62009CC0201_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. The present case has as its subject-matter the appeal brought by ArcelorMittal Luxembourg SA (2) (Case C‑201/09 P) and the appeal brought by the European Commission (Case C‑216/09 P), in which ArcelorMittal Belval & Differdange SA (3) and ArcelorMittal International SA (4) have lodged a cross-appeal. The appeals are against the judgment of the Court of First Instance of the European Communities (now ‘the General Court’) of 31 March 2009 in ArcelorMittal Luxembourg and Others
v Commission . (5)
2. The case originated in the Commission Decision of 8 November 2006 relating to a proceeding under Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams (Case COMP/F/38.907 – Steel beams). By that decision, the Commission found that those undertakings, belonging to one and the same undertaking, infringed Article 65(1) CS between 1 July 1988 and 16 January 1991 by allocating quotas and exchanging information on the Community market for beams. (6) On that ground, the Commission ordered ARBED, TradeARBED and ProfilARBED jointly and severally to pay a fine of EUR 10 million.
3. By the judgment under appeal, the General Court annulled the contested decision in so far as it concerned TradeARBED and ProfilARBED.
4. It should be pointed out at the outset that those appeals raise certain questions the same as, and indeed closely linked to, those raised in the context of the appeal lodged against the judgment of 1 July 2009 in ThyssenKrupp Stainless
v Commission, (7) currently pending before the Court (Case C‑352/09 P ThyssenKrupp Nirosta
v Commission ), in which I am also delivering an Opinion.
5. The first question concerns the interpretation of the rules on the limitation period for proceedings and, in particular, the suspension of that limitation period. The question is whether, when an action is brought before the Union judicature, suspension of the limitation period has a relative effect, that is to say, that it applies only to the undertaking bringing the action (the argument upheld by the General Court in the judgment under appeal), or takes effect erga omnes, in which case suspension of the limitation period during the proceedings applies to all the undertakings which have participated in the infringement, whether or not they have brought an action (the argument supported by the Commission).
6. The second question concerns the validity of the legal basis for the contested decision. Although the ECSC Treaty expired on 23 July 2002, the Commission relied on the provisions of Regulation (EC) No 1/2003 (8) to find and penalise the infringement of Article 65(1) CS.
7. The third question concerns the attributability of the infringement committed by TradeARBED. The Commission first of all attributed liability for that conduct to ARBED, after showing that ARBED had actually exercised decisive influence over its subsidiary’s conduct. The Commission then attributed liability for the infringement which ARBED was thus deemed to have committed to ProfilARBED, taking the view that the latter was the former’s economic successor in the sphere of the production of beams. The Commission thus successively applied the two derogations from the principle of personal responsibility which the Court permits when dealing with a group of companies.
8. As regards the implication of ARBED, the Court is again questioned about the nature and scope of the presumption that a parent company which owns 100% of the capital of its subsidiary actually exercises decisive effect on the subsidiary’s conduct and must therefore answer for its subsidiary’s anti-competitive conduct.
9. As regards the implication of ProfilARBED, the question is whether it was necessary, or indeed possible, to derogate once again from the principle of personal responsibility by attributing to that undertaking liability for the anti‑competitive conduct of ARBED and, indirectly, for that of TradeARBED.
I – Legal framework
A – Provisions of the ECSC Treaty
10. Article 65 CS provides:
‘1.	All agreements between undertakings, decisions by associations of undertakings and concerted practices tending directly or indirectly to prevent, restrict or distort normal competition within the common market shall be prohibited, and in particular those tending:
(a) to fix or determine prices;
(b) to restrict or control production, technical development or investment;
(c) to share markets, products, customers or sources of supply.
…
4.	Any agreement or decision prohibited by paragraph 1 of this Article shall be automatically void and may not be relied upon before any court or tribunal in the Member States.
The [Commission] shall have sole jurisdiction, subject to the right to bring actions before the Court, to rule whether any such agreement or decision is compatible with this Article.
5.	On any undertaking which has entered into an agreement which is automatically void, or has enforced or attempted to enforce, by arbitration, penalty, boycott or by any other means, an agreement or decision which is automatically void or an agreement for which authorisation has been refused or revoked, or has obtained an authorisation by means of information which it knew to be false or misleading, or has engaged in practices prohibited by paragraph 1 of this Article, the [Commission] may impose fines or periodic penalty payments not exceeding twice the turnover on the products which were the subject of the agreement, decision or practice prohibited by this Article; if, however, the purpose of the agreement, decision or practice is to restrict production, technical development or investment, this maximum may be raised to 10% of the annual turnover of the undertakings in question in the case of fines, and 20% of the daily turnover in the case of periodic penalty payments.’
11. Pursuant to Article 97 CS, the ECSC Treaty expired on 23 July 2002.
B – Provisions of the EC Treaty
12. Article 305(1) EC, which was repealed following the entry into force of the Treaty of Lisbon, stated:
‘The provisions of this Treaty shall not affect the provisions of the Treaty establishing the European Coal and Steel Community, in particular as regards the rights and obligations of Member States, the powers of the institutions of that Community and the rules laid down by that Treaty for the functioning of the common market in coal and steel.’
C – Regulation No 1/2003
13. Regulation No 1/2003, it will be recalled, relates to the implementation of the rules on competition laid down in Articles 81 EC and 82 EC.
14. Article 7(1) of that regulation reads as follows:
‘Where the Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article 81 [EC] or Article 82 [EC], it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end … If the Commission has a legitimate interest in doing so, it may also find that an infringement has been committed in the past.’
15. According to Article 23(2)(a) of Regulation No 1/2003, the Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently, they infringe Article 81 EC or Article 82 EC.
16. Article 25 of Regulation No 1/2003 lays down the provisions relating to limitation periods for proceedings.
17. These rules are substantially identical to those laid down in Commission Decision No 715/78/ECSC of 6 April 1978 concerning limitation periods in proceedings and the enforcement of sanctions under the Treaty establishing the European Coal and Steel Community. (9)
18. Pursuant to Article 1(1) and (2) of Decision No 715/78 and Article 25(1) and (2) of Regulation No 1/2003, the limitation period in proceedings expires when the Commission has not imposed a fine or a penalty within five years from the day on which the infringement ceased.
19. None the less, under Article 2(1) and (2) of Decision No 715/78 and Article 25(3) and (4) of Regulation No 1/2003, that limitation period may be interrupted by any action taken by the Commission for the purpose of the investigation or proceedings in respect of an infringement. Among these actions are requests for information, authorisations to conduct inspections, the initiation of proceedings and the notification of the statement of objections. That interruption is to apply for all undertakings which have participated in the infringement.
20. Article 2(3) of Decision No 715/78 and Article 25(5) of Regulation No 1/2003 fix a deadline. They provide that time is to start running afresh after each interruption. However, the limitation period is to expire at the latest on the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a periodic penalty payment. That period is to be extended by the time during which limitation has been suspended.
21. Last, Article 3 of Decision No 715/78 and Article 25(6) of Regulation No 1/2003 state that the limitation period in proceedings is to be suspended for as long as the decision of the Commission is the subject of proceedings before the Court.
II – Factual background
22. The facts, as they emerge from paragraphs 16 to 37 of the judgment under appeal, may be summarised as follows.
23. ARBED was active in the manufacture of steel products. TradeARBED was formed as a wholly-owned subsidiary of ARBED and distributed the steel products manufactured by ARBED. ProfilARBED was formed on 27 November 1992 as a wholly-owned subsidiary of ARBED in order to carry out from that date ARBED’s economic and industrial activities in the beams sector.
24. In 1991 the Commission, on the basis of a number of decisions adopted pursuant to Article 47 CS, carried out inspections at the offices of various undertakings, including TradeARBED. On 6 May 1992 the Commission sent a statement of objections to the undertakings concerned, including TradeARBED, but not to ARBED. TradeARBED also took part in a hearing, which was held from 11 to 14 January 1993.
25. By Decision 94/215/ECSC (10) the Commission found that 17 European steel undertakings, including TradeARBED, had participated in a series of agreements, decisions and concerted practices designed to fix prices, share markets and exchange confidential information on the market for beams in the Community between 1 July 1988 and 31 December 1990, contrary to Article 65(1) CS. The Commission therefore imposed fines on each of the undertakings which had participated in the infringement, including ARBED, which was ordered to pay a fine of ECU 11 200 000.
26. On 8 April 1994 ARBED brought an action for annulment of that decision.
27. By judgment of 11 March 1999 in ARBED
v Commission (11) the General Court dismissed the major part of the action but reduced the amount of the fine to EUR 10 million.
28. By judgment of 2 October 2003 in ARBED
v Commission (12) this Court set aside the judgment of the General Court and annulled the initial decision in so far as it concerned ARBED, owing to a breach of the latter’s rights of defence.
29. Following the setting-aside of that judgment, the Commission decided to initiate a new proceeding in respect of the anti-competitive conduct which had formed the subject-matter of the initial decision. On 8 March 2006 it addressed a statement of objections to ARBED, TradeARBED and ProfilARBED, informing them of its intention to adopt a decision finding them jointly and severally liable for the infringements in question; they responded to that statement of objections on 20 April 2006.
30. On 8 November 2006 the Commission adopted the contested decision, which, in Articles 1 and 2, provides as follows:
‘Article 1
The undertaking composed of [ARBED, TradeARBED and ProfilARBED] participated, in breach of Article 65(1) [CS], in a series of agreements and concerted practices having the object or effect of fixing prices, allocating quotas and exchanging, on a large scale, information on the Community market for beams. The participation of the undertaking thus composed in those infringements is established between 1 July 1988 and 16 January 1991.
Article 2
A fine of EUR 10 million is hereby imposed on [ARBED, TradeARBED and ProfilARBED] jointly and severally for the infringements referred to in Article 1.’
III – The action before the General Court and the judgment under appeal
31. By application lodged at the Registry of the General Court on 27 December 2006 ARBED, TradeARBED and ProfilARBED brought an action against the contested decision, on the basis of Articles 33 CS and 36 CS and also of Articles 229 EC and 230 EC.
32. The undertakings put forward four pleas in law.
33. The General Court rejected the first plea, by which those undertakings claimed that the contested decision lacked a legal basis and that the Commission had misused its powers. It was held that Articles 7(1) and 23(2) of Regulation No 1/2003 must be interpreted as enabling the Commission to find and penalise, after 23 July 2002, agreements between undertakings arrived at in the sectors falling within the scope of the ECSC ratione materiae
and ratione temporis . In that regard, the General Court observed that the Community Treaties established a single legal order and that the ECSC and EC Treaties pursued a common objective, namely the maintenance of a system of free competition. The General Court also observed that, in accordance with a principle common to the legal systems of the Member States, continuity of the legal system must be ensured when legislation is amended, unless the Union legislature expresses a contrary intention.
34. The General Court also rejected the second plea, alleging breach of the rules on the attributabilitiy of infringements. In particular, it held that the Commission’s analysis attributing to ARBED and to its economic successor, ProfilARBED, liability for the infringement committed by TradeARBED was not vitiated by any error of law and that the evidence confirmed both that ARBED had decisive influence over the conduct of TradeARBED and that it actually used that power.
35. As regards the third plea, alleging breach of the rules on the limitation period for proceedings, the General Court rejected that alleged breach so far as ARBED was concerned, as it considered that, owing to the suspension of time during the first proceedings before the General Court and this Court, the contested decision had been adopted within both the 5-year and the 10-year limitation periods. On the other hand, taking the view that that suspension had only inter partes
effect, not erga omnes
effect, the General Court held that, in the case of ProfilARBED and TradeARBED, the 10-year limitation period had been exceeded and, consequently, annulled the contested decision with respect to those undertakings.
36. Last, the General Court rejected the fourth plea, alleging breach of ARBED’s rights of defence. It considered that ARBED had failed to establish in what way the duration of the administrative procedure could have impeded the exercise of its rights of defence.
37. By the judgment under appeal, the General Court therefore annulled the contested decision in so far as it concerned ProfilARBED and TradeARBED and dismissed the remainder of the action as unfounded.
IV – The proceedings before the Court of Justice
38. ARBED and the Commission appealed against the judgment of the General Court, by applications lodged at the Court Registry on 8 and 15 June 2009 respectively. In their response to the appeal lodged by the Commission, ProfilARBED and TradeARBED lodged a cross-appeal.
39. By order of 10 September 2009, the President of the Court decided to join the cases for the purposes of the oral procedure and the judgment.
V – Preliminary observations
40. Before examining these appeals it is first necessary to recall the procedure for the implementation of the rules on competition.
41. While that procedure is not strictly speaking a criminal matter, it is none the less quasi-penal in nature. By their nature and their magnitude, the fines referred to in Article 23 of Regulation No 1/2003 can be assimilated to a criminal penalty and the Commission, in view of its function of carrying out the investigation, conducting the proceedings and adopting the decision, acts against undertakings above all in a manner typical of criminal proceedings. To my mind, that procedure is therefore a ‘criminal’ procedure within the meaning of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (13) and must thus afford the safeguards provided for by the criminal aspect of that provision. (14)
42. That position is wholly in keeping with the case-law of the European Court of Human Rights. That Court applies three criteria in order to determine whether a charge counts as ‘criminal’, namely the legal characterisation of the offence in domestic law; the punitive and deterrent nature of the penalty; and the degree of severity of the penalty which may be imposed on the person concerned. (15) The first criterion is merely formal and relative in value and the other two are alternative. (16) The European Court of Human Rights has adopted that reasoning for numerous administrative penalties, (17) among which are the penalties imposed by the national competition authorities. (18) In view of the objective of competition law (protection of the economic public order), the nature of the penalties (an effect both preventive and punitive, without any concept of compensation for damage) and the magnitude of those penalties (financial penalties in large amounts), those procedures must, according to the European Court of Human Rights, be subject to the safeguards provided for in Article 6 ECHR.
43. The case-law of this Court follows that approach. That approach, determined by the special nature of competition proceedings, applies the basic principles of criminal law and the fundamental safeguards enshrined in Article 6 ECHR. Thus, in Commission
v Anic Partecipazioni, (19) the Court accepted that the principle of personal responsibility is applicable to the competition rules. (20) Then, in Hüls
v Commission, (21) the Court referred to the principle of the presumption of innocence guaranteed in Article 6(2) ECHR. In that case, the Union judicature considered that, given the nature of the infringement in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence must apply to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. (22)
44. Last, it should be borne in mind that the Court, at paragraph 81 of Van Landewyck and Others
v Commission, (23) stated that, while the Commission could not be classed as a ‘tribunal’ within the meaning of Article 6 ECHR, it was bound to respect the procedural guarantees provided for by European Union law. I consider it indisputable that the Charter of Fundamental Rights of the European Union (24) contains, in particular, the procedural guarantees in question and that they are clearly binding on the Commission.
45. Those elements show sufficiently that, in the context of the examination of these appeals, particular attention will have to be paid to respect for the fundamental guarantees recognised in Articles 47 to 49 of the Charter and also to Article 6 ECHR.
VI – The appeal brought by the Commission (Case C‑216/09 P)
46. I shall commence my analysis of the present case by examining the appeal brought by the Commission: in so far as it concerns a single ground of appeal relating to the interpretation of the rules on limitation, that appeal will influence the examination of the cross-appeal brought by ProfilARBED and TradeARBED.
47. By its appeal, the Commission maintains that the General Court erred in law when interpreting the rules on the suspension of the limitation period laid down in Article 3 of Decision No 715/78 and Article 25(6) of Regulation No 1/2003.
