Opinion of the Advocate General — ECLI:EU:C:2014:66
Date: 2014-02-12
Language of the case: English
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment - unfounded;Appeal - unfounded;Action for annulment - successful;Appeal - successful;Appeal against penalty
Origin: Germany;Netherlands

summary, for the Commission, only the undertaking liable during the last stages of the infringement and at the time of the adoption of the final decision is the appropriate reference entity for assessing questions of liability and of deterrent effect, in so far as the Commission establishes that that undertaking (that is to say the entity which consists of the new parent companies) itself participated in the infringement. For those same reasons, the Commission submits that the appellants cannot reasonably claim that the fine was imposed in breach of the principle of proportionality or that of equal treatment. 85. As I stated in the introduction to this Opinion, this ground of appeal raises an important question of competition law which has not yet been resolved by the Court, namely the determination of the legal upper limit of the fine as provided for in Article 23(2) of Regulation No 1/2003 in the event of successive liabilities within the context of the same cartel, and more precisely where an entity participating in the infringement comes under the control of another undertaking during the period of the cartel. 86. That provision of Regulation No 1/2003 provides that ‘[f]or each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10 % of its total turnover in the preceding business year’ (my emphasis). 87. The Court is therefore called upon to interpret for the first time the notion of ‘undertaking participating in the infringement’ within the meaning of Article 23(2) of that regulation – in particular in the light of the principle of personal responsibility (namely that the penalties must be specific to the offender as well as to the offence) – in a situation where the undertaking in question was held solely liable for payment of part of the fine for a particular period and was subsequently acquired by another undertaking. 88. It should be noted here that that question was also recently posed before the Court in Gascogne Sack Deutschland v Commission. Indeed, that question was dealt with thoroughly by Advocate General Sharpston in the Opinion which she delivered in that case. Pending the forthcoming judgment of the Grand Chamber (which was pronounced on 26 November 2013), the Opinion of the Advocate General was very naturally at the heart of the debate at the hearing in the present case on 16 October 2013. (42) 89. Unfortunately, the Grand Chamber did not resolve the question as it rejected the related arguments as inadmissible. It is a shame in particular as the Court has never had to interpret Article 23(2) of Regulation No 1/2003 in circumstances such as those in Gascogne Sack Deutschland v Commission (or those in the present case) and the Commission’s practice (and the related case-law of the General Court) are not uniform, which has inevitable consequences for legal certainty. 90. I will start from the reasoning of Miss Sharpston in Gascogne Sack Deutschland v Commission. 91. First, as she states in paragraph 83 of her Opinion, ‘the second subparagraph of Article 23(2) of Regulation No 1/2003 states that “[f]or each undertaking … participating in the infringement … the fine shall not exceed 10% of its worldwide turnover in the preceding business year.” The General Court did not make an express finding itself, but implicitly accepted the Commission’s finding in the decision that [Gascogne Sack Deutschland (GSD)] was wholly responsible for the infringement in the period before its acquisition by Groupe Gascogne … Since GSD was the undertaking participating in the infringement during the period from 9 February 1988 to 1 January 1994, it alone appears to be the “undertaking” that falls within Article 23(2) of Regulation No 1/2003 in relation to the infringement committed during that period’. Furthermore, in paragraph 84 of her Opinion, she mentions that, ‘[f]or the later period, from 1 January 1994 to 26 June 2002, the “undertaking” participating in the infringement was Groupe Gascogne (by virtue of the presumption of decisive influence) as well as GSD (in actual fact). Accordingly, both companies are jointly and severally liable for that period’. 92. Secondly, in paragraph 85 of that Opinion, she notes that ‘where the identity of the perpetrator changes during the course of an infringement because the subsidiary is subsequently wholly acquired by a parent company, the word “undertaking” in the second subparagraph of Article 23(2) of Regulation No 1/2003 is sufficiently wide to encompass such a “variable geometry”’. 93. Thirdly, according to paragraph 86 of that Opinion, ‘although the penalty concerns the subsidiary’s past actions, in setting the 10% upper limit Article 23(2) of Regulation No 1/2003 requires the reference point to be set at the time of the Commission decision. In that respect a subsidiary’s position is no different from that of any other undertaking insofar as the 10% upper limit is set by reference to turnover in the business year preceding the Commission’s decision. Accordingly, it is important to distinguish the subsidiary’s turnover from that of its parent; and the 10% upper limit applied to that subsidiary in respect of a fine imposed for a period prior to its acquisition by the parent should be determined by reference to its turnover alone’. 94. Fourthly, as Advocate General Sharpston states in paragraph 87 of her Opinion, ‘such an interpretation seems … more consistent with the objectives of Article 23(2) than the Commission’s approach [in Gascogne Sack Deutschland v Commission just like that in question here]. The purpose of the 10% upper limit is to protect an undertaking against excessive fines which could destroy it commercially. (43) Where a subsidiary is penalised for an infringement for which it is wholly liable, subject to an upper limit calculated on the basis of the worldwide turnover of an entire group, that is more likely to generate a higher figure (as 10% of the worldwide turnover of a corporate group will normally be greater than the 10% turnover of a single subsidiary). Thus, that method of calculation will result in the imposition of a higher fine than if the 10% upper limit were established by reference to the subsidiary’s sole turnover’. 