JUDGMENT OF THE GENERAL COURT (Fourth Chamber)
6 March 2012 (*)
(Competition – Agreements, decisions and concerted practices – Plastic industrial bags sector – Decision finding an infringement of Article 81 EC – Imputability of the unlawful conduct – Duration of the infringement – Fines – Gravity of the infringement – Mitigating circumstances – Cooperation during the administrative procedure – Proportionality – Joint and several liability)
In Case T‑65/06,
FLSmidth & Co. A/S, established in Valby (Denmark), represented by J.‑E. Svensson, lawyer,
applicant,
v
European Commission, represented by F. Castillo de la Torre, acting as Agent, and by M. Gray, Barrister,
defendant,
APPLICATION for the partial annulment of Commission Decision C(2005) 4634 final of 30 November 2005 relating to a proceeding pursuant to Article 81 [EC] (Case COMP/F/38.354 – Industrial bags) and, in the alternative, for reduction of the fine imposed on the applicant by that decision,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová, President, K. Jürimäe and M. van der Woude (Rapporteur), Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 22 June 2011,
gives the following
Judgment
Facts
1        The applicant, the Danish company FLSmidth & Co. A/S, is the parent company of a group of companies operating in the engineering, mining and construction sectors. One of those companies is FLS Plast A/S, which is itself the former parent company of Trioplast Wittenheim SA, which was a producer of plastic industrial bags, films and hoods in Wittenheim (France).
2        In December 1990, FLS Plast acquired 60% of the share capital in Trioplast Wittenheim, then known as Silvallac SA. The remaining 40% of the shares was acquired by FLS Plast in December 1991. The seller was the French company Cellulose de Pin, a member of the group owned by Compagnie de Saint-Gobain SA (‘the Saint-Gobain group’)
3        In turn, FLS Plast sold Silvallac in 1999 to Trioplanex France SA (‘Trioplanex’), a French subsidiary of the Swedish group Trioplast. The transfer took effect on 1 January 1999. In July 1999, Silvallac was renamed Trioplast Wittenheim by its new owner.
4        In November 2001, the company British Polythene Industries informed the Commission of the existence of a cartel in the industrial bags sector (‘the cartel’). It expressed its wish to cooperate with the Commission under the Commission notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4, ‘the Leniency Notice’).
5        On 26 and 27 June 2002, the Commission carried out investigations pursuant to Article 14(2) and (3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition, 1959-62, p. 87). Trioplast Wittenheim was one of the undertakings investigated.
6        Between 14 November 2002 and 21 February 2003, the Commission sent requests for information pursuant to Article 11 of Regulation No 17 to the undertakings concerned, including Trioplast Wittenheim.
7        By letter dated 19 December 2002, supplemented by a letter dated 16 January 2003, Trioplast Wittenheim indicated that it too wished to cooperate with the Commission’s investigation, under the Leniency Notice, and provided written explanations.
8        On 4 August 2003 the Commission sent a request for further information to Trioplast Wittenheim.
9        On 20 April 2004, the Commission initiated the administrative procedure and adopted a statement of objections against a number of companies including, inter alia, the applicant and Trioplast Wittenheim. A hearing took place from 26 to 28 July 2004.
10      On 30 November 2005, the Commission adopted – on the basis of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) – Decision C(2005) 4634 final relating to a proceeding pursuant to Article 81 EC (Case COMP/F/38.354 – Industrial bags) (the ‘contested decision’), a summary of which was published in the Official Journal of the European Union of 26 October 2007.
11      Article 1(1)(h) of the contested decision states that, from 31 December 1990 to 19 January 1999, the applicant and FLS Plast infringed Article 81 EC by participating in a complex of agreements and concerted practices in the plastic industrial bags sector in Belgium, Germany, Spain, France, Luxembourg and the Netherlands, consisting in the fixing of prices and the establishment of common price calculation models, the sharing of markets and the allocation of sales quotas, the assignment of customers, deals and orders, concerted bidding in response to certain invitations to tender and the exchange of individualised information.
12      Point (f) of the first paragraph of Article 2 of the contested decision imposes on Trioplast Wittenheim a fine of EUR 17.85 million. Of this amount, the applicant and FLS Plast are held jointly and severally liable for the sum of EUR 15.30 million and Trioplast Industrier AB is held jointly and severally liable for the sum of EUR 7.73 million.
Procedure and forms of order sought
13      By application lodged at the Registry of the Court on 24 February 2006, the applicant brought the present action.
14      The applicant claims that the Court should:
–        principally, annul the contested decision in so far as it concerns the applicant;
–        in the alternative, set the amount of the fine for which the applicant is held jointly and severally liable in Article 2 of the contested decision, in so far as it concerns the applicant;
–        order the Commission to pay the costs.
15      The Commission contends that the Court should:
–        dismiss the action as unfounded;
–        order the applicant to pay the costs.
Law
16      The applicant raises two pleas in law in support of its action.
17      Its first plea in law, raised in support of its principal claim, alleges infringement of Article 23(2) of Regulation No 1/2003 as a result of liability for the infringement committed by Trioplast Wittenheim being attributed to the applicant.
