Judgment;Information — ECLI:EU:T:2019:498
Date: 2019-07-11
Language of the case: English
Court formation: Seventh Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded
Origin: Germany;Finland

summary and responded to the arguments put forward by the Huhtamäki Group during the administrative procedure in recitals 788 and 789 of the contested decision. 151 Moreover, it is apparent from paragraphs 125 to 143 above that the Commission did establish that the Huhtamäki Group had intended to contribute to the common objectives pursued by the participants in the cartel in NWE and was aware of the general scope and essential characteristics of that cartel. 152 Finally, the fact that, in certain cases, in the legal assessment of the single and continuous infringement in the contested decision the Commission made references to other parts of that decision, in which the conduct of each meeting is described in detail, did not prevent the applicants from knowing the reasons for the measure. 153 On that basis, the third part of the second plea must be dismissed as unfounded. 154 Thus, it must be held that the Commission did not err in finding that the applicants had participated in a single and continuous infringement. 155 Consequently, the Court must reject the second plea in its entirety as unfounded. 156 Furthermore, in the light of the considerations set out in paragraphs 29 and 30 above, the first ground of appeal must also be rejected as ineffective. The Commission classified the activities in NWE principally as a single and continuous infringement. It is apparent from the assessment of the second plea that the Commission did not err in finding that the applicants had participated in such an infringement. The arguments raised by the applicants as part of the first plea, by which they dispute, in essence, the Commission’s finding that those activities, during the same period of infringement, taken individually, may also be classified as separate infringements, are not therefore capable of calling into question the validity of Article 1(3) of the contested decision. The third plea in law: the Commission infringed the principles of proportionality and equal treatment, its own Guidelines on the setting of fines, and the duty to state reasons, by failing to consider, when determining the fines to be imposed on the applicants, individual circumstances which warranted reductions of those fines 157 The present plea is divided into two parts, the first alleging breach of the principle of proportionality, and the second a breach of the principle of equal treatment in that the Commission failed to take into consideration the minor and limited nature of the participation of the Huhtamäki Group in the cartel in NWE. Breach of the principle of proportionality 158 The applicants contend, in essence, that the Commission infringed the principle of proportionality by failing to take into account, either when determining the weighting of the gravity of the infringement or when considering adjustments to the basic amount of the fine, the minor and limited nature of the Huhtamäki Group’s involvement in the single and continuous infringement in NWE. 159 The Commission disputes those arguments. – The complaint concerning the gravity weighting 160 The applicants essentially criticise the Commission on the ground that it determined a blanket gravity weighting of 16% for each of the five separate cartels dealt with in the contested decision and for each participating undertaking within those five cartels. The Huhtamäki Group, moreover, was not even referred to in the relevant section of the contested decision concerning the gravity percentage. 161 As a preliminary point, on the one hand, it must be observed, as the Commission submits, that the applicants do not claim that the degree of gravity of the infringement as a whole is excessive and disproportionate. Rather, they rely on the fact that the fine imposed is disproportionate in the light of the allegedly minor and limited nature of the participation of the Huhtamäki Group in that infringement. 162 On the other hand, it should be noted that the applicants do not dispute the fact that the Commission is not required to carry out an individual assessment at the first stage of the determination of the amount of the fine, namely when determining the basic amount. They submit that the Commission is under an obligation to make such an assessment at least at one or other of the two stages of the setting of the fine (determination of the basic amount or adjustment of the fine). 163 In that regard, it must be borne in mind that, pursuant to Article 23(2)(a) of Regulation No 1/2003, the Commission may, by decision, impose fines on undertakings or associations of undertakings where, either intentionally or negligently, they infringe the provisions of Article 101 TFEU and Article 102 TFEU. 164 Article 23(3) of Regulation No 1/2003 provides that, in fixing the amount of the fine, regard is to be had both to the gravity and to the duration of the infringement. 165 Points 19 to 23 of the 2006 Guidelines state as follows: ‘19. The basic amount of the fine will be related to a proportion of the value of sales, depending on the degree of gravity of the infringement, multiplied by the number of years of infringement. 20. The assessment of gravity will be made on a case-by-case basis for all types of infringement, taking account of all the relevant circumstances of the case. 21. As a general rule, the proportion of the value of sales taken into account will be set at a level of up to 30% of the value of sales. 22. In order to decide whether the proportion of the value of sales to be considered in a given case should be at the lower end or at the higher end of that scale, the Commission will have regard to a number of factors, such as the nature of the infringement, the combined market share of all the undertakings concerned, the geographic scope of the infringement and whether or not the infringement has been implemented. 