95. Advocate General Sharpston adds in paragraph 89 of her Opinion that ‘it seems reasonable to assume that, in circumstances like the present, the Commission divides up responsibility for the periods before and after acquisition by the parent company in order to reflect the principle of personal responsibility. (44) It is because the subsidiary’s anti‑competitive behaviour during the earlier period was committed before it and the parent comprised the same undertaking that the parent company is not held jointly and severally liable for that period of the infringement. By analogy, however, it seems to me very difficult to justify taking account of the worldwide turnover of the group to determine the 10% upper limit in relation to a fine that the subsidiary alone must pay, imposed in respect of an infringement which the parent company did not itself commit and which is not attributed to it for the period in question’. 96. I agree with Advocate General Sharpston’s assessments in that respect for the following reasons. 1. The notion of ‘undertaking’ within the meaning of Article 23(2) of Regulation No 1/2003 97. First of all, the notion of ‘undertaking’ within the meaning of Article 23(2) of Regulation No 1/2003 must be the same as the notion of the undertaking liable under Article 81 EC. 98. I observe that the Commission held that YKK Stocko was solely liable for payment of part of the fine, namely EUR 19 250 000. Article 1(1) and Article 2(1) of the contested decision imposed a fine of EUR 68 250 000 on YKK Stocko, of which YKK Corp. and YKK Holding are held jointly and severally liable for payment amounting to EUR 49 000 000. The EUR 19 250 000 correspond therefore to around 55% of YKK Stocko’s turnover in 2006. (45) 99. The contested decision clearly indicates that the Commission held YKK Stocko exclusively liable for payment of that part of the fine because YKK Stocko was also considered to be solely liable for part of the period during which the infringements committed within the framework of the BWA cooperation were established. 100. Recital 429 of the contested decision states that YKK Corp., YKK Holding Europe BV and YKK Stocko ‘should be held jointly and severally liable for the infringements committed within the framework of the [BWA] cooperation, described in section 4.2 of this Decision, as of the moment [YKK Stocko] became a wholly owned subsidiary of [YKK Holding] and, therefore, [YKK Corp.], that is to say from March 1997 until 15 March 2001. [YKK Stocko] should be held responsible for the whole period it participated in the [BWA] cooperation, that is to say 24 May 1991 until 15 March 2001’ (my emphasis). 101. Then, in footnote 586 of the contested decision, as regards the determination of the fine, under the title ‘increase of the fines for duration’, the Commission states that ‘the increased starting amount of 40% concerns the period for which [YKK Stocko], [YKK Holding] and [YKK Corp.] are held jointly and severally liable [namely four years]. The rest of the increase in percentage terms concerns the period for which [YKK Stocko] is held exclusively liable’ (46) (namely the remaining 55%, that is to say five years and nine months). 102. The Commission therefore properly apportioned the responsibilities of each undertaking, given that before March 1997 (date of acquisition of YKK Stocko by YKK Holding), YKK Stocko and the YKK group were two separate companies, thus constituting two ‘economic entities’ or undertakings within the meaning of Article 81 EC and Article 23(2) of Regulation No 1/2003. (47) 103. As the Commission held YKK Stocko solely liable for the first five and a half years of the BWA cooperation (and for payment of part of the fine), that necessarily implies that it was ‘a single economic unit’ (an independent economic entity) during that period. 104. On that basis, instead of calculating the 10% upper limit on the basis of the turnover of the largest of the two undertakings (the one which arose in 1997 from the purchase of YKK Stocko by the YKK group), the Commission should logically have applied two separate 10% upper limits. 105. Article 23(2) of Regulation No 1/2003 requires that ‘[f]or each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10 % of its total turnover in the preceding business year’ (my emphasis). 106. The Court has stated (48) that ‘[the] limit [of 10% relating to the turnover provided for in Article 23(2) of Regulation No 1/2003] [rightly] seeks to prevent fines [imposed by the Commission] from being disproportionate in relation to the size of the undertaking’ and that ‘[the] sum [of the fine may] not [exceed] 10% of the turnover in the preceding business year of each of the undertakings participating in the infringement’ (my emphasis). 107. When interpreting that article, it is necessary to bear in mind the fundamental link between liability and the fine. I am of the opinion that that provision requires (a) that only the turnover of the undertaking held liable may be taken into consideration for the purposes of calculating the 10% upper limit and (b) that, in a case where different undertakings have in turn participated in a cartel, the 10% upper limit be calculated on their respective turnovers. 108. I further note that the Commission’s decision-making practice in that respect is inconsistent. 109. In other decisions, the Commission has already applied various 10% upper limits according to the infringement period in question. 110. Accordingly, in Decision 2005/349/EC (49) (the ‘Organic peroxides decision’), the Commission calculated the 10% on the turnover of the subsidiaries for the period during which they were considered exclusively liable, whereas for the period of joint liability of the parent company and the subsidiaries, it relied on the turnover of the group. 111. In Gascogne Sack Deutschland v Commission, Advocate General Sharpston indeed considered that ‘[i]t seems to [her] that the approach applied in the Organic peroxides decision is more consistent with the wording and objectives of Article 23(2) of Regulation No 1/2003 than the approach adopted in the present case’. 112. In 2011, the Commission followed the same approach in a decision (the ‘Prestressing Steel decision’). (50) 113. In that decision, the Commission implicitly acknowledged the merits of the ground of appeal relied upon by the appellants in the present case (namely the ground of appeal alleging incorrect application of the 10% upper limit) and amended its initial decision by reducing the fines imposed on several entities whose exclusive liability had been established for the period prior to their acquisition by the group. The Commission made that reduction ‘in order to ensure that the level of those fines was not disproportionate to their own size and turnover. … The Commission reduced the relevant fines to [10%] of the legal entities’ own turnovers’ (my emphasis). (51) 114. The variable practice of the Commission shows at least that it has no reason in principle to decide as it did in this case. Furthermore, the arguments which it puts forward to apply one rather than two separate 10% upper limits are hardly convincing. 