Opinion of the Advocate General — ECLI:EU:C:2009:262
Date: 2009-04-23
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment;Appeal - unfounded
Origin: Netherlands

Summary 104. Overall, therefore, the appellants’ submissions are admissible, but unfounded. Consequently, their appeal should be dismissed. V – Costs 105. Under Article 122(1) of the Rules of Procedure, the Court of Justice is to decide on the costs when an appeal is dismissed. It follows from the first sentence of Article 69(2) in conjunction with Article 118 of the Rules of Procedure that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Pursuant to the second sentence of Article 69(2) of the Rules of Procedure, where there are several unsuccessful parties the Court is to decide how the costs are to be shared. 106. Since the Commission has applied for costs and the appellants have been unsuccessful, the appellants should be ordered to pay the costs. Since they brought the appeal jointly, they must bear the costs jointly and severally. VI – Conclusion 107. In the light of the foregoing considerations, I propose that the Court should: (1) dismiss the appeal; (2) order Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel Chemicals International BV, Akzo Nobel Chemicals BV and Akzo Nobel Functional Chemicals BV to pay the costs of the proceedings jointly and severally. 1 – Original language: German. 2 – Case C‑280/06 ETI and Others [2007] ECR I‑10893. 3 – Agreement on the European Economic Area (OJ 1994 L 1, p. 3). 4 – Commission Decision 2005/566/EC of 9 December 2004 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-2/.37.533 – Choline Chloride), (notified under document number C(2004) 4717), summarised in OJ 2005 L 190, p. 22. 5 – Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049. 6 – See in detail in this regard points 63 to 68 of this Opinion. 7 – 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). 8 – See, in particular, paragraphs 1 to 20 of the judgment under appeal. 9 – In addition to Article 81(EC), the decision is based on Article 53 of the EEA Agreement in respect of the period from 1 January 1994, the date of entry into force of the EEA Agreement. 10 – See recitals 168 to 175 to the contested decision. 11 – See recitals 12, 42, 44 and 201 to 203 to the contested decision. 12 – See also Case C‑383/99 P Procter & Gamble v OHIM [2001] ECR I‑6251, ‘Baby‑dry’, paragraph 18; Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 36; and Case C‑71/07 P Campoli v Commission [2008] ECR I‑0000, paragraph 39. 13 – Case C‑19/93 P Rendo and Others v Commission [1995] ECR I‑3319, paragraph 13; Case C‑174/99 P Parliament v Richard [2000] ECR I‑6189, paragraph 33; and Case C‑277/01 P Parliament v Samper [2003] ECR I‑3019, paragraph 30; see also my Opinion in Case C‑413/06 P Bertelsmann and Sony v Impala [2008] ECR I‑0000, point 75. 14 – Joined Cases C‑74/00 P and C‑75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I‑7869, paragraph 178; Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraphs 64 to 66; Case C‑295/07 P Commission v Département du Loiret [2008] ECR I‑0000, paragraph 99; see also my Opinion in Case C‑412/05 P Alcon v OHIM [2007] ECR I‑3569, points 17 and 18. 15 – See, in this regard, the case-law cited in footnote 14; to the same effect, the judgments given with regard to Article 42(2) of the Rules of Procedure of the Court of Justice in Case 306/81 Verros v Parliament [1983] ECR 1755, paragraph 9; Case C‑301/97 Netherlands v Council [2001] ECR I‑8853, paragraphs 166 and 169; and Case C‑66/02 Italy v Commission [2005] ECR I‑10901, paragraphs 85 and 86. 16 – Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraphs 34 and 35; Case C‑487/06 P British Aggregates v Commission [2008] ECR I‑0000, paragraph 121; and Case C‑431/07 P Bouygues and Others v Commission [2009] ECR I‑0000, paragraph 86; see also Case C‑202/07 P France Télécom v Commission [2009] ECR I‑0000, paragraph 69. 17 – See paragraphs 60 to 62 of the judgment under appeal. 18 – Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraphs 57 to 59; 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 165; Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraph 114; PKK and KNK v Council, cited in footnote 14, paragraphs 61 and 66; and France Télécom v Commission, cited in footnote 16, paragraph 60. 19 – See again paragraphs 60 to 62 of the judgment under appeal. 