23. Horizontal price-fixing, market-sharing and output-limitation agreements, which are usually secret, are, by their very nature, among the most harmful restrictions of competition. As a matter of policy, they will be heavily fined. Therefore, the proportion of the value of sales taken into account for such infringements will generally be set at the higher end of the scale.’ 166 Lastly, as regards the alleged infringement of the principle of proportionality, it should be recalled that, according to the case-law, that principle requires that measures adopted by EU institutions should not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, and where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (judgment of 5 May 1998, United Kingdom v Commission, C‑180/96, EU:C:1998:192, paragraph 96). 167 In the procedures initiated by the Commission in order to penalise infringements of the competition rules, the application of that principle requires that fines must not be disproportionate to the objectives pursued, that is to say, by reference to compliance with those rules, and that the amount of the fine imposed on an undertaking for an infringement in competition matters must be proportionate to the infringement, seen as a whole, having regard, in particular, to the gravity thereof (see, to that effect, judgment of 12 September 2007, Prym and Prym Consumer v Commission, T‑30/05, not published, EU:T:2007:267, paragraph 224 and the case-law cited). In particular, that principle requires the Commission to set the fine proportionately to the factors taken into account for the purposes of assessing the gravity of the infringement and also to apply those factors in a way which is consistent and objectively justified (judgments of 27 September 2006, Jungbunzlauer v Commission, T‑43/02, EU:T:2006:270, paragraph 228, and of 28 April 2010, Amann & Söhne and Cousin Filterie v Commission, T‑446/05, EU:T:2010:165, paragraph 171). 168 As regards cartels, which are considered to be the most serious infringements, the Court has held, after observing that, under point 23 of the 2006 Guidelines, since the proportion of the value of sales taken into account will generally be set ‘at the higher end of the scale’, the rate should, at the very least, be above 15% (see, to that effect, judgment of 16 June 2011, Ziegler v Commission, T‑199/08, EU:T:2011:285, paragraph 141). 169 In the present case, in order to justify a gravity weighting of 16%, the Commission stated, in recitals 1026 and 1027 of the contested decision, on the one hand, that, by reason of their very nature, the price-fixing practices were among the most serious restrictions of competition and, on the other, that the cartel in question was multidimensional in nature. 170 In that regard, it should be noted that, in recital 1027 of the contested decision, the Commission stated that it had added an additional percentage point on account of the multifaceted nature of the infringement by using the phrase ‘given the multi-faceted character of each of the five separate cartels’. However, it is clear from a reading of that recital that the cartel in NWE was the only one of the five cartels which included a single anticompetitive aspect, namely a price increase. 171 The Commission stated during the procedure before the Court that it was apparent from recital 503 of the contested decision that, first, the purpose of the cartel in NWE was not only to increase prices and to maintain them at a certain level, but also to preserve the status quo of the market, and that, secondly, that cartel also included the exchange of commercially sensitive information, in particular with the aim of monitoring the price increases agreed upon. However, it must be observed that the findings in that recital are not mentioned in the assessment made in recital 1027 of that decision. 172 As regards the Commission’s argument that the NWE cartel had a geographical scope covering eight States, it must be held that, even though that is true, the reference to geographic scope does not appear in recital 1027 to the contested decision. 173 Moreover, in recital 1031 of the contested decision, which is devoted to the assessment of the geographical dimension of the infringements, the Commission concluded that it did not use the geographical dimension in order to increase the gravity weighting of each of the infringements found to have occurred, on the ground that the five separate cartels had been defined on the basis of the geographical area served and that none of them covered all or most of the territory of the European Economic Area (EEA). 174 Thus, it must be held that the reasons put forward by the Commission in recital 1027 of the contested decision in order to justify the addition of an additional percentage point by reason of the multifaceted nature of the cartel in NWE are incorrect. 175 However, as part of the exercise of the Court’s unlimited jurisdiction, it must be held that, even in the case of a cartel relating solely to an increase in prices, a rate of 16% is proportionate, in so far as it is a weighting which is located towards the bottom of the upper band of the scale set out in point 21 of the 2006 Guidelines, ranging from 0 to 30%, and which reflects the gravity of the infringement at issue. 176 Moreover, the fact that the Commission applied an identical gravity weighting for each of the five cartels at issue in the contested decision and for each undertaking taking part in those five cartels is irrelevant to the finding that a gravity weighting of 16% in the present case was neither disproportionate nor inappropriate in view of the infringement at issue (see, to that effect, judgment of 15 December 2016, Philips and Philips France v Commission, T‑762/14, not published, EU:T:2016:738, paragraph 326). 177 In those circumstances, while it must be held that the reasons put forward by the Commission to justify the 16% rate are incorrect, the fact remains that, in view of the circumstances described in paragraphs 175 and 176 above, such a rate is appropriate. 