48. In the judgment under appeal, the General Court considered that the suspension of the limitation period provided for in those provisions applied only with respect to the applicant undertaking, namely ARBED. It therefore concluded that the facts were time-barred with respect to ProfilARBED and TradeARBED.
A – Forms of order sought by the parties
49. The Commission requests the Court to set aside the judgment under appeal in that it annuls the fines which the Commission imposed on ProfilARBED and TradeARBED, to dismiss the appeal brought by those undertakings and to order them to pay the costs.
50. In their response to the appeal, ProfilARBED and TradeARBED request the Court to uphold the judgment under appeal in that it annuls the fines imposed on them by the Commission. They also lodge a cross‑appeal in case the Court should decide in favour of the Commission.
B – Single ground of appeal: incorrect interpretation of the rule on the suspension of the limitation period
51. The question is whether, when an action is brought before the Union judicature, the suspension of the limitation period has relative effect, that is to say that it applies only with respect to the applicant undertaking (the theory held by the General Court and defended by ProfilARBED and TradeARBED), or whether it takes effect erga omnes, in which case the suspension of the limitation period during the proceedings applies to all the undertakings which participated in the infringement, whether or not they have brought an action (the theory supported by the Commission). Unlike the express provisions relating to the interruption of the limitation period, Article 2 of Decision No 715/78 and Article 25(6) of Regulation No 1/2003 are silent on this point.
52. That question is the same as the one that arises in ThyssenKrupp Nirosta
v Commission, where, it will be recalled, I am also delivering an Opinion. The Court must adjudicate on the point for the first time.
1. The judgment under appeal
53. In the judgment under appeal, the General Court considered that the suspension of the limitation period must be given a restrictive interpretation, since it constitutes an exception to the principle of the five-year limitation period. Furthermore, it observed that it was no longer necessary to give erga omnes
effect to that suspension, since the suspension by definition concerns a situation in which the Commission has already adopted a decision. Last, the General Court observed that, in accordance with Commission
v AssiDomän Kraft Products and Others, (25) judicial proceedings have a relative effect, which, in principle, precludes an action brought by one undertaking against a decision from having an impact on the situation of the other addressees of that decision.
2. Principal arguments of the parties
54. The Commissi on submits that the General Court relied on an incorrect and excessively restrictive literal interpretation of Articles 2(3) and 3 of Decision No 715/78. That interpretation runs counter not only to the teleological approach taken by Court in Limburgse Vinyl Maatschappij and Others
v Commission, (26) but also to the in rem
approach which the Council of the European Union appears to have taken when Regulation No 2988/74 was being drafted. (27)
55. The Commission also takes issue with the reference to Commission
v AssiDöman Kraft Products and Others, where the Court confirmed that an annulment judgment has relative effect. The reasoning in that judgment does not apply to the types of decision, such as measures of investigation, where the limitation period is interrupted or suspended when the decision is challenged.
56. Unlike final decisions, the annulment of such measures could affect the Commission’s ability to continue the procedure against all the undertakings involved in the infringement, even if the measures in question are formally addressed to only one undertaking. Accordingly, the application of that judgment to the suspension of the limitation period would be detrimental to the proper implementation of competition law, whereas an interpretation applying the erga omnes
effect would be likely to protect its practical effect.
57. The Commission states that according to the judgment under appeal it would be required, where a company has challenged a measure of investigation addressed to it, to continue its investigation with respect to the other undertakings involved and to use, in its final decision, documents the lawfulness of which would be uncertain, with the threat that the final decision would be annulled. Since time would continue to run with respect to the other undertakings, the Commission would be unable to await the outcome of the judicial proceedings relating to the measure of investigation.
58. In addition, the Commission maintains that the judgment under appeal makes it easier to avoid paying the fine. The undertaking with respect to which the limitation period is suspended could be restructured or transfer its assets to another company, thus enabling the group to evade payment of the fine.
59. ProfilARBED and TradeARBED contend that the difference in the wording of two articles which follow each other in the same decision can be interpreted only as reflecting an intentional and conscious decision on the part of the legislature to differentiate the effects of the interruption and the suspension of the limitation period.
60. The objectives of the rules on limitation periods are not to ensure that the Commission has the right to impose penalties, but to protect, in application of the general principle of legal certainty, subjects against such penalties after a certain period has elapsed. Accordingly, in so far as they derogate from a general principle of law, the interruption and the suspension of the limitation period must, as the General Court makes clear, be interpreted restrictively and therefore in a way that is favourable to the undertaking.
61. In that regard, ProfilARBED and TradeARBED observe that the initial decision referred only to ARBED and infer that it was not an act that they were entitled to challenge. It follows that, without there being any need to adjudicate on the erga omnes nature of Article 3 of Decision No 715/78 and Article 25(6) of Regulation No 1/2003, the conditions for the application of the suspension of the limitation period in their regard are not satisfied.
62. Even on the assumption that the initial decision had been an act that they were entitled to challenge, ProfilARBED and TradeARBED maintain that the inter partes
effect of the judicial proceedings would prevent the action brought by ARBED from having an impact on their situation. Furthermore, ProfilARBED and TradeARBED maintain that measures of investigation are preparatory acts which are not open to challenge and with respect to which the question of suspension therefore does not arise. Even on the assumption that there were measures of investigation that were open to challenge, such an action would not have the effect of interrupting the investigation procedure. The Commission can correct procedural defects at any time. Consequently, even in such a situation, there is nothing to justify the rules on suspension having effect erga omnes .
63. As regards the alleged opportunities to evade payment of the fine, ProfilARBED and TradeARBED refer to the case-law on the attributability of anti-competitive practices, which allows liability for the infringement, including the rights attached to the limitation period, to be transferred to another undertaking.
64. Last, ProfilARBED and TradeARBED observe that Regulation No 2988/74 is not applicable to the present case and submit that, in application of the principle of legal certainty, the drafting history of that regulation cannot be relied on, as it was not published and is not mentioned in the text of Regulation No 2988/74.
3. My assessment
65. Before embarking upon the examination of the single ground of appeal, I propose to make some preliminary observations on the nature and scope of the rules on limitation periods in the context of competition proceedings.
a) Preliminary considerations
66. The existence of a time-limit for bringing proceedings is a universal and fundamental principle of our law. It may be defined as a ground on which a prosecution lapses because a certain period of time has elapsed since the date on which the offence was committed. It applies, in principle, to all offences, even the most serious, with the sole exception of crimes against humanity, which have been declared not to be subject to limitation, in accordance with international requirements. Upon expiry of the limitation period, the prosecution lapses and no further prosecution is possible against those who participated in the offence.
67. Limitation tends to establish social peace and satisfies a common desire for legal certainty. In Falck and Acciaierie di Bolzano
v Commission (28) the Court thus asserted, with respect to limitation, that ‘the fundamental requirement of legal certainty has the effect of preventing the Commission from indefinitely delaying the exercise of its power’ and that, in order to fulfil their function, limitation periods must be fixed in advance. (29) Classically, a number of reasons are given to support limitation. First of all, with the passage of time punishment loses its raison d’être owing to the gradual disappearance of the disruption of public order caused by the offence. Next, in a spirit that is more protective of the interests of the persons and undertakings in question, evidence of the offence is more difficult to preserve or to establish after a certain period. Last, and above all, limitation makes it possible to penalise the inertia, inactivity or even negligence of the prosecuting authorities and favours offenders being tried within a reasonable time.
68. As regards infringements of competition law, the limitation period expires after five years from the date on which the infringement ceased, pursuant to Article 1 of Decision No 715/78 and Article 25(1) and (2) of Regulation No 1/2003. None the less, under Article 2(1) of that decision and Article 25(3) of that regulation, that limitation period may be interrupted by any action taken by the Commission for the purpose of the investigation or proceedings in respect of the infringement. That interruption retroactively cancels the period which has already run and marks the starting point of a new period. Furthermore, in the words of Article 2(2) of that decision and Article 25(4) of that regulation, the interruption applies for all the undertakings ‘which have participated in the infringement’.
69. Furthermore, under Article 3 of Decision No 715/78 and Article 25(6) of Regulation No 1/2003, the limitation period may be suspended where judicial proceedings are pending. In that case, the limitation period temporarily ceases to run.
70. Last, the Union legislature provided in Article 2(3) of that decision and Article 25(5) of that regulation that the limitation period is to expire within a maximum period of 10 years without the Commission having imposed a fine. It added, however, that that period is to be extended by the time during which limitation is suspended.
b) The relative or absolute effect of the suspension of the limitation period
71. As the Commission maintains, and for the same reasons as those set out in the context of ThyssenKrupp Nirosta
v Commission, I think that the suspension of the limitation period during the judicial proceedings must apply to all the undertakings which have participated in the infringement, whether or not they have brought an action.
72. Accordingly, I do not share the position which the General Court adopted in the judgment under appeal, for three reasons.
73. First, that position does not take account of the objective nature of the limitation period. The limitation period attaches only to the facts. It takes effect in rem, independently of the persons involved. Thus, when the action which the Commission may initiate lapses by the effect of the limitation period, it does so for all the facts at issue and benefits all the participants.
74. As regards the interruption of the limitation period, the position is very clear from Article 2(2) of Decision No 715/78 and Article 25(4) of Regulation No 1/2003, since it is stated that the interruption of the limitation period is to apply for all the undertakings or associations of undertakings which have participated in the infringement. The wording of Article 3 of that decision and of Article 25(6) of that regulation on the suspension of the limitation period is more general and does not make that point clear. None the less, since the relevant provisions are silent, I consider that the effects brought about by the interruption and the suspension of the limitation period must be the same. They both constitute exceptions to the limitation period. As the limitation period is objective, interruption and suspension must therefore both apply to the facts themselves, a fortiori in the case of a complex, continuous and, above all, collective infringement.
75. Second, the solution adopted by the General Court has a pernicious effect. The relative effect of suspension may actually mean that the Commission will no longer be able to take action against an undertaking which was wrongly overlooked, since that action might be time-barred.
76. Third, when applied to the present case, that solution may be criticised in so far as we proceed from the premiss that ARBED, in that it has management powers over TradeARBED, forms one and the same economic unit with that undertaking and must therefore answer for the infringement committed by it. According to the General Court, however, the facts are time-barred with respect to TradeARBED, which actually committed the infringement, but are not time-barred with respect to the company which is supposed to answer for the infringement, namely ARBED.
77. I therefore see no reason to draw what to my mind would be an artificial distinction between the effects of suspension and those of interruption with respect to the undertakings which participated in the infringement.
78. Consequently, I am of the view that Article 3 of Decision No 715/78 and Article 25(6) of Regulation No 1/2003 must be interpreted as meaning that the suspension of the limitation period during the judicial proceedings must apply for all the undertakings which have participated in the infringement, whether or not they have brought an action.
79. When applied to the present case, that means that the limitation period had not expired for TradeARBED, which seems to me to be more coherent in the light of the rules on attributability which I have applied to the present case. That also means that the facts were not time-barred with respect to ProfilARBED, on condition, however, that that undertaking can actually be considered to have ‘participated in the infringement’. (30)
80. Consequently, I consider that the General Court erred in law in holding that the suspension of the limitation period applied only for the undertaking which brought the action for annulment, that is to say, ARBED.
81. In the light of those elements, I invite the Court to hold that the single ground of appeal, alleging incorrect interpretation of the rule relating to the suspension of the limitation period, is well founded.
c) Conclusion
82. In the light of all those considerations, I propose that the Court should allow the appeal brought by the Commission in Case C‑216/09 P and set aside the judgment under appeal in so far as the General Court held that the suspension of the limitation period applied only for ARBED.
83. In accordance with the parties’ written pleadings, I invite the Court to join the cross-appeal brought by ProfilARBED and TradeARBED in Case C‑216/09 P to the main appeal brought by ARBED in Case C‑201/09 P.
VII – The main appeal brought by ARBED (Case C‑201/09 P) and the cross‑appeal brought by ProfilARBED and TradeARBED (Case C‑216/09 P)
84. By their respective appeals, ARBED, ProfilARBED and TradeARBED (‘the ARBED group’) request the Court to set aside the judgment under appeal and to order the Commission to pay the costs of both sets of proceedings.
85. In its response to the appeal brought by ARBED and in its reply to the cross-appeal brought by ProfilARBED and TradeARBED, the Commission requests the Court to dismiss the appeals and to order the ARBED group to pay the costs.
86. The ARBED group raises four grounds of appeal, which are substantially the same. (31) These allege lack of legal basis for the contested decision; breach of the rules governing the attributability of anti-competitive practices in the context of a group of companies; incorrect interpretation of the rules on limitation periods; and errors of law in the assessment of the breach of their rights of defence.
A – First plea: lack of legal basis for the contested decision
87. In substance, the ARBED group maintains that when the ECSC Treaty expired on 23 July 2002 the Commission lost its power to impose penalties for infringements of Article 65 CS and that there is no provision authorising it to apply that article.
1. Principal arguments of the parties
88. The first ground of appeal may be subdivided into three parts, alleging, first, infringement of Article 97 CS; second, infringement of Regulation No 1/2003; and, third, breach of the duty to state reasons.
a) First part: infringement of Article 97 CS
89. The ARBED group observes that, pursuant to Article 97 CS, the ECSC Treaty was to expire on 23 July 2002 and that the contested decision, which is based on Article 65 CS, was adopted on 8 November 2006. In holding that it was correct that the practices in question should be the subject of proceedings on the basis of Article 65 CS, the General Court infringed Article 97 CS and failed to respond to the ARBED group’s arguments concerning the lack of legal basis.
90. In the ARBED group’s submission, the General Court erred in law in taking the view that the Community Treaties established a single legal order. According to Article 305(1) EC, the ECSC Treaty constitutes a special regime that derogates from the general rule s established by the EC Treaty, and the succession of the legal framework of the EC Treaty to that of the ECSC Treaty entailed, with effect from 24 July 2002, a change in the applicable legal bases, procedures and substantive rules. While the institutions are under an obligation to interpret the different Treaties coherently, they must observe the limits which the Treaties themselves fix, and cannot therefore maintain in force beyond 23 July 2002 a provision of a Treaty which provides that it is to expire on that date.
91. The judgments in Klomp (32) and Lucchini, (33) on which the General Court relies to support its reasoning, cannot alter that conclusion. The first of those judgments concerned a modification of primary Community law brought about by the effect of the Merger Treaty, and not by the expiry of a Treaty, and the second concerned a decision adopted under the ECSC Treaty before it expired, and not afterwards.
92. The Commission disputes those arguments. It emphasises, in particular, the uniform nature of the legal order created by the EC, ECSC and Euratom Treaties. That legal order is characterised by common objectives, common subjects, common norms and procedures and also by common institutions. In particular, Articles 65 CS and 81 EC both confer power on the Commission, subject to review by the Court. The Commission also observes that, according to the case-law, the provisions of the ECSC and EC Treaties form an integral part of a Community law in the application of which it is necessary to avoid inconsistency and to interpret the ECSC and Euratom Treaties on the basis of common principles, by reference to the EC Treaty. In its case-law, this Court has regarded the substantive rules prohibiting cartels in the ECSC and EC Treaties as essentially equivalent and has applied the case-law relating to Article 81 EC to Article 65(1) CS.