20 – See paragraph 63 of the judgment under appeal, where that submission is even referred to as the applicants’ central argument. 21 – See paragraphs 63 to 65 of the judgment under appeal. 22 – See also, in regard to this and the following points, my Opinion in ETI and Others, cited in footnote 2, points 68 to 72. 23 – ETI and Others, cited in footnote 2, paragraphs 38 and 43. 24 – Article 256(1) EC provides that decisions of the Commission which impose a pecuniary obligation are to be enforceable. Whereas the German language version of the Treaty lacks any further clarification, it can be inferred from a number of other language versions that ‘enforceable’ must refer to the enforceability of decisions which are adopted in relation to natural or legal persons; see, for example, the French (‘personnes’), Italian (‘persone’), English (‘persons’), Portuguese (‘pessoas’), Spanish (‘personas’) and – especially clearly – Dutch (‘natuurlijke of rechtspersonen’) versions. 25 – The judgments in Case T-6/89 Enichem Anic v Commission [1991] ECR II-1623, paragraph 236, and Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, ‘PVC II’, paragraph 978, are particularly clear on this point; to the same effect, see 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 60. 26 – Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraphs 78 and 145, and ETI and Others, cited in footnote 2, paragraph 39. The principle of personal responsibility is normally also the starting point taken by the national legal orders of the Member States for attributing cartel offences. 27 – On this point, see the Opinion of Advocate General Ruiz-Jarabo Colomer in Aalborg Portland v Commission, cited in footnote 25, in particular points 63 to 65. The principle of fault is expressed in, for example, Article 23(2) of Regulation No 1/2003, which provides that conduct which is either intentional or negligent may be punished by a fine. 28– To this effect, see 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; Case C‑286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I‑9925, ‘Stora’, paragraph 37; and Case C‑297/98 P SCA Holding v Commission [2000] ECR I‑10101, paragraph 27; see also Case T‑327/94 SCA Holding v Commission [1998] ECR II‑1373, paragraph 63. 29 – In this regard, see the early Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 173, according to which the purpose of penalties for cartel offences ‘is to suppress illegal activities and to prevent any repetition’; see also Case C‑76/06 P Britannia Alloys & Chemicals v Commission [2007] ECR I‑4405, paragraph 22. As regards the purpose of future infringements, see also Case C‑289/04 P Showa Denko v Commission [2006] ECR I‑5859, paragraph 61, and Case C‑308/04 P SGL Carbon v Commission [2006] ECR I‑5977, paragraph 37. 30 – To this effect, see Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 41. 31 – See the leading cases in this regard: Case 48/69 Imperial Chemical Industries v Commission [1972] ECR 619, ‘ICI’, paragraphs 132 to 135; Case 52/69 Geigy v Commission [1972] ECR 787, ‘Geigy’, paragraph 44; and Case 6/72 Europemballage and Continental Can v Commission [1973] ECR 215, ‘Continental Can’, paragraph 15; similarly, Case C‑294/98 P Metsä-Serla and Others v Commission [2000] ECR I‑10065, paragraph 27; Case C‑196/99 P Aristrain v Commission [2003] ECR I‑11005, paragraph 96; Dansk Rørindustri and Others v Commission, cited in footnote 18, paragraph 117; and ETI and Others, cited in footnote 2, paragraph 39 in conjunction with 49. 32 – The related issue of the attribution of a cartel offence to the economic successor to the cartel participant (see, for example, in this regard, ETI and Others, cited in footnote 2) is not the subject of the present case and will accordingly not be considered below. Nor does this case concern the question as to whether and in what circumstances the economic successor is liable for debts resulting from fines imposed on its predecessor. 33 – See, to that effect, ICI, cited in footnote 31, paragraph 137, and Case 107/82 AEG‑Telefunken v Commission [1983] ECR 3151, ‘AEG’, paragraph 50, first sentence. 34 – To that effect, see Joined Cases 32/78 and 36/78 to 82/78 BMW Belgiumand Others v Commission [1979] ECR 2435, paragraph 24, second sentence. 35 – It is clear from the case‑law that decisive influence or control for the purposes of competition law can be assumed to exist even with a shareholding below 100% (see, for example, ICI, cited in footnote 31, paragraphs 136 and 137). 