178 Accordingly, this complaint must be rejected. – The complaint alleging the existence of mitigating circumstances 179 The applicants essentially contend that there are a number of mitigating circumstances which, in accordance with point 29 of the 2006 Guidelines, justify a substantial reduction in the amount of the fine in respect of the Huhtamäki Group’s participation in the cartel in NWE. In that regard they refer, first, to that group’s allegedly sporadic and limited participation, particularly in view, first, of its absence from key meetings on price increases in spring/summer 2002, summer/autumn 2004, and during contacts in 2006 and, secondly, its allegedly limited involvement in the bilateral exchange of information and kick-off for the ‘MAP IK’ in 2005. The applicants then rely on the fact that there is no allegation that they participated in market or customer-sharing activities, and that they have no responsibility for collusion in respect of the ‘Nordic countries’. Lastly, they point out that that group did not implement any of the agreements allegedly concluded with its competitors. 180 In that regard, it should be recalled that the Court of Justice has held that the General Court correctly held that it was open to the Commission to take into account the relative gravity of the participation of an undertaking in an infringement and the particular circumstances of the case when assessing the gravity of the infringement or when adjusting the basic amount of the fine according to the mitigating and/or aggravating circumstances (see, to that effect, judgment of 11 July 2013, Team Relocations and Others v Commission, C‑444/11 P, not published, EU:C:2013:464, paragraph 103). 181 According to settled case-law, the grant of a reduction of the basic amount of the fine in respect of mitigating circumstances is necessarily linked to the circumstances of the particular case, which may lead the Commission not to grant that reduction to an undertaking which is party to an unlawful agreement. To recognise a mitigating circumstance in situations where an undertaking is party to a manifestly unlawful agreement which it knew or could not be unaware constituted an infringement could encourage undertakings to continue a secret agreement as long as possible, in the hope that their conduct would never be discovered, while knowing that if it were discovered they could expect, by then curtailing the infringement, their fine to be reduced. Such a recognition would deprive the fine imposed of any deterrent effect and would undermine the effectiveness of Article 101(1) TFEU (see, to that effect, judgment of 9 July 2009, Archer Daniels Midland v Commission, C‑511/06 P, EU:C:2009:433, paragraphs 104 and 105 and the case-law cited). 182 Point 29 of the 2006 Guidelines states as follows: ‘The basic amount may be reduced where the Commission finds that mitigating circumstances exist, such as: … – where the undertaking provides evidence that its involvement in the infringement is substantially limited and thus demonstrates that, during the period in which it was party to the offending agreement, it actually avoided applying it by adopting competitive conduct in the market: the mere fact that an undertaking participated in an infringement for a shorter duration than others will not be regarded as a mitigating circumstance since this will already be reflected in the basic amount; …’ 183 As is apparent from point 29 of the 2006 Guidelines, the Commission is under no obligation always to take account separately of each of the mitigating circumstances listed: it ‘may’ reduce the basic amount. Although the circumstances in the list in that point 29 are certainly among those which may be taken into account by the Commission in a specific case, it is not required to grant a further reduction as a matter of course once an undertaking has put forward evidence of the existence of one of those circumstances; the appropriateness of any reduction of the fine in respect of mitigating circumstances must be examined comprehensively on the basis of all the relevant circumstances. 184 In the present case, as regards the applicants’ argument that the Commission should have taken into consideration the allegedly sporadic and limited nature of the participation of the Huhtamäki Group in the cartel in question, and the fact that that group was absent at certain meetings and the alleged absence of responsibility for collusion in respect of the ‘Nordic countries’, it must be recalled, as is apparent from the analysis of the second plea, that the Commission was right to take the view that that group had participated in a single and continuous infringement of Article 101 TFEU and Article 53 of the EEA Agreement relating to foam trays and rigid trays in NWE. 185 Next, as regards the applicants’ argument alleging failure to implement the cartel, it must be rejected. In that regard, on the one hand, it is apparent from recitals 804 and 1032 of the contested decision that the Commission did not increase the gravity weighting of the infringement in question by taking account of the implementation of the cartel, even though it considered that the arrangements had, in general, been implemented. On the other hand, the applicants have not established that they opposed that cartel to the point of disrupting its smooth functioning, a requirement which is however set out in the case-law in order for non-implementation justifying a reduction of the amount of the fine in respect of mitigating circumstances to be recognised. According to the case-law, the Commission is not required to recognise the existence of a mitigating circumstance consisting of non-implementation of a cartel unless the undertaking relying on that circumstance is able to show that it clearly and substantially opposed the implementation of the cartel, to the point of disrupting the very functioning of it, and that it did not give the appearance of adhering to the agreement and thereby incite other undertakings to implement the agreement in question. The fact that an undertaking whose participation in a concerted practice with its competitors is established did not conduct itself in the market in the manner agreed with its competitors does not necessarily have to be taken into account, as a mitigating circumstance, when the amount of the fine to be imposed is determined (see, to that effect, judgments of 2 February 2012, Denki Kagaku Kogyo and Denka Chemicals v Commission, T‑83/08, not published, EU:T:2012:48, paragraph 248 and the case-law cited, and of 9 September 2015, Panasonic and MT Picture Display v Commission, T‑82/13, EU:T:2015:612, paragraph 178 (not published)). 