OPINION OF ADVOCATE GENERAL

WAHL

delivered on 21 December 2016 ( 1 )

Case C‑516/15 P

Akzo Nobel NV

Akzo Nobel Chemicals GmbH

Akzo Nobel Chemicals BV

v

European Commission

‛Appeal — Agreements, decisions and concerted practices — European markets in heat stabilisers — Decision finding two infringements of Article 81 EC and Article 53 of the EEA Agreement — Price fixing, market allocation and exchange of commercially sensitive information — Attribution of liability — Infringements committed by subsidiaries and derivative liability of the parent company — Consequences of annulment of the fine imposed on the subsidiaries owing to the expiry of the limitation period referred to in Article 25(1)(b) of Regulation (EC) No 1/2003’

1. This appeal, which has been brought against the judgment of the General Court of the European Union of 15 July 2015, Akzo Nobel and Others v Commission (T‑47/10, EU:T:2015:506) (‘the judgment under appeal’), invites the Court to clarify the conclusions to be drawn, in concrete terms, from the principles which it has laid down in relation to the attribution of liability for anticompetitive behaviour.

2. The question arises, specifically, whether and, where appropriate, to what extent, the benefit of the fact that the limitation period in respect of the power to impose penalties has been found to have expired with respect to a subsidiary must be extended to its parent company. In the judgment under appeal, the General Court concluded that the fact that the European Commission could no longer impose a fine on Akzo Nobel Chemicals GmbH (‘Akzo GmbH’) and Akzo Chemicals BV (‘Akzo BV’), subsidiaries of Akzo Nobel NV, because the limitation period had expired did ‘not result in the parent company’s liability being called into question and prevent proceedings being brought against that parent company’. It held that the effect of ‘the expiry of the limitation period provided for in Article 25 of Regulation [(EC)] No 1/2003 [ ( 2 )] [was] neither to cause an infringement to cease to exist nor to prevent the Commission from establishing, in a decision, liability for such an infringement …, but only to enable those that benefit from the limitation period’s expiry to avoid proceedings aimed at imposing penalties’.

3. For the reasons I shall set out below, it is my view that that assessment is open to criticism.

I – Background to the proceedings

4. The facts of the present proceedings, which are undeniably complex, are set out in paragraphs 1 to 50 of the judgment under appeal.

5. For the purpose of ensuring that the case is understood, I shall merely recall the following.

6. The present case concerns Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) (Case COMP/38589 — Heat Stabilisers) (‘the decision at issue’).

7. By the decision at issue, the Commission found that a certain number of undertakings, including the appellants, had infringed Article 81 EC and Article 53 of the EEA Agreement by participating in two sets of anticompetitive agreements and concerted practices covering the EEA and relating to two categories of heat stabilisers: first, the tin stabilisers sector and, secondly, the epoxidised soybean oil and esters sector (‘the ESBO/esters sector’).

8. In the decision at issue, it was found that there were two infringements relating to those two categories of heat stabilisers, consisting of price fixing, allocation of markets through sales quotas, allocation of customers and exchange of commercially sensitive information.

9. The decision at issue states that the undertakings concerned participated in those infringements during various periods between 24 February 1987 and 21 March 2000, in the case of tin stabilisers, and between 11 September 1991 and 26 September 2000, in the case of the ESBO/esters sector.

10. The decision at issue was addressed, with respect to each infringement, to 20 companies, which either participated directly in the infringements concerned or were liable as parent companies (recital 510 of the decision at issue).

11. The Commission divided the appellants’ participation in the cartels into three separate infringement periods. Only the first infringement period is covered by the present appeal.

12. With regard to the first infringement period, that is the period before 28 June 1993, the Commission found that some companies owned indirectly by Akzo, which became Akzo Nobel, had participated directly in the infringements, namely Akzo GmbH, for the infringement relating to tin stabilisers, and Akzo BV, for the infringement relating to the ESBO/esters sector. Liability for the infringements was attributed to Akzo Nobel in its capacity as parent company (recitals 512 to 519 of the decision at issue).

13. With regard to the second infringement period, from 28 June 1993 to 2 October 1998, the Commission found that the infringement had been committed by the ‘Akcros partnership’, which had no legal personality of its own (recitals 563 and 564 of the decision at issue).

14. With regard to the third infringement period, from 2 October 1998 to 21 March 2000, in the case of tin stabilisers, and from 2 October 1998 to 22 March 2000, in the case of the ESBO/esters sector, the Commission found that the infringements had been committed by Akcros (recitals 582 to 587 of the decision at issue).

15. So far as the attribution of the fines is concerned, Article 2 of the decision at issue states the following: ‘For the infringement(s) in the tin stabiliser sector …, the following fines are imposed: … (4) [Akzo Nobel], [Akzo GmbH] and [Akcros] are jointly and severally liable for: EUR 1580000; … (6) [Akzo Nobel] and [Akzo GmbH] are jointly and severally liable for: EUR 9820000; (7) [Akzo Nobel] is liable for: EUR 1432700; … For the infringement(s) in the ESBO/esters sector …, the following fines are imposed: … (21) [Akzo Nobel], [Akzo BV] and [Akcros] are jointly and severally liable for: EUR 2033000; … (23) [Akzo Nobel] and [Akzo BV] are jointly and severally [liable] for: EUR 3467000; (24) [Akzo Nobel] is liable for: EUR 2215303 …’

16. By decision of the Commission of 30 June 2011, the decision at issue was amended to the extent that it was addressed to Akzo Nobel and to Akcros (‘the amending decision’).

