Opinion of the Advocate General — ECLI:EU:C:2010:634
Date: 2010-10-26
Language of the case: French
Based on: Treaty establishing the European Coal and Steel Community (1951)
Subject matter: ECSC matters;Agreements and concentrations
Procedure: Action for annulment;Appeal - unfounded
Origin: Luxembourg

summary form in the Official Journal of the European Union (OJ 2008 C 235, p. 4; ‘the contested decision’). 7 – Case T‑24/07 [2009] ECR II‑2309. 8 – Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). 9 – OJ 1978 L 94, p. 22. The rules originated in Regulation (EEC) No 2988/74 of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1), which is not applicable in the present case. 10 – Decision of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams (OJ 1994 L 116, p. 1; ‘the initial decision’). 11 – Case T‑137/94 [1999] ECR II‑303. 12 – Case C‑176/99 P [2003] ECR I‑10687. 13 – Convention signed in Rome on 4 November 1950 (‘the ECHR’). 14 – On this question, see Case C‑272/09 P KME Germany and Others v Commission and Case C‑73/10 P Internationale Fruchtimport Gesellschaft Weichert v Commission, both currently pending before the Court. 15 – See Eur. Court HR, Engel and Othersv.the Netherlands, 8 June 1976, § 82, Series A no. 22. For an account of the case-law of the European Court of Human Rights on the application of these criteria, see Eur. Court HR, Jussila v. Finland [GC], no. 73053/01, §§ 29 to 39, ECHR 2006-XIV. 16 – See Eur. Court HR, Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 86, ECHR 2003-X. 17 – For example, concerning an administrative penalty imposed following a road traffic accident, see Eur. Court HR, Öztürk v. Germany, 21 February 1984, Series A no. 73; concerning a penalty imposed for a customs offence, see Eur. Court HR, Salabiaku v. France, 7 October 1988, Series A no. 141-A; concerning a penalty imposed by the French Financial Markets Board, see Eur. Court HR, Didier v. France (dec.), no. 58188/00, ECHR 2002-VII; concerning a tax surcharge imposed in the context of a reassessment by the tax authorities, see Eur. Court HR, Jussila v. Finland; and, concerning a reprimand given by the French Banking Commission, see Eur. Court HR, Dubus S.A. v. France, no 5242/04, 11 June 2009. 18 – In that regard, see Eur. Commission HR, Melchers and Co. v. Germany, decision of 9 February 1990, and Société Stenuit v. France, decision of 30 May 1991, and Eur. Court HR, Lilly v. France (dec.), 3 December 2002. See also Eur. Court HR, Jussila v. Finland, § 43, and Dubus S.A. v. France, § 35, and also, for an isolated interpretation, Eur. Court HR, OOO Neste and Others v. Russia, 3 June 2004. 19 – Case C‑49/92 P [1999] ECR I‑4125. 20 – Paragraph 78. This decision has been followed (see Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 77). 21 – Case C‑199/92 P [1999] ECR I‑4287. 22 – Paragraph 150. 23 – Joined Cases 209/78 to 215/78 and 218/78 [1980] ECR 3125. 24 – OJ 2010 C 83, p. 389; ‘the Charter’. 25 – Case C‑310/97 P [1999] ECR I‑5363. 26 – Joined Cases C‑283/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P [2002] ECR I‑8375, paragraph 144. The Commission also refers to Case C‑278/02 Handlbauer [2004] ECR I‑6171, paragraph 40. 27 – It will be recalled that this is the regulation concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (see footnote 9). 28 – Joined Cases C‑74/00 P and C‑75/00 P [2002] ECR I‑7869. 29 – Paragraphs 139 and 140. See also Joined Cases C‑172/01 P, C‑175/01 P, C‑176/01 P and C‑180/01 P International Power and Others v NALOO [2003] ECR I‑11421, paragraphs 106 and 107. 30 – See my argument at points 224 to 235 of this Opinion. 31 – See paragraphs 58, 83, 117 and 133 of the cross-appeal lodged by ProfilARBED and TradeARBED in their response to the Commission’s appeal (Case C‑216/09 P). 32 – Case 23/68 [1969] ECR 43. 33 – Case C‑119/05 [2007] ECR I‑6199. 34 – Case C‑61/98 [1999] ECR I‑5003, paragraphs 14 and 48. 35 – Case T‑166/01 [2006] ECR II‑2875, paragraph 142. 36 – The Commission did likewise in a decision on the grant of State aid (see Case T‑25/04 González y Díez v Commission [2007] ECR II‑3121). 37 – See recitals 473 to 479 to the decision at issue. 38 – First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87). 39 – OJ 2002 C 152, p. 5. 40 – Joined Cases T‑27/03, T‑46/03, T‑58/03, T‑79/03, T‑80/03, T‑97/03 and T‑98/03 [2007] ECR II‑4331. 41 – See Case C‑269/97 Commission v Council [2000] ECR I‑2257, where the Court held that ‘Community measures must be adopted in accordance with the Treaty rules in force at the time of their adoption’ (paragraph 45). 42 – See Case C‑408/04 P Commission v Salzgitter [2008] ECR I‑2767, paragraph 88 and the case-law there cited. 43 – See Case C‑18/94 Hopkins and Others [1996] ECR I‑2281, paragraph 14 and the case-law there cited. 44 – Joined Cases 27/59 and 39/59 Campolongo v High Authority [1960] ECR 391, at 405. 45 – See Opinion 1/91 of 14 December 1991 [1991] ECR I‑6079, paragraph 21. 