OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 19 September 2013 ( 1 )

Joined Cases C‑231/11 P, C‑232/11 P and C‑233/11 P

European Commission

v

Siemens Österreich and Others (C‑231/11 P)

Siemens Transmission & Distribution Ltd (C‑232/11 P)

Siemens Transmission & Distribution SA and

Nuova Magrini Galileo SpA (C‑233/11 P)

v

European Commission

‛Appeals — Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Joint and several liability for payment of a fine — Scope of the powers of the Commission and the national courts — Concept of an ‘undertaking’ — Unlimited jurisdiction of the General Court — ‘Ne ultra petita’ rule — The audi alteram partem principle — Principle that penalties must be specific to the offender and the offence — Principle of equal treatment’

1. The three appeals forming the subject-matter of the present joined cases all seek the partial annulment of the judgment of the General Court of 3 March 2011 in Joined Cases T‑122/07 to T‑124/07 Siemens AG Österreich and Others v Commission ( 2 ) (the ‘judgment under appeal’). By that judgment, the General Court partially annulled and subsequently modified Commission Decision C(2006) 6762 final ( 3 ) (the ‘contested decision’), by which the Commission established the existence of an anti-competitive arrangement in the gas insulated switchgear (‘GIS’) sector ( 4 ) and imposed a series of fines on the undertakings which had participated in the arrangement.

2. The first appeal, brought by the Commission in Case C‑231/11 P, raises an important question of law, the answer to which may both affect the institutional balance between the bodies of the European Union and the Member States as regards the scope of the respective powers of the Commission and the national courts, and have a significant impact on the practical application by the Commission of the EU’s competition rules. In particular, by its appeal, the Commission challenges the judgment of the General Court in so far as, where the Commission imposes joint and several liability on several persons for infringing the rules on competition, the General Court claims that the Commission has the power and the duty to determine the internal relationships between the joint and several debtors of the fine which it has imposed (what are referred to as the internal relationships of joint and several liability) ( 5 ) and, consequently, to determine, in relation to every person subject to a joint and several penalty, the share of the fine that it will have to bear. ( 6 )

3. The second (Case C‑232/11 P) and third (Case C‑233/11 P) appeals are, on the other hand, brought by three companies fined for participating in the cartel in the GIS sector and seek, in essence, to challenge the fines which the General Court imposed on them in the exercise of its unlimited jurisdiction.

I – The facts

A – The appellants

4. The appellants in the second and third appeals are three companies which do not dispute that they participated in the cartel or that, during the period in which the cartel operated, that is between 1988 and 2004, they were involved in various complex company transactions which may be summarised briefly.

5. In particular, the appellant in Case C‑232/11 P Siemens Transmission & Distribution Ltd (formerly Reyrolle Ltd and, subsequently, VA Tech Reyrolle Ltd: ‘Reyrolle’) was a subsidiary of the Rolls-Royce Group between 1988 and 1998. On 20 September 1998, it was acquired by VA Technologie AG (‘VA Technologie’), which, in turn, on 13 March 2001, transferred it — through its wholly-owned subsidiary VA Tech Transmission & Distribution GmbH & Co KEG (‘KEG’) — as part of an operation designed to create a new company VA Tech Schneider High Voltage GmbH (‘VAS’). Initially, VA Technologie held 60% of the shares in VAS, the remaining 40% being held by Schneider Electric SA (‘Schneider’). ( 7 )

6. The two appellants in Case C‑233/11 P, Siemens Transmission & Distribution SA (‘SEHV’) and Nuova Magrini Galileo SpA (‘Magrini’) were two wholly-owned subsidiaries of Schneider until March 2001. On that date, as part of the process of creating VAS, Schneider transferred the two companies in question. ( 8 )

7. In October 2004, VA Technologie acquired from Schneider, through KEG, all of Schneider’s shares in VAS. ( 9 ) Finally, in 2005, Siemens AG acquired, through its subsidiary Siemens AG Österreich (‘Siemens Österreich’) exclusive control of the group whose parent company was VA Technologie (which included VAS, Reyrolle, SEHV, Magrini and KEG) (together, the ‘VA Tech Group’). Following that takeover, VA Technologie and, subsequently, VAS were merged with Siemens Österreich. ( 10 )

B – The administrative procedure and the contested decision

8. According to paragraphs 4 to 11 of the judgment under appeal, in response to an application for immunity from fines submitted in March 2004 ( 11 ) and alleging the existence of anti-competitive practices in the GIS sector, the Commission launched an investigation during which it carried out inspections, in particular, at the premises of the companies belonging to the VA Tech Group, of which the applicants formed part, and, subsequently, notified a statement of objections to 20 companies, including the appellants.

9. On 24 January 2007, the Commission adopted the contested decision. In its decision, the Commission stated that, in the GIS sector cartel, the various undertakings participating had agreed, among other things, on the allocation of markets worldwide, ( 12 ) on the fixing of prices and on the exchange of sensitive information. The Commission also found that the cartel operated between 15 April 1988 and 11 May 2004, but that participation by the companies in the VA Tech Group ceased between December 2000 and April 2002. ( 13 ) On the basis of those findings, the Commission imposed various fines on the undertakings that had participated in the cartel.

10. In particular, in Article 1(m), (q) and (r) of the contested decision, the Commission found that Reyrolle, SEHV and Magrini had participated in the infringement from 15 April 1988 to 13 December 2000 and from 1 April 2002 to 11 May 2004. In Article 1(p) and (t) of the contested decision, the Commission found that Siemens Österreich and KEG had participated in the infringement from 20 September 1998 to 13 December 2000 and from 1 April 2002 to 11 May 2004. In Article 1(n) of the contested decision, the Commission found that Schneider had participated in the infringement from 15 April 1988 to 13 December 2000.

11. In Article 2 of the contested decision, the Commission imposed the following fines in regard to the abovementioned infringements: ‘... (j) [Schneider]: EUR 3 600 000; (k) [Schneider]: jointly and severally with [SEHV] and [Magrini]: EUR 4 500 000; (l) [Reyrolle]: EUR 22 050 000, of which (i) jointly and severally with [SEHV] and [Magrini]: EUR 17 500 000, and (ii) jointly and severally with [Siemens Österreich] and [KEG]: EUR 12 600 000.’

C – The proceedings at first instance

12. In the actions brought before it against the contested decision by the companies which had formed part of the VA Tech Group, the General Court, as will be set out in greater detail below, began by annulling the decision in so far as it concerned the fines imposed on the appellants ( 14 ) and, subsequently, modified it in the exercise of its unlimited jurisdiction. It went on to determine the respective shares to be paid by each of the companies of the various fines imposed on them jointly and severally from the perspective of their internal relationship. ( 15 )

13. Paragraphs 2 and 3 of the operative part of the judgment under appeal therefore read as follows: ‘(2) [The General Court] [a]nnuls Article 2(j), (k) and (l) of [the contested decision]. (3) Imposes the following fines for the infringements found in Article 1(m), (p), (q), (r) and (t) of [the contested decision]: — [SEHV] and [Magrini], jointly and severally with [Schneider]: EUR 8 100 000; — [Reyrolle], jointly and severally with [Siemens Österreich], [KEG], [SEHV] and [Magrini]: EUR 10 350 000; — [Reyrolle], jointly and severally liable with [Siemens Österreich] and [KEG]: EUR 2 250 000; — [Reyrolle]: EUR 9 450 000.’

II – Procedure before the Court of Justice

14. By application of 13 May 2011, the Commission brought an appeal in Case C‑231/11 P, seeking the partial annulment of the judgment under appeal. By separate applications of 17 May 2011, Reyrolle, on the one hand, and SEHV and Magrini, on the other, also lodged appeals, in Cases C‑232/11 P and C‑233/11 P, respectively, seeking the partial annulment of the judgment under appeal.

15. By order of the President of the Court of 1 July 2011, the three cases were joined for the purposes of the written and oral procedure and of the judgment.

16. On 2 May 2013, the hearing took place before the Court

III – The appeal brought by the Commission in Case C‑231/11 P

17. The Commission raises seven grounds of appeal, all of which seek to challenge the judgment under appeal, albeit from different perspectives, in so far as the General Court stated that it is exclusively for the Commission to determine the respective shares to be borne by the various entities held jointly and severally liable for payment of the fine imposed on them for infringement of the competition rules and in so far as, applying that statement of principle in practice, the General Court went on to determine the respective shares of the fine which the various companies held jointly and severally liable were required to pay.

18. Before I analyse in detail the various grounds of appeal raised by the Commission, it is necessary to refer briefly to the essential elements of the General Court’s reasoning in those parts of the judgment under appeal and, thereafter, to consider certain questions of a preliminary nature regarding the subject-matter and scope of the appeal, as the answer to those questions may affect the admissibility and validity of the appeal.

A – The judgment under appeal

19. In the judgment under appeal, initially, at paragraphs 137 to 167, the General Court sets out the reasons which led it to annul the contested decision in so far as concerns the fines imposed on the appellants. More specifically, after reviewing and endorsing the Commission’s analysis as to the identity of the various companies to which the conduct of the undertakings participating in the cartel may be imputed, ( 16 ) the General Court goes on to consider the question of the calculation of the amount of the fines to be imposed on those companies. ( 17 ) At paragraphs 150 to 151 of the judgment under appeal, the General Court sets out a series of principles deriving from case-law, before going on, in paragraphs 153 to 159, to formulate a whole series of considerations concerning joint and several liability in the context of the internal relationship between joint and several debtors. It is against those considerations that the Commission specifically directs its appeal.