115. At the hearing, the Commission mentioned that in the cases concerning the Organic peroxides and Prestressing Steel decisions, the parent company was jointly and severally liable only for seven of the 27 and three of the 17 years, respectively, that the infringement had lasted, suggesting that the corresponding figures in the present case, namely four years out of nine years and nine months of infringement, required a different approach. 116. Besides the difficulty of determining or drawing such a boundary in precise figures, I cannot see any reason in principle (nor any grounds in the present case) for not applying two separate 10% upper limits, which in my opinion constitutes a correct interpretation of Article 23(2) of Regulation No 1/2003. 117. Nor is that analysis called into question by the other arguments put forward by the Commission (namely the complexity of the calculations or the risks of abuse). Why are the calculations more complex in this case than in the Organic peroxides and Prestressing Steel decisions? (52) As for the risk that the parent or acquiring company will artificially reduce the turnover of the subsidiary held liable, the Commission did not refer to it in the contested decision nor did it provide the slightest prima facie evidence in the file in question. 118. It follows from the foregoing that the General Court infringed Article 23(2) of Regulation No 1/2003 because only the subsidiary (YKK Stocko) ought to have been considered to be the ‘undertaking participating in the infringement’ for the first period and, therefore, its turnover and not that of the group should have been taken into account when calculating the 10% upper limit. 2. The principle of personal responsibility and of the individualisation of penalties 119. I also think that the approach adopted by the Commission and the General Court in the present case runs counter to the principles of personal responsibility and the individualisation of penalties. 120. It is clear that the Commission can order an undertaking to pay a fine only if it is in a position to prove that that undertaking committed an infringement within the meaning of Article 81 EC or participated in it. The logical and legal link between fault and liability, on the one hand, and the penalty, on the other, necessarily implies that a fine must be determined in relation to the undertaking responsible (that is to say the undertaking which participated in the infringement). 121. According to that basic principle, which is the subject of settled case-law and which, in any event, applies to any administrative procedure that may give rise to penalties under EU competition rules, an undertaking may be penalised only for acts imputed to it individually. (53) 122. The penalties must be individualised in the sense that they must relate to the individual conduct and specific characteristics of the undertakings concerned. (54) 123. Furthermore, it falls, in principle, to the legal or natural person managing the undertaking in question when the infringement was committed to answer for that infringement, even though, at the time of the decision finding the infringement, the operation of the undertaking was no longer its responsibility. (55) 124. In particular, the Court has already had occasion to rule that an acquiring company cannot be held liable for infringements committed independently by two of its subsidiaries before their acquisition, since those subsidiaries have to answer themselves for their unlawful activity prior to their acquisition by the acquiring company, which cannot be held responsible for it. (56) 125. The Court has confirmed on several occasions that ‘[w]here … an economic entity infringes the rules of competition, it falls to that entity, in accordance with the principle of personal responsibility, to answer for that infringement’. (57) 126. Therefore, it follows from Article 23(2) of Regulation No 1/2003 (in accordance with which the Commission may only impose a fine on undertakings which it holds liable) and the fundamental principle of the individuality of penalties that the imposition of a fine is subject to the recognition of the undertaking’s liability (whether that liability be direct or imputed) and that the level of the fine intended to penalise the undertaking’s participation in the infringement must be determined on the basis of that liability. In my opinion, that principle applies to the calculation of the 10% of turnover upper limit which the fine cannot exceed. 127. In other words, where, as is the case in the present case, the infringement is, for a certain period, attributed to a subsidiary and not to the parent company, only the turnover of the subsidiary liable is relevant for the purposes of calculating the 10% upper limit. 128. In Hoek Loos v Commission, (58) the General Court held that ‘in applying the 10% upper limit, the Commission must take into account the turnover of the undertaking concerned, namely the undertaking to which the infringement was attributed, which was therefore declared [liable] and notified of the decision imposing the fine’ (my emphasis). 129. Bearing in mind that the objective of the 10% upper limit is to ensure that the fine does not exceed the ability of the undertaking found guilty of an infringement of competition law to pay the fine, the taking into account of the total turnover of the group in order to calculate that upper limit in the case and for the period in which the infringement was committed only by a subsidiary before its integration in the group either deprives it of the protection intended by the establishment of that upper limit, or imposes a penalty on the new parent company (which was, however, not liable for that infringement) if the subsidiary is not able to pay the fine, exactly as if the group had been considered jointly and severally liable for the whole of the infringement. (59) 130. At the hearing, the Commission stated that it would have calculated the 10% upper limit solely on the turnover of the undertaking YKK Stocko if the other undertakings of the group had not participated at all in the infringement after the integration of YKK Stocko into the group. I do not see how the fact that the other undertakings of the group are or are not co-perpetrators of the infringement after the integration of YKK Stocko can alter the calculation of the fine for the period in which YKK Stocko was independent and therefore exclusively responsible for the infringement committed at that time. 131. Also at the hearing, the Commission relied on the judgment of the General Court in Tokai Carbon and Others v Commission (60) to disavow the approach which it had adopted in the Organic peroxides and Prestressing Steel decisions and prefer