46 – Klomp, paragraph 13. 47 – Case C‑221/88 [1990] ECR I‑495, paragraphs 8 to 16. 48 – Emphasis added. 49 – Busseni, paragraph 16. 50 – Lucchini, paragraph 41. 51 – Paragraph 61 of the judgment under appeal. 52 – It is interesting to note in that regard that, in accordance with the guidelines drawn up by the Union legislature in 1998, the calculation of the fine imposed on an undertaking which has infringed Article 65(1) CS or Article 81(1) EC is based on criteria laid down in the context of the EC Treaty, namely the gravity and duration of the infringement (see the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3)). 53 – Paragraph 63 of the judgment under appeal. 54 – See Case C‑450/06 Varec [2008] ECR I‑581, where the Court observed that procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying, in principle, to situations existing before their entry into force (paragraph 27). 55 – As an exception to that rule, the Court considers that substantive rules may apply to situations existing before their entry into force where examination of their wording, their objectives or their structure allows such an effect to be attributed to them (Varec). 56 – Case C‑280/08 P Deutsche Telekom v Commission [2010] ECR I-0000, paragraphs 130 to 137. See also Case C‑259/96 P Council v de Nil and Impens [1998] ECR I‑2915, paragraphs 32 to 34; C‑449/98 P IECC v Commission [2001] ECR I‑3875, paragraph 70; and orders of the President in Case C‑145/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 58; Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 52; and Case C‑159/98 P(R) Netherlands Antilles v Council [1998] ECR I‑4147, paragraph 70. 57 – Case C‑274/99 P [2001] ECR I‑1611. 58 – Paragraph 120. 59 – Paragraph 121. See also Case C‑197/99 P Belgium v Commission [2003] ECR I‑8461, paragraph 81. 60 – Article 16 provides that ‘[t]he freedom to conduct a business in accordance with Community law and national laws and practices is recognised’. It covers different freedoms, including freedom to carry on an economic activity and also freedom of competition. 61 – See points 57 to 89 of the Commission’s response in Case C‑201/09 P and points 52 to 80 of its reply in Case C‑216/09 P. 62 – Case T‑304/02 [2006] ECR II‑1887. 63 – Paragraph 118. 64 – Case 107/82 [1983] ECR 3151. 65 – Case C‑286/98 P [2000] ECR I‑9925. 66 – Paragraph 99 of the judgment under appeal. 67 – See Case 170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11, and Case C‑407/08 P Knauf Gips v Commission [2010] ECR I-0000, paragraphs 64 and 65 and the case-law there cited. 68 – Case T‑102/92 Viho v Commission [1995] ECR II‑17, paragraph 50. 69 – See 48/69 Imperial Chemical Industries v Commission [1972] ECR 619, paragraph 134. 70 – Case 6/72 [1973] ECR 215. 71 – Paragraph 15. See also Akzo Nobel and Others v Commission, paragraph 58. 72 – Akzo Nobel and Others v Commission, paragraph 59. 73 – Commission v Anic Partecipazioni, paragraph 78. See also Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 39 and the case-law there cited. 74 – See, in that regard, Case C‑248/98 P KNP BT v Commission [2000] ECR I‑9641, paragraph 71; Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693, paragraph 78; Stora Kopparbergs Bergslags v Commission, paragraph 37; Case C‑297/98 P SCA Holding v Commission [2000] ECR I‑10101, paragraph 25; and ETI and Others, paragraph 39 and the case-law there cited. 75 – In such a situation, the Court considers that the objective of punishing behaviour contrary to the competition rules and of preventing its repetition by means of deterrent penalties would be compromised (see ETI and Others, paragraph 41 and the case-law there cited). 76 – ProfilARBED is also a wholly-owned subsidiary of ARBED. 77 – Point 40. 78 – Paragraphs 28 and 29. 79 – Paragraph 62. 80 – In the present case, it follows from paragraphs 97 and 98 of the judgment under appeal, which are not challenged in the appeal in Case C‑201/09 P, that: 1) TradeARBED was a sales company which distributed ARBED’s steel products, in particular steel beams, by acting either as an agent, in which case the sale was invoiced directly to the customer by ARBED, or as a commission agent, in which case the sale was invoiced to the customer by TradeARBED on behalf of ARBED, TradeARBED receiving in both cases a commission on the product sold; 2) throughout the administrative procedure culminating in the initial decision, ARBED or TradeARBED, as applicable, had responded without distinction to the requests for information which the Commission addressed to TradeARBED; and 3) ARBED had even spontaneously regarded itself as the addressee of the statement of objections formally notified to TradeARBED and had instructed a lawyer to defend its interests. 81 – See, as regards respect for the rights of the defence, Joined Cases C‑322/07 P, C‑327/07 P and C-338/07 P Papierfabrik August Koehler and Others v Commission [2009] ECR I‑7191, paragraph 34 and the case-law there cited, and, as regards the principle of the presumption of innocence, Hüls v Commission, paragraphs 149 and 150. 