17. In recital 1 of the amending decision, the Commission recalled that it had imposed fines in the decision at issue on Akzo Nobel and Akcros ‘jointly and severally’ with Elementis plc, Elementis Holdings Limited and Elementis Services Limited.

18. In recital 2 of the amending decision, the Commission stated that, in the light of the judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others (C‑201/09 P and C‑216/09 P, EU:C:2011:190), it had decided to repeal the decision at issue to the extent that it was addressed, inter alia, to Elementis and Elementis Holdings Limited.

19. Accordingly, the Commission amended the decision at issue to the extent that it was addressed to Akzo Nobel and Akcros in so far as they had been held jointly and severally liable with Elementis for the fines imposed.

20. Finally, by application lodged at the General Court Registry on 12 September 2011, Akzo Nobel and Akcros brought an action against the Commission’s amending decision. That amending decision was annulled by judgment of 15 July 2015, Akzo Nobel and Akcros Chemicals v Commission (T‑485/11, EU:T:2015:517). No appeal was brought against that judgment.

II – The procedure before the General Court and the judgment under appeal

21. By application lodged at the General Court Registry on 27 January 2010, the appellants sought annulment of the decision at issue or, in the alternative, a reduction of the fines imposed on them.

22. In support of their action, the appellants put forward five pleas in law, the first of which alleged infringements of the rules on limitation. In the first part of the first plea, alleging a breach of Article 25(1)(b) of Regulation No 1/2003, the appellants submitted that the Commission was time-barred from taking action against Akzo GmbH and Akzo BV from 28 June 1998 and, therefore, could not impose on those companies a fine jointly and severally with Akzo Nobel, as parent company of those companies.

23. Their complaints were upheld in part. The General Court ruled that Article 2, points 4, 6, 21 and 23, of the decision at issue was to be annulled in respect of the fines imposed on Akzo GmbH and Akzo BV for the first infringement period, but the complaints were to be rejected as to the remainder. The General Court’s reasons in that regard are set out principally in paragraphs 118 to 128 of the judgment under appeal.

III – Forms of order sought

24. The appellants claim that the Court should: — principally, set aside the judgment under appeal in so far as it holds that liability for the fines originally imposed on Akzo GmbH and Akzo BV for their participation in the infringements can still be attributed to Akzo Nobel after the annulment of those fines by the General Court; — annul the decision at issue in so far as it establishes the participation of Akzo GmbH and Akzo BV in the infringements, and in particular Article 1(1)(b) and Article 1(2)(b) thereof; — annul the decision at issue in so far as it attributes liability to, and/or imposes a fine on, Akzo Nobel on account of the unlawful conduct of Akzo GmbH and Akzo BV, and in particular Article 1(1)(a) for the period from 24 February 1987 to 28 June 1993 and Article 1(2)(a) for the period from 11 September 1991 to 28 June 1993 and/or Article 2(6) and (23); — in the alternative, set aside the judgment under appeal and refer the case back to the General Court; — order the Commission to pay the costs.

25. The Commission contends that the appeal should be dismissed and the appellants ordered to pay the costs.

IV – Analysis of the appeal

A – Arguments of the parties

26. In support of their appeal, the appellants, Akzo Nobel and Others, put forward a single ground of appeal, relating, in essence, to infringement of the rules concerning the liability of parent companies for the unlawful conduct of their subsidiaries.

27. They note that the Court of Justice recently confirmed, in its judgment of 17 September 2015, Total v Commission (C‑597/13 P, EU:C:2015:613), that, where the liability of a parent company is derived entirely from that of its subsidiary, the liability of the former cannot exceed that of the latter. In such situations, where the parent company has lodged an appeal with the same object as the subsidiary’s, the parent company must benefit from the partial or full annulment of the fine imposed on the subsidiary.

28. In that regard, the appellants submit that the annulment of the fines imposed on Akzo GmbH and Akzo BV should have resulted in the annulment of the fine imposed on Akzo Nobel, as parent company, for the infringement period prior to the ‘Akcros partnership’, since that fine was imposed on it only on account of its subsidiaries’ direct participation in the infringements. Akzo Nobel’s liability was therefore purely derivative, secondary and dependent on that of its subsidiaries.

29. In the present case, the annulment of the fines imposed on Akzo GmbH and Akzo BV should have resulted in the annulment of the entire decision at issue with respect to Akzo GmbH and Akzo BV, as regards the first infringement period.

30. In that context, the appellants state that, following the judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others (C‑201/09 P and C‑216/09 P, EU:C:2011:190), the Commission was confronted with the fact that its power to impose a fine on Elementis and on Ciba/BASF was time-barred. As was evident from the amending decision, the Commission therefore not only cancelled the fines but withdrew the finding as to any participation of those undertakings in the infringements.

31. According to the appellants, in accordance with the principle of equal treatment, and so as to give full effect to the judgment under appeal, for the purposes of the first paragraph of Article 266 TFEU, the Commission should have adopted the same approach in relation to Akzo GmbH and Akzo BV. However, the decision at issue still contained a declaratory finding of an infringement addressed to those two undertakings.

