Opinion of the Advocate General — ECLI:EU:C:2010:635
Date: 2010-10-26
Language of the case: German
Subject matter: Competition
Procedure: Action for annulment;Appeal - unfounded
Origin: Germany

summary of the content of that principle, see points 87 to 107 of my Opinion in that case. 54 – Commission v Irelandand Others, paragraph 54. 55 – In that paragraph the General Court stated that ‘it is undisputed that, in view of the statement [of] 23 July 1997, the Commission was, by way of exception, entitled to impute to [TKS] liability for the unlawful conduct of which [Thyssen] was accused [and it] must be concluded that such a statement, which in particular takes account of economic considerations specific to concentrations of undertakings, implies [such a transfer]’. 56 – See Eur. Court HR, Ernst and Others v. Belgium, no. 33400/96,§60, 15 July 2003. 57 – For a more exhaustive summary of the arguments of the parties, see paragraphs 105 to 109 of the judgment under appeal. 58 – Akzo Nobel and Others v Commission, paragraph 56 and the case-law cited. 59 – Paragraph 78. 60 – Paragraph 150. 61 – See Cases C‑248/98 P KNP BT v Commission [2000] ECR I‑9641, paragraph 71; C‑279/98 P Cascades v Commission [2000] ECR I‑9693, paragraph 78; C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, paragraph 37; C‑297/98 P SCA Holding v Commission [2000] ECR I‑10101, paragraph 25; and C‑280/06 ETI and Others [2007] ECR I‑10893, paragraph 39 and the case-law cited. 62 – See inter alia SCA Holding v Commission, paragraph 25. 63 – In such a situation the Court considers that the purpose of punishing conduct which is contrary to the competition rules and preventing its reoccurrence by means of deterrent penalties would be compromised (see ETI and Others, paragraph 41 and the case-law cited). 64 – See Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 84; Joined Cases 29/83 and 30/83 Compagnie royale asturienne des mines and Rheinzink v Commission [1984] ECR 1679, paragraph 9, and Commission v Anic Partecipazioni, paragraph 145. 65 – See ETI and Others, paragraph 40. See also Commission v Anic Partecipazioni, where the Court rejected the argument which a company accused of unlawful conduct had put forward in an attempt to escape all liability, namely that it had transferred to another company the business in the course of which it had committed the infringement it was accused of (paragraph 145). In that case there were two existing and operating undertakings, one of which had merely transferred part of its business to the other, and there was no structural link between them. 66 – See Article 105(1) TFEU. 67 – For a more exhaustive summary of the arguments of the parties, see paragraphs 193 to 198 of the judgment under appeal. 68 – Paragraphs 151 to 158. The General Court advances the following grounds as the basis for its reasoning. Since suspension of the limitation period is an exception to the principle of a five‑year limitation period, that concept must be interpreted strictly. Since suspension by definition constitutes a situation in which the Commission has already adopted a decision, it is no longer necessary to attach effect erga omnes thereto. Finally, in accordance with the judgment of the Court in Case C‑310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I‑5363, the relative effect of judicial proceedings and the consequences attached to that effect by the Court in principle preclude an application brought by an undertaking which is an addressee of the decision in question from affecting the situation of the other addressees of the decision. 69 – Joined Cases C‑238/99 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, paragraphs 142 to 157. With regard to the General Court, see in particular Joined Cases T‑22/02 and T‑23/02 Sumitomo Chemical and Sumika Fine Chemicals v Commission [2005] ECR II‑4065, paragraphs 80 to 102, and ArcelorMittal Luxembourg and Others v Commission, paragraphs 151 to 158, which, let us remember, is currently under appeal. 70 – Thyssen brought the infringement to an end on 1 January 1995. The limitation period was interrupted with regard to Thyssen, and with regard to all the undertakings party to the cartel, on 24 April 1997 following the sending of the statement of objections and then on 21 January 1998, the date on which the initial decision was delivered. The limitation period ran until 11 March 1998, that is to say for approximately one and a half months, when TKS brought an action for annulment before the General Court. The limitation period was suspended until 13 December 2001, the date on which the General Court gave judgment in Krupp Thyssen Stainless and Acciai Speciali Terni v Commission, that is to say for seven years and two months. The limitation period was again interrupted on 5 April 2006 by the sending of the new statement of objections and then on 20 December 2006 by the notification of the contested decision. That limitation period therefore ran from 20 December 2006 to 6 February 2007, the date on which TKS brought the action for annulment against the contested decision, that is to say for approximately one and an half months. The period was again suspended from the bringing of that action until 1 July 2009, the date on which the General Court delivered the judgment under appeal, that is to say for two years and five months. The limitation period began to run again from that date until the bringing of this appeal on 2 September 2009, that is to say for two months. From that date until now the limitation period has been suspended for approximately one year. 71 – Joined Cases C‑74/00 P and C‑75/00 P [2002] ECR I‑7869. 72 – 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. 73 – Paragraphs 152 and 153. 74 – See Case 22/70 Commission v Council [1971] ECR 263, paragraph 59; Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 30; and C‑228/92 Roquette Frères [1994] ECR I‑1445, paragraph 17. 75 – Commission v Council, paragraph 60. 76 – For a summary of the content of this principle, see point 267 et seq. of my Opinion in Case C‑385/07 P Der Grüne Punkt – Duales System Deutschland v Commission [2009] ECR I‑6155. 77 – 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 cited, in which it pointed out that ‘[i]t is a general principle of Community law that the Commission must act within a reasonable time in adopting decisions following administrative proceedings relating to competition policy’. 78 – The Court introduced the right to be heard within a reasonable time in competition proceedings into competition law in Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417. It went on to hold in Der Grüne Punkt – Duales System Deutschland v Commission that failure to observe that requirement could give rise to an application for damages under an action against the Community in the context of Article 268 TFEU and the second paragraph of Article 340 TFEU. 79 – Case C-113/04 P [2006] ECR I-8831. 80 – Paragraphs 55 and 56 and the case-law cited.