93. Regard being had to Article 305(1) EC, the Union judicature has always considered, first, that the ECSC Treaty constituted a lex specialis
within the uniform legal order for its specific field of application and, second, that in so far as questions were not the subject-matter of the provisions of the ECSC Treaty, the EC Treaty could be applied, as the lex generalis, to products covered by the ECSC Treaty. Thus, as the EC Treaty was available as a subsidiary regime throughout the period of validity of the ECSC Treaty, on expiry of the latter Treaty it became the primary regime for that specific field of application as well. In particular, in cartel law, the prohibitions and penalties laid down in Article 65 CS are absorbed seamlessly into those laid down in Article 81 EC.
94. The Commission maintains that, although the ECSC Treaty expired without a transitional scheme having been established for cartel cases, it cannot be concluded that the Member States wished to exclude cartels implemented while the ECSC Treaty was in force from the applicability of Article 65 CS on the sole ground that they were discovered or that proceedings were initiated only after it expired. In the case of a transition based on primary law, no legislative transitional rules are necessary, since, in accordance with the case-law of the Court, it is sufficient to refer to the generally recognised principles of interpretation in order to determine the applicability ratione temporis
of the provisions, taking their purpose and their context into account.
95. According to those rules, in the Commission’s opinion, where facts are subject to a prohibition the substantive law in force at the time of the infringement is applied to them. The fact that Article 65(1) CS took precedence over Article 81 EC, although the impugned conduct constituted on the same basis an infringement of Article 81 EC, argues in favour of an uninterrupted power of enforcement on the part of the Commission. The Commission maintains that the penalties that can be imposed now are covered by Article 81 EC and Article 23 of Regulation No 1/2003, although the lex mitior
principle must be taken into account, in the light of Article 65(5) CS.
96. The Commission emphasises that the lack of power to take proceedings and to impose penalties would deprive Article 65(1) CS, a fundamental provision of Community law and one that is indispensable to the achievement of the tasks of the Community, of its practical effect by granting an unjustified amnesty for actions which took place and were prohibited at the time when the ECSC Treaty was in force. Even the Member States would be prevented from taking proceedings. In addition, such an obstacle would infringe the fundamental principle that, following the judicial proceedings, the proceedings must be capable of being resumed at the point at which the procedural error was made. According to the Commission, there is no reason to think that the Member States would have desired such an amnesty and such a break in continuity in a field in which a common policy has always been envisaged.
b) Second part: infringement of Regulation No 1/2003
97. The ARBED group maintains that, by basing the Commission’s power on Regulation No 1/2003, the General Court misused its powers and failed to respond to the ARBED group’s arguments. It observes that that regulation was adopted after the ECSC Treaty had expired and submits that, regard being had to Article 4 of that regulation, and in the absence of any reference to the ECSC Treaty, that regulation authorises the Commission to take proceedings solely in respect of infringements of Articles 81 EC and 82 EC.
98. Even on the assumption that Regulation No 1/2003 did confer power on the Commission to penalise infringements of Article 65(1) CS, it would infringe the ECSC Treaty, since, having been adopted on the sole basis of the EC Treaty, it purported to amend the ECSC Treaty. It follows from the case-law that the coherent interpretation of the provisions of substantive law of the different Treaties has no impact on the powers conferred on the different institutions by the different Treaties, as the institutions have the power, within the framework of each Treaty, to exercise only the powers conferred on them by that Treaty.
99. The ARBED group maintains that the General Court’s approach has the effect of conferring on the Council the power to decide which authorities are competent to implement Article 65 CS, whereas the authors of the ECSC Treaty exercised that power, and, in addition, of altering the nature of the power conferred on the Commission by the ECSC Treaty, which was exclusive according to Article 65 CS, whereas it is concurrent with the power of the national competition authorities and the national courts in Regulation No 1/2003.
100. The General Court’s interpretation of the temporal application of the law thus interferes with the legal identity specific to each Treaty and the rules on the hierarchy of norms. In addition, the General Court allowed itself to be confused between procedural rule, substantive rule and attribution of powers. It follows from the case-law, first, that the question of the competence of an institution takes precedence over the question of what substantive and procedural rules are to be applied and, second, that the legal basis authorising the Community institution to adopt an act must be in force at the time when it is adopted.
101. The Commission contends that it acted correctly in basing the contested decision on Article 65(1) CS, as the infringement was committed while that provision was in force and the ECSC Treaty took precedence over the EC Treaty. Furthermore, as that provision prohibited the infringement at the time when it was committed and as Article 81 EC contains the same prohibition, there was no breach of the principle nulla poena sine lege .
102. The Commission explains that, within the framework of the uniform legal order and by virtue of a seamless transfer of powers after the expiry of the ECSC Treaty, the power to penalise infringements and the applicable procedure are covered by Article 81 EC and Article 23 of Regulation No 1/2003. The latter article is applicable to infringements committed, during the validity of the ECSC, both of Article 81 EC, as the lex generalis
applicable in a subsidiary manner, and of Article 65 CS, as the lex specialis
with an equivalent content. The reference in Article 23 of Regulation No 1/2003 to Article 81 EC also encompasses Article 65 of the ECSC Treaty, owing to the relationship of speciality.
103. Furthermore, that approach is, in the Commission’s contention, in keeping with the principle that the procedural rules currently in force apply to pending cases. According to that principle, the procedure of finding and penalising infringements in the steel sector has, since the expiry of the ECSC Treaty, been governed by the secondary law under the EC Treaty, without that affecting the application to pending cases of the substantive prohibition in Article 65(1) CS.
104. The Commission refers, in particular, to the judgments of this Court in De Haan (34) and of the General Court in Lucchini
v Commission (35) to support its contention that it can and must combine the procedural rules currently applicable with the substantive law in force at the time of the infringement.
105. Last, in all of those circumstances, the Commission maintains that the Member States had no need to delegate expressly to it the powers to take proceedings with respect to infringements committed in the field of the ECSC Treaty after 23 July 2002 and that there is no reason to think that they would have objected to its having such powers. It emphasises that the consequences of the expiry of the ECSC Treaty were for more than 10 years the subject of intense discussion within the Council, the European Parliament and the Commission and that transitional provisions were introduced where they had proved necessary.
c) Third part: breach of the obligation to state reasons
106. The ARBED group maintains that the General Court’s assessment of the validity of the legal basis is vitiated by a failure to state reasons. It submits that that Court failed to respond to the arguments raised in the annulment proceedings.
2. My assessment
a) First and second parts: infringement of Article 97 CS and infringement of Regulation No 1/2003
107. The first two parts of the first plea should be examined together. By those two parts, the ARBED group is essentially requesting the Court to rule on whether, after the expiry of the ECSC Treaty, the Commission was entitled to find and penalise an infringement of Article 65(1) CS, basing its power to do so on Regulation No 1/2003, which, it will be recalled, is the regulation implementing Article 81 EC.
108. That question is essentially the same as the one that arises in the appeal brought against the judgment in ThyssenKrupp Stainless
v Commission, which is currently pending before the Court (Case C‑352/09 P), in which I am also delivering an Opinion.
109. In the present case, as in ThyssenKrupp Nirosta
v Commission, the Commission used a combination of substantive law and procedural law deriving from the ECSC and EC Treaties (36) in order to find and penalise an infringement of Article 65(1) CS after the expiry of the ECSC Treaty. The Commission relied on Article 7(1) of Regulation No 1/2003 to find the infringement. In addition, in order to impose the fine on the undertakings involved, it relied on Article 23(2) of that regulation. None the less, in each of these two cases the Commission calculated the amount of the fine by reference not to the calculation method set out in Regulation No 1/2003 but to the method fixed in Article 65(5) CS, and did so in application of the lex mitior principle. (37)
110. Since that combination was used in the same terms by the Commission in both cases and since the General Court’s examination of lawfulness was substantially the same, I shall adopt the same reasoning as that proposed in my Opinion in ThyssenKrupp Nirosta
v Commission .
111. The Commission adopted that combination in so far as there is no transitional provision allowing it to find and punish an infringement of Article 65(1) CS after the expiry of the ECSC Treaty. Consequently, if it did not succeed in adopting a decision before the expiry of that Treaty, because the anti‑competitive activities were discovered late or, as in the present case, because a first decision was annulled, there is no rule allowing it to ensure that the rights and obligations deriving from that provision are observed.
112. Next, neither of the two regulations implementing the Community competition rules refers to situations which arose under the ECSC Treaty, whether Council Regulation No 17 of 6 February 1962 (38) or Regulation No 1/2003. Only the Communication from the Commission concerning certain aspects of the treatment of competition cases resulting from the expiry of the ECSC Treaty (39) refers to that situation. Point 31 of that communication provides as follows:
‘If the Commission, when applying the Community competition rules to agreements, identifies an infringement in a field covered by the ECSC Treaty, the substantive law applicable will be, irrespective of when such application takes place, the law in force at the time when the facts constituting the infringement occurred. In any event, as regards procedure, the law applicable after the expiry of the ECSC Treaty will be the EC law …’
113. Owing to that lacuna, the Commission adopted a first solution, which the General Court rejected in SP
v Commission, (40) Riva Acciaio
v Commission (Case T‑45/03), Feralpi Siderurgica
v Commission (Case T‑77/03) and Ferriere Nord
v Commission (Case T‑94/03). In each of those cases the Commission had based its competence solely on the provisions of the ECSC Treaty, in spite of the fact that it had expired. Thus, in the decision adopted on 17 December 2002 with respect to Ferriere Nord SpA, the Commission had relied, in order to find an infringement of Article 65(1) CS, on Article 65(4) CS and, in order to impose a fine on the undertaking, on Article 65(5) CS.
114. The General Court annulled all those decisions for lack of competence. In particular, it observed that, in accordance with the case-law of the Court, (41) the provision constituting the legal basis of an act and empowering the Community institution to adopt the act in question must be in force at the time when the act is adopted.
115. The Commission did not appeal in any of those cases.
116. In the present case, the Commission therefore presents, at the same time as in ThyssenKrupp Nirosta
v Commission, a new solution, basing its decision on a combination of substantive law deriving from the ECSC Treaty and procedural law deriving from the EC Treaty, which was in force at the time of the adoption of the contested decision.
117. In the judgment under appeal, the General Court confirmed the lawfulness of that combination, taking as its basis a teleological interpretation of the rules established by the Union legislature. In order to recognise that the Commission had the power to adopt such a decision, the General Court set out its reasoning in three stages, as in ThyssenKrupp Stainless
v Commission . First of all, at paragraphs 57 and 58 of the judgment under appeal, it recalled the nature and the scope of the ECSC Treaty in the legal order of the Union. Next, at paragraphs 59 to 64 of that judgment, it relied on the coherence and the identity of the objectives pursued by both Treaties, applying the rules of interpretation laid down by this Court. Last, at paragraphs 65 to 68 of that judgment, the General Court ascertained that the Commission had acted in compliance with the principle of legality and, in particular, the principles governing the temporal application of the law.
118. In this Opinion, I shall support, as did the General Court, the validity of that legal basis and in doing so I shall follow the lines of its reasoning.
119. In the Union legal order, the ECSC constituted a regime specific to the steel and coal sectors, derogating from the general rules established in the framework of the EC Treaty. The relationship between the two Treaties was governed in Article 305 EC. That provision had the effect of excluding the application of the EC Treaty and its secondary law to goods coming within the steel and coal sectors when the questions raised formed the subject-matter of specific rules established in the context of the ECSC Treaty. (42)
120. None the less, in the absence of specific provisions, the EC Treaty and the provisions adopted for its application applied to the products coming within that sectoral Community (43) and, when the latter Community ceased to exist on 23 July 2002, the general scope of the EC Treaty was extended to the sectors initially governed by the ECSC Treaty.
121. That succession of the legal framework of the EC Treaty to that of the ECSC Treaty is enshrined in the context of a ‘functional’ unity between the two Communities. (44) This Court very soon recognised the existence of a single legal order. (45) It also acknowledged the existence of a continuous legal order, in which, unless the Union legislature expressed a contrary intention, the continuity of the legal system had to be ensured in the event of a change in the legislation. (46)
122. The judgments in Busseni (47) and Lucchini
illustrate the way in which the Court conceives that functional unity between the two Treaties. Those two cases concerned the Court’s jurisdiction to adjudicate in the context of a reference for a preliminary ruling on the interpretation of the rules of the ECSC Treaty.
123. The first case referred to the situation in which that power/competence was not expressly provided for in Article 41 CS, unlike the text of Article 234 EC. In order to fill that lacuna, the Court went beyond the textual differences between the two provisions and relied on the common objectives which they pursued and also on the objectives and the coherence of the Treaties. It thus stated that ‘[i]t would therefore be contrary to [those] objectives and [that] coherence … if the determination of the meaning and scope of rules deriving from the [EC] and [Euratom] Treaties were ultimately a matter for the Court … but such jurisdiction in respect of rules deriving from the ECSC Treaty were to be retained exclusively by the various national courts, whose interpretations might differ, and the Court … were to have no power to ensure that such rules were given a uniform interpretation [ (48) ] ’. (49)
124. The Court subsequently applied that reasoning in Lucchini . That case referred to the situation in which, owing to the expiry of the ECSC Treaty, the Court lost its jurisdiction to give preliminary rulings on questions relating to the interpretation and application of that Treaty. While acknowledging that Article 41 CS might no longer be applicable, the Court considered that it would be not only contrary to the objectives and the coherence of the Treaties but also irreconcilable with the continuity of the Community legal order if it did not have jurisdiction to ensure uniform interpretation of the rules deriving from the ECSC Treaty which continue to produce effects after the expiry of that Treaty. (50)
125. It was on the basis of that case-law that, in my view, the General Court recognised that the Commission had the relevant power. Further than the textual differences between Article 65(1) CS and Article 81 EC, the General Court emphasised that both provisions are interpreted in the same way by the Union judicature and pursue the same objectives. (51)
126. The wording of Article 65(1) CS and Article 81(1) EC suffices to establish that the Member States intended that the same rules and the same scope for intervention should apply in both Communities. Although their wording may be different, those provisions both express the same requirements, namely to establish a common market on which healthy and efficient competition will be exercised and, to that end, to prohibit agreements having the object or the effect of distorting normal competition. As the General Court observes, the pursuit of undistorted competition in the coal and steel sectors was therefore not suspended by the fact that the ECSC Treaty had expired; it merely continued in the context of the EC Treaty. Furthermore, Article 65(1) CS and Article 81(1) EC protect the same legal interests. In so far as the means of taking action are concerned, those two provisions are based on similar premisses (52) and their implementation is the responsibility of the same authority, namely the Commission.
127. In those circumstances, and subject to observance of the principles governing the temporal application of the law, it seems to me that the General Court was entitled to conclude that the continuity of the Community legal order and of the objectives which govern its functioning required the European Community, in so far as it succeeded the European Coal and Steel Community, to ensure, in respect of situations which came into being under the ECSC Treaty, compliance with the rights and obligations which applied under that Treaty to both Member States and individuals. (53) To accept that, following the expiry of the ECSC Treaty, the Community was deprived of such capacity would therefore in my view be contrary to the objectives and the coherence of the Treaties intended by the Union legislature and irreconcilable with the continuity of the Community legal order recognised by this Court.
128. That interpretation clearly holds good only if the Community, represented in this instance by the Commission, acts in a manner consistent with the general principles governing the temporal application of the law. (54) These principles, which the General Court recalls at paragraph 65 of the judgment under appeal, are as follows.
129. As regards procedural rules, they are generally deemed to apply to all proceedings pending at the time when they enter into force. In other words, the Commission must proceed against the infringement committed while the ECSC Treaty was in force according to the formalities and the procedure laid down in the provisions in force on the date of its decision, that is to say, those laid down in Regulation No 1/2003.