32. The fact that the Commission was not prevented from imposing a fine on other legal entities forming part of the Akzo group is irrelevant, in the appellants’ submission, since, in accordance with the case-law concerning rights of defence and individual procedural safeguards, the situations of the different legal entities should be compared, not the situation of the undertakings involved.

33. The Commission contends that the appeal is, at least in part, inadmissible. In the first place, the appellants have failed to identify any error of law but merely reiterate the claims rejected by the General Court. In the second place, in so far as this ground of appeal refers to a breach of the principle of equal treatment as against Elementis and Ciba/BASF, it should be regarded as constituting a new plea. Under Article 170(1) of the Rules of Procedure of the Court of Justice and the case-law, such a claim should be rejected. The argument concerning alleged procedural efficiency cannot be accepted in that context.

34. In any event, the Commission contends that the General Court correctly recalled that the expiry of the limitation period did not prevent the Commission from establishing the liability of the addressee whose fine was time-barred. In the present case, the maintaining of the subsidiaries’ liability is relevant and legitimate as a basis for determining the liability of the parent company, and for the purposes of possible actions for damages against the undertaking.

35. As regards the withdrawal of the decision at issue in relation to Elementis and Ciba/BASF, the Commission states that the limitation period had expired in respect of all the legal entities of those undertakings, which had simply left the cartel. By contrast, in the present case, Akzo Nobel had participated through various subsidiaries in two single and continuous infringements, for which the limitation period had not expired.

36. The Commission further observes that, in its judgment of 15 July 2015, Akzo Nobel and Akcros Chemicals v Commission (T‑485/11, EU:T:2015:517), the General Court merely found a procedural error in relation to the amending decision. Furthermore, the judgment under appeal had specifically upheld the decision at issue in so far as it found that three legal entities forming part of the Akzo group participated in the infringements in the period prior to the Akcros partnership. It maintains that it does not therefore follow from those judgments that the Commission was under any obligation to withdraw the decision at issue.

37. As regards the rules on the derivative liability of parent companies, the Commission submits that the appellants’ criticisms do not correctly reflect the relevant case-law. In its judgment of 17 September 2015, Total v Commission (C‑597/13 P, EU:C:2015:613), the Court confirmed, referring to factors capable of individually reflecting the conduct for which the parent company is held liable, that there are situations in which no extension to the parent company of a reduction in a fine granted to the subsidiary is justified.

38. According to the Commission, such an extension is possible only where the same ground for liability or for imposing a fine is at stake for both entities, and not in every single case where the subsidiary has been partly or entirely successful in court proceedings. The Commission states that the ‘individual factors’ that justify imposing a different fine on the parent company cannot be listed exhaustively.

39. Analysis of the main decisions of the General Court and of the Court of Justice show, according to the Commission, that the Courts of the European Union have been consistent in this area. It follows that normally the same fine applies to the parent company and to the subsidiary if, during the infringement period, they formed part of a single undertaking and did not separate afterwards and did not participate in the infringement individually or through other subsidiaries before they formed part of a single undertaking.

40. When the reduction granted to the subsidiary has a direct link to the liability for an infringement, notably in relation to the duration of that infringement, it is inherent in the principle of derived liability that the reduced liability and fine of the subsidiary has a direct consequence for the parent company. The Commission emphasises that the duration of the participation of a parent company and of a subsidiary may nevertheless differ, for example, if one subsidiary has ended its participation but another subsidiary from the same group, or the parent company directly, has continued to participate. In that situation, the time-bar could apply to the first subsidiary directly involved in the cartel but not to the parent company.

41. The Commission also notes that it is apparent from the judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others (C‑201/09 P and C‑216/09 P, EU:C:2011:190), that the limitation period applies individually to each legal entity and not uniformly to the entire undertaking, which means that this is a recognised situation in which not extending a reduction of a fine to the parent company is justified.

42. Lastly, according to the Commission, the General Court rightly compared, in the judgment under appeal, the expiry of the limitation period to individual procedural safeguards, such as the rights of the defence, and to the requirement for the Commission to notify both a statement of objections and a decision imposing such penalties on the legal person concerned.

B – Assessment

43. Before I turn to the substance of the present case, it is appropriate to comment briefly on the pleas of inadmissibility which the Commission raised in its response.

1. Admissibility

44. As the Commission has noted, it appears that the appellants’ complaints concerning, on the one hand, the Commission’s alleged breach of the principle of equal treatment in relation to the Ciba/BASF and Elementis groups, and, on the other hand, the lack of a legitimate interest, within the meaning of the last sentence of Article 7(1) of Regulation No 1/2003, such as to justify the finding that Akzo GmbH and Akzo BV actually participated in the cartels constitute new pleas, in the sense that they were not debated at first instance.

45. The appellants merely claimed before the General Court that Akzo GmbH and Akzo BV could not be held liable in view of the expiry of the limitation period, and that it was therefore necessary to annul the decision at issue in that respect.