20. In particular, the General Court states that it follows from the principle that penalties must be specific to the offender and the offence that each company must be able to discern from the decision imposing a fine on it, to be paid jointly and severally with one or more other companies, the amount which it is required to bear in relation to the other joint and several debtors, once payment has been made to the Commission. To that end, the Commission must specify the periods during which the companies concerned were (jointly and severally) liable for the unlawful conduct of the undertakings which participated in the cartel and, where appropriate, the degree of responsibility of those companies for that conduct. The General Court also considers that the concept of ‘joint and several liability for the payment of fines’ is an autonomous concept of EU law which must be interpreted by reference to the objectives of competition law. ( 18 )

21. In that context, according to the General Court, the decision by which the Commission imposes on several companies joint and several liability for payment of a fine necessarily produces all the effects which are inherent, by force of law, in the legal rules governing the payment of competition law fines, both as regards (external) relationships between creditors and joint and several debtors and (internal) relationships between the joint and several debtors themselves. It is therefore solely for the Commission, in exercising its power to impose fines under Article 23(2) of Regulation No 1/2003, ( 19 ) to determine the respective shares of the various companies held jointly and severally liable for payment of the fines imposed on them, in so far as they formed part of the same undertaking, and that task cannot be left to the national courts. ( 20 )

22. In the absence of any indication in the Commission’s decision that certain companies have a greater share of responsibility than others for the participation, during a given period, by the undertaking of which they form or formed part in the infringement established, they must be regarded, according to the General Court, as being liable in equal measure and, consequently, as being required to pay equal shares of the fine for which they are jointly and severally liable. ( 21 )

23. Having thus outlined the legal rules governing joint and several liability in relation to fines for the infringement of the EU’s competition rules, the General Court identifies, at paragraphs 161 to 165 of the judgment under appeal, three respects in which it claims that the Commission’s determination of the fines was unlawful. ( 22 ) Taking the view that the Commission had therefore infringed the principle that penalties must be specific to the offender and the offence, the General Court partially annulled Article 2 of the contested decision in paragraph 2 of the operative part of the judgment, as set out in point 13 above.

24. At paragraphs 236 to 264 of the judgment under appeal, in the exercise of its unlimited jurisdiction, the General Court went on to vary the contested decision. In that connection, it is sufficient to point out here that, as well as determining the amounts of the fines which the applicants at first instance are under a joint and several obligation to pay to the Commission, the General Court specifically determined, at paragraphs 245, 247, 261 and 263, the share of the fine which each company is required to pay in the context of their internal relationship as joint and several debtors. The General Court specifically based its determination on the considerations set out in paragraphs 158 and 159 of the judgment under appeal (summarised at point 22 above), finding that, in the absence of any indication in the contested decision as to the degree of responsibility of each company, they must pay an equal share of the fine for which they have been held jointly and severally liable.

B – Subject-matter of the appeal

25. In its application, the Commission specifically states that its appeal is directed solely against paragraphs 153 to 159 of the judgment under appeal (summarised at points 20 to 22 above) and the consequent determination of the share of the fine which each company is required to bear in the context of the internal relationships between the companies as joint and several debtors carried out by the General Court at paragraphs 245, 247, 262 and 263 of the judgment under appeal on the basis of those considerations. The fact that the Commission’s appeal is confined to those two aspects of the judgment under appeal is, moreover, borne out, by the wording of the forms of order sought. ( 23 )

26. It is, however, clear that, as the Commission itself acknowledges, neither the considerations concerning the rules on the internal relationship governing joint and several liability set out in paragraphs 153 to 159 of the judgment under appeal, nor the inferences which the General Court draws from those considerations, at paragraphs 245, 247, 262 and 263 of the judgment under appeal, for the purposes of redetermining the fines in the exercise of its unlimited jurisdiction, are formally reflected in the operative part of the judgment. As is apparent from point 13 above, the operative part of the judgment under appeal contains no specific reference to determining the respective share of the fine which each of the companies on which the fine was imposed jointly and severally must bear.

27. Furthermore, the considerations set out by the General Court at paragraphs 153 to 159 of the judgment under appeal do not, in my view, constitute the direct basis of the partial annulment of the contested decision ordered in paragraph 2 of the operative part. The three elements of illegality identified by the General Court at paragraphs 161 to 165 of the judgment under appeal, ( 24 ) which the Commission does not dispute before this Court, relate to breach of the principle that penalties must be specific to the offender and the offence in relation to questions pertaining to the external aspect of the joint and several liability of companies ordered to pay a fine, that is to say their liability for payment of the fine to the Commission, rather than questions pertaining to the relationship between the companies themselves as joint and several debtors. ( 25 ) While, as I shall explain in greater detail below, they undoubtedly constitute the basis for the General Court’s actual determination of the respective shares at paragraphs 245, 247, 262 and 263 of the judgment under appeal, the considerations set out in those paragraphs appear to represent a kind of obiter dictum in the General Court’s analysis, which results in the partial annulment of the contested decision at paragraph 2 of the operative part of the judgment under appeal. Consequently, I do not accept the Commission’s claim that those considerations constitute the primary reasons on which that partial annulment is based, irrespective of the fact that, at paragraph 160 of the judgment under appeal, the General Court criticised the Commission for failing to take account of the ‘principles referred to above’.

28. In the light of those considerations, it must be concluded that, even if the Court were to uphold in its entirety the appeal brought by the Commission and annul the parts of the judgment against which the appeal is directed, the operative part of the judgment would not in any event be formally modified. A situation of that nature raises a range of issues which demand closer analysis.

1. Whether the Commission must have an interest in bringing proceedings in relation to the appeal

29. First of all, in circumstances in which an appellant cannot, by its appeal, actually secure the setting aside of the operative part of the judgment under appeal, the question arises as to whether the appellant has an interest in bringing such proceedings. In that connection, I must, however, point out that the case-law is far from unequivocal on the issue of whether or not it is necessary for an institution or, more generally, for a party enjoying privileged status like the Commission, to demonstrate the existence of an interest in bringing proceedings, in the context of an appeal before the Court of Justice, against a judgment of the General Court.

30. It is absolutely clear from a first line of case-law, originally to be found in the judgment in Anic Partecipazioni, ( 26 ) that, whether or not they were parties to the case at first instance, ‘the Community institutions do not ... have to show interest in order to bring an appeal against a judgment of the General Court’. ( 27 ) That statement of principle, the justification for which is to be found in the third subparagraph of Article 56 of the Statute of the Court of Justice, ( 28 ) was then specifically reiterated in subsequent judgments of the Court, ( 29 ) including in a judgment handed down by the Grand Chamber. ( 30 )

31. None the less, in various other judgments, when hearing an appeal against a judgment of the General Court, the Court of Justice has analysed whether privileged applicants, the Commission in particular, fulfilled the requirement of having an interest in bringing proceedings, and has even declared certain appeals to be inadmissible on the ground that such institution did not have an interest in bringing proceedings. ( 31 )

32. As far as the two abovementioned lines of case-law are concerned, I am inclined towards the former view. On the one hand, the judgments that fall within that line of case-law appear to me, unlike the judgments that fall within the other, to reflect a specific choice made by the Court, which was subsequently confirmed in a judgment handed down by the Grand Chamber. On the other, I consider that, in the same way as the rules regarding actions for annulment, which, according to settled case-law, may be brought by privileged applicants without it being necessary for them to establish an interest in bringing proceedings, ( 32 ) the actual reason for the favourable treatment accorded to such applicants in appeals against a judgment of the General Court may be the special position which they occupy within the EU’s legal order, which may justify according them the right to bring an appeal without requiring them to establish that they have an interest in bringing proceedings. ( 33 )

33. That reasoning is, moreover, reflected in the second and third paragraphs of Article 56 of the Statute, which provide for a derogation for EU institutions and for Member States from the conditions for bringing an appeal, in order to facilitate the lodging of an appeal. This does not, however, mean that, as will also be seen in point 34 below, such applicants enjoy an unrestricted possibility of appealing against the judgments of the General Court before the Court of Justice. ( 34 )

2. The effects of the appeal being upheld on the operative part of the judgment under appeal

34. Secondly, and setting aside the question of whether the applicant has an interest in bringing proceedings, in a situation such as that described in point 28 above, it is necessary to examine the extent to which it is possible to lodge an appeal, even as a privileged applicant, seeking the annulment of parts of the grounds of the judgment where the annulment does not have any formal impact on the operative part of the judgment. On the one hand, according to case-law, an appeal against the grounds of the judgment under appeal which have no impact on its operative part must be dismissed as ineffective. ( 35 ) Moreover, it is specifically with a view to preventing the lodging of appeals designed solely to challenge the grounds of the judgment of the General Court that Article 169 of the new Rules of Procedure of the Court of Justice was introduced. ( 36 ) On the other hand, the possibility of requesting the Court to substitute grounds is subject to very strict limitations under case-law. ( 37 )

35. However, I consider that, in the present case, the appeal cannot be regarded as being directed against grounds which have no hearing on the operative part of the judgment under appeal. Even though, as indicated in point 25 above, the Commission’s appeal is directed solely against legal considerations set out in the grounds of the judgment and the related inferences which General Court draws from those considerations in the particular circumstances of the case — considerations and inferences which are not expressly reflected in the operative part of the judgment under appeal, with the result that the granting of the appeal would not necessarily result in formal amendment of the operative part of the judgment under appeal — I none the less consider that both those considerations and the related inferences, although not expressly referred to in the operative part, constitute an integral part of the findings in the judgment under appeal ( 38 ) and therefore constitute a necessary element in the interpretation of that judgment, in particular its operative part.