the approach which it adopted in Gascogne Sack Deutschland v Commission or in the present case. 132. However, as Advocate General Sharpston explained in Gascogne Sack Deutschland v Commission (in paragraph 77 of her Opinion), Tokai Carbon and Others concerned a considerably different, or even opposite, situation. In Tokai Carbon and Others v Commission, the parent and the subsidiary were part of the same undertaking at the time of the infringement, but their relationship had changed in the year taken as the reference point for calculating the 10% upper limit. At that stage the parent was no longer responsible for its former subsidiary: they had become sister companies. The two companies were held jointly and severally liable for the period of the infringement, but the decision was addressed separately to the former subsidiary and to the former parent and the 10% upper limit was applied to each addressee. (61) 133. That judgment of the General Court therefore did not respect the principle of personal responsibility and the principle of the individuality of penalties when applying the 10% upper limit provided for in Article 23(2) of Regulation No 1/2003. 3. The principles of equal treatment and of proportionality 134. Finally, I think that the principles of equal treatment and of proportionality are not respected by the approach which the Commission adopted and which was confirmed by the General Court. 135. According to the case-law of the Court, the principle of equal treatment requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified. (62) 136. However, the judgment under appeal treats similar situations differently, since two undertakings which are both recognised as being exclusively liable for the same infringement are treated differently solely on the ground that one of them was acquired at a later stage by a group of undertakings. 137. In addition, the ratio legis of the provision in question (namely the prohibition of excessive fines in relation to the size and the turnover of the undertaking in question) and the underlying fundamental principle of proportionality cannot objectively justify the difference in treatment of similar situations. 138. In Dansk Rørindustri and Others v Commission, the Court held that the 10% upper limit provided for in Article 23(2) of Regulation No 1/2003 is ‘[a] limit … which is uniformly applicable to all undertakings and arrived at according to the size of each of them and seeks to ensure that the fines are not excessive or disproportionate. That upper limit thus has a distinct and autonomous objective by comparison with the criteria of gravity and duration of the infringement’. (63) 139. Likewise, in Tokai Carbon and Others v Commission, the General Court held in paragraph 389 that ‘the [upper limit] aims inter alia to protect undertakings against excessive fines which could destroy them commercially’. In other words, the 10% upper limit seeks to ensure that the level of the penalty does not jeopardise the viability of the undertaking liable. 140. Finally, I take the view, like the appellants, that the judgments relied on by the General Court to reject their plea (that is HFB and Others v Commission (64) and Tokai Carbon and Others v Commission) are irrelevant and that the General Court incorrectly assessed the relevance of the judgment of the Court of Justice in Cascades v Commission. 141. In the case which gave rise to the judgment in HFB and Others v Commission, the Commission had held several legal persons belonging to an economic entity classified as an undertaking to be jointly and severally liable. Thus, not being seised of a case in which one of those undertakings was held solely liable for an infringement for the period prior to its integration into a group, the General Court consequently did not examine in HFB and Others v Commission whether two 10% upper limits should be taken into account. 142. Furthermore, far from supporting the Commission’s reasoning, the reference to paragraph 390 of Tokai Carbon and Others v Commission (see paragraph 193 of the judgment under appeal) on the contrary confirms the appellants’ argument. In Tokai Carbon and Others v Commission, all the addressees of the Commission decision had been considered to be jointly and severally liable for all the duration of the infringement. In that context, the General Court stated that ‘the objective sought by the introduction of the 10% [upper limit] can be realised only if that [upper limit] is applied initially to each separate addressee of the decision imposing the fine’ and that ‘[i]t is only if it subsequently transpires that several addressees constitute the “undertaking”, that is the economic entity responsible for the infringement penalised … that the [upper limit] can be calculated on the basis of the overall turnover of that undertaking’ (my emphasis). Consequently, Tokai Carbon and Others v Commission confirms that, where an undertaking is solely responsible for an infringement for the period prior to its acquisition by a wider group, the 10% upper limit must be calculated on the basis of the turnover of the undertaking in question, and not that of the group to which it belongs at the date of the adoption of the decision (since the other legal persons belonging to that group were not in any way liable for the infringement). 143. Furthermore, like the appellants, I am of the opinion that the General Court erred in law by stating, without further explanation, in paragraph 194 of the judgment under appeal that the appellants could not rely on Cascades v Commission (65) ‘since YKK Holding and YKK Corp. are not held jointly and severally liable for the payment of the whole of the fine of YKK Stocko Fasteners’. On the contrary, as I have already pointed out in paragraph 124 of this Opinion, Cascades v Commission is relevant, given that it states that a subsidiary has to answer for the infringements committed before its acquisition, since the new parent company cannot be held liable. The subsidiary is therefore obliged, on its own, to pay the fine imposed on it as a separate economic entity. 144. It follows from all of the foregoing that the third ground of appeal is well founded in so far as the General Court misinterpreted Article 23(2) of Regulation No 1/2003 and infringed the general principles of personal responsibility, the individuality of penalties, proportionality and equal treatment. Therefore, the fine imposed on YKK Stocko for the BWA cooperation must be capped at EUR 3 491 million, which represents 10% of its turnover in the business year of the calendar year preceding the adoption of the contested decision. 