46. It must also be pointed out that those new complaints are not in any way founded on facts disclosed during the proceedings. In that regard, it must be noted that, in the observations the appellants lodged with the General Court on 16 September 2011, concerning in particular the conclusions which, in their view, were to be drawn from the judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others (C‑201/09 P and C‑216/09 P, EU:C:2011:190), the appellants did not raise any argument as to the breach of the principle of equal treatment. At that time they were, however, already aware of the withdrawal of the decision at issue with respect to the companies of the Ciba/BASF and Elementis groups.

47. Thus, it is my view that the assessment of those complaints falls outside the jurisdiction of the Court of Justice in the context of the present appeal. ( 3 )

48. It seems to me that the remainder of the appeal must be declared admissible. It appears that the appellants intend, essentially, to challenge the legal reasoning that led the General Court to conclude that expiry of the limitation period vis-à-vis the subsidiaries did not have the effect of calling into question the liability of their parent company.

2. Substance

49. As I stated in the introduction to this Opinion, the present case, which concerns two cartels in the heat stabilisers sector, gives the Court an opportunity to clarify in certain respects its case-law concerning the liability of parent companies where there has been an infringement of competition law by their subsidiaries. The question that arises, specifically, is whether the fact that the Commission’s power to impose penalties is time-barred in relation to certain subsidiaries has, as the General Court held in this case, no effect on the liability of the parent company.

50. The answer to be given to that question seems to me to be largely dependent on whether the parent company’s liability must — where it is not, as in the present case, established that the parent company itself participated directly in the infringement concerned — be categorised as ‘personal’ or ‘derivative’. I shall address that issue first of all, in the light of the lessons to be learned, in my view, from the case-law of the Court.

51. I shall then go on to indicate the reasons why the conclusion to which the General Court came as regards the rules on limitation conflict, in my view, with the principles laid down in the case-law concerning the imputation to parent companies of the anticompetitive behaviour of their subsidiaries. In that context, I shall explain why the nature of the parent company’s liability necessarily means that it may benefit from the expiry of the limitation period established with regard to its subsidiary.

(a) The nature of the liability of parent companies for the acts of their subsidiaries: ‘personal’ or ‘derivative’ liability?

52. The issues relating to the attribution of liability for infringements of competition law within groups of companies are well established in the case-law ( 4 ) and the Court’s reasoning in that respect has, subject to slight variations, remained unchanged. That reasoning can be outlined as follows.

53. Where an undertaking is guilty of an infringement of EU competition rules, that undertaking must answer for the infringement.

54. If the unlawful conduct has been committed by the subsidiary of a group, liability for the relevant infringement must, in principle, be attributed to that subsidiary, in accordance with the principle of personal liability, applicable in the event of infringements of EU competition rules. ( 5 )

55. By way of exception to that principle, the Court considers that there are circumstances in which liability for the offending conduct may nevertheless be imputed to a legal entity which is not the direct perpetrator of the infringement and which may accordingly be punished for that conduct. That applies in particular where a given company does not decide independently upon its own conduct, but carries out, in all material respects, its parent company’s instructions, having regard in particular to the economic, organisational and legal links between those two legal entities. ( 6 ) That approach is based on the notion that even if, from a legal point of view, a group is composed of a number of separate legal persons, it may be regarded as a single ‘undertaking’ for the purposes of competition law. The corollary of the option thus available to the Commission, of resorting to the functional concept of an undertaking in order to attribute liability for anticompetitive behaviour to companies which have not taken part directly in the offending practices, is the possibility that the Commission can address a decision imposing fines to the parent company, without having to establish the latter’s personal involvement in the infringement. ( 7 )

56. The conditions under which a parent company may be held liable for the anticompetitive behaviour of its subsidiary are now clearly established in the case-law: first, the parent company must be in a position to exercise a decisive influence over the conduct of its subsidiary and, secondly, it must in fact have exercised such influence. ( 8 )

57. Proof of the existence of those conditions requires, in principle, that the authority responsible for the prosecution and punishment of anticompetitive behaviour produce material evidence in each case of the existence and actual exercise of the parent company’s decisive influence over its subsidiary. ( 9 ) However, the Court has ruled, since the judgment in AEG-Telefunken v Commission, ( 10 ) and unequivocally since the judgment in Akzo Nobel and Others v Commission, ( 11 ) that, where a parent company has a 100% shareholding in its subsidiary, there is a presumption that it does in fact exercise such influence over the conduct of its subsidiary. That ‘shareholding presumption’, subsequently extended to cases in which the parent company holds almost all of the capital of its subsidiary, ( 12 ) is, according to the Court, a ‘rebuttable presumption’, which the parent company can rebut if it is able to show that its subsidiary does act independently on the market.

58. That said, there may be circumstances specific to the subsidiary or to the parent company that may justify the imposition of fines of different amounts.

59. As the Commission has, in my view quite rightly, stated, there may be a set of situations in which a different fine than that imposed on the subsidiary is justified, even in circumstances in which liability was derived. Nevertheless, it must be established that that differentiation is based on individual factors specific to the parent company, relating both to substantive matters (such as the period over which it participated directly in a cartel) or to the parameters applied in the setting of the fine (such as the application of a reduction for the cooperation provided by one of the legal entities forming part of the offending ‘undertaking’, or the application of an increase owing to the repeated infringements established on the part of the parent company). In that regard, the Court has held, in Total v Commission, ( 13 ) that it is only in a situation ‘in which no other factor individually reflects the conduct for which the parent company is held liable’ ( 14 ) that imposing a fine on the parent company of a different amount than that imposed on its subsidiary is not justified.