36. Where, in paragraph 3 of the operative part of the judgment, the General Court imposes ‘jointly and severally’ on the various companies the obligation to pay the fines — as redetermined by the General Court –, that cannot be read in isolation from the content of paragraphs 245, 247, 262 and 263 of the judgment under appeal, in which the General Court determined the share of the fine to be paid by each company held jointly and severally liable in the context of its internal relationship with the other joint and several debtors. In fact, in the present case, although the operative part does not contain express references to the way in which the fine is to be apportioned among the joint and several debtors, the joint and several liability of the companies imposed by the General Court in the operative part can be understood only in the light of what is established in the abovementioned paragraphs of the judgment under appeal, which, furthermore, are expressly and necessarily based on the legal considerations set out by the General Court in paragraphs 153 to 159 of the judgment under appeal and are consequently indissociable from them.

37. In that regard, it should also be recalled that it is clear from case-law that the operative part of a judgment must be read in the light of the grounds which have led to it and constitute its essential basis, in so far as they are necessary for the purpose of determining the exact meaning of what is stated in the operative part. ( 39 )

38. It is also established case-law that the force of res judicata extends to the grounds of a judgment which constitute the necessary support of its operative part and are therefore inseparable from it, ( 40 ) and the Commission is required to have due regard for those grounds in so far as they are necessary for the purpose of determining the exact meaning of what is stated in the operative part of the judgment. ( 41 ) Consequently, as the Commission maintains, the parts of the judgment under appeal which form the subject-matter of its appeal and relate to its power to determine the internal relationships between those held jointly and severally liable for payment of the fine may acquire the force of res judicata and be binding on the Commission in terms of how, in practice, it applies the rules on penalties in the field of competition in the future.

39. In conclusion, in the light of the foregoing considerations, I consider that the Commission’s appeal is admissible but ineffective, ( 42 ) in so far as it seeks the setting aside of paragraph 2 of the operative part. Indeed, as stated in point 27 above, the considerations set out in paragraphs 153 to 159 of the judgment under appeal, against which the appeal is specifically directed, do not constitute the basis for the annulment of the contested decision, so that, even if the Court were to uphold the Commission’s appeal and annul those paragraphs of the judgment, that would have no impact on paragraph 2 of the operative part.

40. On the other hand, I consider the Commission’s appeal to be admissible and effective, in so far as it seeks the setting aside of paragraph 3 of the operative part of the judgment under appeal. Indeed, as is clear from the considerations set out at points 35 to 38 above, if the Court of Justice were to uphold that claim and consequently set aside the determination of the shares of the fine carried out by the General Court in the exercise of its unlimited jurisdiction, that would affect the interpretation of the precise meaning of what is stated by the General Court in paragraph 3 of the operative part of the judgment under appeal. In those circumstances, it must be concluded that the claim put forward by the Commission in the alternative, seeking the setting aside of the judgment under appeal in so far as it states, at paragraphs 153 to 159, that it is incumbent upon the Commission to determine the shares of the fine to be paid by the joint and several debtors, is admissible and effective, since that assertion constitutes the necessary and indissociable basis for the determination of those shares in paragraph 3 of the operative part of the judgment, the annulment of which is sought.

41. Consequently, the analysis of the Commission’s appeal which follows will be confined to those two aspects, namely the determination of shares of the fine carried out by the General Court in the exercise of its unlimited jurisdiction and the legal considerations set out in paragraphs 153 to 159 of the judgment under appeal, in so far as they constitute the necessary and indissociable basis for that determination.

C – Substance of the appeal

1. The first ground of appeal concerning an error of law in the interpretation of Article 23 of Regulation No 1/2003 in relation to the respective powers of the Commission and of the national courts.

42. The Commission contends that the General Court erred in law in its interpretation of Article 23 of Regulation No 1/2003 in that, by finding in the judgment under appeal that it is for the Commission to determine the respective shares of the fine to be paid by those held jointly and severally liable on account of an infringement of the EU’s competition rules, the General Court attributed to the Commission powers, and imposed upon it obligations, which go beyond what is necessary for the prosecution of infringements of those rules, thereby undermining the legal orders of the Member States. According to the Commission, the power to determine the internal relationships between joint and several debtors, including any rights of recovery as between them, falls within the scope of the law of the Member States, and it is therefore for the national courts to settle disputes in that regard.

43. The first ground of the present appeal raises questions concerning the division of powers between the bodies of the EU, specifically the Commission, and those of the Member States, specifically the national courts, as well as questions relating to the scope of EU law and that of the law of the Member States.

44. In that regard, it should be recalled that, as already observed in points 21 and 22 above, on the basis of the considerations set out in paragraphs 153 to 156 of the judgment under appeal, the General Court stated in paragraph 157 of the judgment that it is solely for the Commission, in exercising its power to impose fines under Article 23(2) of Regulation No 1/2003, to determine the respective shares of the various companies held jointly and severally liable for payment of the fines imposed on them, in so far as they formed part of the same undertaking, and that task cannot be left to the national courts. However, it is clear from paragraphs 158 and 159 of the judgment under appeal that, in the absence of any indication in the Commission’s decision that some companies have a greater share of responsibility than others, it must be presumed that the companies are all equally responsible and, accordingly, must pay an equal share of the fines for which they are jointly and severally liable.

45. That being the case, I should point out first of all that, although the Commission states at several junctures in its appeal that the General Court placed it ‘under an obligation’ to determine the internal relationships between the joint and several debtors responsible for payment of the fine, ( 43 ) the terms of the General Court’s judgment are not in fact entirely clear as to whether or not a genuine obligation is placed on the Commission in that regard. Indeed, although the terms used in paragraph 153 ( 44 ) appear to presuppose the existence of an obligation of that nature, the use of the expression ‘[i]t is ... for the Commission’ ( 45 ) in paragraph 157 casts doubt on whether the General Court intended to impose a genuine obligation on the institution, particularly since, in any event, under the system envisaged by the General Court, the failure to exercise that power does not seem to lead to the annulment of the decision, but instead to the automatic application of the rule that liability (and thus the share of the fine) is regarded as being equally apportioned among the joint and several debtors.

46. In those circumstances, there is no doubt that under the system envisaged by the General Court, the Commission has the power to carry out such a determination, thus precluding the power of the national courts in that regard. Furthermore, under that system, that power is, in principle, likely to be exercised in any case in which the Commission imposes on a number of persons joint and several liability for payment of a fine for infringement of the competition rules, the failure to exercise that power actually triggering application of the rule that liability and the fine are to be apportioned equally.

47. It is in the light of those considerations that it is necessary to analyse the first ground of appeal.

(a) The Commission’s powers

48. It is appropriate to begin by pointing out that, under the conferral principle, the European Union is to act only within the limits of the powers conferred upon it by the Member States in the Treaties to attain the objectives laid down in the Treaties (Article 5(2), first sentence, TEU). Any powers not conferred upon the European Union in the Treaties remain with the Member States (Articles 4(1) and 5(2), second sentence, TEU). In particular, pursuant to Article 3(1)(b) TFEU, the European Union has exclusive competence to establish the competition rules necessary for the functioning of the internal market.

49. The exercise of the powers of the European Union is based on the principle of proportionality, under which the content and form of EU action may not exceed what is necessary for the attainment of the objectives laid down by the Treaties. The institutions of the European Union are required to apply that principle (Article 5(4) TEU). Moreover, each institution must act within the limits of the powers conferred on it by the Treaties (Article 13(2), first sentence, TEU).

50. The legal basis of the power conferred on the Commission to penalise infringements of the EU’s competition rules is to be found in Article 23(2) of Regulation No 1/2003, which was adopted on the basis of Article 103 TFEU (formerly Article 83 EC). It follows from Article 103(2)(a) TFEU that the purpose of the power to impose fines conferred on the European Union is to ensure observance of the prohibitions laid down in the competition provisions of the TFEU. The Court has also clarified that the purpose of that provision is, specifically, to ensure the effective supervision of cartels and abuses of dominant positions. ( 46 )

51. The power to impose fines on undertakings which, intentionally or negligently, infringe Articles 101 TFEU and 102 TFEU is a power specific to the Commission, which it derives from the provisions of the Treaty. ( 47 ) It is one of the means enabling the Commission to carry out the task of supervision entrusted to it by EU law, ( 48 ) and to perform its role as the institution responsible for defining and implementing EU competition policy. ( 49 )

52. In particular, the power of the Commission to impose a fine jointly and severally on persons who, in the context of the economic unit formed by an undertaking, have participated, directly or indirectly, in the infringement, is not expressly provided for in any of the European Union’s competition legislation. However, the Commission has been recognised as having such power by case-law, as joint and several liability constitutes an additional legal device arising from the need to guarantee the effectiveness of the action taken by the Commission to ensure that the implementation of EU competition rules and the pursuit of infringements of those rules are effective. ( 50 ) By expanding the category of persons from whom the Commission may seek payment of the fine in its entirety, the device of joint and several liability helps to secure the effective enforcement of the penalty by reducing the risks of insolvency and fraudulent transactions designed to avoid payment of the fine, thus contributing, as pointed out in paragraph 151 of the judgment under appeal, to the objective of deterrence which is designed to ensure compliance by undertakings with the EU competition rules. ( 51 )

53. The power to penalise several persons belonging to the same undertaking for infringing EU competition rules by imposing on them an (external) obligation of joint and several liability therefore falls unquestionably, in my view, within the scope of the Commission’s power to impose penalties, as envisaged by Article 103(2)(a) TFEU and given practical effect by Article 23(2) of Regulation No 1/2003. This is not, moreover, disputed in the present case.