145. In addition, the appellants claim that they should benefit – on the revised amount of 10% of their turnover – from the 20% reduction for leniency which the Commission had granted to the YKK group, which had requested it on behalf of all the appellants (see recitals 657 to 664 of the contested decision). I consider that the fact that the 10% upper limit has to be calculated differently in no way affects the application of a reduction for leniency and that it is therefore necessary to allow the appellants’ claim, which the Commission has not, moreover, disputed – not even in the alternative – in its pleadings or at the hearing, before the General Court or before the Court of Justice. It is all the more logical that, under the 1998 Guidelines, the Commission’s practice (66) was to apply the reduction for leniency (sixth stage) after verification that the 10% upper limit had not been exceeded (which corresponds to the fifth stage of the process). That 20% reduction for leniency must therefore be applied to the revised amount. Therefore, the amount of the fine imposed on YKK Stocko is EUR 2 792 800. D – The fourth ground of appeal, concerning the BWA cooperation and the application of a deterrence multiplier for the period prior to the acquisition of YKK Stocko 146. In their fourth ground of appeal, the appellants submit, firstly, that the General Court did not duly state the reasons why it rejected their plea alleging incorrect application of the multiplier for the period preceding the acquisition of YKK Stocko. They take the view, secondly, that the General Court in any event infringed Article 23(2) of Regulation No 1/2003, the principle of proportionality, the principle of the individuality of penalties as well as the principle of equal treatment in holding that an increase in deterrent effect was justified for the period prior to the acquisition of YKK Stocko by YKK Holding (the period during which YKK Stocko is considered to be exclusively liable). 147. The Commission disputes that line of argument. As regards the alleged failure to state reasons, it submits, in particular, that paragraph 114 of the appeal shows that the appellants perfectly understood the reasoning of the General Court set out, in particular, in paragraph 204 of the judgment under appeal, namely that the element which is taken into account for the purposes of the deterrent effect is the economic capacity of the undertaking concerned at the time of the adoption of a decision imposing a fine. As regards the arguments on the substance, the Commission explains that the deterrence multiplier had not been imposed for a specific duration – for example, for the period for which YKK Stocko was held solely liable – but was applied to the starting amount common to the whole of the YKK group (including YKK Stocko) which had been set for the infringement as a whole. The Commission adds that the deterrent effect which it is important to ensure concerns the impact on the single economic entity (undertaking) at the time of the adoption of the decision imposing the fines. At the date of the adoption of the decision (and, in fact, four years before the end of the infringement itself), the undertaking liable had grown since it had integrated not only YKK Stocko, but also its two parent companies. After its acquisition by YKK Holding and YKK Corp., YKK Stocko could no longer be considered in isolation for the purposes of assessing the impact of the fine, not even for the parts of the fine for which it was solely liable for payment. 148. I am of the opinion that the same considerations as those put forward in my Opinion regarding the third ground of appeal should apply, mutatis mutandis, here. 149. As the appellants rightly state, the case-law of the Courts of the European Union has identified two reasons why a deterrent multiplier may be applied, namely, firstly, the need to ensure that the fine has a significant effect, including for undertakings with large financial resources at the date of the adoption of the decision, and, secondly, the fact that the large undertakings, during the infringement period, (67) were able to have available to them greater resources than their competitors, and were therefore in a better position than their competitors to know the law and act within the limits it imposes. 150. That implies that the Commission may take into account only the resources and the financial means of the undertaking which it holds liable for an infringement. (68) 151. In the contested decision, the Commission applied a 1.25 multiplier on the basis of (a) the greater legal and economic knowledge and infrastructures that the undertakings referred to possessed in comparison to their competitors and (b) their ‘large financial resources’. 152. In that regard, recital 538 of the contested decision refers, firstly, to the ‘size’ of the YKK group and, secondly, to its ‘global resources’, an expression which the General Court itself used in Groupe Danone v Commission (69) – a judgment indeed cited by the Commission in recital 537 of the contested decision to justify the application of the multiplier not only to the part of the fine imposed jointly and severally on the appellants, but also to the fine imposed on YKK Stocko for the infringement period in which it was held solely liable, that is to say before March 1997. 153. I am of the opinion that although, for those reasons, the application of the 1.25 multiplier could be justified for the period after March 1997 (since YKK Stocko was part of the YKK group), such a multiplier is not justified for the period preceding the acquisition of YKK Stocko. 154. It is apparent from the file that, until its acquisition, YKK Stocko was a small undertaking with limited resources and did not have a legal service. It is clear that before March 1997, YKK Stocko did not have large financial resources. 155. Both in the light of the principle of equal treatment (having regard to the considerable difference in resources which (a) YKK Stocko had during the infringement period in which it was declared exclusively liable and which (b) the whole of the YKK group (including YKK Stocko) had during the infringement period in which they were declared jointly and severally liable, that is to say after the acquisition of YKK Stocko) and in the light of the principle of the individualisation of penalties, which requires that those penalties be adapted to the conduct and characteristics of the undertakings concerned, (70) the General Court should not have accepted the application by the Commission of the same multiplier to the two infringement periods in question. 156. It is interesting to draw a parallel between the present case and the decision taken by the Commission with regard to the ‘Monochloroacetic acid cartel’. (71) In that decision, the Commission imposed a fine only on Arkema SA (‘Arkema’) (formerly Atofina SA, ‘Atofina’), a subsidiary of the ELF/Total group, for repeated infringement. 