186 In addition, the applicants’ argument that the Huhtamäki Group did not participate in market or customer-sharing activities must be rejected as ineffective, in so far as it is apparent from recitals 725 and 1027 of the contested decision that such conduct was not specifically found to have been committed by any of the members of the cartel, including that group, in the context of the cartel in NWE. 187 Finally, the applicants do not explain how, by not granting them the benefit of a mitigating circumstance, the Commission infringed the principle of proportionality. 188 Even assuming that, by their arguments which, in essence, consist of suggesting the minor and limited nature of the Huhtamäki Group’s involvement in the infringement at issue, the applicants seek to establish that the role of that group was exclusively passive in the cartel, it must be noted, first, that, although that fact was expressly mentioned as a possible mitigating circumstance in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3), it is no longer one of the mitigating circumstances which can be used when applying the 2006 Guidelines. That therefore manifests a deliberate political choice to no longer ‘encourage’ passive conduct by those participating in an infringement of the competition rules. That choice falls within the discretion of the Commission in determining and implementing competition policy (see, to that effect, judgment of 9 September 2015, Panasonic and MT Picture Display v Commission, T‑82/13, EU:T:2015:612, paragraph 181 (not published)). 189 Moreover, an ‘exclusively passive or follow-my-leader’ role in the infringement implies, by definition, that the undertaking concerned will adopt a ‘low profile’, that is to say not actively participate in the creation of any anticompetitive agreements (see, to that effect, judgment of 9 July 2003, Cheil Jedang v Commission, T‑220/00, EU:T:2003:193, paragraph 167). It is clear from case-law that one factor that may indicate that an undertaking has played a passive role in a cartel is where its participation in cartel meetings is significantly more sporadic than that of the ordinary members of the cartel; another is where a representative of another undertaking which has participated in the infringement makes an express declaration regarding the role played by that undertaking in the cartel, regard being had to all the relevant circumstances of the individual case (see judgment of 9 July 2003, Cheil Jedang v Commission, T‑220/00, EU:T:2003:193, paragraph 168 and the case-law cited). 190 In the present case, the Huhtamäki Group participated in three of the five multilateral meetings held during its participation in the infringement in question and in several bilateral contacts of an anticompetitive nature with the other participants in the cartel in question. In addition, none of the participants in the cartel stated that the applicants had adopted a ‘low profile’ during the cartel. 191 For those reasons, it cannot be considered that the role of the Huhtamäki Group was exclusively passive. 192 For the sake of completeness, it should be recalled that the fact that other undertakings participating in the same cartel may have been more active than a given participant does not necessarily imply that the latter had an exclusively passive or follow-my-leader role. In fact, only complete passivity could be taken into account and must be established by the party alleging it (see, to that effect, judgment of 13 September 2010, Trioplast Industrier v Commission, T‑40/06, EU:T:2010:388, paragraph 108 and the case-law cited). 193 Moreover, it is clear from the case-law that, as a matter of principle, a participant in an infringement cannot allege a mitigating circumstance deriving from the conduct of the other participants in the infringement (judgment of 29 November 2005, Union Pigments v Commission Case, T‑62/02, EU:T:2005:430, paragraph 125). 194 Accordingly, the fact that the other cartel members became involved in the cartel earlier, or more deeply, might well constitute an aggravating circumstance in relation to them but not a mitigating circumstance in favour of the Huhtamäki Group (see, to that effect, judgment of 14 May 2014, Reagens v Commission, T‑30/10, not published, EU:T:2014:253, paragraph 285 and the case-law cited). 195 Therefore, the Commission was entitled to consider, in the light of all those factors, that the grant of mitigating circumstances was not justified. In those circumstances, it is irrelevant that the Huhtamäki Group was not mentioned in the part of the contested decision concerning mitigating circumstances. 196 Consequently, the applicants’ complaint based on the exclusively passive role of the Huhtamäki Group must be rejected as unfounded. 197 It follows from the foregoing that the first part of the third plea, alleging breach of the principle of proportionality, must be rejected as unfounded. Infringement of the principle of equal treatment 198 The applicants essentially submit that the Commission infringed the principle of equal treatment by applying the same gravity weighting to them as to the other addressees of the contested decision in respect of the infringement in NWE, and particularly by failing to acknowledge the Huhtamäki Group’s substantially limited role in the infringement in comparison with other participants. 