82 – Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14. 83 – § 28. See also Eur. Court HR, Janosevic v. Sweden, ECHR 2002-VII, in which the Court stated that the Contracting States are required to strike a balance between the importance of what is at stake and the rights of the defence; in other words, the means employed have to be reasonably proportionate to the legitimate aim sought to be achieved (§ 101). 84 – § 100. 85 – § 104. 86 – Paragraph 60. 87 – Case T‑85/06; the appeal is currently pending before the Court (Case C‑90/09 P). 88 – Case T‑168/05 [2009] ECR II-0000. This judgment is the subject of an appeal currently pending before the Court (Case C‑520/09 P). 89 – Case T‑174/05 [2009] ECR II-0000. This judgment is the subject of an appeal currently pending before the Court (Case C‑521/09 P). 90 – Paragraph 65. 91 – See, in particular, the General Court’s assessment in Elf Aquitaine v Commission of the various items of evidence produced in that regard by Elf Aquitaine SA (paragraphs 160 to 174). 92 – I am therefore in agreement with the Opinion delivered by Advocate General Mischo in Stora Kopparbergs Bergslags v Commission. A number of judgments of the General Court have taken the same approach. See, in particular, Case T‑325/01 DaimlerChrysler v Commission [2005] ECR II‑3319, paragraph 218, and Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré v Commission [2007] ECR II‑947, paragraph 132 and the case-law there cited. The Commission has also taken care, in a number of decisions, to corroborate that presumption with other elements, such as the fact that the parent company played an active role in the administrative procedure (Commission Decision 94/601/EC of 13 July 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/C/33.833 – Cartonboard) (OJ 1994 L 243, p. 1)); the fact that the parent company and the subsidiary had the same management (Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E-1/37.391) – Bank charges for exchanging euro-zone currencies – Germany (OJ 2003 L 15, p. 1) and Commission Decision 2004/337/EC of 20 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement – Case COMP/E-1/36.212 – Carbonless paper (OJ 2004 L 115, p. 1)); the fact that a member of the parent company’s legal department was present during the investigations carried out by the Commission at the subsidiary’s premises (Commission Decision 2003/355/EC of 9 April 2003 amending Decision 2003/207/EC relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E-3/36.700 – Industrial and medical gases) (OJ 2003 L 123, p. 49)); the fact that the parent company’s management board and operational management were coordinated with those of the subsidiaries (Commission Decision 2004/421/EC of 16 December 2003 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement against Wieland Werke AG, Outokumpu Copper Products OY, Outokumpu Oyj, KM Europa Metal AG, Tréfimétaux SA and Europa Metalli SpA (Case C.38.240 – Industrial tubes) (OJ 2004 L 125, p. 50)); and the fact that several subsidiaries participated in parallel in the cartel (Commission Decision 2006/895/EC of 26 May 2004 relating to a proceeding under Article 81 of the EC Treaty against The Topps Company Inc, Topps Europe Limited, Topps International Limited, Topps UK Limited and Topps Italia SRL (Case COMP/C-3/37.980 – Souris-Topps) (OJ 2006 L 353, p. 5)). 93 – See footnote 80. 94 – See, in particular, Case C‑294/98 P Metsä-Serla and Others v Commission [2000] ECR I‑10065, paragraph 28. 95 – Emphasis added. 96 – Case T‑276/04 [2008] ECR II‑1277. 97 – It will be recalled that, at that paragraph, the General Court held that an undertaking ‘which has participated in the infringement’ must be taken to mean any undertaking identified as such in the final Commission decision. I do not share that point of view, for the reasons which the General Court itself states at paragraph 145 of the judgment under appeal, namely that the description of an undertaking ‘which has participated in the infringement’ implies an objective fact, namely participation in the infringement, which is distinguished from a subjective and contingent element such as the identification of such an undertaking during the administrative procedure. Thus, the General Court recognises that an undertaking may have participated in the infringement without the Commission being aware that it has done so when it adopts an act interrupting the limitation period. In fact, such a situation cannot be ruled out at the time when the Commission adopts a final decision. 98 – See, in particular, Metsä-Serla and Others v Commission, paragraph 28. 