130. Conversely, that does not apply to substantive rules. These are not retroactive, unless the Union legislature states that they are. (55) This rule means that legal certainty can be ensured for individuals, who must quite simply be able to ascertain the limits of their individual freedom without their arrangements subsequently being upset by a retroactive law.
131. Such a rule derives from the principle enshrined in Article 49(1) of the Charter and also in Article 7(1) ECHR that offences and penalties must be defined by law.
132. Article 49(1) of the Charter provides as follows:
‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. If, subsequently to the commission of a criminal offence, the law provides for a lighter penalty, that penalty shall be applicable.’
133. The analysis which the General Court undertakes at paragraph 68 of the judgment under appeal seems to me to be wholly consistent with that principle. Article 65(1) CS, which defines the infringement, was indeed the substantive rule applicable and in fact applied by the Commission. The contested decision did indeed relate to a legal situation which had definitively been perfected before the expiry of the ECSC Treaty, since it took place between 1 July 1988 and 16 January 1991. Furthermore, in the light of its nature as a lex specialis, the ECSC Treaty and the rules adopted for its application were indeed the only ones applicable to situations of that kind which came into being before the expiry of that Treaty. Last, as the General Court stated, the Union legislature had made no provision for the retroactive application of Article 81 EC after the expiry of the ECSC Treaty.
134. In adopting the contested decision, the Commission therefore ruled against conduct which, at the time when it was committed, constituted an infringement. When that infringement was committed between 1 July 1988 and 16 January 1991, it was clearly and precisely defined in Article 65(1) CS. Furthermore, that infringement was punishable by a penalty clearly defined in Article 65(5) CS. The undertakings were therefore fully informed of the consequences of their acts, as much in the context of the first procedure leading to the adoption of the initial decision as in the context of the present procedure.
135. So, as regards the procedural rules, we know that, within the framework of the implementation of Article 81 EC, the provisions authorising the Commission to adopt a decision finding an infringement and to impose penalties on undertakings which have infringed Article 81 EC are, respectively, since the entry into force of Regulation No 1/2003 on 1 May 2004, Articles 7(1) and 23(2) of that regulation. As it decided that those provisions are procedural rules, the General Court therefore supported the immediate application of those provisions.
136. It is on this last point that I differ from the General Court’s analysis. Article 23(2) of Regulation No 1/2003 does not merely authorise the Commission to impose a fine: it also fixes the amount of the fine. In those circumstances, it appears to me that that provision is a rule of substantive law.
137. None the less, as is clear from recital 475 to the contested decision, the Commission relied on that provision as the basis for the power to impose a penalty on the ARBED group. As regards the amount of the fine, the Commission, in application of the lex mitior principle in Article 49(1) of the Charter, calculated the fine in accordance with Article 65(5) CS, so that the ARBED group should benefit from the lightest penalty.
138. In the light of the foregoing, it appears to me that the General Court did not therefore err in law in holding that the Commission could, in a situation such as the one before it, rely on Articles 7(1) and 23(2) of Regulation No 1/2003 to find and penalise the agreements reached in the sector falling within the scope of the ECSC Treaty.
139. None the less, I must observe that, contrary to the General Court’s assertion at paragraph 64 of the judgment under appeal, the Commission was entitled to do so not after 23 July 2002, the date on which the ECSC Treaty expired, but from 1 May 2004, the date on which Regulation No 1/2003 entered into force.
140. However, that error, which was also made in ThyssenKrupp Stainless
v Commission, has no consequence for the outcome of the dispute.
141. In the light of all those considerations, I propose that the Court should reject the first two parts of the first ground of appeal as unfounded.
b) Third part of the first ground of appeal: lack of reasoning in the judgment under appeal
142. The obligation to state reasons is laid down in Article 36 of the Statute of the Court of Justice, applicable to the General Court under the first paragraph of Article 53 of the Statute, and in Article 81 of the Rules of Procedure of the General Court.
143. According to consistent case-law, the statement of reasons for a judgment must disclose in a clear and unequivocal fashion the reasoning followed by the General Court, in such a way as to enable the persons concerned to ascertain the reasons for the decision adopted and this Court to exercise its power of review. (56) In the case of an action based on Article 230 EC, the requirement to state reasons implies that the General Court must examine the pleas for annulment raised by the applicant and state the reasons which led it to reject the plea or to annul the contested measure.
144. However, in Connolly
v Commission (57) the Court placed limits on that obligation to respond to the pleas relied on. It considered that the reasons on which a judgment is based must be assessed in the light of the circumstances of the case (58) and that the General Court cannot be required to respond ‘in detail to every single argument advanced by the [applicant], particularly if the argument was not sufficiently clear and precise and was not adequately supported by evidence’. (59)
145. In the light of those elements, I consider that the General Court responded to the requisite legal standard to the arguments put forward by the ARBED group. It correctly explained its reasons for considering that the Commission’s approach should be held to be valid. That not only enabled the ARBED group to take issue with specific points in the General Court’s analysis but also enabled this Court to exercise its power of review, as demonstrated in the preceding argument.
146. In that context, I am of the view that the reasoning of the General Court set out at paragraphs 56 to 69 of the judgment under appeal is not open to any criticism and I propose that the Court should reject the third part of the first ground of appeal as unfounded.
c) Conclusion
147. In the light of all those elements, I consider that the first ground of appeal, alleging that the contested decision lacked legal basis, raised in the appeal brought by ARBED (Case C‑201/09 P) and in the cross-appeal brought by TradeARBED and ProfilARBED (Case C‑216/09 P) is unfounded and must be rejected.
B – Second ground of appeal: the General Court failed to have regard to the rules governing the attributability of anti-competitive practices in a group of companies
148. By the second ground of appeal, ARBED and ProfilARBED take issue with the fact that they were held liable for the infringement committed by the subsidiary TradeARBED.
149. This ground of appeal c onsists of three parts alleging, first, breach of the principles of the legal autonomy of legal persons, freedom to conduct a business and personal responsibility; second, incorrect application of the case-law relating to the conditions in which an infringement committed by a subsidiary can be attributed to the parent company; and, third, errors of law in the finding that ARBED actually exercised decisive influence over TradeARBED.
150. Although the arguments put forward in the context of this plea are virtually identical in both appeals, the aims pursued by ARBED are different from those pursued by ProfilARBED. The respective situations of those undertakings should therefore be distinguished in the context of these arguments.
1. Main arguments of the parties
a) Plea of inadmissibility raised by the Commission in Case C‑201/09 P
151. In its written pleadings, the Commission contends that the second ground of appeal, in so far as it is put forward by ARBED, is inadmissible. ARBED seeks to call in question the attributability of the infringement to ProfilARBED, whereas ProfilARBED is not a party to the proceedings in Case C‑201/09 P.
152. In any event, the Commission maintains that this ground of appeal is ineffective. ARBED merely calls in question the application in this case of the presumption of actual control established in the case-law. It does not take issue with paragraphs 96 to 98 of the judgment under appeal, in which the General Court found that the Commission had proved the actual exercise of decisive influence by the parent company on its subsidiary by other evidence.
b) First part: breach of the principles of legal autonomy of legal persons, freedom to conduct a business and personal responsibility
153. In support of the first part of the second ground of appeal, the ARBED group puts forward three complaints.
154. By the first complaint, the ARBED group maintains that in the present case the General Court incorrectly applied the concept of ‘undertaking’ developed in competition law. Although, according to that concept, legally separate undertakings could constitute one and the same economic unit, the Commission has used that concept solely in order to exclude the application of Article 81 EC to agreements within groups and the application of the rules on concentrations to acquisitions within groups.
155. By the second complaint, the ARBED group claims that, by imputing to ARBED, and also to ProfilARBED, liability for the infringement committed by TradeARBED, the General Court breached the principle of legal autonomy of legal persons and, in particular, of the subsidiary of a group of companies. Under that principle, a subsidiary, in that it constitutes a separate legal personality, has full legal capacity and should, consequently, answer for its actions, even though it is wholly controlled by the parent company. That principle is one of the cornerstones of company law.
156. In the same vein, the ARBED group maintained at the hearing that the General Court breached the principle of freedom of enterprise, enshrined in Article 16 of the Charter, (60) by attributing to a whole group of companies actions committed by only of the companies in that group. The General Court failed to take account of the right which every person has to carry out an economic activity within the framework of a legal entity having its own legal personality and liable solely for the actual acts of that company.
157. The General Court thus also breached the principle that punishment should be applied solely to the offender.
158. By their third complaint, ARBED and ProfilARBED take issue with the General Court’s analysis, according to which liability must be attributed to them simultaneously for the infringement committed by a third undertaking in the group, namely TradeARBED. That reasoning introduces an unjustified difference in treatment to the detriment of ProfilARBED, since it, unlike the parent company, is unable to rebut the presumption that it exercises decisive influence. ARBED and ProfilARBED contend that this inconsistency can be assimilated to a failure to state reasons.
159. The Commission disputes those arguments. First of all, it refers to the scope of the concept of undertaking in competition law, then devotes considerable argument to the case-law relating to the attributability of anti-competitive practices within a group of companies. (61)
160. Furthermore, it observes that the principle of the legal autonomy of legal persons, the existence of which the Commission does not detect in the Community case-law, has many exceptions (for example, the case of economic succession between undertakings). It observes, none the less, that that principle may be necessary in order to determine the addressee of a decision making a finding of infringement or the legal person that must answer for the infringement.
c) Second part: incorrect application of the case-law on the conditions in which an infringement comitted by a subsidiary may be attributed to the parent company
161. In support of the second part of the second ground of appeal, the ARBED group takes issue with the reasoning of the General Court set out at paragraphs 89 and 90 of the judgment under appeal, according to which a parent company holding 100% of the capital of its subsidiary is presumed to exercise decisive influence over the conduct of that subsidiary and must, therefore, answer for the anti-competitive conduct which the subsidiary might adopt. The ARBED group puts forward two complaints in that regard.
162. By the first complaint, the ARBED group maintains that the General Court breached certain ‘general principles of law’. It refers, first of all, to the principle of autonomy of legal persons relied on in the context of the first part. It refers, next, to the principle that penalties must fit the offence, and relies on Hoek Loos
v Commission . (62) In that judgment, the General Court held that observance of that principle requires that the Commission demonstrate that specific objections can be laid against each of the undertakings to which the statement of objections is addressed. (63)
163. By the second complaint, the ARBED group maintains that the judgments to which the General Court refers do not support its finding.
164. First, AEG-Telefunken
v Commission (64) is not relevant, since in that case this Court was required to rule not on the possibility of attributing to a parent company an infringement committed by its subsidiary but on proof that the parent company had participated in an infringement. In that case, moreover, the subsidiary and the parent company had the same governing bodies, unlike the position in the present case.
165. Second, in Stora Kopparbergs Bergslags
v Commission (65) this Court never confirmed that 100% control of a company was sufficient for the parent company to be held liable for the conduct of its subsidiary. Unlike in the present case, the parent company had agreed during the administrative procedure to assume liability for its subsidiary’s conduct. Furthermore, in the Commission decision giving rise to that judgment, the Commission had taken the approach of addressing the decision to the parent company where there was express evidence that the parent company had participated in the infringement.
166. The Commission disputes, in particular, the ARBED group’s interpretation of those two judgments.
d) Third part: errors of law in the finding that ARBED actually exercised decisive influence over TradeARBED
167. The ARBED group takes issue with paragraph 96 of the judgment under appeal, where the General Court stated that the evidence provided by the Commission confirmed ‘not that ARBED did actually participate in the infringements in question, but that it was capable of exercising decisive influence over TradeARBED’s conduct and did in fact make use of that power’.
168. First, the ARBED group maintains that the General Court was wrong to find the existence of a presumption of participation which had been expressly ruled out by the Commission. It thus exceeded its jurisdiction by substituting its own assessment for that of the Commission and breached the principle of res judicata
in relation to the initial decision and the contested decision. In those decisions, the Commission acknowledged that that influence was not used in such a way that ARBED might be considered to have participated in the infringement. Consequently, whatever decisive influence ARBED might have exercised over its subsidiary, it gave no instructions with respect to the infringement of the competition rules.
169. Second, the ARBED group observe that, in accordance with AEG-Telefunken
v Commission and Stora Kopparbergs Bergslags
v Commission, the liability of parent companies is based on their actual participation in the infringement.
170. The Commission disputes those arguments.
2. My assessment of the second ground of appeal in so far as it is raised by ARBED (Case C‑201/09 P)
171. As regards ARBED, the question is whether, as the parent company of TradeARBED, it could lawfully be held liable for the latter’s actions. In the judgment under appeal, the General Court, after finding that ARBED held 100% of the capital of TradeARBED, presumed that the parent company exercised decisive influence over its subsidiary, in such a way that they could be regarded as constituting a single undertaking for the purposes of Article 65(1) CS and could therefore be held jointly and severally liable for the conduct in question, the acts committed by TradeARBED thus being attributable to ARBED. (66)
a) Admissibility of the second ground of appeal
172. As the Commission observes, this ground of appeal must be rejected as inadmissible in so far as it concerns ProfilARBED, as ProfilARBED is not a party to the proceedings in Case C‑201/09 P. To my mind, however, that inadmissibility is limited to the third complaint in the first part of the second ground of appeal, where ARBED relies on an unjustified difference in treatment in relation to ProfilARBED.
173. In the light of those elements, I propose that the Court should hold the third complaint in the first part of the second ground of appeal inadmissible.
b) Second part: breach of the principles of legal autonomy of legal persons, freedom to conduct a business and personal responsibility
i) First complaint: incorrect application of the concept of ‘undertaking’
174. This complaint relates to the General Court’s reasoning at paragraphs 87 and 88 of the judgment under appeal:
‘87 In that regard, it must be borne in mind, first of all, that the concept of undertaking within the meaning of Article 81 EC includes economic entities which consist of a unitary organisation of personal, tangible and intangible elements, which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision …
88 It is therefore not because of a relationship between the parent company and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because they constitute a single undertaking in the sense described above that the Commission is able to address the decision imposing fines to the parent company of a group of companies. Community competition law recognises that different companies belonging to the same group form an economic entity and therefore an undertaking within the meaning of Articles 81 EC and 82 EC if the companies concerned do not determine independently their own conduct on the market …’
175. The concept of undertaking in competition law is an autonomous concept of European Union law. That concept is understood as designating an economic unit from the point of view of the object of the agreement at issue even if, in law, that unit consists of several persons, natural or legal. That characterisation is therefore independent of the way in which that unit is organised, the way in which it is financed or indeed the legal form which it takes, and its existence may be inferred from a body of consistent evidence. (67)
176. In the context of a group of companies, it is thus settled that the formal separation resulting from the separate legal personalities of a parent company and its subsidiaries is not decisive. The decisive criterion is the existence of the unified conduct of those companies on the market. (68)
177. The General Court’s definition of the concept of undertaking at paragraphs 87 and 88 of the judgment under appeal is therefore none other than the definition that results from an abundant and consistent body of case-law, which ARBED appears (intentionally) to omit in the context of its first complaint.