199 In that regard, it must be recalled that the principle of equal treatment constitutes a general principle of law which the Commission must respect in a procedure brought under Article 101 TFEU and which prevents comparable situations from being treated differently and different situations from being treated in the same way, unless such difference in treatment is objectively justified (judgment of 29 June 2012 in GDF Suez v Commission, T‑370/09, EU:T:2012:333, paragraph 386). 200 In the present case, it is apparent from the clarifications provided by the applicants in the reply that, by their arguments, put forward in the second part of the third plea, they criticise the Commission for having failed ‘to take into account [the Huhtamäki Group’s] limited role … in the single and continuous infringement’. They add that ‘the Commission had an obligation to consider, either when determining the gravity percentage of the fine or when considering adjustments to the basic amount of the fine, individual circumstances specific [to that group]’. 201 However, it appears from the analysis carried out in the first part of the third plea in law that, on the one hand, the gravity weighting of 16% in respect of the infringement in NWE is appropriate (see paragraph 176 above) and, on the other hand, the Commission could consider, in the light of all the relevant factors, that the granting of mitigating circumstances to the Huhtamäki Group was not justified (see paragraph 195 above). 202 Moreover, it should be added that the two arguments put forward by the applicants in relation to infringement of the principle of equal treatment are, in essence, the same as those set out in the first part of the third plea and that those arguments must therefore be rejected on the same grounds as those set out in the examination of that part of the plea. 203 In the first place, in order to reject the applicants’ argument that the alleged degree of involvement of the Huhtamäki Group distinguishes it from the ‘hard core’ of the cartel at issue, namely Linpac, Vitembal and Silver Plastics, it suffices to refer to paragraphs 192 to 194 above. 204 In the second place, with regard to the applicants’ argument that, unlike the other participants in the cartel in question, it is not apparent from the contested decision that the Huhtamäki Group implemented the price increases, it suffices to refer to paragraph 185 above. 205 Accordingly, the second part of the third plea, alleging breach of the principle of equal treatment, must also be rejected as unfounded. 206 In light of the foregoing, the third plea in law must be rejected as unfounded. The fourth plea in law: the Commission infringed Articles 101 TFEU, 53 EEA and 23(2) of Regulation No 1/2003 in finding the first applicant to be jointly and severally liable with its former subsidiaries for infringements committed in France and SWE 207 The applicants essentially claim that the first applicant did not exercise a decisive influence over its subsidiaries Huhtamäki Embalagens Portugal SA, now ONO Packaging Portugal SA (‘Huhtamäki Embalagens’) and Huhtamäki France SA, now Coveris Rigid France SAS (‘Coveris’) during the infringements committed in SWE and France respectively. 208 In the first place, the first applicant’s division relating to the foam tray business in SWE formed one and the same undertaking consisting of Coveris and Huhtamäki Embalagens for the purposes of EU competition law. They acted on the basis of one common commercial strategy. Coveris had the power to determine the commercial strategy of Huhtamäki Embalagens in respect of its foam tray activities. 209 In the second place, the first applicant’s subsidiaries benefited from an exceptional degree of commercial autonomy, as the latter had only limited knowledge of the specific nature of their business. 210 Thirdly, the strategic interests of the first applicant’s senior management and those of its subsidiaries were not aligned during the periods of the infringements, particularly as the Huhtamäki Group was involved in a restructuring process which resulted in Mr A., a Coveris employee, taking on the SWE foam tray business. 211 The Commission disputes those arguments. 212 It should be pointed out that the conduct of a subsidiary can be imputed to its parent company, in particular where, although it has separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, having regard in particular to the economic, organisational and legal links between those two legal entities (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 54 and the case-law cited). 213 In such a situation, since the parent company and its subsidiary form part of a single economic unit and thus form a single undertaking for the purpose of Article 101 TFEU, the Commission may address a decision imposing fines to the parent company without being required to establish its individual involvement in the infringement (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 55 and the case-law cited). In other words, the factor which entitles the Commission to address the decision imposing fines to the parent company is not necessarily a parent-subsidiary relationship in which the parent company instigates the infringement; nor, a fortiori, is it because of the parent company’s involvement in the infringement; rather, it is because the companies concerned constitute a single undertaking for the purposes of Article 101 TFEU (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 88). 214 Moreover, the Court has stated that, in the specific case where a parent company has a 100% shareholding in a subsidiary which has infringed the competition rules of the European Union, first, the parent company can exercise a decisive influence over the conduct of the subsidiary and, second, there is a rebuttable presumption that the parent company does in fact exercise such a decisive influence ( the ‘presumption of actual exercise of decisive influence’) (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 56 and the case-law cited). 