Judgment — ECLI:EU:T:2009:369
Date: 2009-09-30
Language of the case: English
Court formation: Seventh Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition
Concepts: General;Determining the amount of the fine;Definition of undertaking
Procedure: Action for annulment - unfounded;Appeal against penalty - unfounded
Origin: Netherlands;Sweden

summary of which is published in the Official Journal of 22 July 2005 (OJ 2005 L 190, p. 22), the same multiplier of 1.5 was applied to it is irrelevant because it cannot be seen as meaning that 1.5 is the appropriate multiplier in any case where a company of the Akzo Nobel Group is involved in a cartel. 149 The Commission contends that the plea should be rejected. – Findings of the Court 150 It should be noted that the object of the penalties provided for in Article 15 of Regulation No 17 and Article 23 of Regulation No 1/2003 is to suppress illegal activities and to prevent any recurrence (see Case T‑15/02 BASF v Commission [2006] ECR II‑497, paragraph 218 and the case‑law cited). 151 Section 1.A of the Guidelines, dealing with the gravity of infringements, refers to that objective. More particularly, the fourth paragraph of that section states that it will be necessary ‘to set the fine at a level which ensures that it has a sufficiently deterrent effect’. In addition, the fifth paragraph of that section states that, ‘[g]enerally speaking, account may also be taken of the fact that large undertakings usually have legal and economic knowledge and infrastructures which enable them more easily to recognise that their conduct constitutes an infringement and be aware of the consequences stemming from it under competition law’. 152 In the present case, that objective is referred to in the heading of the relevant section of the contested decision (‘Sufficient deterrence’) and in recitals 298 and 300 thereof. To achieve that objective, the Commission considered that it was appropriate to multiply by 2.5 the starting amount of the fine imposed on Atofina/Elf Aquitaine and by 1.5 that of the fine imposed on the Akzo Nobel Group, relying on their respective worldwide turnovers of EUR 84.5 billion and EUR 13 billion in 2003, in order to take account of the size and overall resources of those two groups. 153 Without calling into question the lawfulness of the application of a multiplier to the starting amount of the fine imposed on them, the applicants none the less claim that, in the present case, the application of a multiplier of 1.5 is disproportionate. 154 In that connection, it should be borne in mind that the amount of the fine must be adjusted in order to take account of the desired impact on the undertaking on which the fine is imposed. This is so that the fine is not negligible or excessive, notably by reference to the financial capacity of the undertaking in question, in accordance with the requirements resulting from, first, the need to ensure that the fine is effective and, second, respect for the principle of proportionality. The Court thus observed, in Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 241, that owing to its worldwide turnover, which was significantly higher than that of the other members of the cartel, one of the undertakings concerned in that case would find it easier to find the funds necessary to pay its fine, which would justify the application of a multiplier in order to ensure that the fine was sufficiently deterrent. 155 In the present case, it is true that the Commission acknowledged the difference of economic capacity between the Hoechst and Akzo Nobel Groups only by a margin of one point in the multiplier applied to the starting amount of the fines imposed on them. However, since the Commission has a discretion when setting the fine and is not required to apply a precise mathematical formula (see Hoek Loos v Commission, paragraph 123 above, paragraph 68 and the case‑law cited), the Court holds, in the exercise of its unlimited jurisdiction, that the Commission correctly took into consideration the different economic capacity of each of the two groups when selecting the multipliers that it applied. Accordingly, it did not infringe the principle of proportionality by applying a multiplier of 1.5 to the Akzo Nobel Group. 156 It follows that the fifth plea must be rejected as unfounded. 157 In the light of all of the above, all of the applications made in the context of the present action must be dismissed. Costs 158 Under Article 87(2) 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. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission. On those grounds, THE COURT OF FIRST INSTANCE (Seventh Chamber) hereby: 1. Dismisses the action; 2. Orders Akzo Nobel NV, Akzo Nobel Nederland BV, Akzo Nobel AB, Akzo Nobel Chemicals BV, Akzo Nobel Functional Chemicals BV, Akzo Nobel Base Chemicals AB and Eka Chemicals AB to pay the costs. Forwood Šváby Truchot Delivered in open court in Luxembourg on 30 September 2009. [Signatures] Table of contents Background to the dispute and the contested decision Procedure and forms of order sought Law Admissibility of the action with regard to Akzo Nobel Nederland, Akzo Nobel Chemicals, Akzo Nobel Functional Chemicals, Akzo Nobel Base Chemicals and Eka Chemicals Arguments of the parties Findings of the Court Substance The first plea: erroneous attribution of joint and several liability to Akzo Nobel NV and Akzo Nobel AB for the infringements committed by their subsidiaries – Arguments of the parties – Findings of the Court The second plea: infringement of Article 23(2) of Regulation No 1/2003 in fixing the final amount of the fine – Arguments of the parties – Findings of the Court The third plea: infringement of the obligation to state reasons provided for in Article 253 EC – Arguments of the parties – Findings of the Court The fourth plea: wrongful classification of the cartel participants on the basis of the gravity of the infringement – Arguments of the parties – Findings of the Court The fifth plea: breach of the principle of proportionality when determining the multiplier – Arguments of the parties – Findings of the Court Costs * Language of the case: English. 1 Confidential data omitted.