60. But what is the precise nature of the liability of a parent company which has been found not to be directly involved in the anticompetitive practices at issue? Must it be treated in the same way as the liability of the direct perpetrator of the infringement (taking into account the parent company’s close links with the company or companies directly impugned) or must it instead be concluded that it is merely taking responsibility for conduct in which it has not in fact participated in any way?

61. I must point out that there continues to be some ambiguity as to whether parent company liability is ‘derivative’ or ‘personal’ where it is established that the parent company has not directly participated in the infringement at issue.

62. It must be observed in that regard that both the terminology used by the Court and the inferences it has drawn vary considerably in this area.

63. From a terminological point of view, the case-law frequently refers to the concept of attributing liability, ( 15 ) rather than unlawful conduct. Some judgments, by contrast, take the approach of ‘shared guilt’, in the sense that the parent company is itself deemed to be the perpetrator of the infringement, without differentiating clearly between situations in which it is established that that company was directly involved as perpetrator of the infringement concerned and situations in which the attribution to the parent company of liability for that infringement is envisaged only indirectly. According to the latter line of case-law, which to my mind is difficult to reconcile with the former, a parent company which has a decisive influence over a subsidiary that takes part in an infringement of Article 101 TFEU is, as a result, deemed to have committed the infringement of EU competition rules personally. ( 16 )

64. From a substantive point of view, that terminological difference often has very different, even inconsistent, effects. ( 17 )

65. On the one hand, it has been held that the joint and several liability between the parent company and its subsidiary cannot be reduced to a type of security provided by the parent company in order to guarantee payment of the fine imposed on the subsidiary; a parent company may be ordered to pay a fine higher than that imposed on its subsidiary. ( 18 ) That would suggest that the liability of the parent company is indeed regarded as being personal.

66. On the other hand, the Court has just recently held, following on from the conclusions to be drawn from the judgment, delivered by the Grand Chamber, of 22 January 2013, Commission v Tomkins (C‑286/11 P, EU:C:2013:29), that the parent company whose liability is entirely derivative of that of its subsidiary must, in principle, benefit from any reduction in the liability of its subsidiary which had been imputed to it. ( 19 ) The Court had stated that, in a situation in which no other factor individually reflects the conduct for which the parent company is held liable, the liability of that parent company cannot exceed that of its subsidiary; ( 20 ) where the necessary procedural requirements are satisfied, the parent company must, in principle, benefit from any reduction in the liability of its subsidiary which had been imputed to it. ( 21 )

67. My own view is that, in so far as the Court’s position is based on a unitary approach in attributing liability for unlawful conduct, it is necessary to draw all the appropriate conclusions, ( 22 ) notably in terms of the Commission’s power to impose penalties on the companies concerned. The consistency of the approach thus followed would create legal certainty.

68. Therefore, although the Court has on many occasions stated that, in such a situation, the parent company had so-called ‘personal’ liability, that could, in my view, only be in order to point out that it was for the parent company to answer for the anticompetitive conduct of its subsidiary, irrespective of its actual involvement in the offending practices and by reason of its shareholding and organisational links with its subsidiary, and to draw attention to the fact that they constitute a single economic entity. ( 23 ) In other words, the principle of personal liability does not prevent the Commission from considering first of all the possibility of penalising the company which infringed the competition rules before considering the possibility that the infringement might be imputed to the parent company. ( 24 )

69. Thus, in so far as the Commission can address a decision imposing a fine to the parent company, without being required to establish that parent company’s actual — and therefore direct — involvement in an infringement, the inevitable quid pro quo of availing of that option is, in my opinion, that any errors vitiating the findings in relation to the subsidiary’s specific liability for the infringement — and, consequently, the calculation of any fine imposed on that basis — should also benefit the parent company. ( 25 ) It is, therefore, simply a matter of drawing the appropriate inferences from the choices made by the Commission in relation to the attribution of liability for unlawful conduct.

70. It is necessary to determine in the light of those considerations whether the conclusion to which the General Court came in paragraph 128 of the judgment under appeal is well founded.

(b) Must the fact that the power to impose penalties has been found to be time-barred with respect to a subsidiary benefit a parent company which has been proved not to have participated directly in the offending practices?

71. Under Article 25(1)(b) of Regulation No 1/2003, the Commission’s power to impose penalties is subject to a limitation period of five years. ( 26 ) According to Article 25(2) of Regulation No 1/2003, time begins to run on the day on which the infringement is committed, but in the case of continuing or repeated infringements, time begins to run on the day on which the infringement ceases.

72. What about the situation in which the limitation period is found to have expired with respect to a subsidiary, whose parent company has, solely in that capacity, also been held liable for an infringement of the competition rules? Is that parent company also to benefit from the finding made in respect of its subsidiary that the limitation period has expired, in the context of purely derivative liability, or not? Is it necessary to adhere to the unitary approach previously described, or must limitation be assessed differently, according to the entity concerned?

73. In the present case, it must be pointed out that the Commission held Akzo Nobel liable on the basis of Article 81 EC (now Article 101 TFEU), as the ultimate parent company of the Akzo group, for the entire infringement period, that is from 24 February 1987 to 22 March 2000, because of the conduct of its subsidiaries and of the ‘Akcros partnership’.