18      The second plea in law is raised in support of the secondary claim. The applicant submits that the Commission erred in law by rendering it liable for an amount which is excessive, disproportionate, arbitrary and discriminatory.
19      The Commission contends that the pleas are unfounded.
A –  First plea, concerning the applicant’s liability in its capacity as parent company of the group to which Trioplast Wittenheim belonged
1.     The conditions for attributing to a holding company liability for infringements committed by a subsidiary
20      By its first plea, the applicant maintains that in this case the conditions laid down by European Union (‘EU’) competition law for imputing the unlawful conduct of a subsidiary to its parent company are not met, a fortiori since that parent company is an ultimate holding company. It submits that in the present case, there could be no presumption of actual control, in particular in view of the fact that the cartel was in existence in 1990 at the time of the purchase of the subsidiary concerned and continued after the sale of the subsidiary in 1999; it was thus for the Commission to prove that Trioplast Wittenheim did not act independently.
21      The applicant’s first plea raises first of all the question of determining in what conditions an ultimate holding company such as the applicant may be held liable for the anti-competitive actions taken by a company belonging to the same group of companies.
22      Reference should be made, in that regard, to the judgment of the Court of Justice in Case C‑90/09 P General Química and Others v Commission [2011] ECR I‑0000, according to which a holding company may be held jointly and severally liable for the infringements of EU competition law committed by a subsidiary of its group whose capital it does not hold directly, in so far as that holding company exercises decisive influence over the said subsidiary, even indirectly via an interposed company. That is the case, in particular, where the subsidiary does not determine its conduct independently on the market in relation to that interposed company, which does not operate autonomously on the market either, but essentially acts in accordance with the instructions given to it by the holding company. In such a situation, the holding company, the interposed company and the last subsidiary in the group form part of the same economic unit and, therefore, constitute a single undertaking for the purposes of EU competition law (General Química and Others v Commission, paragraphs 86 and 87).
23      It follows that, in the specific case where a holding company holds 100% of the capital of an interposed company which, in turn, holds the entire capital of a subsidiary of its group which has committed an infringement of EU competition law, there is a rebuttable presumption that that holding company exercises decisive influence over the conduct of the interposed company and also indirectly, via that company, over the conduct of that subsidiary (General Química and Others v Commission, paragraph 22 above, paragraph 88).
24      Consequently, in that specific situation, the Commission is entitled to require the holding company to pay the fine imposed on the last subsidiary of the group jointly and severally, unless the holding company can rebut that presumption by demonstrating that either the interposed company or the subsidiary operate independently on the market (General Química and Others v Commission, paragraph 22 above, paragraph 89).
25      The second question raised by the applicant’s first plea concerns the fact that Trioplast Wittenheim was already involved in the cartel at the time when it was acquired by the group headed by the applicant, a fact which – in the applicant’s view – requires the Commission to show that the holding company instructed its subsidiary to continue with the infringement.
26      In that regard, it should be borne in mind that the basis for the liability of the parent company of the group for the anti-competitive conduct of its subsidiary is not a parent-subsidiary relationship in which the parent company instigates the infringement but rather the fact that the two companies are part of the same economic unit and accordingly form a single undertaking, within the meaning of General Química and Others v Commission (paragraph 22 above).
27      It follows from the above that the Commission did not make an error of law in deciding that the presumption of liability based on the holding, by a company, of the entire share capital of another company applies not only in cases where there is a direct relationship between the parent company and its subsidiary, but also in cases where, as in the present case, that relationship is indirect given that another company is interposed. Accordingly, the Commission was entitled to conclude that the applicant could be held jointly and severally liable, in particular on account of its indirect holding, through FLS Plast, in the share capital of Trioplast Wittenheim, the entirety of which it owned.
28      It should be observed, however, that the applicant did not control the entirety of Trioplast Wittenheim’s share capital throughout the whole eight-year period in respect of which it is held liable for the infringement committed by Trioplast Wittenheim. In fact, between 31 December 1990 and 31 December 1991 (‘the year 1991’), the group headed by the applicant owned only 60% of the shares in Trioplast Wittenheim. The foregoing considerations relating to the rebuttable presumption cannot therefore concern the year 1991, since those considerations are based on the premiss that 100% of the shares are controlled. The Court will therefore consider below whether the Commission established the existence of an economic entity comprising Trioplast Wittenheim and the applicant, both for the period from 1992 to 1999 and for the year 1991.
2.     Trioplast Wittenheim’s autonomy on the market
29      The applicant considers that it has demonstrated to the required legal standard that Trioplast Wittenheim acted independently on the market. It maintains, to that end, that it had no knowledge of the anti-competitive conduct of its subsidiary. Although it is true that one of its Vice-Presidents, Mr T., was also a member of the board of directors of Trioplast Wittenheim from 1990 to 1999, it is nevertheless the case that he had not been informed about that anti-competitive conduct. That lack of knowledge is shown by a highly detailed arbitration award given in the dispute between the applicant and Trioplast Industrier, the new owner of Trioplast Wittenheim. Finally, the applicant draws attention to the decentralised form of organisation of the group headed by it and to the fact that the Commission attaches unwarranted importance to the fact that Mr T. occupied a number of posts concurrently. In its submission, Mr T.’s position on the board of Trioplast Wittenheim was a purely formal role.