54. With regard specifically to the determination of what has been referred to as the internal relationship of joint and several liability, I would point out that there is nothing in the wording or rationale of Article 103(2)(a) TFEU or Article 23(2) of Regulation No 1/2003 to suggest that, when exercising its power to impose fines on undertakings for infringement of the competition rules, the Commission is prevented from determining the share which each debtor on whom a fine has been imposed jointly and severally must bear, to the extent that it deems necessary in a specific case, in order to guarantee the attainment of the underlying objective of the power to impose fines, namely to guarantee compliance with the Union’s competition rules. Therefore, to the extent that that is necessary in order to attain that objective, it is not, in my view, possible in the abstract to deny the Commission the authority, with regard to its power to impose fines, to determine the way in which the fine is to be apportioned among joint and several debtors. ( 52 )

55. It is in my view necessary in some cases to determine the shares of each person held jointly and severally liable for payment of a fine in view of requirements relating to respect for principles such as the principle of legal certainty or the principle that penalties must be specific to the offender and the offence, as, for example, in the case — analysed in greater detail in the context of the third ground of appeal ( 53 ) — in which at the time when the decision is adopted, the economic entity which committed the infringement no longer exists in the form in which it existed when the infringement occurred, and the Commission proposes, in the exercise of its discretion, to penalise jointly and severally for that infringement legal persons who are no longer tied by economic, organisational or legal links of the kind that demonstrate membership of the same undertaking for the purposes of competition law.

56. Nevertheless, it does not seem to me that it can be regarded as incumbent on the Commission automatically to determine the internal relationships between those held jointly and severally liable for the fine, and still less that it has a duty to carry out such a determination. Usually, and save in particular cases, the reasons for a determination of that nature are not the same as the reasons referred to in point 52 above justifying the imposition of joint and severally liability from an external perspective. Once the fine has been paid by one of the entities which make up the undertaking and on which the fine has been imposed jointly and severally, and once, therefore, the actual recovery of the fine imposed for infringement of the EU’s competition rules has been ensured, the objectives of guaranteeing the effective application of those rules and of deterring future infringements, which are intrinsic to the power to impose penalties conferred on the Commission, will normally have been achieved, with the result that the determination of the internal relationships between those held jointly and severally liable for payment of the fine does not appear to be generally necessary for the attainment of those objectives.

57. In that regard, it should also be recalled that it is established case-law that EU competition law refers to the activities of undertakings ( 54 ) at which the Union’s competition rules are directed. Consequently, those rules do not, in principle, govern relations between the entities that make up the undertaking.

58. Furthermore, from a practical perspective, it must be pointed out that the imposition of a general duty on the Commission to determine, in every case, how liability is to be apportioned among the legal persons forming part of the economic unit which has committed the infringement, where a fine has been imposed jointly and severally on those legal persons, would be likely significantly to slow down the Commission’s investigations, thereby jeopardising the effective implementation of EU competition rules, ( 55 ) which, as indicated in point 52 above, is precisely the function of the legal device of joint and several liability.

59. In conclusion, I therefore consider that it is not possible in the abstract to deny that, in exercising its power to impose fines, the Commission may determine how the fine is to be apportioned among those on whom it has been imposed jointly and severally (what is referred to as the ‘internal relationship’ of joint and several liability). However, to the extent that Commission action in exercising that power accorded to it by the Treaties is confined, in accordance with the abovementioned principle of proportionality, to what is necessary for the attainment of the specific objective of that power, the Commission is entitled to determine the internal relationships of joint and several liability among those held liable for payment of the fine, only in so far as that is necessary in order to attain that objective, namely to guarantee observance of the prohibitions laid down in EU competition rules. It will be for the Commission to assess whether it is necessary to carry out such a determination on a case-by-case basis, except in those cases in which, as in the case cited in point 55 above, which will be considered in greater detail in points 83 et seq., that power must be exercised.

60. In my view, it follows from the above considerations that, while it is not possible to share the Commission’s argument denying absolutely that it enjoys a power of that nature, nor can it be maintained, as is clearly maintained by the General Court in paragraphs 153 to 159 of the judgment under appeal, that it is generally incumbent on the Commission to determine the shares to be paid by those held jointly and severally liable for payment of a fine.

(b) The jurisdiction of the national courts

61. As regards the jurisdiction of the national courts, on the other hand, it must be pointed out that they may intervene on various bases in the application of the Union’s competition rules, ( 56 ) in accordance with the powers conferred on them by their respective national laws. They may be called upon to apply those rules in disputes between private parties or may intervene as the authorities responsible for the enforcement of those rules to protect the public interest or as the courts responsible for reviewing administrative decisions.

62. However, the specific function peculiar to the national courts in enforcing the Union’s competition rules consists in protecting the individual rights guaranteed by those rules when deciding disputes between private individuals. ( 57 ) From that perspective, the national courts perform a role which is complementary to, and different from, that of the enforcement by an administrative authority, acting in the public interest, of the EU competition rules. ( 58 )

63. By way of preliminary comment, I would point out that both the approach taken by the General Court in the judgment under appeal ( 59 ) and the stance adopted by the Commission in its appeal are based on the notion of exclusive competence to determine the share of the fine to be paid by each of those held jointly and severally liable: the General Court considers that it is for the Commission to carry out that determination, while the latter considers that it is a matter for the national courts. However, I see no reason why it should be strictly necessary to adopt an approach whereby exclusive competence is conferred on one body to the exclusion of competence on the part of the other. In that regard, I would point out that the system for the application of the competition rules is based — particularly following the modernisation of the application of those rules under Regulation No 1/2003 — on a system under which the Commission and the national authorities of the Member States (including the national courts) enjoy concurrent and parallel powers. ( 60 )

64. In those circumstances, I therefore consider that where, in a case before a national court questions arise concerning the internal relationships between those held jointly and severally liable for the payment of a fine for infringement of EU competition rules, which involve the need to protect the individual rights of those persons, the national court may be regarded as having jurisdiction to settle those questions, provided that the Commission has not already exercised its powers in that regard.

65. At this point, it is also necessary to clarify whether — and on what basis — a joint and several debtor who has paid the entire fine to the Commission has an individual right vis-à-vis the other joint debtors to recover their share of the fine, and, if the issue of the internal relationship of joint and several liability has not been addressed by the Commission, that person can enforce that right before a national court.

66. In that regard, I would first point out that I agree with the General Court when, at paragraph 155 of the judgment under appeal, it states that ‘the concept of “joint and several liability for the payment of fines” is an autonomous concept [of EU law] which must be interpreted by reference to the objectives and system of competition law of which it forms part’. It is also absolutely clear from the considerations which I have set out in points 52 to 59 above that the concept of joint and several liability must be interpreted in the light of those objectives and in the context of that system. ( 61 )

67. Those considerations notwithstanding, it is, however, necessary to point out that the Commission’s decision imposing on a number of persons joint and several liability for the payment of a fine undoubtedly produces certain legal effects that are likely to create debtor/creditor relationships between those persons. The Commission’s decision creates a joint and several obligation on all such persons to pay the fine. The payment by one of those persons of the whole amount of the fine, which has been imposed on that person jointly with others, releasing all the other joint and several debtors from their debt to the Commission, consequently gives rise to a right of recovery on the part of the debtor who paid the fine. It seems to me that this right arises logically from the payment by just one person of a debt for which that person is jointly and severally liable along with others on whom the fine was imposed for the same unlawful acts performed, as if by a single entity, in breach of an EU rule (specifically a competition rule).

68. However, that right of recovery may not, in my view, be construed as a right conferred by EU law on individuals, the judicial protection of whom must, according to the Court’s case-law, be guaranteed by the EU judicature. ( 62 ) There is nothing which leads me to conclude that EU competition rules confer directly on a joint and several debtor a right to recover the shares of the fine for which the other joint and several debtors are liable and which the former has paid in full. Rather, this seems to me to be simply a right of claim arising from the discharge of an obligation, which itself arises from an EU measure affecting a number of persons jointly and severally. The existence and exercise of that right of claim are not therefore, in my view, governed by EU law but fall within the scope of national law.

69. It will therefore be for the national court before which an action for recovery has been brought, to determine, in accordance with the rules of the national law in question, the conditions governing the existence of any right of recovery benefiting a joint and several debtor who has paid the full amount of the fine, and to apply the relevant rules, of both a substantive and a procedural nature, necessary for the exercise of that right. In exercising that jurisdiction, the national court will undoubtedly, where appropriate, be able to avail itself of the measures of cooperation with the Commission made available to it under Regulation No 1/2003.