74. During the administrative procedure, Akzo GmbH and Akzo BV claimed that their participation in the cartels had ended on 28 June 1993, that is more than five years before commencement of the investigation (2003). Given the rules that apply in relation to limitation, the Commission could no longer, therefore, take action against them. For its part, Akzo Nobel maintained that it could be held liable as parent company only to the extent that its subsidiaries could be held liable.

75. The Commission rejected that line of argument in the decision at issue, on the basis, inter alia, that ‘it cannot be accepted that prescription would apply simply due to reorganisation within the Akzo group. Indeed, the infringements referred to in Article 81(1) [EC] are committed by “undertakings”. Also the prescription rules in Article 25 of [Regulation No 1/2003] apply to “undertakings”’. ( 27 )

76. In the proceedings before the General Court, the appellants and the Commission essentially maintained their respective positions.

77. The General Court rejected the Commission’s assessment that Akzo GmbH and Akzo BV, as members of the Akzo group, could not legitimately claim that the limitation period had expired in their case, but nevertheless found that a distinction had to be drawn in this case between the concepts of liability and limitation. It thus ruled that the fact that the Commission’s power to impose penalties on the subsidiaries was time-barred had no effect on the liability of the parent company.

78. It stated as follows, in paragraphs 125 and 126 of the judgment under appeal: ‘125 ... it must be recalled that the expiry of the limitation period provided for in Article 25 of Regulation No 1/2003 is neither to cause an infringement to cease to exist nor to prevent the Commission from establishing, in a decision, liability for such an infringement (see, to that effect, judgment of 6 October 2005[,] Sumitomo Chemical and Sumika Fine Chemicals v Commission, T‑22/02 and T‑23/02, ECR, EU:T:2005:349, paragraphs 60 to 63 [ ( 28 )]), but only to enable those that benefit from the limitation period’s expiry to avoid proceedings aimed at imposing penalties (see, to that effect, judgment of 27 June 2012[,] Bolloré v Commission, T‑372/10, ECR, EU:T:2012:325, paragraph 194 [ ( 29 )]). 126 Furthermore, it is clear from a textual, contextual and purposive interpretation of Article 25 of Regulation No 1/2003 that, like the individual procedural safeguards, such as the rights of the defence, and the requirement for the Commission to notify both a statement of objections and a decision imposing such penalties to the legal person concerned …, the expiry of the limitation period under Article 25(1) of Regulation No 1/2003 benefits, and may be invoked by, each of the legal persons separately when they are the subject of proceedings brought by the Commission. Accordingly, as has already been recognised in the case-law, the mere fact that a subsidiary of a group of companies, in the sense of an economic unit, benefits from the expiry of the limitation period does not result in the parent company’s liability being called into question and prevent proceedings being brought against that parent company (see, to that effect, judgment in Bolloré v Commission, cited in paragraph 125 above, EU:T:2012:325, paragraphs 193 to 196 ...).’

79. In the light of all those considerations, the General Court concluded that only the subsidiaries Akzo GmbH and Akzo BV could legitimately rely on the expiry of the five-year limitation period laid down in Article 25(1)(b) of Regulation No 1/2003.

80. That finding appears to me to be open to criticism in several respects.

81. In the first place, by rejecting the notion defended by the Commission that it ‘cannot be accepted that prescription would apply simply due to reorganisation within the Akzo group’ (see recital 527 of the decision at issue) and by making a distinction between the various legal entities concerned, the General Court did not draw all the appropriate conclusions from the derivative nature of the liability of the parent company in this case. The General Court thus failed to take account of the fact that the Commission’s power under Article 23(2) of Regulation No 1/2003 to impose penalties relates to the undertaking per se, not to the natural or legal persons forming part of the undertaking, ( 30 ) even though the Commission had specifically taken into account the unit formed by the companies concerned at the stage of the imposition and attribution of the fines. In that respect, there seems to me to be a discrepancy in the present case between the General Court’s conclusion and the objective finding that the Commission’s first actions for the purpose of the investigation or proceedings in respect of ‘the infringements’, taken as a whole, were taken after the expiry of the period laid down in Article 25(1) of Regulation No 1/2003.

82. In the second place, I am of the opinion that, in view of the derivative nature of the parent company’s liability, the expiry of the limitation period should have benefited that company also. It must be noted that, as regards the issues before us here, namely the finding that the limitation period in respect of the power to impose penalties had indeed expired in relation to the first infringement period, there was no individual factor that reflected in this instance the respective situations, on the one hand, of the subsidiaries, Akzo GmbH and Akzo BV, and, on the other, of the ultimate parent company, Akzo Nobel. Since Akzo Nobel’s liability is therefore merely derived from that of its subsidiaries, it seems to me that the expiry of the limitation period should have benefited Akzo Nobel also, unless it was held that Akzo Nobel was directly involved in the cartels at issue.

83. The fact, referred to by the Commission, that what was at issue was a single and continuous infringement, which manifested itself even after the infringement period specifically covered by the present appeal, does not seem to me to be relevant in this context, in which, in the absence of any personal involvement on the part of the parent company and in the light of the derivative nature of its liability (see point 82 of this Opinion), it has not been established that the action in question is characterised by the culpable intent of the person carrying out that action.