30      In that regard, it should be recalled, first of all, that whether or not the applicant was aware of the anti-competitive conduct of its subsidiary is irrelevant for the purpose of determining whether the two companies formed a single economic entity and, accordingly, whether the Commission was entitled to impute liability for the subsidiary’s conduct to the parent. As has been observed at paragraph 24 above, the only relevant question for determining that liability is whether the subsidiary acted autonomously on the market. It has also been observed that the Commission was entitled to presume there to be no such autonomy where the parent company controls, directly or indirectly, 100% of the share capital of its subsidiary and that it fell to the parent company to rebut that presumption.
31      The applicant has advanced no specific argument serving to rebut that presumption. On the assumption that its contention concerning the decentralised organisation of the group is well founded, such a form of organisation does not necessarily preclude the parent company from exercising an influence on the commercial policy of its subsidiary, for example by keeping itself informed of the development of its subsidiary’s business by means of regular reporting.
32      Second, the fact that Mr T. held concurrently, between 1994 and 1999, positions of responsibility on the boards of directors of the two companies shows that management at the two companies overlapped and that the subsidiary was not able to act autonomously in relation to the parent company. In so far as the applicant seeks to show that Mr T.’s position on the board of Trioplast Wittenheim was purely formal and it did not involve any influence on his part over the commercial policy of that subsidiary, its argument cannot be accepted. The position of member of the board of directors of a company entails by its very nature legal responsibility for the activities of the company as a whole, including its conduct on the market. The applicant’s proposition – that the position is purely formal – would amount to negating its legal substance. Once Mr T. assumed that responsibility, it is of little significance that he did not, in practice, deal with the undertaking’s commercial strategy. That circumstance cannot therefore be put forward in order to rebut the presumption of actual control.
33      It follows that the applicant has not succeeded in rebutting the presumption that it and its subsidiary formed a single economic entity for the period 1992 to 1999, during which the applicant owned 100% of the subsidiary’s shares. The Commission was thus entitled to hold it liable for the infringement of its subsidiary. Contrary to the applicant’s assertion, that approach is neither discriminatory nor arbitrary. Indeed the applicant was treated like the other ultimate parent companies concerned by the cartel, in accordance with the statement made in recital 585 of the contested decision. It is true that the case of FLS Plast is different, FLS Plast being an intermediate holding company in the group headed by the applicant which, notwithstanding the statement made in recital 585, was an addressee of the contested decision. That situation does not affect the applicant, however, but FLS Plast. It should be observed, in this connection, that FLS Plast has invoked that situation in the action which it itself has brought against the contested decision.
34      It is also undisputed that the contested decision is not addressed to the Saint‑Gobain group, which was the former owner of Trioplast Wittenheim, prior to the acquisition of the latter by the applicant. That difference in treatment results from the application of the limitation rules provided for in Article 25 of Regulation No 1/2003. Indeed, since the facts involving the Saint-Gobain group took place in 1990, the Commission no longer had power to bring proceedings against that group when it began its investigation in 2002.
35      Finally, it is settled case law that an undertaking that has acted in breach of Article 81(1) EC cannot escape being penalised altogether on the ground that another trader has not been fined, when that trader’s circumstances are not even the subject of proceedings before the Courts of the European Union (Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I‑1307, paragraph 197, and Case T‑303/02 Westfalen Gassen Nederland v Commission [2006] ECR II‑4567, paragraph 142). Thus, the applicant’s argument that other undertakings, which were allegedly in a comparable situation to the applicant’s, were not fined, must be rejected.
36      It follows from those considerations that the Commission did not make an error of assessment in holding the applicant liable for Trioplast Wittenheim’s unlawful conduct during the period in which it held 100% of the share capital of that subsidiary, that is to say, from 1992 to 1999.
37      By contrast, the Commission could not rely on the presumption that the applicant actually exercised control over Trioplast Wittenheim’s commercial conduct in the year 1991, throughout which it held only 60% of its shares. So far as that period is concerned, the Commission was required to put forward other evidence showing that such control was actually exercised.
38      However, the only evidence advanced by the Commission in respect of that period concerns the fact that Mr T. occupied concurrently the position of executive Vice‑President of the applicant and member of the board of directors of Trioplast Wittenheim.
39      In that regard, it must first be stated that the Commission has not provided any explanation concerning the power of the representatives of the group headed by the applicant within the board of directors of Trioplast Wittenheim. It is therefore not established that they had the power to impose actual control on the board as a whole, particularly during a transitional phase such as the year 1991. Next, it is not established that Mr T., who represented the applicant, and Mr H. who represented FLS Plast, knew, or ought to have known, that the subsidiary that had recently been acquired was involved in anti-competitive conduct. Finally and above all, the Court notes that the Commission does not dispute that the day-to-day management of the subsidiary was among the responsibilities of the subsidiary’s managing director. The applicant has explained that Mr L., a representative of the Saint-Gobain group, had retained the post of managing director throughout 1991.