178. That interpretation of the concept of undertaking has the consequence of excluding the application of Article 101(1) TFEU to agreements between a subsidiary and its parent company, since there is no agreement ‘between undertakings’. (69) Contrary to ARBED’s contention in support of the first complaint, however, that is not the only consequence. It also has a contrary effect. Thus, it has long been accepted, since the judgment of 21 February 1973 in Europemballage and Continental Can
v Commission, (70) that the conduct of a subsidiary may be attributed to the parent company where the subsidiary does not determine its market behaviour autonomously, but in essentials follows the instructions of the parent company, in view, in particular, of the economic, organisational and legal ties that unite the two legal entities. (71) In those circumstances, the Court considers that the parent company and the subsidiary form the same economic unit and, accordingly, form a single undertaking. (72)
179. I therefore consider that the first complaint, alleging incorrect application of the concept of undertaking in competition law, is unfounded.
ii) Second complaint: in substance, breach of the principle of personal responsibility
180. Behind the reliance on the principles of legal autonomy of legal persons and freedom to conduct a business, ARBED defends the idea that TradeARBED, in that it has separate legal personality, should be solely responsible for its actions. ARBED maintains that, as it did not actually participate in the infringement, it should not be required to answer for it. It is for that reason that ARBED claims that there has been a breach of the principle that penalties should be applied only to the offender. I shall therefore examine this complaint from the aspect of the principle of personal responsibility and begin by recalling the nature and scope of such liability.
181. The principle of personal responsibility is a fundamental guarantee deriving from criminal law, which limits the exercise of the public authorities’ right to impose punishment. Under that principle, a punishable act can be attributed only to its actual author and, under the principle that punishment should be applied only to the offender, a penalty cannot be incurred by anyone other than the offender.
182. This Court has accepted that the principle of personal responsibility is applicable where there has been an infringement of the competition rules, owing to the nature of the infringement and also to the nature and degree of severity of the ensuing penalties. (73) Thus, where an economic entity infringes the competition rules, it falls, in principle, to the natural or legal person managing that entity to answer for the consequences of its acts. (74)
183. None the less, in a field such as that of competition, the authorities responsible for conducting proceedings are faced with intricate conduct characterised by insidious behaviour and complex structures and organisations. In a group of companies, a subsidiary without any autonomy on the market may be just an ‘empty shell’ and conceal the identity of the true instigator of the anti-competitive agreements. Further, the movements of restructuring, transfers or again legal or organisational changes in the group may conceal movements of capital capable of thwarting the proper enforcement of the Commission’s decisions. (75)
184. In order to ensure the effective implementation of the competition rules, the Court therefore takes the economic reality of groups of companies into account, and does so in two ways.
185. It thus accepts, very strictly, that an anti-competitive act by one company should be attributed to another company. There are two possible situations:
– the first situation is that of a parent company and its subsidiary, illustrated in the present case by the relationship between ARBED and TradeARBED,
– the second situation is that of an economic succession between two entities belonging to the same economic unit, which in the present case would be represented by the link between ARBED and ProfilARBED. (76)
186. The second complaint concerns the first situation. In order to examine the merits of that complaint, it is therefore essential first to ascertain whether the General Court did indeed comply with the conditions laid down in the case-law for attributing to ARBED liability for the infringement committed by its subsidiary TradeARBED.
187. I shall examine that question when I assess the second part of the second ground of appeal, which relates expressly to that point. I shall show, in that regard, that the General Court correctly applied this Court’s case-law.
188. I shall therefore propose that the Court find that, by attributing to ARBED liability for the infringement committed by its subsidiary, the General Court did not breach the principle of personal responsibility. The second complaint in the first part, alleging breach of that principle, will therefore have to be rejected as unfounded.
iii) Conclusion
189. In the light of all those elements, I shall propose that the Court should reject the first part, alleging breach of the principles of legal autonomy of legal persons, freedom to conduct a business and personal responsibility, as inadmissible in part and unfounded in part.
c) Second part: incorrect application of the case-law on the conditions in which an infringement committed by a subsidiary may be attributed to its parent company
190. In support of the second part, ARBED calls in question, in substance, the nature and scope of the presumption that a parent company holding 100% of the capital of its subsidiary actually exercises decisive influence over the subsidiary’s conduct and must therefore answer for the anti-competitive conduct of its subsidiary.
191. In that regard, ARBED takes issue with the General Court’s reasoning at paragraphs 89 to 91 of the judgment under appeal:
‘89 In the specific case of a parent company holding 100% of the capital of a subsidiary which has committed an infringement, there is a rebuttable presumption that the parent company actually exercises decisive influence over the conduct of its subsidiary (… AEG-Telefunken
v Commission …, paragraph 50 …) and therefore constitutes with the subsidiary a single undertaking within the meaning of Article [101 TFEU] … It is therefore for the parent company which is challenging before the Community judicature a Commission decision imposing a fine on it for the conduct of its subsidiary to rebut that presumption by adducing evidence to establish that its subsidiary was independent (… Stora Kopparbergs Bergslags
v Commission, paragraph 29).
90. In that regard, it is true that, as the applicants claim, the Court of Justice, at paragraphs 28 and 29 of Stora Kopparbergs Bergslags
v Commission, referred, as well as to the fact that the parent company owned 100% of the capital of the subsidiary, to other circumstances, such as the fact that it was not disputed that the parent company exercised influence over the commercial policy of its subsidiary or that both companies were jointly represented during the administrative procedure. However, those circumstances were mentioned by the Court of Justice for the sole purpose of identifying all the elements on which the Court of First Instance had based its reasoning before concluding that that reasoning was not based solely on the fact that the parent company held the entire capital of its subsidiary. Accordingly, the fact that the Court of Justice upheld the findings of the Court of First Instance in that case cannot have the consequence that the principle laid down in paragraph 50 of AEG-Telefunken
v Commission
is amended …
91 In those circumstances, it is sufficient for the Commission to prove that the entire capital of a subsidiary is held by its parent company for the presumption that the parent company exercises decisive influence over the conduct of the subsidiary on the market to be established. The Commission will then be able to hold the parent company jointly and severally liable for payment of the fine imposed on its subsidiary, even where it is found that the parent company did not participate directly in the agreements, unless the parent company proves that its subsidiary acts independently on the market …’
192. Although I believe that the scope and application of that presumption are, in principle, debatable, I am none the less of the view that the analysis adopted in that regard by the General Court is not vitiated by any error of law.
193. In the first place, I propose that the Court should reject at the outset the argument alleging incorrect interpretation of AEG-Telefunken
v Commission . As the Commission contends, ARBED’s reading of that judgment is clearly incorrect. In that case, as in the present case, no act had been committed by the parent company and the question was whether the parent company could be held responsible for the acts of its subsidiaries.
194. In the second place, it should be observed that Akzo Nobel and Others
v Commission confirms the principle that the Commission is entitled to attribute a subsidiary’s anti-competitive conduct to the parent company where it is established that the parent company holds the subsidiary’s entire capital.
195. That principle is based on the presumption that a parent company which holds 100% of its subsidiary’s capital actually exercises decisive influence over the subsidiary’s conduct. It is thus presumed that the subsidiary does not determine its conduct on the market autonomously and that it applies the instructions given to it by the parent company. The parent company and the subsidiary are therefore regarded as constituting one and the same economic unit and, accordingly, as forming a single ‘undertaking’ for the purposes of competition law, which enables the Commission to address a decision imposing fines to the parent company without being required to establish that the parent company was personally involved in the infringement.
196. The Court observed that the presumption is rebuttable, and that the parent company is then required to adduce sufficient evidence to show that its subsidiary acted autonomously on the market. If the presumption is not rebutted, the Commission is then in a position to proceed to hold the parent company jointly and severally liable for payment of the fine imposed on the subsidiary.
197. Last, the Court confirmed that the Commission is required only to prove that the entire capital of a subsidiary is held by the parent company in order to presume that the parent company exercises decisive influence of the commercial policy of that subsidiary. No other requirement is placed on the Commission.
198. The Court thus put an end to the discrepancies in interpretation caused by Stora Kopparbergs Bergslags
v Commission, on which, moreover, ARBED relies in support of its complaint. In his Opinion in that case, Advocate General Mischo was of the view that the mere fact of holding 100% of the capital did not in itself suffice to establish the responsibility of the parent company (77) and, in the judgment, the Court had effectively relied on other circumstances capable of proving that the parent company had actually exercised decisive influence, in addition to the fact that it held 100% of the capital of its subsidiary. (78)
199. Following the judgment in Stora Kopparbergs Bergslags
v Commission, the question therefore arose as to whether ownership of 100% of the capital of the subsidiary was sufficient to found a presumption that they both belonged to the same ‘undertaking’ or whether, as ARBED appears to think in the present case, it was necessary to produce further evidence, such as that produced in that case.
200. In Akzo Nobel and Others
v Commission
the Court dispelled that uncertainty and held that the other circumstances capable of proving the exercise of decisive influence ‘were mentioned by the Court of Justice for the sole purpose of identifying all the elements on which [the General Court] had based its reasoning and not to make the application of the presumption … subject to the production of additional indicia relating to the actual exercise of influence by the parent company’. (79)
201. This Court thus confirmed the General Court’s interpretation of Stora Kopparbergs Bergslags
v Commission
at paragraph 90 of the judgment under appeal.
202. In the light of those elements, it is difficult to criticise the General Court’s analysis at paragraphs 89 to 91 of the judgment under appeal.
203. That analysis is all the more difficult to criticise because the General Court did not merely apply the presumption based on the parent company’s holding of the entire capital of its subsidiary in order to hold ARBED liable. At paragraphs 96 to 98 of the judgment under appeal, it also referred to the existence of additional indicia proving that TradeARBED did not determine its conduct on the Community market in beams independently. (80)
204. I fully agree with that approach. Although this Court effectively settled that question at paragraph 61 of Akzo Nobel and Others
v Commission, I am none the less still convinced that the liability of the parent company cannot be established solely on the basis of a presumption derived from the holding of capital. If a 100% holding is sufficient to establish the existence of a group link, I do not think that it can in itself presume the actual exercise of a power to issue instructions constituting connivance in the commission of the infringement. To my mind, it is necessary for the Commission to produce further evidence capable of showing that the subsidiary had no autonomy, in order to preserve the fundamental rights recognised to undertakings.
205. I am referring, in particular, to observance of the rights of the defence and of the principle of the presumption of innocence enshrined in Articles 47 and 48 of the Charter. The Court has repeatedly held that those fundamental rights, which are also safeguarded by Article 6 ECHR, must be observed in all proceedings relating to infringements of the competition rules capable of leading to penalties such as fines or periodic penalties, although the proceedings in question are administrative in nature. In that regard, the Court has expressly relied on the nature of the infringements in question and also on the nature and degree of severity of the ensuing penalties. (81) I am also aware that respect for those guarantees is even more fundamental because the proceedings in question are quasi-penal in nature, where the Commission carries out the investigation, conducts the proceedings and adopts the decision, and in that regard has a wide discretion. (82)
206. However, the presumption of liability is es sentially an exception to the principle of the presumption of innocence. Under that principle, the burden of proof must be borne by the prosecuting authorities and any doubt must operate to the advantage of the accused. The presumption of liability at issue considerably alleviates the burden of proof borne by the Commission and requires parent companies to adduce sufficient evidence to rebut that presumption. That reversal of the burden of proof unquestionably affects the rights of defence of those undertakings.
207. The European Court of Human Rights accepts that the burden of proof may be reversed, leading to presumptions of liability. In Salabiaku v. France (83) it considered that the principle of the presumption of innocence guaranteed in Article 6(2) ECHR does not preclude a presumption of fact or of law provided that it is confined within ‘reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence’.
208. In Janosevic v. Sweden
the European Court of Human Rights thus applied a test of proportionality concerning a presumption of liability in Swedish tax legislation. That legislation provided that the inaccuracies found during a tax assessment were due to an inexcusable act attributable to the taxpayer and that it was not manifestly unreasonable to impose a tax surcharge as a penalty for that act. The Swedish tax system thus operated with a presumption of liability, which it was up to the taxpayer to rebut. (84)
209. The European Court of Human Rights considered that this presumption was confined within reasonable limits, in so far as the presumption was rebuttable (since the relevant rules provided certain means of defence based on subjective elements) and in so far as an efficient system of taxation was important to the State’s financial interests. The Court added that this conclusion in general ‘requires that the courts … make a nuanced and not too restrictive assessment in each individual case as to whether there are grounds for setting aside or remitting the tax surcharge’. (85)
210. In keeping with that case-law, I must therefore pay attention to the way in which I apply the presumption in question. If it is justified by the need to ensure the effective implementation of the competition rules, I note, none the less, that its application now goes beyond the mere ‘specific case of a parent company holding 100% of the capital of a subsidiary’ referred to in Akzo Nobel and Others
v Commission . (86) In General Química and Others
v Commission (87) that presumption was applied in the context of a pyramid-shaped group, the sub-subsidiary which had participated in the infringement being controlled by a subsidiary which was itself wholly owned by the parent company. Then, in Arkema
v Commission (88) and Elf Aquitaine
v Commission, (89) the presumption was applied where the parent company held 98% of the subsidiary.
211. How can one be sure that the presumption in question is kept within ‘reasonable limits’?
212. The presumption must be rebuttable. As we have seen, the Court confirmed that principle in Akzo Nobel and Others
v Commission, where it emphasised that the presumption may be rebutted if it can be shown, by reference to the economic, legal and organisational links, that the subsidiary acts autonomously in the market and does not constitute a single economic unit with the parent company. (90) Yet, beyond that general assertion, it seems that the presumption is very difficult to rebut. (91) In the context of a group of companies, how can the absence of influence on the part of the parent company over the commercial practices of a subsidiary be proved, except, as the Commission has done here, by seeking in the context of the commission of the impugned infringement objective elements that make the presumption in question likely.
213. I think that the presumption in question must, in each case, be corroborated by other elements of fact proving that the parent company exercised decisive influence over its subsidiary. (92) That would make it possible to avoid an approach which would tend automatically to establish the responsibility of a parent company on the sole basis that it holds the capital of the subsidiary. That would encourage the investigating authorities to undertake, in each case, a nuanced assessment of the economic, legal and organisational links between the parent company and its subsidiary. In the case of a wholly-owned subsidiary, the burden of proof borne by the Commission should indeed be less heavy than that which it would bear in the case of a subsidiary that was 70% owned by the parent company, but it should not be non-existent.
214. In the present case, as I have stated, the Commission and the General Court did in fact endeavour to corroborate the presumption based on control of TradeARBED by other evidence. (93)
215. In those circumstances, I think that the General Court therefore did not err in law in imputing to ARBED liability for the infringement committed by TradeARBED. I propose, therefore, that the Court should reject as unfounded the second part, alleging incorrect application of the case-law relating to the conditions in which the infringement committed by a subsidiary may be attributed to the parent company.
d) Third part: errors of law in the finding that ARBED actually exercised decisive influence over TradeARBED
216. In support of the third part, ARBED, it will be recalled, takes issue with paragraph 96 of the judgment under appeal, where the General Court stated that the evidence provided by the Commission confirmed ‘not that ARBED did actually participate in the infringements in question, but that it was capable of exercising decisive influence over TradeARBED’s conduct and did in fact make use of that power’. ARBED maintains that the General Court wrongly found the existence of a presumption of participation expressly ruled out by the Commission and thus exceeded its jurisdiction by substituting its own assessment for that of the Commission. ARBED also maintains that the General Court breached the principle of res judicata
in relation to the initial decision and the contested decision. Last, it observes that, in accordance with AEG-Telefunken
v Commission and Stora Kopparbergs Bergslags
v Commission, the liability of parent companies is based on their actual participation in the infringement.