84. In the third and final place, it is observed that, contrary to the stance taken by the Commission, it is my view that there is no cogent support for the General Court’s conclusion in the line taken in the judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others (C‑201/09 P and C‑216/09 P, EU:C:2011:190), a judgment to which the General Court did not, moreover, consider it appropriate to refer, notwithstanding the attention which had specifically been drawn to it in the course of the proceedings (see point 46 of this Opinion).

85. In its Grand Chamber judgment, the Court of Justice, departing in that respect from the position taken by the Advocate General, ( 31 ) held that, in a situation in which only the parent company has brought proceedings against the final decision of the Commission imposing a fine, the suspension of the limitation period for the imposition of penalties, provided for in Article 25(6) of Regulation No 1/2003, operates only as against the parent company, with time continuing to run in relation to the subsidiary. ( 32 )

86. It thus follows from the latter judgment that it introduces a limit — one that is undoubtedly motivated by a requirement for legal certainty and for the rights of defence of the legal entities concerned to be respected ( 33 ) — on the use of the concept of economic entity when extending to one company the ‘suspension’ of the limitation period identified with regard to another company with which it formed a single economic entity at the time when the infringement was identified.

87. However, as regards the separate question of the ‘interruption’ of the limitation period, the Court of Justice confirmed the General Court’s finding that the interruption applied with respect to all the undertakings which participated in the infringement concerned, even if they were still unknown at the time of the interrupting act, ruling that actions interrupting the limitation period could, in view of the attributability to ARBED of the unlawful conduct of TradeARBED and the existence of an economic unity between those two companies, be relied on against ARBED. ( 34 )

88. To my mind, the same conclusion must also be drawn in a case such as this, in which the limitation period has been found to have expired with respect to the subsidiary under Article 25 of Regulation No 1/2003. The expiry of the limitation period cannot have, in relation to one and the same unlawful action, an effect limited to the entity that has directly carried out that action, but must extend to the entities to which liability for the same action is attributed. Where it is no longer possible for the Commission to fine an undertaking for particular conduct precisely because of the expiry of the limitation period, the removal of that possibility must benefit all the legal entities whose liability in respect of that conduct has been engaged.

89. Ultimately, it seems to me that, while it is well established that the Commission can legitimately adopt a unitary approach, based on the functional concept of ‘undertaking’ at the stage of attributing liability for anticompetitive behaviour, it must understand all the implications of that approach at the stage of imposing penalties for that behaviour, including when the question whether the Commission’s power to impose penalties is time-barred is at issue.

90. For all those reasons, it is my view that the appellants’ single ground of appeal is well founded. It follows that the judgment under appeal must be set aside in so far as the General Court did not align the fines imposed, respectively, on the parent company, Akzo Nobel, and on its subsidiaries for the first infringement period.

91. In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, where the appeal is well founded, the Court may, if the decision of the General Court is set aside, give final judgment in the matter, where the state of the proceedings so permits. That, it seems to me, is the position in the present case.

V – Conclusion

92. For all the above reasons, I propose that the Court should: (1) set aside the judgment of the General Court of the European Union of 15 July 2015, Akzo Nobel and Others v Commission (T‑47/10, EU:T:2015:506), in so far as it found that liability for the fines originally imposed on Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals BV for their participation in the infringements could still be attributed to Akzo Nobel NV for the period before 28 June 1993; (2) annul Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38589 — Heat Stabilisers), in so far as, with regard to the period prior to 28 June 1993, it imposed a fine on Akzo Nobel NV on account of the unlawful conduct of Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals BV; (3) order the European Commission to pay the costs.

( 1 ) Original language: French.

( 2 ) Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles [81 and 82 EC] (OJ 2003 L 1, p. 1).

( 3 ) See, in particular, judgments of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062, paragraph 99), and of 24 October 2013, Kone and Others v Commission (C‑510/11 P, not published, EU:C:2013:696, paragraph 72 and the case-law cited).

( 4 ) See, in particular, judgments of 14 July 1972, Imperial Chemical Industries v Commission (48/69, EU:C:1972:70), and of 21 February 1973, Europemballage and Continental Can v Commission (6/72, EU:C:1973:22).

( 5 ) That principle was held to be applicable ‘given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties’ (see judgment of 8 July 1999, Commission v Anic Partecipazioni (C‑49/92 P, EU:C:1999:356, paragraph 78).

( 6 ) See case-law cited above. See also judgment of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce (C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 75 and the case-law cited).

( 7 ) See, in particular, judgment of 19 July 2012, Alliance One International and Standard Commercial Tobacco v Commission (C‑628/10 P and C‑14/11 P, EU:C:2012:479, paragraph 44 and the case-law cited).

( 8 ) See, recently, judgment of 17 September 2015, Total v Commission (C‑597/13 P, EU:C:2015:613, paragraph 35).

( 9 ) The effectiveness of the control exercised over companies may be established by reference to the capital structure of the group, but also by reference to other factors such as the power to appoint senior managers of the companies involved in the infringement.

( 10 ) Judgment of 25 October 1983 (107/82, EU:C:1983:293, paragraph 50).

( 11 ) Judgment of 10 September 2009 (C‑97/08 P, EU:C:2009:536, paragraphs 60 to 64).

