JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

15 July 2015 ( *1 )

‛Competition — Agreements, decisions and concerted practices — European markets in heat stabilisers — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Infringement committed by subsidiaries — Fines — Joint and several liability of the subsidiaries and the parent company — Exceeding the 10% ceiling for one of the subsidiaries — Decision readopted — Reduction of the fine for that subsidiary — Attribution to the other subsidiary and the parent company of the obligation to pay the reduced fine — Rights of the defence — Right to be heard — Right of access to the file’

In Case T‑189/10,

GEA Group AG, established in Düsseldorf (Germany), represented by A. Kallmayer, I. du Mont and G. Schiffers, lawyers,

applicant

v

European Commission, represented by R. Sauer and F. Ronkes Agerbeek, acting as Agents, and W. Berg, lawyer,

defendant,

APPLICATION for annulment of Commission Decision C(2010) 727 of 8 February 2010 amending Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/38589 — Heat Stabilisers) or, in the alternative, a reduction of the amount of the fines imposed on the applicant,

THE GENERAL COURT (Fourth Chamber),

composed of M. Prek, President, I. Labucka (Rapporteur) and V. Kreuschitz, Judges,

Registrar: J. Weychert, Administrator,

having regard to the written procedure and further to the hearing on 24 September 2014,

gives the following

Judgment ( 1 )

Background to the dispute

1 The present dispute concerns Commission Decision C(2010) 727 of 8 February 2010 (‘the contested decision’) amending Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38589 — Heat Stabilisers) (‘the first decision’). The first decision was contested by GEA Group AG, the applicant, in Case T‑45/10 GEA Group v Commission. ...

Procedure and forms of order sought

23 By application lodged at the Court Registry on 20 April 2010, the applicant brought an action against the contested decision. ...

55 In the present case the applicant claims that the Court should: — annul Article 1 of the contested decision, in so far as a fine is imposed on the applicant; — in the alternative, reduce the fine imposed on the applicant in Article 1 of the contested decision; — order the Commission to pay the costs.

56 The Commission contends that the Court should: — dismiss the application; — order the applicant to pay the costs.

57 On this same day, the Court has dismissed the action brought against the first decision in GEA Group v Commission (T‑45/10).

Law

58 By the present action, the applicant claims that the Court should annul the contested decision and, in the alternative, reduce the fine imposed on it.

59 In support of the action, the applicant relies on five pleas in law.

60 In its first plea in law, the applicant claims that the Commission infringed its rights of defence in that it was neither heard nor had access to the file before the contested decision was adopted and that the Commission breached its duty of neutrality vis-à-vis the applicant. ...

67 In assessing the first plea in law in the action, the preliminary point should be made that the right to be heard, which is an essential component of the rights of defence, constitutes a general principle of EU law which must be observed in all proceedings, even administrative proceedings, in which sanctions, especially fines, may be imposed and that that principle requires in particular that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make its views known (see, to that effect, judgments of 13 February 1979 in Hoffmann-La Roche v Commission, 85/76, ECR, EU:C:1979:36, paragraph 9; 7 June 1983 in Musique Diffusion française and Others v Commission, 100/80 to 103/80, ECR, EU:C:1983:158; and 7 January 2004 in Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, ECR, EU:C:2004:6, paragraphs 64 to 66).

68 It should also be noted that the right of access to the file, which is a corollary of the principle of respect for the rights of the defence, also means that the Commission must provide the undertaking concerned with the opportunity to examine all the documents in the investigation file that may be relevant for its defence (see, to that effect, judgments of 2 October 2003 in Corus UK v Commission, C‑199/99 P, ECR, EU:C:2003:531, paragraphs 125 to 128; Aalborg Portland and Others v Commission, cited in paragraph 67 above, EU:C:2004:6, paragraph 68; and 29 June 1995 in Solvay v Commission, T‑30/91, ECR, EU:T:1995:115, paragraph 81).

69 Article 27(1) of Regulation No 1/2003 reflects that principle in so far as it provides that the parties are to be sent a statement of objections which must clearly set out all the essential matters on which the Commission relies at that stage of the procedure, to enable the parties concerned properly to identify the conduct complained of by the Commission and the evidence which it has at its disposal (see, to that effect, judgments of 15 October 2002 in Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, ECR, EU:C:2002:582, paragraphs 315 and 316, and Aalborg Portland and Others v Commission, cited in paragraph 67 above, EU:C:2004:6, paragraphs 66 and 67).