70. The national court will clearly be able to determine whether the joint and several debtor has a right of recovery and, consequently, to determine the internal relationships between those held jointly and severally liable for payment of the fine, only if such a determination has not already been carried out by the Commission in the exercise of its powers, in accordance with the criterion set out in point 59 above. If the Commission has exercised its competence, the role of the national court will be limited to that of the court responsible for enforcement.

(c) Conclusion on the first ground of appeal

71. In conclusion, as far as the present case is concerned, it is clear from all of the foregoing that, in my view, in so far as it found, at paragraph 157 of the judgment under appeal, that it is solely for the Commission, in the exercise of its power to impose fines, to determine the respective shares to be paid by the various companies of the fine imposed upon them jointly and severally, and that this task cannot be entrusted to the national courts, the General Court erred in law. The practical consequences of that error will be discussed at paragraphs 125 et seq. below.

2. The third and seventh grounds of appeal concerning, respectively, errors of law in the interpretation of the principle that penalties must be specific to the offender and the offence and the principle that undertakings are responsible for infringements of EU competition rules, and consequent undermining of the power of the Commission to identify the persons to whom liability for the infringement may be imputed

72. Having clarified the issues relating to powers, which, logically, must be settled before other issues, I consider it appropriate to turn now to the Commission’s third ground of appeal and, at the same time, the seventh ground of appeal, which seems to me to follow on from the third ground. Those grounds of appeal actually raise a number of fundamental questions of principle which, in my view, need to be analysed first, before considering the other grounds of appeal.

73. By the third ground of appeal, the Commission contends that the General Court erred in law by taking the view that it follows from the principle that penalties must be specific to the offender and the offence that each addressee of a decision holding it jointly and severally liable for payment of a fine for infringement of the rules on competition must be able to discern from the decision the amount which it is required to bear in relation to the other joint and several debtors, once payment has been made to the Commission. The fact that the General Court attributes to the Commission the responsibility for determining each company’s individual liability, which forms the basis for determining the shares of each of the joint and several debtors, is, according to the Commission, incompatible with the concept that the prohibitions laid down in Articles 101 TFEU and 102 TFEU are directed at undertaking and that undertakings are liable for infringements of those prohibitions. By the seventh ground of appeal, the Commission claims that the obligation imposed on the Commission by the General Court also undermines unduly the Commission’s power to identify the persons, within the undertaking, to whom liability for the infringement may be imputed.

74. It should be noted first of all that the principle that penalties must be specific to the offender and the offence, on which, as is clear from point 20 above, the General Court based, at paragraph 153 of the judgment under appeal, its finding that the Commission is required to determine the share of each of the companies jointly and severally liable for payment of the fine, is a corollary to the principle of personal responsibility and, together with that principle, constitutes a fundamental guarantee deriving from criminal law that limits the public authority’s right to impose punishment. ( 63 ) Those principles apply in relation to competition law, including in regard to legal persons, ( 64 ) because the penalties which may be imposed by the Commission to punish anti-competitive behaviour have ‘a character similar to criminal law’. ( 65 )

75. In particular, in accordance with the principle of personal responsibility, itself the corollary to the principle of fault, ( 66 ) each person is responsible only for his own acts. ( 67 ) In accordance with the principle that penalties must be specific to the offender and the offence, more specifically, a person may be penalised only for acts imputed to him individually. ( 68 ) In accordance with that principle, therefore, only the person responsible for the infringement may be punished for that infringement, ( 69 ) and, consequently, no punishment may be imposed on any person other than the person at fault. ( 70 )

76. Moreover, as I have already observed in point 57 above, EU competition law refers to the activities of undertakings. Settled case-law defines an undertaking as encompassing any entity engaged in an economic activity, regardless of the legal status of the entity and the way in which it is financed.’ ( 71 ) In that regard, the Court has also stated that, in competition law, the term undertaking must be understood as designating an economic unit — for the purpose of the agreement — even if in law that economic unit consists of several natural or legal persons. ( 72 )

77. It is also settled case-law that when such an economic entity infringes the competition rules, it falls to that entity, in accordance with the principle of personal responsibility, to answer for that infringement. ( 73 ) It follows from this that the principle of personal responsibility applies primarily to the undertaking. As the EU competition rules are directed at undertakings, if an undertaking commits, intentionally or negligently, an infringement of those rules it must, as a single economic entity — albeit not necessarily an entity possessing separate legal personality — bear personal responsibility for the infringement. ( 74 )

78. However, if the undertaking which has committed the infringement of the competition rules is made up of several legal persons, the question arises as to which person or persons may be called upon to answer for that infringement in practice, by the imposition of a penalty. Even though the Union’s competition rules refer to undertakings and are directly applicable to them, regardless of the manner in which they are organised and their legal form, in view of the need for those rules to be effectively implemented, the Commission’s decision to put an end to and penalise the infringement must in practice be addressed to persons against whom enforcement measures may be taken to secure the payment of the fine in question. ( 75 )

79. It is specifically this polarity between the concept of the undertaking as an economic unit at which the competition rules are directed, on the one hand, and the individual legal persons required in practice to answer for the infringement, on the other, that gives rise to some uncertainty regarding the actual scope of the abovementioned principles, which, notwithstanding the Court’s case-law referred to in point 77 above, are often applied not in relation to the undertaking as such, but in relation to the individual legal persons of which it is made up. ( 76 )

80. In that regard, I nevertheless consider that, in the case of an undertaking made up of various legal persons, the persons who have participated in the cartel, as well as the ultimate parent company which exercises a decisive influence over them, may be regarded as legal entities collectively constituting a single undertaking for the purposes of competition law which may be held responsible for the acts of that undertaking. ( 77 ) Consequently, if the Commission establishes that the undertaking has, either intentionally or negligently, committed an infringement of EU competition rules, it may determine the personal and collective liability of all of the legal persons who make up the economic unit ( 78 ) and who, by acting together, have participated, directly or indirectly, ( 79 ) in the commission of the infringement.

81. It is specifically for that reason that the Court has found it to be compatible with the principle of personal responsibility — as well as with the objective of the effective implementation of the competition rules — to require the legal persons who participated in the infringement and, along with them, the person who exercised decisive influence over them, to bear joint and several responsibility, specifically because those persons form part of a single economic unit and, therefore, form a single undertaking within the meaning of the case-law cited in point 76 above. ( 80 ) Similarly, as they all form part of the undertaking, and, in order to ensure that penalties are properly enforced, the Court has recognised that the Commission has discretion to decide whether to penalise solely the subsidiary which participated in the infringement, solely the ultimate parent company which controlled the subsidiary during the period when it participated in the infringement, ( 81 ) or whether to penalise both jointly and severally. ( 82 )

82. It is clear from the considerations set out above, and from the rationale for the device of joint and several liability set out in point 52 above, that the power enjoyed by the Commission and recognised by case-law to impose joint and several liability for the payment of a fine on a number of persons for infringement of the EU competition rules derives from the very concept of an undertaking and may be justified only to the extent that the persons in question form part — or have formed part — of the single economic entity called upon to answer for that infringement. In other words, the precondition for enabling the Commission to impose joint and several liability for payment of a fine for infringement of the EU competition rules is that the persons on whom the fine is imposed jointly and severally belong — or have belonged — to the same economic unit which committed that infringement and which is, therefore, required to bear personal responsibility for it. ( 83 ) Those legal persons which form part of a single undertaking for the purposes of competition law may therefore be regarded as personally and, where appropriate, jointly and severally liable for the acts of that undertaking. ( 84 )

83. What, however, is the position if one (or more) legal persons who have participated in the infringement of the competition rules as part of an economic unit, cease to be part of that unit, for instance — as in the present case in relation to SEHV and Magrini — following a transfer that took place while the cartel was still operating, with the result that, at the time when the Commission adopted its decision, the legal person, or persons no longer formed part of the economic unit that committed the infringement? Is the Commission still able to penalise the legal person or persons in question for that infringement jointly and severally along with the persons with whom it or they formed part of the single economic unit?

84. I take the view, first of all, that, in a case of that nature, in accordance with what is stated at point 80 above, the legal persons which made up the unit continue to bear personal and collective responsibility for all the acts committed by the economic entity of which they formed part for the duration of that entity’s existence. ( 85 ) Moreover, since it is the fact that the conduct of the economic entity on the market is treated as the conduct of a single entity that justifies imputing joint and several liability for all the unlawful conduct to each of the legal persons that form part — or formed part — of the entity when that conduct commenced, they continue to bear responsibility from the Commission’s external perspective for payment of the entire fine. ( 86 )

85. However, if the economic unit in the form in which it existed when the infringement was committed no longer exists at the time when the Commission’s decision is adopted, where the entity or entities in question are held jointly and severally liable for payment of a fine, the principle that penalties must be specific to the offender and the offence gives rise, in my view, to the need for legal certainty with regard to the determination of the fine as regards the persons who no longer form an economic unit. While such persons remain liable from the Commission’s external perspective for payment to the Commission of the whole of the fine for the infringement committed by the undertaking, as they no longer formed part of a single economic unit at the time when the decision was adopted, they must be able to discern the share of the fine that they will have to bear in the context of their internal relationships with the joint and several debtors with whom they no longer have any economic, organisational or legal link sufficient to justify their inclusion with those debtors in an economic unit. ( 87 )