217. First of all, it should be observed that ARBED’s arguments are based on an incorrect interpretation of the consequences of the attributability of an anti-competitive practice. It follows from the case-law of this Court, to which the General Court refers at paragraphs 104 and 116 of the judgment under appeal, that a company is deemed to have itself committed the infringement when the anti‑competitive actions of another legal person have been attributed to it. (94)
218. Consequently, the General Court did not err in law and did not exceed its jurisdiction when it considered that ARBED participated in the infringement owing to the decisive influence which it exercised over TradeARBED.
219. Next, as regards the complaint alleging breach of the principle of res judicata, I consider that it is inadmissible, for the same reasons as those already set out in the context of my examination of the first ground of appeal. As the Commission observes, the General Court rejected that complaint as ineffective at paragraph 102 of the judgment under appeal.
220. Last, I can reject the complaint which ARBED bases on AEG-Telefunken
v Commission and Stora Kopparbergs Bergslags
v Commission . As I have stated, and as the Commission maintains, ARBED relies on an incorrect interpretation of those judgments.
221. I believe that the third part can therefore be rejected as inadmissible in part and unfounded in part.
e) Conclusion
222. In the light of all those elements, I propose that the Court should reject the second ground of appeal, alleging failure by the General Court to have regard to the rules governing the attributability of anti-competitive practices in a group of companies, as inadmissible in part and unfounded in part.
3. My assessment of the second ground of appeal is so far as it is raised by ProfilARBED (Case C‑216/09 P)
223. The question raised by the second ground of appeal is whether ProfilARBED could, in that it inherited economic and industrial activities of ARBED in the beams sector, be attributed, on that basis, liability for ARBED’s and TradeARBED’s anti-competitive conduct.
i) First part: breach of the principles of legal autonomy of legal persons, freedom to conduct a business and personal responsibility
224. To my mind, examination of the first part raises particular difficulties with respect to ProfilARBED. While the first complaint, which calls into question the way in which the General Court applied the concept of ‘undertaking’, may be rejected for the same reasons as those set out in the context of the appeal brought by ARBED, I consider that the second and third complaints call for a different conclusion so far as ProfilARBED is concerned.
225. As we know, ProfilARBED was formed, as a wholly-owned subsidiary of ARBED, on 27 November 1992, one year after the infringement ceased. Consequently, in view of the date on which it was formed, it is materially impossible to recognise it as having participated in the infringements for the purposes of Article 1 of the contested decision.
226. Yet that is the conclusion which the General Court reached when it relied, at paragraph 113 of the judgment under appeal, on the ‘ fundamental
concept of an economic unit’ (95) and, at paragraphs 109 and 110 of that judgment, on the case-law on the criterion of economic continuity.
227. In fact, while the concept of an economic unit is indeed important for the purpose of ensuring the effective implementation of the competition rules, the fact none the less remains that the use of that concept must guarantee respect for the rights and principles that govern the attributability of anti-competitive acts and must not render the principle of personal responsibility devoid of meaning.
228. It must not be forgotten that the procedure in question involves the imposition of penalties and that the principle of personal responsibility is a fundamental principle of our law which assumes the adoption of individual conduct that merits punishment. Consequently, the concept of the economic unit can justify derogations from that principle only where they are exceptional and necessary in order to ensure the effectiveness of the competition rules.
229. Among the derogations which this Court has accepted is the situation in which there is an economic succession between two entities belonging to the same group of companies. The Commission can thus attribute liability for an infringement not to the entity that committed the infringement but to the undertaking to which the economic activities involved in the cartel were transferred, provided that those two entities belong to the same economic unit. As the General Court observed at paragraph 110 of the judgment under appeal, the objective of that rule is to avoid fraudulent manoeuvres within a group of companies designed to evade payment of the fine.
230. However, in the present case there is no evidence to show that the formation of ProfilARBED and the transfer to it of the economic activity in the beams sector are the result of such a manoeuvre. In spite of the transfer of its activities, ARBED continued to exist legally and economically. Although it is no longer active to any significant extent on the market for beams, it none the less continues to show a positive turnover and has, in its own assets, the ownership of TradeARBED and of ProfilARBED. Furthermore, in the absence of proof to the contrary, ARBED retained the power to manage the ARBED group, exercising decisive influence over ProfilARBED and TradeARBED. Thus, it is primarily through the parent company that the penalty will have a deterrent and preventive effect. Payment of the fine should lead ARBED to correct its conduct on the market and to monitor the conduct of its subsidiaries.
231. In the light of those elements, and taking into account in particular the date on which ProfilARBED was formed, I think that there was therefore no legal basis on which the General Court could attribute liability to ProfilARBED for the anti-competitive conduct of ARBED and TradeARBED and consider that it had contributed to the carrying out of that conduct, within the meaning of Article 1 of the contested decision.
232. On the other hand, that must not prevent the Commission from involving ProfilARBED in the case for the purpose of payment of the fine.
233. As I have stated, ProfilARBED continues to be a wholly-owned subsidiary of ARBED. In addition, industrial activities whose market value is the consequence, at least in part, of the anti-competitive agreements in which ARBED and TradeARBED participated were transferred to it. Consequently, I think that ProfilARBED could not be unaware of the partially fraudulent origin of the assets which it inherited, since it was set up by ARBED shortly after the infringement had been committed, as a wholly-owned subsidiary. In those circumstances, I am of the opinion that its situation can be assimilated to that of a ‘receiver’ in domestic criminal law. To my mind, only that analysis would justify the Commission, in application of the rules normally and traditionally applicable in relation to criminal penalties, being entitled, in Article 2 of the contested decision, to involve ProfilARBED in the payment of the fine and, if necessary, if it commits further infringements, to regard it as a repeat offender.
234. In the light of all those elements, I think that the Gener al Court breached the principle of personal responsibility in holding that the Commission was entitled to attribute liability to ProfilARBED for the unlawful conduct of ARBED and TradeARBED and to regard it as having participated in the infringements within the meaning of Article 1 of the contested decision.
235. Consequently, I consider that the second complaint, alleging breach of the principle of personal responsibility, is well founded.
ii) Conclusion
236. In the light of all those elements, and without there being any need to examine the third complaint in the first part, I propose that the Court should uphold the second ground of appeal, alleging breach by the General Court of the rules governing the attributability of anti-competitive practices in a group of companies, in so far as it is raised in the cross-appeal brought by ProfilARBED (Case C-216/09 P).
C – Third ground of appeal: incorrect interpretation of the rules on limitation periods
237. The third ground of appeal, put forward by the ARBED group, will be examined only in so far as it is put forward by ARBED, since the second ground of appeal has already been upheld in so far as it is put forward by ProfilARBED and TradeARBED.
238. ARBED takes issue with the General Court’s reasoning that the interruption of the limitation period could be relied on as against it, in that it ‘participated in the infringement’ within the meaning of Article 2(1) of Decision No 715/78 and Article 25(4) of Regulation No 1/2003.
1. The judgment under appeal
239. At paragraph 143 of the judgment under appeal, the General Court stated, first of all, that ‘[t]he expression “undertaking which has participated in the infringement” within the meaning of [Article 2(1) of Decision No 715/78 and Article 25(4) of Regulation No 1/2003] must be understood to mean any undertaking identified as such in a Commission decision imposing sanctions in respect of an infringement’. In that regard, it refers to Compagnie maritime belge
v Commission . (96)
240. The General Court then observed that:
‘145 … it follows from those provisions that the limitation period is interrupted not only with respect to the undertakings which were the subject of an action taken for the purpose of the preliminary investigation or proceedings, but also with respect to those which, having participated in the infringement, are still unknown to the Commission and, accordingly, have not been the subject of any measure of investigation or are not the addressees of any procedural act. As the Commission also correctly observes, the expression “which has participated in the infringement” implies an objective fact, namely participation in the infringement, which is distinguished from a subjective and contingent element such as the identification of such an undertaking during the administrative procedure. Thus, an undertaking could have participated in the infringement without the Commission being aware that it has done so when it takes an action interrupting the limitation period.
146 In any event, it must be held that, in the present case, ARBED did indeed “participate in the infringement”, since, in accordance with [ Metsä-Serla and Others
v Commission ], the unlawful conduct of TradeARBED may be imputed to ARBED, in such a way that it is deemed to have committed that infringement itself.’
2. Main arguments of the parties
241. By the first complaint, ARBED states that it was not identified in the contested decision as an undertaking ‘which has participated in the infringement’ and that its situation is fundamentally different from that of the undertaking concerned in Compagnie maritime belge
v Commission . Next, it maintains that the General Court failed to establish that it actually ‘participated in the infringement’ and the attributability to it of the infringement committed by TradeARBED does not permit such a conclusion. ARBED refers to paragraph 100 of the judgment under appeal, where the General Court distinguished, on the one hand, the attributability to the parent company of the infringement committed by the parent company in collusion with its subsidiary, on account of its own actual participation in that infringement, and, on the other hand, the attributability to the parent company of liability for the infringement committed solely by its subsidiary on account of the decisive influence with it exercised over the subsidiary.
242. By the second complaint, ARBED maintains that the General Court’s reasoning is vitiated by a contradiction, in view of the considerations which it adopted at paragraph 100 of the judgment under appeal.
243. By the third complaint, ARBED considers that the General Court also breached the principle of res judicata, since the initial decision found that only TradeARBED had participated in the infringement.
244. The Commission rejects those arguments. In particular, it contends that ARBED once again bases its reasoning on an incorrect distinction between ‘participation’ in an infringement and the attributability of the infringement. As regards the argument alleging breach of the principle of res judicata, the Commission maintains that it is inadmissible.
3. My assessment
a) First complaint: incorrect characterisation of the undertaking which ‘participated in the infringement’ within the meaning of the rules on limitation periods
245. Contrary to ARBED’s contention, I think that the General Court was entitled to characterise ARBED as an undertaking which ‘participated in the infringement’ within the meaning of Article 2(2) of Decision No 715/78 and Article 25(4) of Regulation No 1/2003 and to apply to it the acts interrupting the limitation period.
246. I consider that the General Court was correct not because of the considerations which it set out at paragraph 143 of the judgment under appeal, with which, moreover, I do not agree, (97) but on account of the reasons which it set out in the following paragraphs, which are in themselves sufficient to support its conclusion.
247. As the General Court observes at paragraph 145 of the judgment under appeal, the expression ‘which has participated in the infringement’ implies an objective fact, namely participation in the infringement. As I have shown, ARBED was attributed liability for the anti-competitive acts of TradeARBED because of the decisive influence which it exercised over that undertaking at the time when the infringement was committed. It is thus presumed that ARBED contributed to the commission of the infringement. By virtue of a consistent body of case-law to which the General Court refers at paragraphs 104 and 116 of the judgment under appeal, it is even deemed to have committed the infringement itself. (98)
248. ARBED’s argument is therefore based on an incorrect interpretation of the consequences associated with the attributability of an anti-competitive practice and I therefore propose that this argument should be rejected as unfounded.
b) Second complaint: the General Court’s reasoning is contradictory
249. ARBED refers specifically to paragraph 100 of the judgment under appeal, which, as the use of the words ‘[f]or the remainder’ indicates, is a ground included for the sake of completeness. This complaint should therefore be rejected as inadmissible.
c) Third complaint: breach of the principle of res judicata
250. I also propose that the third complaint should be rejected as inadmissible. This complaint was rejected by the General Court as ineffective at paragraph 102 of the judgment under appeal. It should be noted, in that regard, that reliance on the principle of res judicata
with respect to a Commission decision is irrelevant, a fortiori
when that decision has been annulled by the Union judicature.
d) Conclusion
251. In light of all those elements, I consider that the third ground of appeal, alleging incorrect interpretation of the rules on limitation periods, raised by ARBED in its appeal may be rejected as inadmissible in part and unfounded in part. (99)
D – Fourth ground of appeal: errors of law in the assessment of the breach of ARBED’s rights of defence
252. ARBED takes issue with the General Court, in substance, for having made errors of law when it assessed the existence of a breach of its rights of defence owing to the excessive duration of the procedure. It claims that the evidence necessary to rebut the presumption of decisive influence that might have been available when the infringement was committed had disappeared after a procedure lasting 16 years.
1. The judgment under appeal
253. ARBED’s criticisms relate to paragraphs 168 to 171 of the judgment under appeal:
‘168 In the present case, ARBED has failed to establish in what way the duration of the administrative procedure, which, it is true, was particularly long if account is also taken of the judicial proceedings for annulment of the initial decision, could impede the exercise of its rights of defence and, more particularly, the possibility for it to “rebut the presumption of liability based on the existence of shareholding links between the only company to have participated in the infringement and [itself], which was raised for the first time only after the proceedings had lasted for 16 years”. In that regard, ARBED merely claimed that “the evidence which might have been available to [it] in 1990 disappeared after such a period”.
169 It should be added that, contrary to ARBED’s contention, the presumption of liability in question was not raised “for the first time only after the proceedings had lasted for 16 years”, but was raised at the stage of the initial decision, which was adopted in February 1994 (see recital 322 to that decision and paragraph 101 above).
170 Notwithstanding that, ARBED did not demonstrate, or even allege, during the first proceedings before this Court that its subsidiary TradeARBED determined its commercial policy independently in such a way as not to constitute, with ARBED, an economic entity and therefore a single undertaking for the purposes of Article 65 CS …
171 Last, that rebuttable presumption of liability, the principle of which was laid down as long ago as 1983 by the Court of Justice in AEG-Telefunken
v Commission, was amply corroborated in the present case by the additional evidence already referred to by the Commission in the initial decision … and reiterated by this Court in the judgment of 11 March 1999 in Case T‑137/94 ARBED
v Commission
…’
2. Main arguments of the parties
254. First, ARBED maintains that the General Court, at paragraph 168 of the judgment under appeal, did not respond to the requisite legal standard to the plea which it had raised, which means that the judgment under appeal is vitiated by a lack of reasoning. ARBED submits that the General Court could not merely respond that it was for ARBED to demonstrate that the evidence relating to the real nature of the relationship with its subsidiary had disappeared, when ‘it is impossible to prove a negative’.
255. Second, at paragraph 169 of the judgment under appeal the General Court adopted an incorrect reading of the initial decision, since that decision did not address the question of the attributability to ARBED of the infringement committed by its subsidiary.
256. Third, the General Court breached the principle of res judicata
by basing its assessment on the initial decision, which, so far as it concerned ARBED, was annulled by this Court in its judgment of 2 October 2003 in ARBED
v Commission .
3. My assessment
257. Observance of the rights of the defence is a fundamental principle of European Union law, enshrined in Article 48 of the Charter. According to well‑established case-law, observance of that principle is of fundamental importance in the administrative procedure conducted by the Commission with respect to infringements of competition law. (100)
258. Observance of the rights of the defence requires that the undertaking concerned must be afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts alleged against it by the Commission. (101) The content of those rights has been consistently described in the case-law, and the judgment in Technische Unie
v Commission, (102) on which the General Court relies in the judgment under appeal, adds a new stone to the structure.
a) First complaint: failure to state reasons
259. In order to examine the merits of the first complaint, it is appropriate to follow the architecture of the reasoning adopted by the General Court.
260. At paragraph 166 of the judgment under appeal, the General Court began by recalling the applicable case-law and, in particular, the contribution made by Technische Unie
v Commission .