40      In those circumstances, the Commission has not established to the required legal standard that the applicant exercised actual control over Trioplast Wittenheim throughout the year 1991. The first plea must therefore be accepted in so far as it concerns the imputability of the infringement to the applicant for the period from 31 December 1990 to 31 December 1991.
B –  Second plea, concerning the amount of the fine
1.     Admissibility
41      By its second plea, the applicant disputes the level of the fine for payment of which it is held jointly and severally liable. It puts forward in that connection a series of arguments concerning both the calculation of the fine imposed on Trioplast Wittenheim and the determination of the amount of the fine which the contested decision imposes on it directly.
42      Before considering those arguments, the Court observes that the contested decision must be treated as a bundle of individual decisions finding in respect of each of the undertakings to which it is addressed the infringement alleged against it and, where appropriate, imposing one or more fines. It follows that the plea put forward by the applicant against the contested decision is admissible only in so far as it relates to the penalty imposed on the applicant. The Court will consider the admissibility of the various arguments raised by the applicant in the light of those principles.
2.     The duration of the infringement for which the applicant has incurred joint and several liability
43      By its first ground of challenge, the applicant argues that the fine imposed on it should, by comparison with the fine imposed on its subsidiary, reflect in strict proportion the fact that it owned the subsidiary for only 8 out of the 20 years of the infringement and the fact that it owned only 60% of the shares in Trioplast Wittenheim throughout the year 1991.
44      In that regard, the Court observes, first, that the amount for which the applicant was held jointly and severally liable is the necessary result of the calculation method employed by the Commission in this case. The Commission ascribed a starting amount to each addressee of the contested decision, which was subsequently adjusted to take account of the circumstances specific to the addressee. That individualised method results in the parent companies of the subsidiaries that took part in the cartel, including the applicant and Trioplast Industrier, being ascribed the same starting amount as the subsidiary with which they had formed an economic entity. Those amounts were increased by 10% per year, on the basis of the period during which the parent company in question controlled its subsidiary, and were then adjusted in the light of the mitigating or aggravating circumstances pertaining to each parent company. It follows that each addressee was given a penalty individual to it, the amount of which does not necessarily correspond to the subsidiary’s fine adjusted pro rata to the period of control.
45      Second, the applicant has not challenged in the context of this complaint the legality of that method of calculation. It has not sought to establish that the Commission, in determining the amount of the fine imposed on the applicant, infringed Regulation No 1/2003 or departed from 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, ‘the Guidelines’). In fact, the applicant has advanced no argument which would enable the Court to find that the method of calculation, as such, was fundamentally flawed or inconsistent with the principles established by the case-law (Case T‑40/06 Trioplast Industrier v Commission [2010] ECR II‑0000, paragraph 70).
46      The first ground of challenge put forward by the applicant in support of its second plea must thus be rejected.
3.     Choice of the starting amount
47      The second ground of challenge raised by the applicant in support of its second plea concerns the starting amount set by the Commission in its case. It submits that the Commission was not entitled to assign to it the same starting amount as that set for Trioplast Wittenheim because it had no knowledge of the infringement committed by the latter. The Commission should thus have adopted a different amount.
48      On that point, it should be recalled that the basis for the applicant’s liability resides in the fact that, together with Trioplast Wittenheim, it formed a single economic entity within the meaning of EU competition law over the period 1992 to 1999, and not in its knowledge of the infringement (see paragraph 28 above). Furthermore, the applicant merely contends that the starting amount is excessive, but (i) does not specify which rule of law the Commission is supposed to have infringed in taking as a basis the starting amount set for Trioplast Wittenheim and (ii) does not challenge the legality of the calculation method used by the Commission to that end.
49      The second ground of challenge thus cannot succeed.
4.     Equal treatment
50      The applicant’s third ground of challenge concerns an infringement of the principle of non-discrimination. It argues that no fine was imposed on the Saint‑Gobain group, of which Trioplast Wittenheim had been part since 1982, before becoming an independent legal entity and wholly-owned subsidiary of the Saint-Gobain group in 1988.
51      On that point, reference should be made to paragraph 34 above from which it is apparent that the Commission was not entitled to proceed against the Saint‑Gobain group because of the limitation rules in Article 25 of Regulation No 1/2003 and that the applicant cannot avoid a fine solely on the ground that a third-party undertaking has not been punished by the Commission.
52      The third ground of challenge must therefore be rejected.
5.     Mitigating circumstances
53      The applicant’s fourth ground of challenge concerns both the fine imposed on Trioplast Wittenheim and the fine imposed on the applicant. In the applicant’s submission, the Commission should have acknowledged that the lack of any knowledge of a pre-existing infringement constituted a mitigating circumstance. Thus, at the very most the applicant can be criticised for not having brought the infringement to an end. Furthermore, the Commission failed to take account of the passive role played by Trioplast Wittenheim in the cartel throughout the period when it was controlled by the applicant. It is clear from footnote 848 to the contested decision that Trioplast Wittenheim regularly took part in meetings only up until 1987. Its attendance rate in the subsequent period did not exceed 40%. Indeed, it stopped taking part in the ‘France’ sub-group altogether in 1996. Finally, the Commission also failed to take account of the fact that the quotas fixed in the cartel were not respected, that no sanctions were imposed if they were not respected and that other measures taken by the cartel were of limited scope.
