Case C‑50/12 P

Kendrion NV

v

European Commission

‛Appeal — Competition — Cartels — Industrial plastic bags sector — Whether the infringement by a subsidiary may be attributed to the parent company — Joint and several liability of the parent company for the payment of the fine imposed on the subsidiary — Excessive length of the proceedings before the General Court — Principle of effective legal protection’

Summary — Judgment of the Court (Grand Chamber), 26 November 2013

Non-contractual liability — Application based on an excessive length of the proceedings before the General Court — Conditions — Unlawfulness — Damage — Causal link — Criteria for assessment — Composition of the Chamber delivering the judgment

Judicial proceedings — Duration of the proceedings before the General Court — Reasonable time — Proceedings concerning an infringement of the competition rules — Failure to act within a reasonable time — Consequences

EU law — Principles — Fundamental rights — Observance ensured by the Court — Right of every person to a fair hearing — Acting within a reasonable time — Affirmed by the European Convention on Human Rights — Reference to the Charter of Fundamental Rights of the European Union — Right to effective judicial protection

Competition — EU rules — Infringement committed by a subsidiary — Imputation to the parent company — Joint and several liability for payment of the fine — Scope — Parent company and subsidiary having formed, at the time of the infringement, an undertaking within the meaning of Article 81 EC and having ceased to exist in that from when a decision imposing a fine was adopted — Consequences on the determination of the maximum amount of the fine

Competition — EU rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption of decisive influence exercised by the parent company over its wholly-owned subsidiaries — Evidential obligations of the company seeking to rebut that presumption

See the text of the decision. (see paras 27-34)

See the text of the decision. (see paras 41-48)

When both a parent company’s liability and that of its subsidiary are based on the fact that both companies formed part of the economic entity which breached Article 81 EC, the parent company itself is, accordingly, deemed to have committed the infringement of the EU competition rules. It follows that, as regards the payment of the fine, the joint and several liability between two companies constituting such an economic entity cannot be reduced to a type of security provided by the parent company in order to guarantee payment of the fine imposed on the subsidiary. Where two separate legal persons, such as a parent company and its subsidiary, no longer constitute an undertaking within the meaning of Article 81 EC on the date on which a decision imposing a fine on them for breach of the competition rules is adopted, each of them is entitled to have the 10% ceiling applied individually to itself. In those circumstances, the parent company cannot claim to benefit from the ceiling applicable to its former subsidiary. Consequently, a parent company can ordered to pay a fine higher than that imposed on its subsidiary. (see paras 55-58)

See the text of the decision. (see paras 62-68)

See the text of the decision. (see paras 77, 78, 106)

The sanction for a breach, by a Court of the European Union, of its obligation under the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union to adjudicate on the cases before it within a reasonable time must be an action for damages brought before the General Court, since such an action constitutes an effective remedy. It follows that a claim for compensation for the damage caused by the failure by the General Court to adjudicate within a reasonable time may not be made directly to the Court of Justice in the context of an appeal, but must be brought before the General Court itself. Moreover, where there are no indications that the excessive length of the proceedings before the General Court affected their outcome, failure to deliver judgment within a reasonable time cannot lead to the setting aside of the judgment under appeal. In addition, having regard to the need to ensure that the competition rules of EU law are complied with, the Court of Justice cannot allow an appellant to reopen the question of the validity or amount of a fine, on the sole ground that there was a failure to adjudicate within a reasonable time, where all of its pleas directed against the findings made by the General Court concerning the amount of that fine and the conduct that it penalises have been rejected. (see paras 81, 82, 87, 94, 95)

See the text of the decision. (see paras 96-98, 102-106)