261. In that case, the Court of Justice examined the consequences for the rights of the defence of the excessive duration of the administrative procedure and, in particular, of the investigation phase. (103) In principle, during that phase the statement of objections has not yet been issued and the rights of the defence are not yet formally exercised. As the Court observed, however, the excessive duration of the investigation phase is capable of impeding the establishment of evidence designed to refute the existence of conduct susceptible of rendering the undertakings concerned liable (104) and may, therefore, irremediably compromise the future possibilities of defence of the undertakings concerned in the second phase of the procedure, that is to say, following the issue of the statement of objections. The Court thus held that the assessment of the source of any undermining of the effectiveness of the rights of the defence must extend to the entire procedure and be carried by reference to its total duration. (105)
262. None the less, as the General Court subsequently recalled at paragraph 167 of the judgment under appeal, the burden of proof is borne, in that regard, by the undertaking concerned.(106)
263. It was at paragraph 168 of the judgment under appeal that the General Court therefore then examined the merits of ARBED’s argument.
264. First of all, the General Court observed that the procedure initiated against ARBED was particularly long. It will be recalled that the statement of objections was addressed to ARBED on 8 March 2006, whereas the Commission made its first investigations in 1991, 15 years earlier. None the less, the duration of that administrative phase must take account of the judicial proceedings before the Union judicature, which lasted approximately nine years and five months.
265. The General Court then considered whether ARBED had actually shown that such a duration had affected its ability to defend itself. It observed, in that regard, that ARBED merely claimed that ‘the evidence which might have been available to [it] in 1990 disappeared after such a period’.
266. That reasoning is brief. The General Court does not state that, according to consistent case-law, the undertaking concerned must put forward detailed and convincing evidence and cannot merely rely on abstract and imprecise argument. (107) None the less, that reasoning seems to me to be sufficient, given the particularly abstract and general nature of ARBED’s assertion. That undertaking cannot validly maintain that it responded, as such, to the requirements of the ‘burden of proof’ by stating that ‘the evidence … disappeared after such a period’.
267. Consequently, I think that the General Court’s finding at paragraph 168 of the judgment under appeal is not affected by any lack of reasoning. I therefore propose that the first complaint should be rejected as unfounded.
b) Second and third complaints: incorrect reading of the initial decision and breach of the principle of res judicata
268. To my mind, ARBED’s criticisms are wholly founded.
269. First, the General Court adopted an incorrect interpretation of the initial decision. Contrary to its finding, the presumption of liability was not raised at the stage of the initial decision, since, as that Court had itself observed at paragraph 95 of the judgment of 11 March 1999 in ARBED
v Commission, ‘the Court finds that the Commission did not at any point in the administrative proceedings formally advise [ARBED] of its intention to impute to it liability for the conduct of TradeARBED’. Nor did the initial decision make any reference to it.
270. Second, the General Court based its assessment on a procedure and a decision which were annulled by this Court in its judgment of 2 October 2003 in ARBED
v Commission . (108) In so doing, the General Court therefore failed to have regard to the consequences of an annulment judgment (109) and, likewise, breached the principle of res judicata . (110)
271. None the less, although those complaints seem to me to be wholly founded, they cannot lead to the judgment under appeal being set aside. The complaints are directed against grounds of the judgment under appeal which were included for the sake of completeness. The considerations adopted by the General Court at paragraph 168 of the judgment under appeal are sufficient to substantiate its finding, as may be seen, moreover, from the use of the words ‘[i]t should be added’ at paragraph 169 of the judgment under appeal. Accordingly, such complaints must be rejected as ineffective.
4. Conclusion
272. In the light of those elements, I propose that the Court should declare the fourth ground of appeal, alleging errors of law in the General Court’s assessment of the breach of ARBED’s rights of defence, unfounded and should reject it.
273. In the light of all those considerations, I am of the opinion that the appeal brought by ARBED in Case C‑201/99 P must be dismissed as inadmissible in part and unfounded in part.
VIII – Conclusions to be drawn from examination of the appeals in Cases C‑201/09 P and C‑216/09 P
274. In the first place, I propose that the Court should dismiss the appeal brought by ARBED in Case C‑201/09 P as inadmissible in part and unfounded in part.
275. In the second place, as regards the cross-appeal brought by ProfilARBED and TradeARBED in Case C‑216/09 P, I propose that the Court should set aside the judgment under appeal in so far as the General Court held that the Commission was entitled to attribute liability to ProfilARBED for the anti‑competitive conduct of ARBED and ProfilARBED.
276. In the third place, as regards the appeal brought by the Commission in Case C‑216/09 P, I propose that the Court should set aside the judgment under appeal, in so far as the General Court held that the suspension of the limitation period applied only for ARBED. I consider that the suspension of the limitation period must apply for all the undertakings which participated in the infringement. It must therefore be applicable to TradeARBED, while in my view ProfilARBED cannot be considered as such.
277. Where the judgment under appeal is set aside, Article 61 of the Statute of the Court of Justice provides that the Court may either refer the case back to the General Court for judgment or itself give final judgment in the matter, where the state of the proceedings so permits.
IX – Decision on the dispute
278. The dispute in the present case concerns the proceedings initiated by the Commission on account of the infringement committed by TradeARBED between 1 July 1988 and 16 January 1991.
279. The purpose of the contested decision was to attribute liability for that anti‑competitive act to ARBED and also to ProfilARBED and to impose a fine on them, jointly and severally with TradeARBED.
A – As regards ProfilARBED
280. In the light of the considerations which I adopted at points 224 to 235 of this Opinion, I am of the view that the contested decision must be annulled in so far as it concerns ProfilARBED.
B – As regards TradeARBED
281. Before the General Court, TradeARBED raised three pleas for annulment.
282. As regards the first plea for annulment, alleging that the contested decision lacked a legal basis, it was properly rejected by the General Court as unfounded.
283. As regards the second plea for annulment, alleging breach of the rules relating to the limitation of proceedings, the decisive question with respect to TradeARBED is whether the initiation of the action before the Union judicature suspended the limitation period as against it. I have stated that, in its assessment of that plea, the General Court erred in law in holding that the suspension of the limitation period did not apply to TradeARBED.
284. For the reasons set out at points 71 to 81 of this Opinion, I consider that the limitation period was indeed suspended for TradeARBED.
285. It is appropriate, at present, to examine the consequences which that finding has on the calculation of the five-year limitation period. From the adoption of the initial decision (111) on 16 February 1994, the limitation period ran until the first action was brought before the General Court on 8 April 1994, that is to say, for seven weeks. It was then suspended until 11 March 1999, the date on which the General Court delivered its judgment in ARBED
v Commission, that is to say, for approximately five years. The limitation period ran again until 11 May 1999, the date on which ARBED lodged an appeal before this Court, that is to say, for two months. The limitation period was again suspended until 2 October 2003, the date on which this Court delivered its judgment in ARBED
v Commission, that is to say, for four years and five months. It again ran for approximately two years and four months until the new statement of objections was notified to the ARBED group on 8 March 2006, an act which interrupted the limitation period. Consequently, the contested decision, dated 8 November 2006, was adopted within the five-year limitation period.
286. As regards, at present, the 10-year limitation period, which runs from the date on which the infringement ceased, that is to say, 17 January 1991, it must be extended for the period during which the procedure was suspended, that is to say, for approximately nine years and five months. The contested decision, dated 8 November 2006, was therefore adopted within that period.
287. The second plea for annulment, alleging breach of the rules relating to the limitation of proceedings, must therefore be rejected as unfounded in so far as it is raised by TradeARBED.
288. As regards the third plea for annulment, alleging breach of the rights of the defence, the General Court did not examine it in so far as it concerned TradeARBED.
289. The arguments raised by TradeARBED are summarised at paragraphs 162 and 163 of the judgment under appeal. They are identical to those raised by ARBED and seek annulment of the contested decision, or at the very least annulment of Article 2 of that decision. Relying on Technische Unie
v Commission, TradeARBED maintains that, owing to the particularly long duration of the proceedings, the evidence capable of showing that ARBED did not exercise decisive influence over TradeARBED disappeared.
290. The General Court examined the merits of the third plea, in so far as it was raised by ARBED, at paragraphs 165 to 172 of the judgment under appeal. For the same reasons as those set out at paragraph 168 of that judgment, I think that this plea must be rejected as unfounded. Like ARBED, TradeARBED does not show how the duration of the administrative procedure might have adversely affected the exercise of its rights of defence.
291. In the light of all those elements, the action brought by TradeARBED for annulment of the contested decision must be rejected.
X – Costs
292. Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, it is to make a decision as to costs.
293. Under the first subparagraph of Article 69(2) of the Rules of Procedure, which is applicable to proceedings on appeal pursuant to Article 118 of those rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
294. However, under the first paragraph of Article 69(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that the parties are to bear their own costs.
295. In Case C‑201/09 P ARBED has been wholly unsuccessful in its claims. I propose, therefore, that the Court should order that undertaking to bear its own costs and to pay the costs incurred by the Commission.
296. In Case C‑216/09 P the Commission has been unsuccessful as regards the ground of appeal alleging breach of the rules governing the attributability of the anti-competitive practices with respect to ProfilARBED. Likewise, ProfilARBED and TradeARBED have been unsuccessful as regards the ground of appeal alleging incorrect interpretation of the rule relating to the suspension of the limitation period. The parties will therefore bear their own costs.
XI – Conclusion
297. In the light of the foregoing considerations, I propose that the Court should:
(1) set aside the judgment of the Court of First Instance of the European Communities of 31 March 2009 in Case T‑405/06 ArcelorMittal Luxembourg and Others
v Commission in so far as that Court held:
– that the European Commission was entitled to attribute liability to ArcelorMittal Belval & Differdange SA for the anti-competitive conduct of ArcelorMittal Luxembourg SA and ArcelorMittal International SA; and
– that the suspension of the limitation period under Article 3 of Commission Decision No 715/78/ECSC of 6 April 1978 concerning limitation periods in proceedings and the enforcement of sanctions under the Treaty establishing the European Coal and Steel Community and Article 25(6) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty did not apply for ArcelorMittal International SA;
(2) dismiss the appeal brought by ArcelorMittal Luxembourg SA in Case C‑201/09 P as inadmissible in part and unfounded in part;
(3) annul Article 1 of the Commission Decision of 8 November 2006 relating to a proceeding under Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams (Case COMP/F/38.907 – Steel beams) in so far as it concerns ArcelorMittal Belval & Differdange SA;
(4) dismiss the action brought by ArcelorMittal International SA for annulment of that decision as unfounded;
(5) in Case C‑201/09 P, order ArcelorMittal Luxembourg SA to bear its own costs and to pay those incurred by the European Commission;
(6) in Case C‑216/09 P, order ArcelorMittal Belval & Differdange SA, ArcelorMittal International SA and the European Commission to bear their own costs.’
(1) .
(2)  –	Formerly Arcelor Luxembourg SA, ‘ARBED’.
(3)  –	Formerly Arcelor Profil Luxembourg SA, ‘ProfilARBED’.
(4)  –	Formerly Arcelor International SA, ‘TradeARBED’.
(5)  –	Case T‑405/06 [2009] ECR II‑771; ‘the judgment under appeal’.
(6)  –	This decision was published in summary form in the Official Journal of the European Union
(OJ 2008 C 235, p. 4; ‘the contested decision’).
(7)  – Case T‑24/07 [2009] ECR II‑2309.
(8)  –	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).
(9)  –	OJ 1978 L 94, p. 22. The rules originated in Regulation (EEC) No 2988/74 of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1), which is not applicable in the present case.
(10)  –	Decision of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams (OJ 1994 L 116, p. 1; ‘the initial decision’).
(11)  – Case T‑137/94 [1999] ECR II‑303.
(12)  – Case C‑176/99 P [2003] ECR I‑10687.
(13)  –	Convention signed in Rome on 4 November 1950 (‘the ECHR’).
(14)  –	On this question, see Case C‑272/09 P KME Germany and Others
v Commission
and Case C‑73/10 P Internationale Fruchtimport Gesellschaft Weichert
v Commission, both currently pending before the Court.
(15)  –	See Eur. Court HR, Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22. For an account of the case-law of the European Court of Human Rights on the application of these criteria, see Eur. Court HR, Jussila v. Finland
[GC], no. 73053/01, §§ 29 to 39, ECHR 2006-XIV.
(16)  –	See Eur. Court HR, Ezeh and Connors v. the United Kingdom
[GC], nos. 39665/98 and 40086/98, § 86, ECHR 2003-X.
(17)  –	For example, concerning an administrative penalty imposed following a road traffic accident, see Eur. Court HR, Öztürk v. Germany, 21 February 1984, Series A no. 73; concerning a penalty imposed for a customs offence, see Eur. Court HR, Salabiaku v. France, 7 October 1988, Series A no. 141-A; concerning a penalty imposed by the French Financial Markets Board, see Eur. Court HR, Didier v. France
(dec.), no. 58188/00, ECHR 2002-VII; concerning a tax surcharge imposed in the context of a reassessment by the tax authorities, see Eur. Court HR, Jussila v. Finland ; and, concerning a reprimand given by the French Banking Commission, see Eur. Court HR, Dubus S.A. v. France, no 5242/04, 11 June 2009.
(18)  –	In that regard, see Eur. Commission HR,
Melchers and Co. v. Germany, decision of 9 February 1990, and Société Stenuit v. France, decision of 30 May 1991, and Eur. Court HR, Lilly v. France
(dec.), 3 December 2002. See also Eur. Court HR, Jussila v. Finland, § 43, and Dubus S.A. v. France, § 35, and also, for an isolated interpretation, Eur. Court HR, OOO Neste and Others v. Russia, 3 June 2004.
(19)  –	Case C‑49/92 P [1999] ECR I‑4125.
(20)  –	Paragraph 78. This decision has been followed (see Case C‑97/08 P Akzo Nobel and Others
v Commission
[2009] ECR I‑8237, paragraph 77).
(21)  –	Case C‑199/92 P [1999] ECR I‑4287.
(22)  –	Paragraph 150.
(23)  –	Joined Cases 209/78 to 215/78 and 218/78 [1980] ECR 3125.
(24)  –	OJ 2010 C 83, p. 389; ‘the Charter’.
(25)  –	Case C‑310/97 P [1999] ECR I‑5363.
(26)  –	Joined Cases C‑283/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P [2002] ECR I‑8375, paragraph 144. The Commission also refers to Case C‑278/02 Handlbauer
[2004] ECR I‑6171, paragraph 40.
(27)  –	It will be recalled that this is the regulation concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (see footnote 9).
(28)  – Joined Cases C‑74/00 P and C‑75/00 P [2002] ECR I‑7869.
(29)  –	Paragraphs 139 and 140. See also Joined Cases C‑172/01 P, C‑175/01 P, C‑176/01 P and C‑180/01 P International Power and Others
v NALOO
[2003] ECR I‑11421, paragraphs 106 and 107.
(30)  –	See my argument at points 224 to 235 of this Opinion.
(31)  –	See paragraphs 58, 83, 117 and 133 of the cross-appeal lodged by ProfilARBED and TradeARBED in their response to the Commission’s appeal (Case C‑216/09 P).
(32)  –	Case 23/68 [1969] ECR 43.
(33)  –	Case C‑119/05 [2007] ECR I‑6199.
(34)  – Case C‑61/98 [1999] ECR I‑5003, paragraphs 14 and 48.
(35)  – Case T‑166/01 [2006] ECR II‑2875, paragraph 142.
(36)  –	The Commission did likewise in a decision on the grant of State aid (see Case T‑25/04 González y Díez
v Commission
[2007] ECR II‑3121).