54      In that regard, it should be borne in mind that that argument, to which there are two facets, is admissible only in so far as it relates to the amount for which the applicant is jointly and severally liable (see paragraphs 41 and 42 above).
55      The first part of this ground of challenge concerns the situation of the applicant itself. Here, it is to be recalled that the basis for the applicant’s liability for the infringement committed by its former subsidiary resides not in the knowledge that the applicant had or might have had of the infringement but in the fact that the two companies formed, at the time the infringement was committed, a single undertaking. The fact that the applicant was not informed about the infringement thus cannot amount to a mitigating circumstance.
56      The second part of the argument concerns the refusal by the Commission to acknowledge that the passive role played by Trioplast Wittenheim had to give rise, in the applicant’s view, to recognition of a mitigating circumstance for the purposes of the Guidelines.
57      In accordance with Section 3, first indent, of the Guidelines, an ‘exclusively passive or “follow-my-leader” role’ played by an undertaking in the infringement may, if established, constitute a mitigating circumstance. A passive role implies that the undertaking adopts a ‘low profile’, that is to say, does not actively participate in the creation of any anti-competitive agreements (Case T‑220/00 Cheil Jedang v Commission [2003] ECR II 2473, paragraph 167).
58      In that connection, it is clear from the case-law that the factors capable of revealing the passive role of an undertaking within a cartel include the significantly more sporadic nature of its participation in the meetings by comparison with the ‘ordinary’ members of the cartel and likewise its late entry on the market where the infringement occurred, regardless of the duration of its participation in the infringement, and also the existence of express statements to that effect made by representatives of other undertakings which participated in the infringement (Cheil Jedang v Commission, paragraph 57 above, paragraph 168; and Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 331).
59      Moreover, the Court has already had occasion to say that the fact that other undertakings participating in a single cartel may have been more active than a given participant does not necessarily mean that the latter had an exclusively passive or follow-my-leader role. In fact, only complete passivity could be taken into account as a factor, and must be proved by the party alleging it (see, to that effect, 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 and Others v Commission [2007] ECR II‑947, paragraph 611).
60      In this case, none of the arguments concerning the passive and follow-my-leader role allegedly played by Trioplast Wittenheim in the cartel can be accepted.
61      With regard to Trioplast Wittenheim’s allegedly regular absences from cartel meetings, it can be seen from Annex 1 to the contested decision that, except for the period following 1999, Trioplast Wittenheim regularly attended Valveplast meetings and sent its apologies on only a few occasions.
62      The fact that its participation in the ‘France’ sub-group came to an end in 1996 does not affect the finding that the applicant participated throughout the major part of the infringement in three out of the six sub-groups and that that degree of involvement is not especially low in comparison with that of the other members of the cartel. Indeed, it is clear from recitals 173 to 185 of the contested decision that only Wavin and Fardem Packaging attended the meetings of more than three sub‑groups. Given that the applicant in fact participated in the three abovementioned sub-groups for approximately three-quarters of the infringement’s duration, it cannot be concluded that withdrawal from those sub-groups meant that it had a passive role (Trioplast Wittenheim v Commission, paragraph 45 above, paragraph 114).
63      Finally, the fact that the cartel members did not respect the cartel arrangements as a whole may possibly be a factor capable of influencing the impact that the cartel had on the market but does not mean that one of those members played a passive role within the meaning of the Guidelines.
64      In the light of the foregoing, the applicant’s fourth ground of challenge must be rejected.
6.     The duration of the infringement committed by Trioplast Wittenheim
65      The fifth ground of challenge advanced by the applicant concerns the liability of Trioplast Wittenheim for the period prior to 1988. The applicant argues, in that regard, that Trioplast Wittenheim did not have legal personality before that date and that the fine imposed on it by the contested decision must thus be reduced proportionately, by 3/10. The Commission contends that that argument is inadmissible since it concerns the fine imposed on Trioplast Wittenheim and not the fine imposed on the applicant.
66      Regardless of whether the applicant’s argument is admissible, the Court observes that it cannot, in any event, succeed. It is clear from settled case-law that EU competition law is aimed at the activities of undertakings and that the concept of an undertaking covers any entity engaged in an economic activity, irrespective of its legal status and the way in which it is financed (Case C‑437/09 AG2R Prévoyance [2011] ECR I‑0000, paragraph 41). Such an economic entity consists in 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 Article 81 EC (Case T‑11/89 Shell v Commission [1992] ECR II‑757, paragraph 311).
67      In the case in point, the set of personal, tangible and intangible elements which contributed to the commission of the infringement arising from the cartel is attached to Trioplast Wittenheim, so that it must be first to answer for the infringement. It is of no relevance that Trioplast Wittenheim did not have legal personality for part of the time it was involved in the cartel, since it was the perpetrator of the infringement for the purposes of Article 81 EC.
