Opinion of the Advocate General — ECLI:EU:C:2016:1004
Date: 2016-12-21
Language of the case: English
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Appeal against penalty
Origin: Germany;United Kingdom;Netherlands

Summary — Judgment of the Court (Fifth Chamber), 27 April 2017 1. Appeal — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility (Art. 256(1), second subpara., TFEU; Statute of the Court of Justice, Art. 58, first para.) 2. Competition — EU rules — Infringements — Attribution — Undertaking — Concept — Economic unit — Entity consisting of several persons, natural or legal — Attribution of the infringement to such an economic unit — Lawfulness — Infringement of the principle of personal responsibility — None (Arts 101 TFEU and 102 TFEU) 3. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by parent company over its wholly-owned or almost wholly-owned subsidiaries — Rebuttable (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2)(a)) 4. Competition — EU rules — Infringement committed by a subsidiary — Attribution to the parent company — Joint and several liability for payment of the fine — Scope (Art. 101(1) TFEU) 5. Competition — Fines — Joint and several liability for payment — Scope — Attribution to the parent company of the infringing conduct of its subsidiary — Consequences for the parent company in the event of annulment or amendment of the Commission’s decision (Art. 101(1) TFEU) 6. Competition — Administrative procedure — Limitation period for fines — Expiry of the limitation period in respect of the subsidiary — No impact on the liability of the parent company (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 25(1)(b)) 1. See the text of the decision. (see para. 38) 2. See the text of the decision. (see paras 46-49) 3. See the text of the decision. (see paras 50-55) 4. See the text of the decision. (see paras 56-58) 5. See the text of the decision. (see paras 59-62) 6. While the fact that the Commission’s power to impose penalties for anticompetitive conduct is time-barred pursuant to Article 25(1)(b) of Regulation No 1/2003 means that a penalty can no longer be imposed on the companies in respect of which the limitation period has expired, that does not preclude another company, which is considered personally responsible and jointly and severally liable with those companies for the same anticompetitive behaviour, and in respect of which the limitation period has not expired, from having proceedings instituted against it. That conclusion is not affected by the fact that a company’s liability in respect of an infringement period arises exclusively from the direct participation of its subsidiaries. First, the anticompetitive activities in relation to that period are nevertheless regarded as having been carried out by the parent company itself, since it forms an economic unit. Secondly, factors specific to the parent company may justify assessing the parent company’s liability and that of its subsidiary differently, even if the liability of the former is based exclusively on the unlawful conduct of the latter. (see paras 70-74)