( 12 ) See, in particular, judgment of 29 September 2011, Arkema v Commission (C‑520/09 P, EU:C:2011:619, paragraphs 42 and 48).

( 13 ) See judgment of 17 September 2015 (C‑597/13 P, EU:C:2015:613, paragraph 38 and the case-law cited).

( 14 ) Emphasis added.

( 15 ) See, amongst numerous other judgments, judgments of 10 September 2009, Akzo Nobel and Others v Commission (C‑97/08 P, EU:C:2009:536, paragraph 59); of 20 January 2011, General Química and Others v Commission (C‑90/09 P, EU:C:2011:21, paragraph 38); of 11 July 2013, Commission v Stichting Administratiekantoor Portielje (C‑440/11 P, EU:C:2013:514, paragraph 42); and of 16 June 2016, Evonik Degussa and AlzChem v Commission (C‑155/14 P, EU:C:2016:446, paragraph 27 and the case-law cited).

( 16 ) Judgments of 10 April 2014, Commission v Siemens Österreich and Others (C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 47), and of 26 November 2013, Kendrion v Commission (C‑50/12 P, EU:C:2013:771, paragraph 55). See also judgment of 27 June 2012, Bolloré v Commission (T‑372/10, EU:T:2012:325, paragraph 194).

( 17 ) As regards the differences in the Court’s approach, reference is also made to my Opinion in Total v Commission (C‑597/13 P, EU:C:2015:207, points 38 to 43).

( 18 ) See, in particular, judgment of 26 November 2013, Kendrion v Commission (C‑50/12 P, EU:C:2013:771, paragraph 58).

( 19 ) See, in particular, judgment of 17 September 2015, Total v Commission (C‑597/13 P, EU:C:2015:613, paragraph 41).

( 20 ) See, to that effect, judgments of 22 January 2013, Commission v Tomkins (C‑286/11 P, EU:C:2013:29, paragraphs 37, 39, 43 and 49), and of 17 September 2015, Total v Commission (C‑597/13 P, EU:C:2015:613, paragraph 38).

( 21 ) Judgment of 17 September 2015, Total v Commission (C‑597/13 P, EU:C:2015:613, paragraph 41).

( 22 ) See my Opinion in Total v Commission (C‑597/13 P, EU:C:2015:207, point 65).

( 23 ) See my Opinion in Total v Commission (C‑597/13 P, EU:C:2015:207, point 50).

( 24 ) See judgment of 29 September 2011, Elf Aquitaine v Commission (C‑521/09 P, EU:C:2011:620, paragraph 121 and the case-law cited).

( 25 ) See my Opinion in Total v Commission (C‑597/13 P, EU:C:2015:207, point 52).

( 26 ) The power is that conferred on the Commission, under Articles 23 and 24 of Regulation No 1/2003, to impose fines or periodic penalty payments.

( 27 ) See recital 527 of the decision at issue.

( 28 ) It follows from this judgment of the General Court that the rules on limitation do not apply to the Commission’s power to find an infringement; nevertheless, in view of the judgment of 2 March 1983, GVL v Commission, 7/82, EU:C:1983:52, the Commission was required to demonstrate a legitimate interest in finding an infringement after the expiry of the limitation period.

( 29 ) That paragraph states that ‘the fact that the subsidiary may no longer be capable of being penalised for the infringement found, whether because the subsidiary has ceased to exist or — as the applicant claims in the present case — because the limitation period has expired in favour of that subsidiary, has no effect on the question whether the parent company, which is itself deemed to have committed the infringement owing to the economic unity with its subsidiary, may be penalised. Admittedly, there would be no liability of the parent company if it were shown that there had been no infringement, but that liability cannot cease to exist because the penalty against the subsidiary is time-barred. The effect of the limitation period provided for in Article 25 of Regulation No 1/2003 is not to cause an infringement to cease to exist, but only to enable those that benefit from it to avoid penalties’. It must be noted that, at the stage of the appeal, in the judgment of 8 May 2014, Bolloré v Commission (C‑414/12 P, not published, EU:C:2014:301), the Court did not determine whether those considerations were well founded.

( 30 ) See, to that effect, judgment of 10 April 2014, Commission and Others v Siemens Österreich and Others (C‑231/11 P to C‑233/11 P, EU:C:2014:256, paragraph 56).

( 31 ) According to Advocate General Bot, it would be appropriate to give erga omnes effect to the suspension of the limitation period resulting from the introduction, by one of the companies involved in the infringement, of proceedings before the Courts of the European Union. Opinion of Advocate General Bot in Joined Cases ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others (C‑201/09 P and C‑216/09 P, EU:C:2010:634, notably point 73, according to which: ‘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’).

( 32 ) See paragraphs 141 to 149 of the judgment.

( 33 ) In the judgment of 31 March 2009, ArcelorMittal Luxembourg and Others v Commission (T‑405/06, EU:T:2009:90, paragraph 158), the General Court had notably emphasised, referring to the case-law of the Court of Justice, that only the legal person to whom the statement of objections was addressed was able to initiate an action against the decision adopted at the close of the administrative procedure and, accordingly, was the only person in respect of whom the limitation period could be suspended.

( 34 ) See judgment of 29 March 2011, ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, (C‑201/09 P and C‑216/09 P, EU:C:2011:190, paragraph 110).