(37)  –	See recitals 473 to 479 to the decision at issue.
(38)  –	First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87).
(39)  –	OJ 2002 C 152, p. 5.
(40)  – Joined Cases T‑27/03, T‑46/03, T‑58/03, T‑79/03, T‑80/03, T‑97/03 and T‑98/03 [2007] ECR II‑4331.
(41)  –	See Case C‑269/97 Commission
v Council
[2000] ECR I‑2257, where the Court held that ‘Community measures must be adopted in accordance with the Treaty rules in force at the time of their adoption’ (paragraph 45).
(42)  –	See Case C‑408/04 P Commission
v Salzgitter
[2008] ECR I‑2767, paragraph 88 and the case-law there cited.
(43)  –	See Case C‑18/94 Hopkins and Others
[1996] ECR I‑2281, paragraph 14 and the case-law there cited.
(44)  –	Joined Cases 27/59 and 39/59 Campolongo
v High Authority
[1960] ECR 391, at 405.
(45)  –	See Opinion 1/91 of 14 December 1991 [1991] ECR I‑6079, paragraph 21.
(46)  –	Klomp, paragraph 13.
(47)  –	Case C‑221/88 [1990] ECR I‑495, paragraphs 8 to 16.
(48)  –	Emphasis added.
(49)  –	Busseni, paragraph 16.
(50)  –	Lucchini, paragraph 41.
(51)  –	Paragraph 61 of the judgment under appeal.
(52)  –	It is interesting to note in that regard that, in accordance with the guidelines drawn up by the Union legislature in 1998, the calculation of the fine imposed on an undertaking which has infringed Article 65(1) CS or Article 81(1) EC is based on criteria laid down in the context of the EC Treaty, namely the gravity and duration of the infringement (see the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3)).
(53)  –	Paragraph 63 of the judgment under appeal.
(54)  –	See Case C‑450/06 Varec
[2008] ECR I‑581, where the Court observed that procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, whereas substantive rules are usually interpreted as not applying, in principle, to situations existing before their entry into force (paragraph 27).
(55)  –	As an exception to that rule, the Court considers that substantive rules may apply to situations existing before their entry into force where examination of their wording, their objectives or their structure allows such an effect to be attributed to them ( Varec ).
(56)  –	Case C‑280/08 P Deutsche Telekom
v Commission
[2010] ECR I-0000, paragraphs 130 to 137. See also Case C‑259/96 P Council
v de Nil and Impens
[1998] ECR I‑2915, paragraphs 32 to 34; C‑449/98 P IECC
v Commission
[2001] ECR I‑3875, paragraph 70; and orders of the President in Case C‑145/95 P(R) Commission
v Atlantic Container Line and Others
[1995] ECR I‑2165, paragraph 58; Case C‑268/96 P(R) SCK and FNK
v Commission
[1996] ECR I‑4971, paragraph 52; and Case C‑159/98 P(R) Netherlands Antilles
v Council
[1998] ECR I‑4147, paragraph 70.
(57)  –	Case C‑274/99 P [2001] ECR I‑1611.
(58)  –	Paragraph 120.
(59)  –	Paragraph 121. See also Case C‑197/99 P Belgium
v Commission
[2003] ECR I‑8461, paragraph 81.
(60)  –	Article 16 provides that ‘[t]he freedom to conduct a business in accordance with Community law and national laws and practices is recognised’. It covers different freedoms, including freedom to carry on an economic activity and also freedom of competition.
(61)  –	See points 57 to 89 of the Commission’s response in Case C‑201/09 P and points 52 to 80 of its reply in Case C‑216/09 P.
(62)  – Case T‑304/02 [2006] ECR II‑1887.
(63)  –	Paragraph 118.
(64)  –	Case 107/82 [1983] ECR 3151.
(65)  – Case C‑286/98 P [2000] ECR I‑9925.
(66)  –	Paragraph 99 of the judgment under appeal.
(67)  –	See Case 170/83 Hydrotherm Gerätebau
[1984] ECR 2999, paragraph 11, and Case C‑407/08 P Knauf Gips
v Commission
[2010] ECR I-0000, paragraphs 64 and 65 and the case-law there cited.
(68)  –	Case T‑102/92 Viho
v Commission
[1995] ECR II‑17, paragraph 50.
(69)  –	See 48/69 Imperial Chemical Industries
v Commission
[1972] ECR 619, paragraph 134.
(70)  –	Case 6/72 [1973] ECR 215.
(71)  –	Paragraph 15. See also Akzo Nobel and Others
v Commission, paragraph 58.
(72)  –	Akzo Nobel and Others
v Commission, paragraph 59.
(73)  –	Commission
v Anic Partecipazioni, paragraph 78. See also Case C‑280/06 ETI and Others
[2007] ECR I‑10893, paragraph 39 and the case-law there cited.
(74)  –	See, in that regard, 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; Stora Kopparbergs Bergslags
v Commission, paragraph 37; Case C‑297/98 P SCA Holding
v Commission
[2000] ECR I‑10101, paragraph 25; and ETI and Others, paragraph 39 and the case-law there cited.
(75)  –	In such a situation, the Court considers that the objective of punishing behaviour contrary to the competition rules and of preventing its repetition by means of deterrent penalties would be compromised (see ETI and Others, paragraph 41 and the case-law there cited).
(76)  –	ProfilARBED is also a wholly-owned subsidiary of ARBED.
(77)  –	Point 40.
(78)  –	Paragraphs 28 and 29.
(79)  –	Paragraph 62.
(80)  –	In the present case, it follows from paragraphs 97 and 98 of the judgment under appeal, which are not challenged in the appeal in Case C‑201/09 P, that:
1) TradeARBED was a sales company which distributed ARBED’s steel products, in particular steel beams, by acting either as an agent, in which case the sale was invoiced directly to the customer by ARBED, or as a commission agent, in which case the sale was invoiced to the customer by TradeARBED on behalf of ARBED, TradeARBED receiving in both cases a commission on the product sold;
2) throughout the administrative procedure culminating in the initial decision, ARBED or TradeARBED, as applicable, had responded without distinction to the requests for information which the Commission addressed to TradeARBED; and
3) ARBED had even spontaneously regarded itself as the addressee of the statement of objections formally notified to TradeARBED and had instructed a lawyer to defend its interests.
(81)  –	See, as regards respect for the rights of the defence, 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‑7191, paragraph 34 and the case-law there cited, and, as regards the principle of the presumption of innocence, Hüls
v Commission, paragraphs 149 and 150.
(82)  –	Case C‑269/90 Technische Universität München
[1991] ECR I‑5469, paragraph 14.
(83)  –	§ 28. See also Eur. Court HR, Janosevic v. Sweden, ECHR 2002-VII, in which the Court stated that the Contracting States are required to strike a balance between the importance of what is at stake and the rights of the defence; in other words, the means employed have to be reasonably proportionate to the legitimate aim sought to be achieved (§ 101).
(84)  –	§ 100.
(85)  –	§ 104.
(86)  –	Paragraph 60.
(87)  –	Case T‑85/06; the appeal is currently pending before the Court (Case C‑90/09 P).
(88)  –	Case T‑168/05 [2009] ECR II-0000. This judgment is the subject of an appeal currently pending before the Court (Case C‑520/09 P).
(89)  –	Case T‑174/05 [2009] ECR II-0000. This judgment is the subject of an appeal currently pending before the Court (Case C‑521/09 P).
(90)  –	Paragraph 65.
(91)  –	See, in particular, the General Court’s assessment in Elf Aquitaine
v Commission
of the various items of evidence produced in that regard by Elf Aquitaine SA (paragraphs 160 to 174).
(92)  –	I am therefore in agreement with the Opinion delivered by Advocate General Mischo in Stora Kopparbergs Bergslags
v Commission . A number of judgments of the General Court have taken the same approach. See, in particular, Case T‑325/01 DaimlerChrysler
v Commission
[2005] ECR II‑3319, paragraph 218, and Joined Cases T‑109/02, T‑118/02, T‑122/02, T‑125/02, T‑126/02, T‑128/02, T‑129/02, T‑132/02 and T‑136/02 Bolloré
v Commission
[2007] ECR II‑947, paragraph 132 and the case-law there cited. The Commission has also taken care, in a number of decisions, to corroborate that presumption with other elements, such as the fact that the parent company played an active role in the administrative procedure (Commission Decision 94/601/EC of 13 July 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/C/33.833 – Cartonboard) (OJ 1994 L 243, p. 1)); the fact that the parent company and the subsidiary had the same management (Commission Decision 2003/25/EC of 11 December 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E-1/37.391) – Bank charges for exchanging euro-zone currencies – Germany (OJ 2003 L 15, p. 1) and Commission Decision 2004/337/EC of 20 December 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement – Case COMP/E-1/36.212 – Carbonless paper (OJ 2004 L 115, p. 1)); the fact that a member of the parent company’s legal department was present during the investigations carried out by the Commission at the subsidiary’s premises (Commission Decision 2003/355/EC of 9 April 2003 amending Decision 2003/207/EC relating to a proceeding under Article 81 of the EC Treaty (Case COMP/E-3/36.700 – Industrial and medical gases) (OJ 2003 L 123, p. 49)); the fact that the parent company’s management board and operational management were coordinated with those of the subsidiaries (Commission Decision 2004/421/EC of 16 December 2003 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement against Wieland Werke AG, Outokumpu Copper Products OY, Outokumpu Oyj, KM Europa Metal AG, Tréfimétaux SA and Europa Metalli SpA (Case C.38.240 – Industrial tubes) (OJ 2004 L 125, p. 50)); and the fact that several subsidiaries participated in parallel in the cartel (Commission Decision 2006/895/EC of 26 May 2004 relating to a proceeding under Article 81 of the EC Treaty against The Topps Company Inc, Topps Europe Limited, Topps International Limited, Topps UK Limited and Topps Italia SRL (Case COMP/C-3/37.980 – Souris-Topps) (OJ 2006 L 353, p. 5)).
(93)  –	See footnote 80.
(94)  –	See, in particular, Case C‑294/98 P Metsä-Serla and Others
v Commission
[2000] ECR I‑10065, paragraph 28.
(95)  –	Emphasis added.
(96)  –	Case T‑276/04 [2008] ECR II‑1277.
(97)  –	It will be recalled that, at that paragraph, the General Court held that an undertaking ‘which has participated in the infringement’ must be taken to mean any undertaking identified as such in the final Commission decision . I do not share that point of view, for the reasons which the General Court itself states at paragraph 145 of the judgment under appeal, namely that the description of an undertaking ‘which has participated in the infringement’ implies an objective fact, namely participation in the infringement, which is distinguished from a subjective and contingent element such as the identification of such an undertaking during the administrative procedure. Thus, the General Court recognises that an undertaking may have participated in the infringement without the Commission being aware that it has done so when it adopts an act interrupting the limitation period. In fact, such a situation cannot be ruled out at the time when the Commission adopts a final decision.
(98)  –	See, in particular, Metsä-Serla and Others
v Commission, paragraph 28.
(99)  –	While I consider that, in the light of the plea raised by ARBED, the General Court did not err in law in applying to it the acts interrupting the limitation period, I must none the less admit to having some reservations about the way in which it calculated the limitation period with respect to ARBED at paragraphs 148 and 149 of the judgment under appeal. I think that the General Court did not properly take into account the effects of the judgment annulling the initial decision so far as ARBED was concerned. None the less, that question was not argued by the parties, which is why I shall merely make an observation, in connection with ThyssenKrupp Nirosta
v Commission
(points 198 to 212 of my Opinion in that case). I shall proceed from the principle enshrined in the texts and the case-law. In that regard, I refer, first, to the wording of the first paragraph of Article 264(1) TFEU, which provides that ‘[i]f the action is well founded the Court … shall declare the act concerned to be void’, and, second, to Case 22/70 Commission
v Council
[1971] ECR 263, paragraphs 59 and 60; Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others
v Commission
[1988] ECR 2181, paragraph 30; and Case C‑228/92 Roquette Frères
[1994] ECR I‑1445, paragraph 17, according to which an annulment judgment entails the retroactive disappearance of the act at issue and also the cancellation of its effects. As the Court has stated, that means that the parties must be placed back in the same position as they were in before the act which has been annulled was adopted. By virtue of those principles, and for the reasons which I set out in my Opinion in that case, it appears to me that the annulment of a Commission decision as the outcome of the judicial proceedings must render the suspension of the limitation period, like the decision itself, retroactively non-existent.
(100)  –	See, in particular, Case C‑3/06 P Groupe Danone
v Commission
[2007] ECR I‑1331, paragraph 68 and the case-law there cited.
(101)  –	See, in particular, 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 66 and the case-law there cited.
(102)  –	Case C‑113/04 P [2006] ECR I‑8831, paragraph 55.
(103)  –	Compliance with the reasonable time requirement in the conduct of an administrative procedure in a competition matter is a general principle of European Union law. Observance of that principle is binding, first of all, on the Commission, responsible for the administrative phase of the procedure, in accordance with Article 41(1) of the Charter (the right to proper administration) (see, in that regard, Joined Cases T‑213/95 and T‑18/96 SCK and FNK
v Commission
[1997] ECR II‑1739, paragraphs 55 and 56 and the case-law there cited). It is also binding on the Union judicature, responsible for reviewing the lawfulness of Commission decisions, under Article 47(2) of the Charter. On the latter point, see Case C‑185/95 P Baustahlgewebe
v Commission
[1998] ECR I‑8417, in which the Court introduced the right to be heard within a reasonable time in the context of competition procedures, and Case C‑385/07 P Der Grüne Punkt – Duales System Deutschland
v Commission
[2009] ECR I‑6155, in which the Court considered that failure to comply with that obligation could give rise to a claim for compensation by means of an action against the Community under Article 268 TFEU and the second paragraph of Article 340 TFEU.
(104)  –	In that regard, the Court observes at paragraph 54 of Technische Unie
v Commission, that ‘the more time that elapses between a measure of investigation … and the notification of the statement of objections, the more unlikely it becomes that exculpatory evidence relating to the infringements set out in the statement of objections can be obtained, owing, in particular, to the changes that may have come about in the managing boards of the undertakings concerned and to the movements affecting their other staff’.
(105)  –	Ibid,
paragraph 55.
(106)  –	Ibid, paragraph 61.
(107)  –	Technische Unie
v Commission, paragraphs 64 to 70. See also Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied
v Commission
[2006] ECR I‑8725, paragraphs 56 to 60.
(108)  –	It will be recalled that this Court annulled the initial decision in so far as it concerned ARBED, owing to a breach of its rights of defence. The General Court expressly refers to that at paragraph 148 of the judgment under appeal.
(109)  –	In that regard, see the provisions and case-law referred to in footnote 99.
(110)  –	In Case C‑526/08 Commission
v Luxembourg
[2010] ECR I-0000 the Court referred to the importance, in both the legal order of the European Union and the national legal systems, of the principle of res judicata
(paragraph 26 and the case-law there cited). That principle is the expression of the fundamental principle of legal certainty (see, in that regard, Case C‑126/97 Eco Swiss
[1999] ECR I‑3055, paragraph 46, and Eur. Court HR, Brumărescu v. Romania
[GC], no. 28342/95, ECHR 1999-VII, where the court stated in plain words that legal certainty requires that ‘where the courts have finally determined an issue, their ruling should not be called into question’ (§ 61).
(111)  –	This decision was not annulled so far as it concerned TradeARBED.