157. In calculating that fine, the Commission made sure to take into account – for the purposes of adjusting the starting amount of the fine for deterrence – a multiplier which reflected only the economic capacity of Arkema (assessed independently of its parent company, Elf Aquitaine SA (‘Elf’)), regardless of the fact that Arkema and Elf formed a single economic entity at the time of the adoption of the decision in question. 158. The Commission states in footnote 222 of that decision that ‘[t]he multiplying factor applied to Elf, namely 2.5 is not included in the calculation. Instead a multiplying factor of 1.5, which would have been applied had Atofina been the sole addressee of the Decision (given its worldwide turnover of EUR 17.8 thousand million), will be used for the purposes of calculating recidivism. A separate fine will accordingly be addressed to Atofina alone for this amount’. 159. In other words, in calculating the fine imposed solely on the subsidiary, the Commission applied a 1.5 multiplier – which was different from the 2.5 multiplier applied when calculating the fine imposed jointly and severally on the parent company (Elf) and on the subsidiary (Arkema) – in order to take account of the lesser economic capacity of the subsidiary considered independently of its parent company. 160. The Commission has not put forward any reasons here which would explain why that approach was not chosen when calculating the fine for which YKK Stocko was solely liable. 161. In apportioning the liability of the appellants within the context of the BWA cooperation, the contested decision explicitly acknowledged that, before March 1997, YKK Stocko constituted an undertaking which was separate from the YKK group. In addition, the contested decision establishes the existence of infringements of a different duration committed by (a) YKK Stocko and (b) YKK Stocko in conjunction with the YKK group. (72) None the less, for the purposes of calculating the fine, and in particular for the purposes of establishing a deterrence multiplier, the Commission took into account only the global resources of the YKK group, including for the infringement period in which the undertaking held liable did not have those resources. 162. However, the undertaking whose size and global resources must be taken into account for the purposes of determining a possible deterrence multiplier is the undertaking responsible pursuant to Article 81 EC. 163. The General Court therefore erred in law in holding that the Commission could apply a 1.25 multiplier when calculating the fine imposed exclusively on YKK Stocko. 164. As is apparent from the foregoing considerations, I am of the opinion that, in the present case, no multiplier is justified with respect to YKK Stocko. Therefore, the amount of the fine for the period prior to the acquisition of YKK Stocko by the YKK group should be fixed at EUR 2 792 800. IV – Costs 165. Under Article 184(2) of the Rules of Procedure of the Court, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs. Under Article 138(3) of those rules, applicable to the procedure on appeal pursuant to Article 184(1) thereof, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. 166. In this case, it should be noted, first of all, that although, in my opinion, two of the four grounds of appeal relied on by the appellants must be upheld and, in that respect, the judgment under appeal must be set aside, on the other hand, I propose that the other two grounds of appeal be rejected. 167. Next, with regard to the action at first instance, it must be observed that, in reducing the fine, the Court will also grant two of the eight grounds of appeal at first instance relied on by the appellants. (73)On the other hand, it is apparent from the judgment under appeal, which should not be set aside by the Court on those points, that the appellants were unsuccessful with the other pleas it put forward at first instance. 168. In those circumstances, and since the parties have each been partially unsuccessful in their submissions, both at first instance and on appeal, they must each be ordered to bear their own costs. V – Conclusion 169. I therefore propose that the Court should: – reject the first and second grounds of appeal as unfounded; – set aside the judgment of the General Court of the European Union of 27 June 2012 in YKK and Others v Commission (T‑448/07), in so far as, when calculating the fine imposed on YKK Stocko Fasteners GmbH, it made errors of law in applying the 10% upper limit provided for in Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 EC] and [82 EC] and in applying the deterrence multiplier; – set the fine imposed on YKK Stocko Fasteners GmbH for the infringement period in which it is exclusively liable at EUR 2 792 800 instead of EUR 19 250 000; – order the European Commission to bear its own costs at first instance and on appeal; and, finally, – order YKK Corp., YKK Holding Europe BV and YKK Stocko Fasteners GmbH to bear their own costs at first instance and on appeal. 1 – Original language: French 2 – Case T‑448/07 YKK and Others v Commission [2012] ECR (‘the judgment under appeal’). 3 – Decision of 19 September 2007 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/39.168 – PO/Hard Haberdashery: Fasteners) (‘the contested decision’). Its summary is published in the Official Journal of the European Union (OJ 2009 C 47, p. 8). The contested decision is part of a series of three Commission decisions concerning the haberdashery sector – namely Decision C(2005) 3765 final of 14 September 2005 (Case 38.337 – PO/Thread), Decision C(2004) 4221 final of 26 October 2004 (Case 38.338 – PO/Needles), and the contested decision – which were all adopted following inspections carried out in November 2001 at the premises of several producers of hard haberdashery. 4 – 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). 5 – OJ 2002 C 45, p. 3 (‘the 2002 Leniency Notice’). 6 – I will use the old numbering in this Opinion since the contested decision was taken under the EC Treaty 7 – 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, ‘the Guidelines’). 8 – OJ 1996 C 207, p. 4, ‘the 1996 Leniency Notice’. 9 – See first paragraph of Section 1.A of the Guidelines, which was recalled by the Court in paragraph 38 of Case C‑389/10 P KME Germany and Others v Commission [2011] ECR I‑13125, and in paragraph 140 and case-law cited of the judgment under appeal. 10 – See recital 508 of the contested decision. 11 – See recital 509 of the contested decision. 12 – See KME Germany and Others v Commission, paragraph 44 (‘the market for copper industrial/plumbing tubes’ cartel). See also paragraph 97 et seq. of the Opinion of Advocate General Sharpston in Case C‑40/12 P Gascogne Sack Deutschland v Commission [2013] ECR). 