Opinion of the Advocate General — ECLI:EU:C:2015:207
Date: 2015-03-26
Language of the case: French
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - inadmissible;Appeal - successful;Appeal against penalty;Appeal - decision unnecessary
Origin: France

summary, although the Court is, in the circumstances of the present case, entitled to take into account directly the reduction which I suggest should be applied in the aforementioned parallel case Total Marketing Services v Commission in respect of the subsidiary Total France, it cannot, however, directly take into account the reduction applied by the General Court in the case which gave rise to the judgment in Total Raffinage Marketing v Commission (T‑566/08, EU:T:2013:423). 175. Therefore, it could seem very contrived that the Court should align the fines in those circumstances. The Court is, after all, not entitled to take into account the first reduction of the fine (namely, that decided by the General Court), but only, in the event that it should agree with the proposals I made in Total Marketing Services v Commission (C‑634/13 P) pending before the Court, the second reduction. This situation seems to illustrate the limits of the courts’ intervention. 176. Nevertheless, as mentioned previously, it must be emphasised that it is, above all, for the Commission to give due effect to the judgment to be delivered, pursuant to the first paragraph of Article 266 TFEU. That implies that the Commission may not, in any event, require that the appellant pay a higher fine than that for which its subsidiary, Total France, will ultimately be liable in accordance with the final judgment in the parallel case Total Marketing Services v Commission (C‑634/13 P), pending before the Court. 177. With that sole reservation, I am of the opinion that the last three pleas cannot be upheld. VI – Conclusion 178. In the light of the foregoing considerations, I propose that the Court should: (1) dismiss the appeal; (2) order Total SA to pay the costs. 1 Original language: French. 2 T‑548/08, EU:T:2013:434, ‘the judgment under appeal’. 3 In the present case, the judgment given on the same day as the judgment under appeal in Total Raffinage Marketing v Commission (T‑566/08, EU:T:2013:423). 4 According to that provision, ‘[t]he institution whose act has been declared void ... shall be required to take the necessary measures to comply with the judgment of the Court of Justice of the European Union’. 5 C‑286/11 P, EU:C:2013:29. 6 OJ 2006 C 210, p. 2 (‘the 2006 Guidelines’). 7 Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1). 8 It should be noted that, in its response, the Commission also made reference to the inadmissibility of the plea, but that it eventually reconsidered this in its rejoinder. 9 Paragraph 43 of that judgment. 10 Judgment in Tomkins v Commission (T‑382/06, EU:T:2011:112, paragraph 38). 11 That finding follows, in my view, from paragraph 37 of the judgment in Commission v Tomkins (C‑286/11 P, EU:C:2013:29), according to which ‘[the] considerations [put forward by the Commission] are not sufficient to cast doubt on the General Court’s finding at paragraph 38 of the judgment under appeal’. 12 C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraphs 137 and 138. 13 C‑50/12 P, EU:C:2013:771, paragraph 58. 14 In this case, the Commission had, in the contested decision, imposed a fine of EUR 34 million on the applicant and a fine of EUR 2.2 million on its subsidiary, Fardem Packaging BV. 15 C‑243/12 P, EU:C:2014:2006. 16 See the summary of the arguments put forward by FLS Plast A/S before the Court in paragraphs 93 to 96 of the judgment. 17 Judgment in FLS Plast v Commission (C‑243/12 P, EU:C:2014:2006, paragraph 107). 18 A clear distinction must be made between the situation referred to here and a situation where a fine is imposed on the parent company for its own conduct and the amount of that fine may, therefore, be different to the amount of the fine imposed on its subsidiary. 19 See judgment in Akzo Nobel and Others v Commission (C‑97/08 P, EU:C:2009:536, paragraph 54 and the case-law cited). 20 See, inter alia, judgment in Commission and Others v Siemens Österreich and Others (C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraphs 43 and 45 and the case-law cited). 21 See judgment in Akzo Nobel and Others v Commission (C‑243/12 P, EU:C:2009:536, paragraphs 58 and 59 and the case-law cited). 22 For recent use of that phrase, see, inter alia, judgments in Commission v ParkerHannifin Manufacturing and Parker-Hannifin (C‑434/13 P, EU:C:2014:2456, paragraphs 39 and 51 and the case-law cited); Schindler Holding and Others v Commission (C‑501/11 P, EU:C:2013:522, paragraph 101), and CommissionandOthers v Siemens Österreich and Others (C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 44 and the case-law cited). 23 See judgment in Commission and Others v Siemens Österreich and Others (C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 47 and the case-law cited). 24 Bernardeau, L., and Christienne, J.