Opinion of the Advocate General — ECLI:EU:C:2007:404
Date: 2007-07-03
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition
Procedure: Reference for a preliminary ruling
Origin: Italy

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)