86. It follows from the foregoing that, in circumstances in which, in exercising the abovementioned discretion to decide which of the persons to whom liability attaches to penalise for the conduct for which the undertaking is responsible, the Commission intends to establish joint and several liability as between the persons who constituted an economic entity at the time when the infringement was committed but who no longer formed part of that same economic unit at the time of the decision’s adoption, the Commission cannot avoid the obligation to determine the share of the fine which the person who no longer has any links justifying his inclusion in the economic unit will have to pay in the context of his internal relationships with the other joint and several debtors. It should be pointed out here that the decision to hold such persons jointly and severally liable is simply a matter for the Commission’s discretion. ( 88 )

87. From that perspective, I consider that, if the Commission opts to follow that approach, it must carry out an analysis on a case-by-case basis to determine the degree to which that person is at fault for the conduct of the undertaking perceived as that of a single unit. In that connection, the Commission itself refers to a range of circumstances which, although rejected by case-law for the purpose of the analysis as to whether a parent company exercises decisive influence over its subsidiary, may none the less be taken into account in determining relative fault as between parent company and subsidiary. The Commission specifically mentions the following: the fact that the parent company did not itself participate directly in the infringement; the fact that it possesses no interests in the sector in which the cartel operates; the fact that it had no knowledge of the infringement; or the fact that, despite being instructed not to become involved in the unlawful conduct, the subsidiary participated in the infringement. ( 89 ) I therefore consider that the Commission has a certain discretion — similar to that it enjoys when determining fines — in assessing the relevance and importance of such factors, on the basis of the individual characteristics of each particular case.

88. The need for a case-by-case analysis, which arises directly from the application of the principle of personal responsibility and the principle that penalties must be specific to the offender and the offence, seems to me to preclude the possibility of providing for a rule such as that set out by the General Court in paragraphs 158 and 159 of the judgment under appeal, according to which, in the absence of any indication as to the degree of responsibility of the individual legal persons for the undertaking’s participation, they must be considered to be liable in equal measure. That rule, which appears to have been transposed from the rules on joint and several liability in civil law laid down in the legal orders of some Member States, ( 90 ) is not only, in my view, incompatible with the abovementioned principle of personal responsibility and the principle that penalties must be specific to the offender and the offence, ( 91 ) in that it envisages a sort of presumption of equal liability as between the joint and several debtors for payment of the fine for their participation in the unlawful acts of the undertaking, perceived as the acts of a single entity, which is not necessarily the same for all the persons in question, but also lacks a legal basis or at least a basis in principle of an appropriate nature. I do not in fact regard as sufficient to establish a rule of that nature a general reference to the rules on obligations in civil law, in the absence of any other explanation as to why a principle derived from those rules should be applicable in competition matters, when, as pointed out by the General Court itself, the nature of the payment obligations on companies on which the Commission has imposed joint and several liability as a result of an infringement of competition law differs from the obligations of joint and several debtors under private-law.

89. In that regard, I must also acknowledge that I have some difficulty in recognising the relevance of the reference, in paragraph 158 of the judgment under appeal, to paragraphs 100 and 101 of the judgment in Aristrain v Commission. ( 92 ) In that judgment, the Court of Justice did not in any way recognise the principle defined by the General Court in that paragraph of the judgment under appeal. Rather, it criticised the latter for failing to take issue with the inadequate reasoning of the Commission’s decision imposing a fine on a company and imputing to it the conduct of another company with which it was connected, without it being in any event demonstrated that they constituted an economic unit. ( 93 ) That case did not even, therefore, entail the imposition of joint and several liability on a number of persons.

90. The requirement for legal certainty with regard to the determination of the fine, as mentioned at point 85, seems to me, however, to arise to a rather more limited degree in circumstances in which, at the time when the Commission’s decision is adopted, the persons held jointly and severally liable still form part of the same economic unit, that is to say the same undertaking, which committed the infringement. Indeed, although it cannot be entirely ruled out that disputes may arise between persons belonging to the same economic unit on which a fine has been imposed jointly and severally as regards the share of the fine which each of them must pay, such issues are generally likely to be resolved within the group itself. So long as the economic unit does not break up, it is primarily the undertaking per se which bears personal liability for the commission of the infringement, and the power conferred on the Commission to impose joint and several liability for payment of the relevant fine is not subject to requirements of legal certainty similar to those that arise where the economic unit has been broken up. Furthermore, as already observed in points 57 and 76 above, EU competition rules do not, in principle, govern relationships between the entities which make up the undertaking.

91. In the light of all of the foregoing considerations, I consider that, in the judgment under appeal, the General Court erred in law by considering that it follows from the principle that penalties must be specific to the offender and the offence that every addressee of a decision imposing upon it the joint and several liability for payment of a fine for infringing the competition rules must always be able to discern from that decision the share which it will have to bear in the context of its internal relationship with the joint and several debtors, once payment has been made to the Commission, and by subsequently specifically determining, on the basis of that consideration and of the rule of equal apportionment, the share of the fine to be paid by each individual company in question. ( 94 ) However, it is also clear from the considerations set out above that, where a fine is imposed jointly and severally on persons who, at the time when the decision was adopted, had ceased to belong to the economic unit that committed the infringement, the share of the fine to be paid by those persons must be determined. The practical implications of that error in law will be discussed at points 125 et seq. below.

3. The second ground of appeal, to the effect that the General Court exceeded the powers conferred on it by virtue of its unlimited jurisdiction

92. The Commission contends that, by interpreting Article 23 of Regulation No 1/2003 as meaning that it also encompasses the power, or indeed the obligation, to determine questions concerning the internal relationships between debtors who are jointly and severally liable for payment of a fine, and by having, on that basis, specifically determined the shares to be paid by the different appellant companies, the General Court has exceeded the powers conferred on it by virtue of its unlimited jurisdiction. By this ground of appeal, the Commission disputes, in essence, that the determination of the shares of the fine that each of the joint and several debtors must bear in the context of their internal relationships with the other debtors falls within the unlimited jurisdiction conferred on the EU judicature by Article 261 TFEU and Article 31 of Regulation No 1/2003.

93. In that regard, it should be noted first of all that, according to settled case-law, going beyond a simple review of legality, which merely permits dismissal of the action for annulment or the annulment of the contest measure, unlimited jurisdiction authorises the General Court to vary the measure, that is to say to substitute its own appraisal for that of the Commission, even without annulling it, by taking into account all of the factual circumstances, so as to cancel, reduce or increase the amount of the fine imposed. ( 95 ) The function of unlimited jurisdiction is to act as an additional guarantee for undertakings, providing the maximum level of review by an independent and impartial judicial body of the amount of the fine imposed on them. ( 96 )

94. It is therefore clear from case-law that when exercising its unlimited jurisdiction, the General Court enjoys a comprehensive power which must embrace all aspects pertaining to the determination of the fine. In my view, however, to the extent that in exercising that power, the General Court is entitled to ‘substitute its own appraisal for that of the Commission’, ( 97 ) it may do so solely within the limits of the jurisdiction conferred on the Commission by the Treaties. In other words, when varying the penalty, the General Court may not exercise powers which go beyond those conferred on the Commission.

95. I stated in my analysis of the first ground of appeal ( 98 ) that the Commission has the power to determine the internal apportionment of the fine as between joint and several debtors only in so far as this is necessary to guarantee observance of the prohibitions laid down in EU competition rules and that, in certain specific instances, such as those in which it proposes to impose joint and several liability on companies which belonged to the same economic unit at the time when the infringement was committed, but no longer formed part of that unit when the decision was adopted, the Commission is required to carry out such a determination. Consequently, it is solely within those limits that, in my view, the General Court may exercise its unlimited jurisdiction for the purpose of determining the internal relationships between joint and several debtors.

96. To be specific, in the present case, it is, in my view necessary to make a distinction between the case of the companies which initially formed part of the Schneider Group and were subsequently, in 2001, acquired by the VA Tech Group (that is to say, SEHV and Magrini) as regards the period prior to their acquisition, and the case of the other companies belonging to the VA Tech Group. ( 99 )

97. At the time when the contested decision was adopted, SEHV and Magrini no longer formed part of the undertaking controlled by Schneider which the Commission intended to penalise for the infringement committed during the period between 1 April 1988 and December 2000. It is clear from the considerations set out in the analysis of the first and third grounds of appeal that, in those circumstances, if the Commission intended to hold those companies jointly and severally liable, together with the former parent company (namely Schneider), it needed to specify the share of the fine which each of those companies was required to pay in the context of the internal relationships between joint and several debtors which no longer belonged to the same undertaking.

98. When varying the fine in the exercise of its unlimited jurisdiction, the General Court imposed on Schneider, SEHV and Magrini joint and several liability for a total fine of EUR 8.1 million and determined the shares that each of them is required to pay in the context of their internal relationship. Since, in the light of what is stated in point 97, the Commission is required, in cases of that nature, to determine such shares, it is not, in my view, possible to conclude that, by establishing the internal relationships between joint and several debtors, the General Court exceeded its unlimited jurisdiction. ( 100 ) On the other hand, in accordance with what is stated in points 87 and 88 above, I consider that, by applying the rule of equal apportionment of the fine, which the General Court itself established in paragraphs 158 and 159 of the judgment under appeal, the General Court did, however, commit an error in its determination of those shares.