-P., Les amendes en droit de la concurrence — Pratique décisionnelle et contrôle juridictionnel du droit de l’Union, 1st edition, Larcier — Europe(s) series, Brussels, 2013, in particular section II.1231. 25 C‑310/97 P, EU:C:1999:407. 26 Judgment in Commission v AssiDomänKraftProductsandOthers, (C‑310/97 P, EU:C:1999:407, paragraph 52 and the case-law cited). 27 Ibid. (paragraph 53). 28 C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 141. 29 In the judgment in Commission v AssiDomän Kraft Products and Others (C‑310/97 P, EU:C:1999:407 paragraph 56), the Court pointed out that Article 176 EC (now Article 266 TFEU) did not mean that the Commission must, at the request of interested parties, re-examine identical or similar decisions allegedly affected by the same irregularity, addressed to addressees other than the applicant. 30 That is so in the present case. The approach which the Commission adopted in this case is, however, contradicted by that taken in other cases, where the Commission seems, on the contrary, to submit that, by reducing the fine imposed on an undertaking, notwithstanding the absence of any such request in the action brought by the latter, the General Court had encroached on the Commission’s responsibilities under the first paragraph of Article 266 TFEU (see, inter alia, judgment in Alliance One International v Commission, C‑679/11 P, EU:C:2013:606, paragraphs 93 and 107). 31 See, to that effect, the Opinions of Advocate General Mengozzi in Commission v Tomkins (C‑286/11 P, EU:C:2012:499, point 37), and of Advocate General Poiares Maduro in Groupe Danone v Commission (C‑3/06 P, EU:C:2006:720, point 49). 32 T‑386/06, EU:T:2011:115. 33 Although the wording of the plea can, in some respects, cause confusion, the appellant is referring to a modification of the nature of the liability, and not only to the liability being rendered more serious. 34 For a recent reminder of that requirement, see judgment in OHIM v National Lottery Commission (C‑530/12 P, EU:C:2014:186, paragraph 54 and the case-law cited). 35 See, inter alia, judgment in Gascogne Sack Deutschland v Commission (C‑40/12 P, EU:C:2013:768, paragraph 81 and the case-law cited). 36 See, inter alia, judgments in KME Germany and Others v Commission (C‑272/09 P, EU:C:2011:810, paragraph 104); Chalkor v Commission (C‑386/10 P, EU:C:2011:815, paragraph 64); and KME Germany and Others v Commission (C‑389/10 P, EU:C:2011:816, paragraph 131). 37 This is demonstrated by the fact that it was rejected as a new plea before the Court (see judgments in Langnese-Iglo v Commission, C‑279/95 P, EU:C:1998:447, paragraphs 53 to 56, and The Dow Chemical Company v Commission, C‑179/12 P, EU:C:2013:605, paragraphs 80 to 83). 38 C‑521/09 P, EU:C:2011:620, paragraphs 150 to 165. 39 Paragraphs 88 to 93 and 94 to 96 of the judgment under appeal. 40 See, inter alia, judgment in Elf Aquitaine v Commission (C‑521/09 P, EU:C:2011:620, paragraph 148 and the case-law cited). 41 See judgment in Gascogne Sack Deutschland v Commission (C‑40/12 P, EU:C:2013:768, paragraphs 46 to 55 and 61 to 64). 42 See paragraph 9 of that judgment, which refers to the General Court’s examination of the second plea raised before it, alleging inadequate reasoning. 43 See judgment in Elf Aquitaine v Commission (C‑521/09 P, EU:C:2011:620, paragraphs 144 to 155). 44 Ibid. (paragraph 168). 45 Commission Decision C(2003) 4570 final of 10 December 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-2/37.857 — Organic peroxides) (OJ 2005 L 110, p. 44). 46 Namely, Commission Decision C(2004) 4876 final of 19 January 2005 relating to a proceeding pursuant to Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/E-1/37.773 — AMCA) (see judgment in Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraphs 163 to 167). 47 See judgment in Elf Aquitaine v Commission (C‑521/09 P, EU:C:2011:620, paragraph 170). 48 The assessment of the company held liable for the infringement, namely, the appellant, is set out in about 20 recitals (recitals 574 to 586 of the contested decision). 49 See, inter alia, judgment in Akzo Nobel and Others v Commission (C‑243/12 P, EU:C:2009:536, paragraphs 58 to 63 and the case-law cited). 50 See the examination of the fourth plea in paragraphs 67 to 102 of the judgment under appeal. 51 That is the case in paragraphs 80 and 99 of the judgment under appeal. 52 See, inter alia, judgment in Commission v Deutsche Post (C‑399/08 P, EU:C:2010:481, paragraph 75 and the case-law cited). 53 See paragraphs 191 to 224 of the judgment under appeal. 54 Ibid. (paragraphs 193 to 204). 55 Ibid. (paragraphs 208 to 220 and 222 to 223). 56 See the first sentence of paragraph 212 of the judgment under appeal. 57 See the third sentence of paragraph 212 of the judgment under appeal. 58 See, to that effect, judgment in Siemens and Others v Commission (C‑239/11 P, C‑489/11 P and C‑498/11 P, EU:C:2013:866, paragraph 340). 59 See, inter alia, judgment in E.ON Energie v Commission (C‑89/11 P, EU:C:2012:738, paragraph 125 and the case-law cited). 60 See, in that regard, paragraph 215 of the judgment under appeal.