68      The fifth ground of challenge must therefore be rejected.
7.     The level of the starting amount of the fine
69      The applicant considers, sixthly, that the Commission made an error of assessment in stipulating a starting amount for the fine of EUR 8.5 million for the category of undertakings in which Trioplast was classified, whilst its market share was only 2.8%. It is an excessive and unprecedented amount if account is taken of the Commission’s practice in previous decisions and of the case-law. The excessive and discriminatory nature of the starting amount is evident inter alia from a comparison between the starting amount for the fifth category (EUR 8.5 million) and that for the sixth category (EUR 5.5 million). The difference of EUR 3 million is disproportionate in the light of the small gap between the market shares: 2.8% for Trioplast Wittenheim and 2.3% for Sachsa. The applicant also points out that Trioplast Wittenheim stopped producing open-mouth and valve bags in 1997. Finally, an increase in the starting amount of the fine of 10% per year of participation in the infringement is disproportionate to the intensity of the infringement and is not supported by any statement of reasons.
70      In that regard, the Court observes, in the first place, that even if the Commission had at the time of the decisions referred to by the applicant an established practice concerning the starting amounts of fines, there would be nothing to prevent it departing from that practice in the present case or from altering it (see, to that effect, Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 233). The Commission is thus not bound by its practice in previous decisions.
71      In the second place, it should be noted that the method of dividing the members of a cartel into categories in order to apply differential treatment at the stage of setting the basic amounts has been endorsed by this Court, provided that those categories are defined in a coherent and objective manner in order to comply with the principle of equal treatment (see, to that effect, Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraphs 385 and 416 to 418 and the case-law cited).
72      In this case, the applicant’s complaint concerns the comparison between the starting amounts set for Sachsa and for Trioplast Wittenheim. Sachsa’s starting amount was EUR 5.5 million because it was placed in the sixth category, whilst the starting amount ascribed to Trioplast Wittenheim was EUR 8.5 million because it was placed in the fifth category. It argues that that difference does not represent the gap of 0.5% between Sachsa’s market share (2.3%) and Trioplast Wittenheim’s market share (2.8%).
73      Contrary to the applicant’s contention, the Commission did not treat Sachsa more favourably than Trioplast Wittenheim. The difference of EUR 3 million between the starting amount of EUR 5.5 million set for the sixth category, in which Sachsa was placed, and that of EUR 8.5 million for the fifth category, in which Trioplast Wittenheim was placed, is not intended to reflect the specific difference of 0.5% between Sachsa’s market share (2.3%) and Trioplast Wittenheim’s market share (2.8%) but rather the difference between the categories in which the various groups of companies were placed. Thus, it can be seen that the disparities between the categories are actually greater than the differences within the categories. For example, the difference within the fifth category between the undertaking having the largest market share (3.1%) and the undertaking having the smallest share (2.8%) is just 0.3%, which is a smaller difference than the 0.5% disparity between the market shares of Sachsa and Trioplast Wittenheim.
74      In the third place, it is clear from recital 767 of the contested decision that that division is based on the market shares achieved by the cartel members in 1996, since 1996 represented the most recent full year of the infringement in which all the undertakings to which the contested decision was addressed were still present on the industrial bags market. The applicant has advanced no argument giving grounds for holding that the choice of 1996 did not represent a relevant indication of the size and economic capacity of the various members of the cartel. On the contrary, the fact that the applicant puts forward the reduction in Trioplast Wittenheim’s market share after 1997, resulting from it stopping production of open mouth bags and valve bags, shows that its 1996 market share was a truer reflection of its position on the industrial bags market throughout the infringement.
75      It should be recalled, in fourth and last place, that Section B, third indent, of the Guidelines provides for an increase of up to 10% per year in the starting amount in the case of infringements of long duration, that is to say, of more than five years. In this case, the infringement lasted more than five years. Therefore, the Commission did not make an error in increasing by 10% the starting amount of EUR 8.5 million attributed to the applicant. The fact that the Commission is said in the past to have applied a lower rate does not call that finding into question. In that regard, it should once again be recalled that the Commission is not bound by its practice in previous decisions.
76      It follows that the applicant’s sixth ground of challenge must be rejected.
8.     The 10% ceiling provided for in Article 23 of Regulation No 1/2003
77      By its seventh ground of challenge, the applicant complains that the Commission breached the 10% of turnover ceiling laid down in Article 23(2) of Regulation No 1/2003, since, although Trioplast Wittenheim was regarded as an individual and entirely separate addressee of the contested decision, the amount of its fine was not limited as a consequence of it being so regarded.
78      The 10% of turnover ceiling relates, according to settled case-law, to the worldwide turnover of the undertaking concerned since that alone gives an indication of that undertaking’s size and influence on the market (see Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, paragraph 5022 and the case-law cited). Thus, the ceiling is intended, in particular, to safeguard undertakings against excessive fines which could destroy them commercially (judgment of 15 June 2005 in Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, not published in the ECR, paragraph 389).