99. On the other hand, as regards the companies belonging to the VA Tech Group, there is no reason to suggest that the determination of the shares of the fine to be paid by those companies was linked to the need to guarantee observance of the prohibitions laid down by the Union’s competition rules. Moreover, the General Court has provided no details in that regard. In those circumstances, I therefore consider that, by determining the shares of the fine which those companies will have to pay in the context of their internal relationships, the General Court exceeded the bounds of its unlimited jurisdiction.

100. Lastly, it is, necessary to address a question concerning the exercise by the General Court of its unlimited jurisdiction in the present case. The Commission points out that, although it varied the fine, the General Court ultimately left unaltered the total amount of the fine imposed on the two undertakings on which the penalty was imposed (the undertaking made up of the companies of the VA Tech Group ( 101 ) and the undertaking consisting of Schneider, SEHV and Magrini before the latter two were transferred). ( 102 ) In essence, therefore, the General Court merely varied the ‘internal apportionment’ of the fine among the companies held jointly and severally liable. ( 103 ) In those circumstances, the question arises of whether that variation falls within the power conferred on the EU judicature by Article 31 of Regulation No 1/2003, which allows it to ‘cancel, reduce or increase’ the fine imposed.

101. I consider that this question must be answered in the affirmative. The unlimited jurisdiction enjoyed by the General Court allows it to ‘vary’ the amount of the fine imposed. ( 104 ) While it is true that under Article 23(2) of Regulation No 1/2003, fines for infringements of the competition rules are imposed on undertakings, as the entities at which those rules are directed, it is also true that, as indicated in point 78 above, where the undertaking is made up of a number of legal persons, the fine is imposed on to those persons. Consequently, if the fine is annulled because it is established that the Commission made errors, then it seems to me to fall within the General Court’s powers of review which, as we have seen, is comprehensive and pertains to all aspects of the determination of the penalty, to redetermine the fine in a way which, while retaining the amount of the fine as established by the Commission for the undertaking, varies the amount in relation to the legal persons who are in practice required to pay it.

102. Furthermore, as regards the present case specifically, it is also clear that the General Court varied, by increasing it, the amount of the fine payable by the two companies which no longer belong to the undertaking which committed the infringement. By making SEHV and Magrini jointly and severally liable to the Commission for the payment of a sum of EUR 8.1 million, instead of EUR 4.5 million, the General Court varied, by increasing it, the total amount of the fine owed by those companies.

103. In the light of all of the foregoing considerations, I consider that the second ground of appeal must also be upheld in so far as, with regard to the companies of the VA Tech Group on the one hand, the General Court exceeded its unlimited jurisdiction and as regards Schneider and SEHV and Magrini before the transfer of the latter two in 2001, on the other, it erred in its exercise of that power. The practical implications of upholding this ground of appeal will be discussed at points 125 et seq. below.

4. The fourth ground of appeal, concerning the infringement of the principle ‘ne ultra petita’

104. By the fourth ground of appeal, the Commission contends that, in the judgment under appeal, the General Court infringed the principle of ‘ne ultra petita’. The General Court found at paragraph 157 of the judgment under appeal (of its own motion, and without the applicants having requested this) that it was for the Commission to determine the share of the fine to be paid by each of the joint and several debtors, and went on to determine specifically the shares to be paid by the applicants at paragraphs 245, 247, 262 and 263 of the judgment under appeal, in the exercise of its unlimited jurisdiction.

105. In that regard, it is common ground that when the EU judicature is called upon to adjudicate on an action for annulment, it is bound by the principle of ‘ne ultra petita’, according to which the scope of the annulment granted may not go further than that sought by the applicant. ( 105 )

106. Nevertheless, as stated in point 41 above, the analysis of the appeal is confined to the General Court’s determination, in the exercise of its unlimited jurisdiction, of the shares of the fine and to the legal considerations set out at paragraphs 153 to 159 of the judgment under appeal, only in so far as those considerations constitute the necessary and indivisible basis of that determination.

107. As I have already had occasion to explain recently, I consider that the ‘ne ultra petita’ rule and, consequently, the limitation of a court’s powers to the questions which have been submitted to it by the parties, plays almost no role in the context of the exercise of unlimited jurisdiction by the European Union Courts under Article 261 TFEU. ( 106 ) Once the parties have requested a fresh assessment of the amount of the fine, the General Court must consider itself authorised, within the limits of its jurisdiction, to conduct a comprehensive analysis ‘as to the substance’ of the amount of the fine, which goes beyond the constraints inherent in the review of legitimacy. ( 107 )

108. In the present case, irrespective of the fact that the determination of the share to be paid may, in my view, be deemed to be incorporated in any application to vary the fine, it must, in any event, be noted that all the applicants disputed before the General Court the amount of the fine imposed on them, seeking a reduction on grounds relating to the Commission’s imposition of joint and several liability, thus raising more or less explicitly ( 108 ) the question of the internal relationship between the persons on whom such liability was imposed.

109. It follows, in my view, that in the present case the principle of ‘ne ultra petita’ could not prevent the General Court from making a finding of law of the kind set out in paragraph 157 of the judgment under appeal, and subsequently drawing the relevant inferences when varying the amount of the fine in the exercise of its unlimited jurisdiction. That in no way affects the fact that, in my view, the finding in question, as well as the General Court’s determination, are vitiated by errors of law and that the General Court exceeded in part the bounds of its unlimited jurisdiction. ( 109 )

110. It is clear from the foregoing that the fourth ground of appeal must, in my view, be rejected.

5. The fifth ground of appeal, concerning an infringement of the audi alteram partem principle

111. According to the Commission, the General Court infringed the audi alteram partem principle by failing to give it the opportunity to set out its views on the interpretation which that Court was proposing to give of Article 23 of Regulation No 1/2003, to the effect that the Commission is under an obligation to determine the internal relationships between the joint and several debtors. As a result, the General Court imposed entirely new obligations on the Commission, without the latter having any opportunity adequately to define its position on this.

112. It should be noted, first of all that, according to case-law, the rule that the parties should be heard, which forms part of the rights of the defence and compliance with which the European Union Courts must safeguard, means, as a general rule, that the parties have the right to a process of inspecting and commenting on the evidence and observations submitted to the court. ( 110 ) In order to satisfy the requirements associated with the right to a fair hearing, it is important for the parties to be able to debate and be heard on both the matters of fact and of law which will determine the outcome of the proceedings. ( 111 ) It also usually implies a right for the parties to be apprised of pleas in law raised by those Courts of their own motion, on which they intend to base their decisions, and to discuss them. ( 112 )

113. The audi alteram partem principle must also be respected when the General Court is exercising its unlimited jurisdiction. ( 113 )

114. The audi alteram partem principle must benefit all parties to proceedings before the European Union Courts, irrespective of their legal status. The institutions of the Union may also, therefore, avail themselves of that principle when they are parties to such proceedings. ( 114 )

115. In the present case, it is clear from paragraph 30 of the judgment under appeal that, during the hearing before the General Court, SEHV and Magrini produced a judgment of the tribunal de commerce de Grenoble (Commercial Court, Grenoble) concerning the proceedings brought against them by Schneider seeking the reimbursement of part of the fine it had paid in full and for which those companies were jointly and severally liable. ( 115 ) Following the production of that judgment, the General Court allowed the Commission, at the latter’s request, to submit observations on it. In those observations, which were submitted on 26 March 2010, after setting out the reasons why it considered that the judgment in question was not relevant for the purpose of deciding the actions brought by the applicants before the General Court, the Commission set out a series of considerations concerning joint and several liability generally, including some observations pertaining to the determination of the internal relationships between joint and several debtors of the fine. In particular, even within that context, the Commission stated that it did not have the power to determine the internal relationships between such debtors and made a number of observations concerning the jurisdiction of the national courts. In the first part of the sixth ground of its appeal, the Commission itself states that it set out, in those observations, a whole series of arguments objecting to the notion that it should determine the legal relationships between the joint and several debtors of a fine.

116. In those circumstances, it can only be concluded that the Commission had an opportunity to adopt a position on questions concerning the determination of the internal relationships between the joint and several debtors liable for payment of the fine. ( 116 ) It is true that the General Court did not specifically ask the Commission to state its view on the construction it intended placing on Article 23 of Regulation No 1/2003 as regards the attribution to the Commission of the power to determine the internal relationships between joint and several debtors. However, in my view, that interpretation constitutes a legal assessment of the relevant legislation by the General Court, which does not give rise to an infringement of the audi alteram partem principle, ( 117 ) particularly in a context in which, as in the present case, the Commission had the express opportunity to set out its position on the abovementioned questions concerning the determination of the internal relationships between joint and several debtors. ( 118 )

117. In the light of the above considerations, I consider that the fifth ground of appeal raised by the Commission must be rejected.

6. The sixth ground of appeal, concerning breach of the obligation to state reasons

118. By the sixth ground of appeal, which is divided into two parts, the Commission claims that, in the judgment under appeal, the General Court failed to have regard to the obligation incumbent upon it to state reasons. First, the General Court failed to give sufficient consideration to the arguments which the Commission set out in its abovementioned observations of 26 March 2010 objecting to being required to determine the internal relationships between joint and several debtors. Secondly, the General Court failed to explain the reasons on which its findings were based, and merely set out considerations of such a general nature that it was impossible to comprehend how they could constitute the basis for those findings.