215 The purpose of the presumption of actual exercise of decisive influence is, in particular, to strike a balance between, on the one hand, the importance of the objective of suppressing conduct contrary to the competition rules, in particular to Article 101 TFEU, and of preventing a repetition of such conduct, and, on the other hand, the importance of the requirements flowing from certain general principles of EU law such as the principle of the presumption of innocence, the principle that penalties must be specific to the offender, the principle of legal certainty and the principle of the rights of the defence, including the principle of equality of arms. It is for that reason, among others, that the presumption is rebuttable (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 59). It follows that such a presumption is proportionate to the legitimate aim pursued (judgment of 18 July 2013, Schindler Holding and Others v Commission, C‑501/11 P, EU:C:2013:522, paragraph 108). 216 Accordingly, it is sufficient for the Commission to prove that the subsidiary is wholly owned by the parent company in order to presume that the parent actually exercises decisive influence over the subsidiary’s commercial policy. The Commission will then be able to regard the parent company as jointly and severally liable for the payment of the fine imposed on its subsidiary, unless the parent company, which has the burden of rebutting that presumption, adduces sufficient evidence to show that its subsidiary acts independently on the market (see judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 57 and the case-law cited). 217 A parent company may be held liable for an infringement committed by a subsidiary even where there is a large number of operating companies in a group (judgments of 20 April 1999 in Limburgse Vinyl Maatschappij and Others v Commission, 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, EU:T:1999:80, paragraph 989, and of 27 September 2012, Shell Petroleum and Others v Commission, T‑343/06, EU:T:2012:478, paragraph 52). 218 Moreover, it has been held that the presumption of actual exercise of decisive influence also applied where the parent company held the capital of its subsidiary, not directly, but, as in the present case, through other companies (see, to that effect, judgments of 20 January 2011, General Química and Others v Commission, C‑90/09 P, EU:C:2011:21, paragraph 86, and of 15 July 2015, GEA Group v Commission, T‑45/10, not published, EU:T:2015:507, paragraph 142). 219 In addition, the presumption of actual exercise of decisive influence is based on the fact that, save in quite exceptional circumstances, a company holding all the capital of a subsidiary can, by dint of that shareholding alone, exercise decisive influence over that subsidiary’s conduct and that it is within the sphere of operations of those entities against whom the presumption operates that evidence of the lack of actual exercise of that power to influence is generally apt to be found. In those circumstances, if, in order to rebut that presumption, it were sufficient for a party concerned to put forward mere unsubstantiated assertions, the presumption would be largely robbed of its usefulness (judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraphs 60 and 61). 220 In order to rebut the presumption of actual exercise of decisive influence, a parent company must, in the context of the actions against a Commission decision, put before the EU judicature any evidence relating to the organisational, economic and legal links between its subsidiary and itself which are such as to demonstrate that they do not constitute a single economic entity (see judgment of 16 June 2016, Evonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 32 and the case-law cited). 221 Moreover, the fact that it is not apparent from the documents in the file that the parent company gave instructions to its subsidiary is insufficient to rule out the possibility that the parent company did in fact exercise a decisive influence over that subsidiary (see, to that effect, judgment of 13 July 2011, Shell Petroleum and Others v Commission, T‑38/07, EU:T:2011:355, paragraph 70). 222 It should be pointed out that, while the Court of Justice, in its case-law, has referred to other circumstances, such as the absence of any challenge to the influence exercised by the parent company over the commercial policy of its subsidiary and the joint representation of the two companies during the administrative procedure, the fact remains that such circumstances have not been identified with the aim of making the implementation of the presumption subject to the production of additional evidence that the parent company in fact exercised influence. In other words, the Commission is not required, in order to apply the presumption of actual exercise of decisive influence in a given case, to provide indicia over and above those demonstrating the applicability and effectiveness of that presumption (see, to that effect, judgment of 29 September 2011, Elf Aquitaine v Commission, C‑521/09 P, EU:C:2011:620, paragraph 80 and the case-law cited). 223 In the contested decision, the Commission held jointly and severally responsible, on the one hand, the first applicant and Huhtamäki Embalagens for the infringement in SWE from 7 December 2000 to 18 January 2005 and, on the other hand, the first applicant and Coveris for the infringement in France from 3 September 2004 to 24 November 2005. 224 The direct participants in the infringements in SWE and France were Huhtamäki Embalagens and Coveris respectively. Throughout the duration of the infringements, the first applicant indirectly held 100% of the shares in the two abovementioned companies. Accordingly, the Commission presumed that the first applicant had exercised a decisive influence over the conduct of its subsidiaries which were directly involved in the two abovementioned infringements. 