79      It follows that the objective sought by the introduction of the 10% ceiling can be realised only if that ceiling is applied initially to each separate addressee of the decision imposing the fine. It is only if it subsequently transpires that several addressees constitute the ‘undertaking’, that is, the economic entity responsible for the infringement penalised, again at the date when the decision is adopted, that the ceiling can be calculated on the basis of the overall turnover of that undertaking, that is to say, of all its constituent parts taken together. By contrast, if that economic unit has subsequently broken up, each addressee of the decision is entitled to have the ceiling in question applied individually to it (Joined Cases T‑71/03, T‑74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, paragraph 78 above, paragraph 390, and judgment of 13 September 2010 in Case T‑26/06 Trioplast Wittenheim v Commission, not published in the ECR, paragraph 113).
80      In the present case, Trioplast Wittenheim and the applicant no longer formed, at the date of the contested decision, an undertaking in the sense of an economic entity responsible for the infringement penalised. Consequently, the Commission did not make an error in taking as its basis, in the application of the 10% of turnover ceiling, the turnover of the Trioplast Industrier group, which owned Trioplast Wittenheim at the time the contested decision was adopted.
81      It follows that the seventh ground of challenge cannot be accepted.
9.     Cooperation
82      The applicant submits, eighthly, that the Commission wrongly refused to grant it a 30% reduction on account of the cooperation offered by Trioplast Wittenheim. As the applicant and its sub-subsidiary were deemed to constitute the same economic entity and the fine imposed on the applicant is derived from the fine imposed on its former sub-subsidiary, the Commission should logically have granted it the same reduction as that granted to Trioplast Wittenheim. In granting the benefit of that cooperation to Trioplast Industrier, the Commission acted not only inconsistently but also in a discriminatory way. The applicant submits in this regard that the cooperation offered by Trioplast Wittenheim is an objective fact the relevance of which to the investigation is not determined by membership of the Trioplast Industrier group or of the applicant’s group. Finally, if the Court were to decide that the Commission was entitled to refuse to grant the applicant a 30% reduction on account of the cooperation offered by Trioplast Wittenheim, the Commission should in any event have granted it a 10% reduction on the ground that it did not contest the facts.
83      It should be borne in mind that the Commission has a broad discretion as regards the method of calculating fines and that it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. In that context, the Commission is required to make complex assessments of fact, such as those relating to the cooperation provided by the individual undertakings concerned (Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 81, and Trioplast Industrier v Commission, paragraph 45 above, paragraph 122).
84      The Commission enjoys, in that regard, a broad discretion in assessing the quality and usefulness of the cooperation provided by an undertaking, in particular by reference to the contributions made by other undertakings (SGL Carbon v Commission, paragraph 83 above, paragraph 88). In exercising that discretion, however, the Commission cannot disregard the principle of equal treatment (Case T‑452/05 BST v Commission [2010] II‑0000, paragraph 142).
85      Under the second indent of Section D.2 of the Leniency Notice, an undertaking may benefit from a reduction of 10% to 50% of the fine that would have been imposed if it had not cooperated if, inter alia, after receiving a statement of objections, it informs the Commission that it does not substantially contest the facts on which the Commission bases its allegations. According to the case-law, in order to benefit from such a reduction, an undertaking must expressly inform the Commission, after perusing the statement of objections, that it has no intention of substantially contesting the facts (Case T‑347/94 Mayr-Melnhof v Commission [1998] Rec. p. II‑1751, paragraph 309).
86      Moreover, in order to justify a reduction in the amount of a fine on grounds of cooperation, an undertaking’s conduct must facilitate the Commission’s task of finding and bringing to an end infringements of the EU competition rules and reflect a true spirit of cooperation. It is not sufficient for an undertaking to state in general terms that it does not contest the facts alleged for the purposes of the Leniency Notice if, in the circumstances of the case, that statement is not of any help to the Commission at all (Case T‑48/00 Corus UK v Commission [2004] ECR II‑2325, paragraph 193).
87      In this instance, the applicant, firstly, takes objection to the Commission’s not having granted it a 30% reduction in its fine, although it formed an economic entity with Trioplast Wittenheim.
88      As has been established in the assessment of this second plea, there is no ground for holding illegal the Commission’s imputation of Trioplast Wittenheim’s infringement to the applicant – because the two legal persons had formed an economic entity during the infringement – whilst applying an individualised calculation method to determine the amount that the applicant was required to pay in respect of joint and several liability. By extension, the Court must reject the applicant’s argument that it should necessarily have been granted the 30% reduction in the fine granted to Trioplast Wittenheim, since it was for the Commission to consider the two companies’ cooperation in the investigation on an individual basis.
89      In that regard, it should be noted that Trioplast Wittenheim’s application under the Leniency Notice, made by letter of 19 December 2002, did not concern the applicant. It must be recalled, in fact, that the applicant and Trioplast Wittenheim are two companies with distinct legal personalities which, at the date of the contested decision, were part of two separate undertakings within the meaning of Article 81 EC. Trioplast Wittenheim’s application under the Leniency Notice can thus benefit only the undertaking of which Trioplast Wittenheim formed part, but not the applicant (see, to that effect, Case T‑161/05 Hoechst v Commission [2009] ECR II‑3555, paragraph 75).