99 – While I consider that, in the light of the plea raised by ARBED, the General Court did not err in law in applying to it the acts interrupting the limitation period, I must none the less admit to having some reservations about the way in which it calculated the limitation period with respect to ARBED at paragraphs 148 and 149 of the judgment under appeal. I think that the General Court did not properly take into account the effects of the judgment annulling the initial decision so far as ARBED was concerned. None the less, that question was not argued by the parties, which is why I shall merely make an observation, in connection with ThyssenKrupp Nirosta v Commission (points 198 to 212 of my Opinion in that case). I shall proceed from the principle enshrined in the texts and the case-law. In that regard, I refer, first, to the wording of the first paragraph of Article 264(1) TFEU, which provides that ‘[i]f the action is well founded the Court … shall declare the act concerned to be void’, and, second, to Case 22/70 Commission v Council [1971] ECR 263, paragraphs 59 and 60; Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 30; and Case C‑228/92 Roquette Frères [1994] ECR I‑1445, paragraph 17, according to which an annulment judgment entails the retroactive disappearance of the act at issue and also the cancellation of its effects. As the Court has stated, that means that the parties must be placed back in the same position as they were in before the act which has been annulled was adopted. By virtue of those principles, and for the reasons which I set out in my Opinion in that case, it appears to me that the annulment of a Commission decision as the outcome of the judicial proceedings must render the suspension of the limitation period, like the decision itself, retroactively non-existent. 100 – See, in particular, Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, paragraph 68 and the case-law there cited. 101 – See, in particular, Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 66 and the case-law there cited. 102 – Case C‑113/04 P [2006] ECR I‑8831, paragraph 55. 103 – Compliance with the reasonable time requirement in the conduct of an administrative procedure in a competition matter is a general principle of European Union law. Observance of that principle is binding, first of all, on the Commission, responsible for the administrative phase of the procedure, in accordance with Article 41(1) of the Charter (the right to proper administration) (see, in that regard, Joined Cases T‑213/95 and T‑18/96 SCK and FNK v Commission [1997] ECR II‑1739, paragraphs 55 and 56 and the case-law there cited). It is also binding on the Union judicature, responsible for reviewing the lawfulness of Commission decisions, under Article 47(2) of the Charter. On the latter point, see Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, in which the Court introduced the right to be heard within a reasonable time in the context of competition procedures, and Case C‑385/07 P Der Grüne Punkt – Duales System Deutschland v Commission [2009] ECR I‑6155, in which the Court considered that failure to comply with that obligation could give rise to a claim for compensation by means of an action against the Community under Article 268 TFEU and the second paragraph of Article 340 TFEU. 104 – In that regard, the Court observes at paragraph 54 of Technische Unie v Commission, that ‘the more time that elapses between a measure of investigation … and the notification of the statement of objections, the more unlikely it becomes that exculpatory evidence relating to the infringements set out in the statement of objections can be obtained, owing, in particular, to the changes that may have come about in the managing boards of the undertakings concerned and to the movements affecting their other staff’. 105 – Ibid, paragraph 55. 106 – Ibid, paragraph 61. 107 – Technische Unie v Commission, paragraphs 64 to 70. See also Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I‑8725, paragraphs 56 to 60. 108 – It will be recalled that this Court annulled the initial decision in so far as it concerned ARBED, owing to a breach of its rights of defence. The General Court expressly refers to that at paragraph 148 of the judgment under appeal. 109 – In that regard, see the provisions and case-law referred to in footnote 99. 110 – In Case C‑526/08 Commission v Luxembourg [2010] ECR I-0000 the Court referred to the importance, in both the legal order of the European Union and the national legal systems, of the principle of res judicata (paragraph 26 and the case-law there cited). That principle is the expression of the fundamental principle of legal certainty (see, in that regard, Case C‑126/97 Eco Swiss [1999] ECR I‑3055, paragraph 46, and Eur. Court HR, Brumărescu v. Romania [GC], no. 28342/95, ECHR 1999-VII, where the court stated in plain words that legal certainty requires that ‘where the courts have finally determined an issue, their ruling should not be called into question’ (§ 61). 111 – This decision was not annulled so far as it concerned TradeARBED.