Information;Judgment — ECLI:EU:T:2019:499
Date: 2019-07-11
Language of the case: Italian
Court formation: Seventh Chamber
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment - unfounded;Appeal against penalty - unfounded
Origin: Austria;Czechia;France;Hungary;Italy;Slovakia

Judgment of the General Court (Seventh Chamber) of 11 July 2019 – Italmobiliare and Others v Commission (Case T‑523/15) (Competition — Agreements, decisions and concerted practices — Retail food packaging market — Decision finding an infringement of Article 101 TFEU — Attributability of the unlawful conduct — Conditions for the granting of immunity — 2006 Guidelines on the method of setting fines — Sales value — Ceiling for the fine — Length of the administrative procedure — Reasonable period of time — Ability to pay) 1. Competition — Fines — Amount — Determination — Leniency rules — Non-imposition or reduction of the fine for cooperation of the undertaking concerned — Account taken of the chronological element of the cooperation provided — Scope (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2); Commission notice 2006/C 298/11, point 8(a)) (see paras 26-28) 2. Competition — Fines — Assessment by reference to the individual conduct of the undertaking — Irrelevant that no sanction brought against another economic operator — None — Compliance with the principle of equal treatment having to be reconciled with the principle of legality (Art. 101(1) TFEU) (see paras 35, 36, 93) 3. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of dominant influence exercised by parent company over its wholly owned or almost wholly owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption — Factors insufficient to rebut the presumption (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 42-49, 54-60) 4. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of dominant influence exercised by parent company over its wholly owned or almost wholly owned subsidiaries — Infringement of the principle of individual responsibility –None — Infringement of the presumption of innocence — None (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 68-73) 5. Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of dominant influence exercised by parent company over its wholly owned or almost wholly owned subsidiaries — Infringement of the right to property — None (Arts 101 and 345 TFEU; Charter of Fundamental Rights of the European Union, Art. 17) (see paras 77-82) 6. Competition — Fines — Amount — Determination — Determination of the basic amount — Determination of the value of sales — Sales carried out in direct or indirect relation to the infringement — Inclusion of costs inherent to the prices of the goods and services sold (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission notice 2006/C 210/02, point 13) (see paras 99-105) 7. Competition — Fines — Amount — Determination — Determination of the basic amount — Gravity of the infringement — Criteria for assessment — Nature of the infringement — Observance of the principle of proportionality (Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 49(3); Council Regulation No 1/2003, Art. 23(3); Commission notice 2006/C 210/02, points 6 and 23) (see paras 109-116) 8. Competition — Fines — Amount — Determination — Determination of the basic amount — Gravity of the infringement — Entry fee — Factors to be taken into consideration (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2) and (3); Commission notice 2006/C 210/02, points 20 to 23 and 25) (see paras 124-128, 133) 9. Competition — Fines — Amount — Determination — Adjustment of the basic amount — Mitigating circumstances — Poor financial state of the sector in question — Not included (Art. 101 TFEU; Council Regulation No 1/2003, Art. 23(2); Commission notice 2006/C 210/02, point 29) (see paras 138, 139) 10. Competition — Fines — Amount — Determination — Adjustment of the basic amount — Maximum amount — Calculation — Turnover to be taken into consideration — Cumulative turnover of all the companies forming an economic entity acting as an undertaking (Art. 101(1) TFEU; Council Regulation No 1/2003, Art. 23(2)) (see paras 145-147) 11. Competition — Fines — Amount — Determination — Failure to observe the principle that administrative and judicial proceedings must be concluded within a reasonable time — Breach not justifying, on its own, a reduction of the fine (Art. 101 TFEU; Charter of Fundamental Rights of the European Union, Art. 41(1); Council Regulation No 1/2003) (see paras 156, 157, 159, 160) 12. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision to apply competition rules (Art. 296 TFEU) (see para. 164) 13. Competition — Fines — Amount — Determination — Adjustment of the basic amount — Ability to pay– Obligation to take account of the deficit situation of the undertaking concerned — No such obligation — Actual capacity of the undertaking to pay in a particular social and economic context — To be taken into consideration — Conditions (Council Regulation No 1/2003, Art. 23(2) and (3); Commission notice 2006/C 210/02, point 35) (see paras 169-178) 14. Competition — Fines — Amount — Determination — Discretion of the Commission — Judicial review — Unlimited jurisdiction of the EU judicature — Scope (Arts 261 and 263 TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1/2003, Art. 31) (see paras 191-193) Re: Action under Article 263 TFEU seeking the annulment, in part, of Commission Decision C(2015) 4336 final of 24 June 2015 relating to proceedings under Article 101 TFEU and Article 53 of the EEA Agreement (Case AT.39563 — Retail Food Packaging) or, in the alternative, a reduction in the amount of the fined imposed on the applicants. Operative part The Court: 1. Dismisses the action; 2. Orders Italmobiliaire SpA and the other applicants whose names are listed in the annex to the judgment to pay the costs.