225 In the present case, it must be observed that, by the present plea, the applicants do not dispute the fact that the first applicant indirectly held 100% of the capital of Coveris and Huhtamäki Embalagens throughout the duration of the infringements in SWE and France. However, they claim that the first applicant did not in fact exercise a decisive influence over its subsidiaries during those infringements. 226 Moreover, the applicants do not challenge the factual assessment contained in the contested decision that there were economic, organisational and legal links between the first applicant and its subsidiaries. Nor do they comment on the evidence referred to in that decision. They merely claim an alternative version of the facts, without really providing evidence capable of rebutting the presumption of actual exercise of decisive influence. 227 First of all, as regards the applicants’ argument that Coveris and Huhtamäki Embalagens formed one and the same undertaking for the purposes of EU competition law, given that Coveris had the power to determine Huhtamäki Embalagens’s commercial strategy, and that the two companies were acting on the basis of a common commercial strategy, defined by Mr A., an employee of Coveris, it suffices to note that the fact that a subsidiary enjoys a degree of commercial autonomy is not in itself sufficient to establish that it does not form a single undertaking with its parent company within the meaning of Article 101 TFEU (see, to that effect, judgment of 8 May 2013, Eni v Commission, C‑508/11 P, EU:C:2013:289, paragraph 64). 228 Next, the applicants’ argument that the two subsidiaries of the first applicant were distinguished by an exceptional degree of commercial autonomy and carried out their own daily commercial operations, thus operating autonomously, must also be rejected. Operational independence does not, in itself, prove that a subsidiary decides upon its conduct on the market independently of its parent company. The division of tasks between subsidiaries and their parent companies and, in particular, the fact that the local management of a wholly owned subsidiary is entrusted with operational management is normal practice in large undertakings composed of a multitude of subsidiaries ultimately owned by the same holding company (see, to that effect, judgment of 11 July 2014, RWE and RWE Dea v Commission, T‑543/08, EU:T:2014:627, paragraph 49 and the case-law cited). 229 That approach is justified, moreover, by the fact that, in the case of a subsidiary which is wholly, or almost wholly, owned by a sole parent company, there is in principle a single commercial interest and the members of the subsidiary’s bodies are designated and appointed by the sole shareholder, which may give them at least informal instructions and impose performance criteria on them. In such a case, therefore, there is necessarily a relationship of confidence between the management of the subsidiary and the management of the parent company and the management of the subsidiary necessarily acts by representing and promoting the only commercial interest that exists, namely the interest of the parent company. Thus, the unity of the market conduct of the parent company and of its subsidiary is ensured in spite of any autonomy conferred on the management of the subsidiary as regards its operational management, which comes within the definition of the parent company’s commercial policy in the strict sense. As a general rule, moreover, it is the sole shareholder that defines, on its own and according to its own interests, the procedure whereby the subsidiary takes decisions and that determines the extent of the subsidiary’s operational autonomy, which it may change on its own initiative by amending the rules governing the functioning of the subsidiary or in the context of a restructuring, or indeed by setting up informal decision-taking structures. Therefore, as a general rule, the management of the subsidiary thus ensures that the subsidiary’s commercial conduct complies with that of the rest of the group in the exercise of their autonomous powers (see, to that effect, judgment of 11 July 2014, RWE and RWE Dea v Commission, T‑543/08, EU:T:2014:627, paragraph 50 and the case-law cited). 230 Furthermore, the mere fact that the share capital of two separate commercial companies belong to the same company, and, in the present case, to the first applicant, is insufficient, in itself, to establish that those two companies are an economic unit with the result that, under EU competition law, the actions of one company can be attributed to the other and that one can be held liable to pay a fine for the other (see, to that effect, judgment of 2 October 2003, Aristrain v Commission, C‑196/99 P, EU:C:2003:529, paragraph 99). 231 That conclusion cannot be called into question either by the fact that there had been no overlap of personnel between the parent company and subsidiaries, or by the differences between the technologies used within the Huhtamäki Group. 232 Finally, the Court must also reject the applicants’ argument that the interests of the first applicant and those of its two subsidiaries in question were not aligned during the periods of infringement, in particular because, during those periods, it was involved in a restructuring process. 233 In that regard, it should be noted that the exercise of decisive influence by the parent company over its subsidiary is not incompatible with a decision by the parent to divest itself of that subsidiary or part of the assets of that subsidiary. An undertaking may evolve, by acquiring new companies and integrating them into the existing structure or, conversely, by transferring them to third parties and, consequently, separating the existing structure from a greater or lesser part of the company. However, what matters for the attribution of liability for an infringement of the competition rules is the composition of the undertaking in question during the period to which the infringement relates. The fact that a subsidiary has been sold shortly after the infringement period does not necessarily mean that, during that period, its parent company did not influence its commercial policy decisively (see, to that effect, judgment of 23 January 2014, Evonik Degussa and AlzChem v Commission, T‑391/09, not published, EU:T:2014:22, paragraph 94). 