13 – Case C‑554/08 P Le Carbone-Lorraine v Commission [2009] ECR I‑189, paragraph 44. See also Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 118, and Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 96). 14 – Case T‑79/06 Sachsa Verpackung v Commission [2011] ECR II‑406, paragraph 118. See also Gascogne Sack Deutschland v Commission. 15 – Decision of 3 September 2004 relating to a proceeding pursuant to Article [81 EC] and Article 53 of the EEA Agreement (Case COMP/E‑1/38.069 – Copper plumbing tubes) (‘the Copper plumbing tubes decision’). See recital 629 of the Copper plumbing tubes decision, which states that, ‘[a]lthough there are certain elements in the file that allow a careful estimation, for a limited time period, of the impact of the cartel on prices, it is impossible for the Commission to determine precisely what the evolution of prices during the entire period of infringement would have been in the absence of the cartel’. 16 – Case C‑272/09 P KME Germany and Others v Commission [2011] ECR I‑12789; Case C‑386/10 P Chalkor v Commission [2011] ECR I‑13085; and KME Germany and Others v Commission, respectively. 17 – KME Germany and Others v Commission (paragraph 45). 18 – See recitals 629 and 673 of the Copper plumbing tubes decision, and recital 507 of the contested decision. 19 – KME Germany and Others v Commission (paragraph 41). 20 – Ibidem (paragraph 44). 21 – Case T‑30/05 Prym and Prym Consumer v Commission [2007] ECR II‑107. 22 – See paragraph 109 of that judgment, which refers to recitals 318 to 320 of the decision contested in that case. See also Prym and Prym Consumer v Commission (paragraph 78). 23 – Prym and Prym Consumer v Commission (paragraphs 111 and 112). 24 – Ibidem (paragraph 190). 25 – Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 245. 26 – According to the appellants, a starting amount of the fine of EUR 50 million corresponds to 250% of the minimum starting amount for the infringements characterised as ‘very serious’, or even to 312.5% with the 1.25 multiplier. 27 – Recitals 496, 497, 507 to 509, 514 to 516, 529 and 530 of the contested decision. 28 – Dansk Rørindustri and Others v Commission (paragraph 245). 29 – Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 384. See also KME Germany and Others v Commission, paragraphs 93 and 96; and Case T‑208/06 Quinn Barlo and Others v Commission [2011] ECR II‑7953, paragraph 244. 30 – See paragraph 93 of that judgment. See, in this context, Case T‑50/00 Dalmine v Commission [2004] ECR II‑2395, paragraph 292, and Case T‑26/02 Daiichi Pharmaceutical v Commission [2006] ECR II‑713, paragraph 113. 31 – Case T‑279/02 Degussa v Commission [2006] ECR II‑897, and Prym and Prym Consumer v Commission, respectively. 32 – Commission Decision of 3 May 2006 relating to a proceeding under Article [81 EC] and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Chemicals Holding AB, EKA Chemicals AB, Degussa AG, Edison SpA, FMC Corporation, FMC Foret S.A., Kemira OYJ, L’Air Liquide SA, Chemoxal SA, Snia SpA, Caffaro Srl, Solvay SA/NV, Solvay Solexis SpA, Total SA, Elf Aquitaine SA and Arkema SA (Case COMP/F/C.38.620 — Hydrogen Peroxide and perborate), summary of that decision published in the Official Journal of the European Union (OJ 2006 L 353, p. 54), available on the internet site of the Directorate-General for ‘Competition’ of the Commission, and Commission Decision of 29 November 2006 relating to a proceeding under Article [81 EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 — BR/ESBR), summary of that decision published in the Official Journal of the European Union (OJ 2008 C 7, p. 11), available on the internet site of the Directorate-General for ‘Competition’ of the Commission. 33 – See, as regards Decision C(2006) 1766, recital 455 of that decision, and, as regards Decision C(2006) 5700 final, recital 462 of that decision. 34 – Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87). 35 – Namely, ‘[f]rom 14 February 2002, this notice replaces the 1996 notice for all cases in which no undertaking has contacted the Commission in order to take advantage of the favourable treatment set out in that notice’. 36 – See Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 83. See, to that effect, Case C‑297/98 P SCA Holding v Commission [2000] ECR I‑10101, paragraph 36, and Dansk Rørindustri and Others v Commission, paragraph 399. 37 – See SGL Carbon v Commission, paragraph 81. 38 – See paragraphs 21 and 22 of the 2002 Leniency Notice in comparison with Section 1.D of the 1996 Leniency Notice. How, for example, could it be reasonably asserted that information which does not satisfy the condition that it must ‘materially contribute to establishing the existence of the infringement’ (Section D of the 1996 Leniency Notice) could constitute evidence representing ‘significant added value with respect to the evidence already in the Commission’s possession’ (paragraph 21 of the 2002 Leniency Notice)? 39 – See Case T‑15/02 BASF v Commission [2006] ECR II‑497, paragraph 588, which mentions that ‘a reduction under that provision [namely the sixth indent of Section 3 of the Guidelines on the method of setting fines, which deals with cooperation outside the framework of the 1996 Leniency Notice] would necessarily mean that the cooperation in question was not capable of reward under the Leniency Notice’. 40 – Case T‑381/06 FRA.BO v Commission [2011] ECR II‑66. 41 – FRA.BO v Commission (paragraphs 93, 105 and 106). 42– For that reason, as the date of that judgment was not known, I was not able to announce the date of my Opinion at the hearing. 43 – The Opinion cites at this point Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraphs 280 and 281. 44 – Advocate General Sharpston adds in footnote 39 of the same Opinion that ‘for an explanation of personal responsibility where liability for an infringement committed by a subsidiary is attributed to its parent, see Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others [2012] ECR], paragraph 42’. She also refers to points 36 to 40 of her Opinion in Case C‑50/12 P Kendrion v Commission [2013] ECR. 45 – According to the contested decision, the third appellant, Stocko, participated in the infringement for the whole of its duration, that is to say nine years and nine months, whereas YKK Corp. and YKK Holding, the first and second appellants, started to take part in the infringement (directly or indirectly) only after the acquisition of YKK Stocko Fasteners GmbH (now YKK Stocko) in 1997 and participated in the infringement for four years (recitals 466 to 468 of the contested decision). That is the reason why YKK Corp. and YKK Holding are not held liable for payment of the whole of the fine imposed on YKK Stocko and YKK Stocko was held solely liable for payment of the fine amounting to EUR 19 250 000. 