the dispute and the decision at issue

2 FLS Plast, formerly Nyborg Plast International A/S, is an addressee of the decision at issue in its capacity as a former parent company of Trioplast Wittenheim SA (formerly Silvallac SA; ‘Trioplast Wittenheim’), a producer of plastic industrial bags, films and hoods in Wittenheim (France). FLS Plast is a subsidiary of the group controlled by FLSmidth & Co. A/S (‘FLSmidth’).

3 In December 1990, FLS Plast acquired 60% of the share capital in Trioplast Wittenheim. The remaining 40% was acquired by FLS Plast in December 1991. The seller was the French company Cellulose de Pin, a member of the group owned by Compagnie de Saint-Gobain SA (‘Saint-Gobain’).

4 In turn, FLS Plast sold Trioplast Wittenheim, in 1999, to Trioplanex France SA, a French subsidiary of Trioplast Industrier AB (‘Trioplast Industrier’), the parent company of the Trioplast group. That transfer took effect on 1 January 1999.

5 In November 2001, British Polythene Industries informed the European Commission of the existence of a cartel in the plastic industrial bags sector.

6 After carrying out investigations in 2002 at the premises of, inter alia, Trioplast Wittenheim, in 2002 and 2003 the Commission sent requests for information to the undertakings concerned, one of which was Trioplast Wittenheim. By a letter of 19 December 2002, supplemented by a letter of 16 January 2003, Trioplast Wittenheim indicated that it wished to cooperate with the Commission’s investigation, under the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4; ‘the Leniency Notice’).

7 On 30 November 2005, the Commission adopted the decision at issue. It is apparent from Article 1(1)(h) of that decision that the Commission decided inter alia that, from 31 December 1990 to 19 January 1999, FLSmidth and FLS Plast had infringed Article 81 EC by participating 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, concerted bidding in response to certain invitations to tender, and the exchange of individualised information.

8 As set out in point (f) of the first paragraph of Article 2 of the decision at issue, the Commission imposed on Trioplast Wittenheim a fine of EUR 17.85 million, taking account of a reduction of 30% granted pursuant to the Leniency Notice. Of that amount, FLSmidth and FLS Plast were held jointly and severally liable for the sum of EUR 15.30 million and Trioplast Industrier was held jointly and severally liable for the sum of EUR 7.73 million.

The judgment under appeal

9 By application lodged at the Registry of the Court of First Instance (now ‘the General Court’) on 24 February 2006, FLS Plast brought an action challenging the decision at issue. The action sought, in essence, the annulment of Article 1(1)(h) and of point (f) of the first paragraph of Article 2 of that decision in so far as they concerned FLS Plast or, in the alternative, the variation of the latter provision and a reduction of the amount of the fine which had been imposed on it and for which it was jointly and severally liable.

10 FLS Plast relied upon five pleas in law in support of its action for annulment. Its first plea alleged an error of law by the Commission in the determination of the fine. The second plea, set out in four parts, concerned the fact that FLS Plast was found liable in its capacity as the parent company of Trioplast Wittenheim. By its third plea, divided into three parts, FLS Plast challenged the amount of the fine imposed on Trioplast Wittenheim. The fourth plea related to the non-application in FLS Plast’s case of the 10% of turnover ceiling. The purpose of the fifth plea, comprising five parts, was to challenge the amount of the fine which had been imposed on it and for which it was jointly and severally liable.

11 By the judgment under appeal, the General Court partially upheld FLS Plast’s second plea, on the ground that the Commission had not established to the required legal standard that FLS Plast exercised actual control over Trioplast Wittenheim throughout the year 1991. Consequently, the General Court annulled the decision at issue in so far as it concerned the imputability of the infringement to FLS Plast for the period from 31 December 1990 to 31 December 1991. As a result, the General Court also reduced to EUR 14.45 million the amount of the fine for which FLS Plast had been held jointly and severally liable under Article 2(f) of the decision at issue. It dismissed the action as to the remainder.

Forms of order sought

12 FLS Plast claims that the Court should: — set aside the judgment under appeal and annul Articles 1(h) and 2(f) of the decision at issue in so far as they apply to FLS Plast; — in the alternative, amend Article 2(f) of the decision at issue and substantially reduce the amount of the fine for which FLS Plast is held jointly and severally liable in the decision at issue; — in any event, grant FLS Plast a 50% reduction of the amount of the fine for which it is held liable in the decision at issue, as the General Court did not deliver its judgment within a reasonable time; and — order the Commission to pay the costs.

13 The Commission contends that the Court should: — dismiss the appeal; — in the alternative, dismiss the action for annulment of the decision at issue; and — order FLS Plast to pay the costs.

The appeal

14 In support of the form of order sought by it, FLS Plast puts forward five pleas in law, the third to fifth of which are put forward in the alternative.

15 FLS Plast requests the Court to adjudicate itself, after setting aside the judgment under appeal, on the pleas raised against the decision at issue.

The first plea: the Commission applied an incorrect legal test for the purpose of establishing a parent company’s liability

Arguments of the parties

16 FLS Plast contends that the General Court erred in law in accepting the legal test applied by the Commission and in holding that it did not rebut the presumption, arising from the fact that it held 100% of the capital of its subsidiary Trioplast Wittenheim, that it exercised decisive influence over the latter.

17 That test contains a strict presumption that the parent company is liable for the conduct of its subsidiary and is, therefore, contrary to the presumption of innocence laid down in Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and in Article 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

18 In FLS Plast’s submission, the Commission’s application of that presumption renders it in reality irrebuttable in that the presumption effectively requires the parent company concerned to prove the negative that it gave no instruction to its subsidiary. In the alternative, FLS Plast asserts that neither the General Court nor the Commission drew the correct legal conclusion from the arguments and evidence which it presented, and which showed that Trioplast Wittenheim had acted...