36 – Only in public procurement law have even higher requirements so far been applied (Case C‑458/03 Parking Brixen [2005] ECR I‑8585, paragraph 64 et seq.), namely when it is necessary to determine whether an ‘in-house operation’ is involved. As I explained in my Opinion in Parking Brixen (see, in particular, points 75 and 76), I consider that approach mistaken. Nevertheless, the in-house case‑law, as it finds expression in the Parking Brixen judgment, cannot be applied to a case such as this anyway. It is actually devoted to a particular variety of control which must specifically go beyond ‘normal’ control in the company‑law and competition‑law sense. The contracting authority must exercise over the entity to which the contract is awarded a control ‘similar to that which it exercises over its own departments’. 37 – AEG, cited in footnote 33, paragraph 50. 38 – Stora, cited in footnote 28, paragraph 29, second sentence. 39 – Stora, cited in footnote 28, paragraphs 28 and 29, last sentence in each case. 40 – Stora, cited in footnote 28, paragraph 28. 41 – Stora, cited in footnote 28, paragraph 29. 42 – Stora, cited in footnote 28, paragraph 29. 43 – To that effect, see also Case T‑354/94 Stora Kopparbergs Bergslags v Commission [2002] ECR II‑843, paragraph 68, last sentence. 44 – Opinion of Advocate General Mischo in Stora, cited in footnote 28, points 40, last sentence, and 48. 45 – Paragraphs 60 to 62 of the judgment under appeal. 46 – Case T‑325/01 DaimlerChrysler v Commission [2005] ECR II‑3319, ‘DaimlerChrysler’, paragraph 219; this judgment is final and binding. 47 – Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02 and T‑126/02, T‑128/02 and T‑129/02, T‑132/02 and T‑136/02 Bolloré v Commission [2007] ECR II‑947, ‘Bolloré’, paragraph 132. Three appeals against that judgment are currently pending before the Court of Justice, although they do not concern the criteria for the attribution of cartel offences as between a subsidiary and a parent company; in his Opinion in 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‑0000, Advocate General Bot proposes that the Court should set aside the judgment in Bolloré in part. 48 – DaimlerChrysler, cited in footnote 46, paragraph 219. 49 – DaimlerChrysler, cited in footnote 46, paragraph 219. 50 – DaimlerChrysler, cited in footnote 46, paragraph 220. 51 – DaimlerChrysler, cited in footnote 46, paragraph 219, last half-sentence. 52 – Case T‑65/89 BPB Industries and British Gypsum v Commission [1993] ECR II‑389, paragraph 149; Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraphs 961, 984 and 985; Case T‑203/01 Michelin v Commission [2003] ECR II‑4071, paragraph 290; Case T‑330/01 Akzo Nobel v Commission [2006] ECR II‑3389, paragraphs 81 to 83; Case T‑314/01 Avebe v Commission [2006] ECR II‑3085, paragraph 136; and Case T‑43/02 Jungbunzlauer v Commission [2006] ECR II‑3435, paragraph 125. 53 – Bolloré, cited in footnote 47, paragraph 132. 54 – In this regard, see above, points 51 to 60 of this Opinion. 55 – Opinion of Advocate General Mischo in Stora, cited in footnote 28, point 48. 56 – Bolloré, cited in footnote 47, paragraphs 133 to 150. 57 – In this regard, see above, points 51 to 60 of this Opinion. 58 – In this regard, see above, point 47 of this Opinion. 59 – See, for example, Commission v Anic Partecipazioni, cited in footnote 26, paragraphs 121 and 126; Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287, paragraphs 162 and 167; and Aalborg Portland and Others v Commission, cited in footnote 25, paragraph 81. 60 – See, in this regard, my Opinion in Case C‑8/08 T-Mobile Netherlands and Others [2009] ECR I‑0000, point 89. 61 – See above, point 48 of this Opinion. 62 – See, to that effect, the Opinion of Advocate General Warner in Joined Cases 6/73 and 7/73 Commercial Solvents v Commission [1974] ECR 223, 266. 63 – With regard to the presumption of innocence, see Article 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and Article 48(1) of the Charter of fundamental rights of the European Union, proclaimed for the first time in Nice on 7 December 2000 (OJ 2000 C 364, p. 1); proclaimed again in Strasbourg on 12 December 2007 (OJ 2007 C 303, p. 1), which, even though they do not currently produce for the Community any binding effects comparable to primary law, may be referred to as a source of legal guidance. 