90      As regards the argument that the Commission infringed the principle of equal treatment by failing to apply the 30% reduction to the applicant, it is to be recalled that that principle is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference of treatment is objectively justified (Joined Cases T‑45/98 and T‑47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II‑3757, paragraph 237).
91      In that regard, the Commission contends that the applicant was not in a comparable situation to that of Trioplast Industrier, since Trioplast Industrier and Trioplast Wittenheim formed a single undertaking at the time the application to cooperate was made.
92      The Commission’s argument cannot be accepted for the following reasons. Once the Commission decided to take an individualised approach, it was required to consider the individual situation of each addressee of the future decision in order to determine the penalty that it was going to apply to it. Thus, Trioplast Wittenheim, Trioplast Industrier and the applicant were, correctly, assigned individual starting amounts, amounts which were subsequently adjusted according to the circumstances specific to them.
93      However, the Commission partially departed from that method in the case of Trioplast Industrier. In fact, it is not apparent from either the contested decision or the documents produced before the Court that Trioplast Industrier provided information justifying a reduction of 30% on account of cooperation or that it joined in with the cooperation offered by Trioplast Wittenheim. The Commission none the less granted Trioplast Industrier such a reduction on the ground that it and Trioplast Wittenheim were part of the same undertaking at the time the contested decision was adopted. The Commission has thus confused the question relating to the fact that Trioplast Industrier has incurred liability as a result of the actions of Trioplast Wittenheim with the question relating to the methods for calculating fines.
94      Since the basis for the applicant’s liability – Trioplast Wittenheim’s conduct – was identical to the basis for Trioplast Industrier’s liability and since neither of the successive parent companies provided the Commission with relevant information, the Commission has treated two comparable situations differently. It follows that the Commission has discriminated against the applicant in relation to Trioplast Industrier, by refusing to grant the applicant the same percentage reduction as that granted to Trioplast Industrier.
95      However, according to the case-law, respect for the principle of equal treatment must be reconciled with the principle of legality, which means that a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (Case 134/84 Williams v Court of Auditors [1985] ECR 2225, paragraph 14, and Case T‑308/94 Cascades v Commission [1998] ECR II‑925, paragraph 259).
96      It follows that the applicant cannot rely on the fact that the Commission, wrongly, extended the benefit of Trioplast Wittenheim’s cooperation to Trioplast Industrier, in order to benefit from the same illegality in the form of a comparable 30% reduction in the basic amount of the fine imposed on it by the contested decision.
97      With regard to the complaint concerning the applicant’s contention that it did not substantially contest the facts alleged against it in the statement of objections, it should be observed that the Commission took the view, in the exercise of its broad discretion, that the fact that the applicant had not substantially contested the facts had not helped it to establish the existence of an infringement of Article 81 EC. Furthermore, it should be noted that the applicant has not put forward any argument establishing that its cooperation had facilitated the Commission’s task, as required by the judgment cited at paragraph 86 above. This ground of challenge cannot therefore be accepted.
98      It follows that the applicant’s ninth ground of challenge, and consequently the second plea, must be rejected.
99      It follows from all the foregoing considerations that the Commission made an error of assessment in holding the applicant liable for the anti-competitive actions of Trioplast Wittenheim so far as the year 1991 is concerned.
100    Article 1(1)(h) of the contested decision should therefore be annulled in so far as it finds that the applicant infringed Article 81 EC from 31 December 1990 to 31 December 1991; Article 2, first paragraph, point (f), of the contested decision should also be annulled in so far as it sets the amount for which the applicant is jointly and severally liable at EUR 15.30 million.
101    Having regard to Article 31 of Regulation No 1/2003, it falls to the Court to set a new maximum amount in respect of which the applicant is jointly and severally liable for payment of the fine imposed on Trioplast Wittenheim.
102    It is thus necessary, in this case, to adjust the increase in the starting amount of EUR 8.5 million to reflect the correction made in respect of duration. That increase must be limited to 70% instead of 80%, giving a basic amount of EUR 14.45 million.
Costs
103    Under Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order that costs be shared or that each party bear its own costs.
104    As the action has been partially successful, the Court considers it fair in the circumstances of the case to order each party to bear its own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby:
1.      Annuls Commission Decision C(2005) 4634 final of 30 November 2005 relating to a proceeding pursuant to Article 81 [EC] (Case COMP/F/38.354 – Industrial bags) in so far as it holds FLSmidth & Co. A/S liable for the single and continuous infringement referred to in Article 1(1) thereof, for the period from 31 December 1990 to 31 December 1991;
2.      Sets the amount for payment of which FLSmidth & Co. is held jointly and severally liable under Article 2(f) of Decision C (2005) 4634 at EUR 14.45 million;
3.      Dismisses the action as to the remainder;
4.      Orders the European Commission and FLSmidth & Co. each to bear their own costs.
Pelikánová
Jürimäe
van der Woude
Delivered in open court in Luxembourg on 6 March 2012.
[Signatures]
* Language of the case: English.