234 Consequently, the applicants’ arguments alleging that the first applicant did not exercise a decisive influence over its two subsidiaries in question, namely Coveris and Huhtamäki Embalagens, during the period of the infringements in France and SWE and, consequently, the fourth plea in law, must be rejected as unfounded. 235 In addition, as regards the applicants’ request that the Court reduce the amount of the fines imposed on them, it must be borne in mind, in that regard, that, according to the case-law, the unlimited jurisdiction conferred on the Courts of the European Union by Article 31 of Regulation No 1/2003 in accordance with Article 261 TFEU empowers the Court, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or periodic penalty payment imposed (see, to that effect, judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 63 and the case-law cited). 236 Furthermore, the exercise of that jurisdiction does not amount to a review of the Court’s own motion, and proceedings are inter partes. It is, in principle, for the applicant to raise pleas in law against the contested decision and to adduce evidence in support of those pleas (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 76 and the case-law cited). 237 Moreover, in order to satisfy the requirements of Article 47 of the Charter of Fundamental Rights when conducting a review in the exercise of its unlimited jurisdiction with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (see, to that effect, judgment of 18 December 2014, Commission v Parker Hannifin Manufacturing and Parker-Hannifin, C‑434/13 P, EU:C:2014:2456, paragraph 75 and the case-law cited). 238 In the present case, it must be held that, as regards the amount of the fines imposed on the applicants, which they contest, they do not put forward any specific arguments in support of their request for a reduction in the amount of the fines, confining themselves, in only one of their subsidiary pleadings, to requesting a substantial reduction in the fine imposed on them. In those circumstances, the applicants do not satisfy the requirement, as referred to in the case-law cited in paragraph 236 above, to put forward pleas in support of their request. 239 Accordingly, it must be held that the General Court cannot of its own motion, in the exercise of its unlimited jurisdiction, review all the pleas in law and evidence relied on in support of the application for annulment of the contested decision without the applicants having shown which of those pleas or evidence concretely and specifically demonstrate the alleged inappropriateness of the fine. 240 In any event, even if the applicants, in support of their application for reduction of the fines imposed on them, rely on the more limited scope of the participation of the Huhtamäki Group in the cartel in NWE, it must be held that such a reduction should not be made in this respect, since that group participated in several multilateral meetings and several bilateral contacts of an anticompetitive nature with the other participants in the cartel in question and did not have an exclusively passive or follow-my-leader role. 241 Therefore, the action must be dismissed in its entirety. Costs 242 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs in their entirety in accordance with the form of order sought by the Commission. On those grounds, THE GENERAL COURT (Seventh Chamber) hereby: 1. Dismisses the action; 2. Orders Huhtamäki Oyj and Huhtamaki Flexible Packaging Germany GmbH & Co KG to pay the costs. Tomljenović Bieliūnas Kornezov Delivered in open court in Luxembourg on 11 July 2019. E. Coulon V. Tomljenović Registrar President Table of contents Background to the dispute Procedure and forms of order sought Law Preliminary observations The second plea in law: the Commission infringed Articles 101 TFEU and 53 EEA, as it committed a manifest error of assessment, and infringed its duty to state reasons, in finding that the applicants had participated in a single and continuous infringement in NWE during the period between 13 June 2002 and 20 June 2006 Participation in the constituent elements of the single and continuous infringement in NWE – The price increase in spring/summer 2002 – Price Increase in summer/autumn 2004 – Bilateral Exchange of Information and Kick-off for the ‘MAP IK’ in 2005 – Contacts in 2006 The alleged failure to contribute to the common objectives of the cartel and lack of awareness of its general scope and essential characteristics The Commission’s alleged failure to address, in the contested decision, the applicants’ arguments relating to the issue of a single and continuous infringement The third plea in law: the Commission infringed the principles of proportionality and equal treatment, its own Guidelines on the setting of fines, and the duty to state reasons, by failing to consider, when determining the fines to be imposed on the applicants, individual circumstances which warranted reductions of those fines Breach of the principle of proportionality – The complaint concerning the gravity weighting – The complaint alleging the existence of mitigating circumstances Infringement of the principle of equal treatment The fourth plea in law: the Commission infringed Articles 101 TFEU, 53 EEA and 23(2) of Regulation No 1/2003 in finding the first applicant to be jointly and severally liable with its former subsidiaries for infringements committed in France and SWE Costs * Language of the case: English.