EN Official Journal of the European Union C 406/22

Appeal brought on 24 September 2015 by Akzo Nobel NV, Akzo Nobel Chemicals GmbH, Akzo Nobel Chemicals BV against the judgment of the General Court (Fourth Chamber) delivered on 15 July 2015 in Case T-47/10: Akzo Nobel NV, Akzo Nobel Chemicals GmbH, Akzo Nobel Chemicals BV, Akcros Chemicals Ltd v European Commission

(Case C-516/15 P)

(2015/C 406/23)

Language of the case: English

Parties

Appellants: Akzo Nobel NV, Akzo Nobel Chemicals GmbH, Akzo Nobel Chemicals BV (represented by: C. Swaak, R. Wesseling, advocaten)

Other parties to the proceedings: European Commission, Akcros Chemicals Ltd

Form of order sought

The appellants claim that the Court should:

— set aside the judgment of the General Court of 15 July 2015 in Case T-47/10 insofar as it holds that the fines originally imposed on Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals B.V. for their participation in the infringements can still be attributed to Akzo Nobel N.V. after the annulment of those fines by the General Court; and

— annul the 2009 Decision insofar as it establishes the participation of Akzo Nobel Chemicals GmbH and AkzoNobel Chemicals B.V. in the infringements, and in particular Article 1, section 1), (b) and Article 1, section 2) (b); and

— annul the 2009 Decision insofar as it attributes liability and/or a fine to Akzo Nobel N.V. on account of the unlawful conduct of Akzo Nobel Chemicals GmbH and AkzoNobel Chemicals B.V, and in particular Article 1, section 1), (a) for the period from 24 February 1987 to 28 June 1993 and Article 1, section 2) (a) for the period from 11 September 1991 to 28 June 1993 and/or Article 2, sections 6) and 23); or in the alternative

— annul the judgment of the General Court of 15 July 2015 in Case T-47/10 and refer the case back to the General Court for it to make all necessary decisions on the merits; and

— order the Commission to pay the costs of this appeal.

Pleas in law and main arguments

In support of their appeal, the Appellants submit that the General Court made an error of law in the application of rules concerning the liability of parent companies by concluding that the liability for the fines originally imposed on the subsidiaries but annulled by the General Court can still be attributed to Akzo Nobel N.V.

In a situation such as the present case in which the liability of a parent company is purely derivative of that of its subsidiaries, the liability of that parent company cannot exceed the liability for which its subsidiaries are ultimately liable. As a result, the annulment of the fines imposed on Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals B.V. should have led to the annulment of the fine imposed on Akzo Nobel N.V.

This is all the more pertinent in the case at hand where the annulment of the fines imposed on Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals B.V. should have also led to the annulment of the entire decision vis-à-vis these two legal entities.

In 2011, following the judgment of the Court of Justice in the ArcelorMittal case, the Commission was confronted with the fact that its power to impose a fine on Elementis and Ciba/BASF was time-barred. The Commission then decided to repeal its entire 2009 decision in as far as addressed to any legal entity of these two groups of companies.

If the Commission were to have taken the same approach concerning Akzo Nobel Chemicals GmbH and Akzo Nobel Chemicals B.V., which were in the same position, the Commission would have repealed its decision finding that these entities participated in the infringement in the first place. If these same situations were to have been treated equally, the question of attribution of liability would have never occurred since there was no need or legal basis for attributing any liability for a fine to Akzo Nobel N.V. in the first place.