119. In that regard, it should be borne in mind that, according to settled case-law, the requirement that the General Court give reasons for its decisions cannot be interpreted as meaning that it is obliged to respond in detail to every single argument advanced by one of the parties. ( 119 ) Rather, it is regarded as sufficient if the statement of the reasons on which a judgment is based, which may be implicit on certain points, clearly and unequivocally discloses the General Court’s thinking so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review. ( 120 )

120. As regards the first part of this ground of appeal, it is clear from that case-law that the General Court was not required to respond expressly and in detail to all the arguments advanced by the Commission in its observations of 26 March 2010. Moreover, it is apparent from the reasoning contained in paragraphs 153 to 159 of the judgment under appeal that the General Court rejected the approach proposed by the Commission, which, in any event, as is clear from the last phrase of paragraph 157, was taken into account by the General Court in its analysis.

121. As regards the second part of the present ground of appeal, I observed in point 45 above that it is not at all clear from the terms employed by the General Court whether or not it intended to place an actual obligation on the Commission to determine the shares of the fine to be paid by joint and several debtors liable for payment of the fine. At paragraph 153 of the judgment under appeal, the General Court stated that the Commission ‘must, … where necessary’ make that determination, without specifying in which cases it is necessary for the Commission to do so, whereas at paragraph 157, it stated that ‘[i]t is ... for the Commission’ to carry out such a determination. ( 121 ) The use of those terms seems to me to create a certain ambiguity in the General Court’s findings and the scope of the obligations which it sought to impose on the Commission.

122. Moreover, it is clear from point 88 above that I do not regard as sufficient the General Court’s general reference at paragraph 155 of the judgment under appeal to the rules on obligations in civil law as the basis for rule that responsibility for the infringement and, therefore, liability for the fine, are to be allocated in equal measure among the joint and several debtors in the absence of any indication in the decision as to the specific degree of responsibility of each of the companies held jointly and severally liable for payment of the fine. In my view, the General Court ought to have explained the reasons why principles derived from those rules should be applicable in the field of competition when, as pointed out by the General Court itself, the nature of the payment obligations on companies held jointly and severally liable by the Commission as a result of an infringement of competition law differs from joint and several debtor obligations under private-law.

123. Although, as I have pointed out in relation to the first, second and third grounds of appeal, the reasoning adopted by the General Court is, in my view, vitiated by errors of law, and notwithstanding the contradictory or incomplete elements of that court’s grounds referred to above, it nevertheless seems to me, in general, to be sufficiently clear to enable the persons concerned, including the Commission, to be apprised of the justification for the decision taken and for this Court to be able to exercise its power of review. This seems to me to be borne out, moreover, by the fact that the Commission has been able to contest the judgment before the Court of Justice on the basis of a comprehensive appeal.

124. It is clear from all of the foregoing that the sixth ground of appeal must, in my view, be rejected.

D – Conclusion

125. In the light of all of the foregoing considerations, I propose that the Court should annul the judgment under appeal in so far as the General Court declared that it is solely for the Commission, in the exercise of its power to impose fines, to determine the respective shares of the fine to be paid by the different companies held jointly and severally liable, and that this task cannot be left to the national courts, and in so far as, relying on that principle, as well as on the rule that liability is to be attributed in equal measure in the absence of any indication in that regard in the decision, the General Court went on to determine, in the exercise of its unlimited jurisdiction, the shares to be paid by each of the applicant companies at first instance.

126. However, it is clear from points 55, 85 and 86 above, that where it proposes to impose joint and several liability on persons that constituted an economic unit at the time when the infringement was committed but no longer formed part of that economic unit at the time when the decision was adopted, the Commission is under an obligation to determine the share of the fine which the person no longer having any links justifying his inclusion in the economic unit will have to pay in the context of his internal relationships with the other joint and several debtors.

127. It is clear, on the one hand, that, at the time when the contested decision was adopted, Schneider, SEHV and Magrini no longer formed part of the same economic unit and, on the other, that the Commission imposed on them the joint and several liability for payment of the fine without determining the share of the fine to be borne by SEHV and Magrini. However, the consequences of that finding will be contingent on the outcome of the appeal lodged by the two companies and will therefore be discussed in the analysis of that appeal, namely at points 169 et seq. below.

IV – The appeal brought by Reyrolle in Case C‑232/11 P

128. Reyrolle has put forward two grounds of appeal.

A – The first ground of appeal, concerning the infringement of the principle that penalties must be specific to the offender and the offence

129. By its first ground of appeal, Reyrolle claims that by varying the fine under its unlimited jurisdiction, the General Court infringed the principle that penalties must be specific to the offender and the offence. According to Reyrolle, the General Court should not have calculated a single starting amount by taking into account the turnover and market share of the undertaking headed by VA Technologie, but should have determined a separate starting amount for Reyrolle for the period when it was a subsidiary of Rolls-Royce, that is to say the period between 15 April 1988 and 20 September 1998. ( 122 ) The starting amount for the period before Reyrolle became part of the VA Tech group ought to have been determined on the basis of the market share of Rolls-Royce/Reyrolle and the turnover of Reyrolle alone. On that basis, the total fine imposed on Reyrolle should have been no more than EUR 2.05 million.

130. Reyrolle’s ground of appeal is based on the premiss that during its participation in the cartel, which lasted from 15 April 1988 to 13 December 2000 and from 1 April 2002 to 11 May 2004, ( 123 ) it formed part of two different undertakings, namely, initially, the undertaking headed by Rolls-Royce during the period between 15 April 1988 and 20 September 1998, the date when it was acquired by VA Technologie, and, subsequently, the undertaking headed by VA Technologie for the remainder of the period. According to Reyrolle, that would justify the determination of two separate starting amounts for the two periods and the two undertakings in question.

131. In my view, there is no justification for that premiss in the judgment under appeal.

132. It should be stated here that the General Court took the view that until 20 September 1998, Reyrolle participated in the infringement independently and that it pursued its unlawful activity thereafter as a subsidiary of the VA Tech Group. ( 124 )

133. Since, as regards Rolls-Royce, the parent company of the group to which Reyrolle belonged until 20 September 1998, the infringement was time-barred, ( 125 ) neither the contested decision nor the judgment under appeal was able to establish that Reyrolle and Rolls-Royce formed an economic unit in such a way as to substantiate the claim that Reyrolle was a member of an undertaking headed by Rolls-Royce. It is also necessary, in that regard, to point out that Rolls-Royce was not the addressee of the contested decision or the subject of any penalty, since it was not found to have committed any infringement.

134. In those circumstances, it is apparent from the contested decision that the infringement which was penalised first by the Commission and, then, by the General Court, was committed by a single undertaking, which, initially, prior to 20 September 1998, consisted exclusively of Reyrolle, and, subsequently, expanded following the acquisition of Reyrolle by the VA Tech Group, including therefore the economic unit headed by VA Technologie, which was later joined, following their transfer to VAS, by SEHV and Magrini. ( 126 )

135. The General Court was therefore entitled to determine a single starting amount for the undertaking headed by VA Technologie on the basis of its turnover in 2003, the last full year of the infringement, ( 127 ) subsequently apportioning liability for the infringement among the individual companies for the periods during which they participated in the cartel. By taking that approach, it did not infringe the principle that penalties must be specific to the offender and the offence.

136. The considerations set out above lead me to conclude that Reyrolle’s first ground of appeal must be rejected.

B – The second ground of appeal, concerning breach of the principles of equal treatment and proportionality.

137. Reyrolle maintains that, by determining the fine imposed on it in the exercise of its unlimited jurisdiction, the General Court was in breach of the principles of equal treatment and proportionality. In the first place, it was discriminated against when compared with the approach taken in regard to the companies belonging to the Schneider Group (Schneider, SEHV and Magrini), for which the General Court established different starting amounts for each period in which they formed part of a different undertaking. ( 128 ) That difference in treatment resulted in the imposition of a disproportionate fine on Reyrolle. Secondly, Reyrolle was further discriminated against if a comparison is made with the method of calculation employed in relation to some Japanese companies for which the Commission established separate starting amounts for the period prior to point at which their activities in the GIS sector were integrated in a joint venture.

138. The Commission considers that the second ground of appeal is inadmissible, since it is a new plea in law put forward only at the appeal stage. The Commission claims that in determining the fine in the exercise of its unlimited jurisdiction, the General Court used the same method of calculation as the Commission. The General Court’s determination of the fine could not therefore of itself constitute the source of the alleged discrimination, which would, if indeed there were any discrimination, have arisen directly from the contested decision. The claim alleging discrimination was not therefore raised by Reyrolle at first instance and, consequently, constitutes a new plea in law.

139. In that regard, it is true that according to settled case-law, in an appeal, the Court’s jurisdiction is, as a general rule, confined to a review of the assessment by the General Court of the pleas argued before it. ( 129 ) It is also true that Reyrolle did not raise at first instance the claim alleging discrimination to which it refers in the present ground of appeal. However, case-law also establishes that a party is entitled to bring an appeal in which it raises, before the Court of Justice, pleas in law arising from the judgment under appeal designed to contest, in law, the soundness of that judgment. ( 130 )

140. It is clear that, by the present ground of appeal, Reyrolle claims to have been discriminated against in the judgment under appeal by the General Court when it determined the fine in the exercise of its unlimited jurisdiction. Consequently, even though, for the purpose of varying the fines, the General Court employed the same method of calculation used by the Commission, which that court did not call into question, the alleged discrimination of which Reyro