64 – The standard of proof determines the requirements which must be satisfied for facts to be regarded as proven. It must be distinguished from the burden of proof. The burden of proof determines, first, which party must put forward the facts and, where necessary, adduce the related evidence (subjektive or formelle Beweislast, also known as the evidential burden); second, the allocation of that burden determines which party bears the risk of facts remaining unresolved or allegations unproven (objektive or materielle Beweislast). In addition, see my analysis in Kokott, J., Beweislastverteilung und Prognoseentscheidungen bei der Inanspruchnahme von Grund- und Menschenrechten, Berlin and Heidelberg 1993, p. 12 et seq. 65 – To the same effect – albeit in a somewhat different context – see Aalborg Portland and Others v Commission, cited in footnote 25, paragraph 79, and Joined Cases 110/88, 241/88 and 242/88 Lucazeau and Others [1989] ECR 2811, paragraph 25. 66 – See also, in this regard, my Opinion in Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I‑8725, point 73, and my Opinion in T-Mobile Netherlands, cited in footnote 60, point 89. 67 – The Commission correctly mentions the following examples in this regard: (a) the parent company is an investment company and behaves like a pure financial investor, (b) the parent company holds 100% of the shares in the subsidiary only temporarily and for a short period, (c) the parent company is prevented for legal reasons from fully exercising its 100% control over the subsidiary; see also the examples cited by Advocate General Warner in his Opinion in Commercial Solvents, cited in footnote 62. 68 – Joined Cases C‑395/96 P and C‑396/96 P Compagnie maritime belge transports and Others v Commission [2000] ECR I‑1365, paragraphs 143 and 146; Case C‑176/99 P ARBED v Commission [2003] ECR I‑10687, paragraph 21; and Aalborg Portland and Others v Commission, cited in footnote 25, paragraph 60. 69 – Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 14; Aalborg Portland and Others v Commission, cited in footnote 25, paragraph 67; Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 62; and Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑0000, paragraph 63. 70 – Paragraph 62 of the judgment under appeal. 71 – Paragraph 60, last sentence, of the judgment under appeal. 72 – ICI, paragraph 133; Geigy, paragraph 44; and Continental Can, paragraph 15, cited in footnote 31. 73 – See ICI, cited in footnote 31, paragraphs 132 and 133, and Geigy, cited in footnote 31, paragraph 44. 74 – See, for example, in this regard, ICI, paragraphs 137 and 138, and Geigy, paragraph 45, cited in footnote 31. 75 – In this respect, the English translation of the judgment in ICI, cited in footnote 31, paragraph 133, may give rise to misunderstandings. The phrase ‘in all material respects’ used in that paragraph could in fact be construed to the effect that the subsidiary must carry out the instructions of its parent company in every detail. The fact that this is not what is meant is clear both from a glance at the Dutch language version of the judgment, which alone is authentic (‘in hoofdzaak’) and from a comparison with the French version, the language in which the judgment was deliberated (‘pour l’essentiel’). 76 – The Court particularly emphasises these economic and legal links in its more recent case‑law; see Metsä-Serla and Others v Commission, cited in footnote 31, paragraph 27; Aristrain v Commission, cited in footnote 31, paragraph 96; and Dansk Rørindustri and Others v Commission, cited in footnote 18, paragraph 117; see also ETI and Others, cited in footnote 2, paragraph 49. 77 – It is self‑evident that, in this context, the subsidiary’s separate legal personality is no more a deciding factor than the mere fact that it is provided with its own organs (see, in this regard, ICI, paragraph 132; Geigy, paragraph 44; and Continental Can, paragraph 15, cited in footnote 31). 78 – With regard to the principle of personal responsibility, see above, point 39 of this Opinion and the case‑law cited in footnote 26. 79 – See above, points 42 and 43 of this Opinion. 80 – To that effect, see also ICI, cited in footnote 31, paragraph 141. 81 – The appellants refer in this connection to paragraph 65 of the judgment under appeal. 82 – Judgment under appeal, paragraph 65 at the end. 83 – Paragraph 66 in conjunction with paragraphs 67 to 85 of the judgment under appeal.