46 – My emphasis. 47 – See, inter alia, Case C‑196/99 P Aristrain v Commission [2003] ECR I‑11005, paragraphs 95 to 99, and Dansk Rørindustri and Others v Commission, paragraph 118. 48 – Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraphs 119 and 118 respectively. 49 – Decision of 10 December 2003 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E‑2/37.857 – Organic peroxides) (C(2003) 4570 final and corrigendum C(2004) 4). A summary is published in the Official Journal of the European Union (OJ 2005 L 110, p. 44). 50 – Commission Decision of 30 June 2010 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement against the undertakings ArcelorMittal, Emesa/Galycas/ArcelorMittal (España), GlobalSteelWire/Tycsa, Proderac, Companhia Previdente/Socitrel, Fapricela, Nedri/HIT Groep, WDI/Pampus, DWK/Saarstahl, voestalpine Austria Draht, Rautaruukki/Ovako, Italcables/Antonini, Redaelli, CB Trafilati Acciai, I.T.A.S., Ori Martin/Siderurgica Latina Martin, Emme Holding (Case COMP/38.344 – Prestressing Steel), as amended by Commission Decision of 30 September 2010 and Commission Decision of 4 April 2011. A summary is published in the Official Journal of the European Union (OJ 2011 C 339, p. 7) (recital 8). 51 – See Prestressing Steel decision (recital 8). See recital 1072a of the original version of the decision of 30 June 2010 notified under document number C(2010) 4387 final. 52 – Even if Article 23(2) of Regulation No 1/2003 requires, for calculating the 10% upper limit, the starting point to be the business year of the calendar year preceding the Commission decision sanctioning an infringement, that does not prevent that upper limit being determined solely on the basis of the turnover of the subsidiary, as regards the fine imposed exclusively on it for a period prior to its acquisition by the parent company. It should be added in that context that, within the framework of the present appeal, the appellants have not, however, questioned that the relevant year to be taken into account in the assessment at issue is the year preceding the contested decision. 53 – Joined Cases T‑45/98 and T‑47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II‑3757, paragraph 63). 54 – See, to that effect, Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 44. 55 – 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, paragraphs 78 and 79; Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraph 37; SCA Holding v Commission, paragraph 27; and Case C‑352/09 P ThyssenKrupp Nirosta v Commission [2011] ECR I‑2359, paragraph 143. 56 – See Cascades v Commission, paragraphs 78 to 80. 57 – See, to that effect, Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 145; Cascades v Commission, paragraph 78; Case C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 39; and Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraph 56. 58 – Case T‑304/02 Hoek Loos v Commission [2006] ECR II‑1887, paragraphs 116 and 120. 59 – Furthermore, I would like to note that – contrary to the Commission’s arguments – the application to a subsidiary, for an infringement which it committed independently, of a legal upper limit calculated on its turnover alone does not seem to me to undermine the objective of deterring infringements. That does not prevent the turnover of the group from also being taken into account when calculating the fine, as regards the fine to be imposed on that group for the part of the infringement which it committed. 60 – Judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission. A summary of the judgment is published. Full versions are available in German, English and French on the website of the General Court. 61 – Tokai Carbon and Others v Commission, paragraphs 389 to 391. 62 – Case C‑303/05 Advocaten voor de Wereld [2007] ECR I‑3633, paragraph 56, and Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 95. 63 – Paragraphs 281 and 282 (my emphasis). See also Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 121, and Case T‑33/02 Britannia Alloys & Chemicals v Commission [2005] ECR II‑4873, paragraph 35. 64 – Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487. 65 – More precisely paragraphs 77 to 80 of that judgment. 66 ‘In setting fines under the 1998 Guidelines the Commission took a seven-stage approach. First, it evaluated the “objective” gravity of the infringement taken as a whole … Second, it determined an “individual starting amount” for each member of the cartel … Third, the Commission applied, when appropriate, an increase percentage to those individual starting amounts, which reflected the additional impact caused by the duration of the infringement committed by each cartel participant … Fourth, the Commission considered the “subjective” responsibility of each cartel participant … Fifth, it considered whether the upper limit of 10 per cent of the annual turnover applicable to the fine had been exceeded. Sixth, where relevant and as appropriate, it reduced the fine, in application of the Leniency Notice. Finally, the Commission took account of any exceptional circumstances justifying an adjustment to the final amount of the fine’ (my emphasis) (Faull, J., and Nikpay, A. (editors), The EC law of competition, Oxford University Press, 2007, pp. 1025-1026, that commentary being written by officials of the Directorate‑General for Competition). See, also, another leading commentary: Bellamy, C., and Child, G. (editors), European Union Law of Competition, Oxford University Press, 2013, pp. 1095-1097. 67 – Paragraphs 379 and 382 of Case T‑410/03 Hoechst v Commission [2008] ECR II‑881 confirm that, as regards the second ground for increasing, the size of the undertakings concerned must relate to their situation at the time of the infringement. 68 – See Case T‑38/05 Agroexpansión v Commission [2011] ECR II‑7005, paragraph 215. 69 – Paragraph 175, which states that ‘the applicant had legal and economic knowledge and infrastructures which enabled [them] more easily to recognise that [their] conduct constituted an infringement and be aware of the consequences stemming from it under competition law’. 70 – See, to that effect, Britannia Alloys & Chemicals v Commission, paragraph 44. 71 – Commission Decision 2006/897/EC of 19 January 2005 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement against Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals BV, Akzo Nobel Functional Chemicals BV, Akzo Nobel Base Chemicals AB, Eka Chemicals AB, and Akzo Nobel AB, jointly and severally, Clariant AG and Clariant GmbH jointly and severally, Elf Aquitaine SA and Arkema SA, jointly and severally, and Hoechst AG (Case No C.37.773 – MCAA) (OJ 2006 L 353, p. 12). 72 – Recital 541 of the contested decision. 73 – See the second indent of point 10 of this Opinion.