70 Furthermore, observance of the rights of the defence requires, in particular, that the undertaking under investigation is put in a position during the administrative procedure to put forward its point of view on the reality and the relevance of the alleged facts and also on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (judgments in Musique Diffusion française and Others v Commission, cited in paragraph 67 above, EU:C:1983:158, paragraph 10; 25 January 2007 in Dalmine v Commission, C‑407/04 P, ECR, EU:C:2007:53, paragraph 44; and 10 May 2007 in SGL Carbon v Commission, C‑328/05 P, ECR, EU:C:2007:277, paragraph 71).

71 In the circumstances of the present case, it must be stated that the applicant has neither been heard nor had access to the file.

72 Consequently, the contested decision should be annulled in so far as the applicant has adequately demonstrated not that, without the procedural errors, that is to say, if it had been heard and it had been given access to the file, the contested decision would have been different in content, but rather that it would have been better able to ensure its defence had there been no such errors (see, to that effect, judgment of 18 June 2013 in Fluorsid and Minmet v Commission, T‑404/08, ECR, EU:T:2013:321, paragraph 110 and the case-law cited), which is to be determined by reference to the time of the administrative procedure leading to the adoption of the contested decision, that is to say, before the date on which the decision was adopted, namely 8 February 2010 (see, to that effect, judgment of 27 September 2006 in Archer Daniels Midland v Commission, T‑329/01, ECR, EU:T:2006:268, paragraph 377).

73 In that regard, first, it should be noted that, at the time of the administrative procedure leading to the adoption of the contested decision, it was a matter of debate as to what the Commission’s obligations were in respect of the joint and several liability between companies that were joint and several debtors, inasmuch as they had formed a single undertaking within the meaning of Article 101 TFEU.

74 It was only in a judgment of 3 March 2011, more than a year after the date of the adoption of the contested decision, that the Court held that it was exclusively for the Commission, in exercising its power to impose fines under Article 23(2) of Regulation No 1/2003, to determine the various companies’ respective shares of the fines imposed on them jointly and severally in so far as they formed part of the same undertaking, and that that task could not be left to the national courts (judgment of 3 March 2011 in Siemens and VA Tech Transmission & Distribution v Commission, T‑122/07 to T‑124/07, ECR, EU:T:2011:70, paragraph 157).

75 That point was all the more debatable at the time of the administrative procedure leading to the adoption of the contested decision in that subsequently the judgment in Siemens and VA Tech Transmission & Distribution v Commission, cited in paragraph 74 above (EU:T:2011:70), was set aside by the Court of Justice on the grounds that the allocation of the fine between joint and several debtors fell exclusively within the jurisdiction of the national courts (judgment in Siemens, cited in paragraph 41 above, EU:C:2014:256, paragraph 62).

76 Accordingly, at the time of the administrative procedure leading to the adoption of the contested decision and before the delivery of the judgment in Siemens, cited in paragraph 41 above (EU:C:2014:256), the applicant could have disputed the fact that it had not been granted the reduction of the amount of the fine imposed on ACW with which it had been held to be jointly and severally liable for the infringement committed by ACW since, at the time of the infringement, they had formed an undertaking within the meaning of Article 101 TFEU. ...

78 Second, and for the sake of completeness, it should be noted that by the contested decision the fine imposed on the applicant was higher than the fine imposed on its subsidiaries, although its liability is entirely derived from that of its subsidiaries.

79 Under the first decision, the total amount of the fine imposed on the applicant was EUR 3346200 and the cumulative fine for its subsidiaries was EUR 5278171 (EUR 1913971 for CPA and EUR 3346200 for ACW), whereas under the contested decision those amounts are, respectively, EUR 3346200 and EUR 3000100 (EUR 1913971 for CPA and EUR 1086129 for ACW).

80 At the time of the administrative procedure leading to the adoption of the contested decision, it was debatable whether a parent company could be subject, for infringing conduct by its subsidiary, to a fine higher than the fine on its subsidiary, although the liability of that parent company was entirely derived from that of its subsidiary.

81 That point was all the more debatable since, first, it was ruled, after the adoption of the contested decision, that where the liability of parent companies for the infringement committed was wholly derived from the liability of a subsidiary which had belonged to those companies in succession, the total amount which the parent companies could be required to pay could not be greater than the amount which that subsidiary had to pay (judgments in Areva, cited in paragraph 42 above, EU:C:2014:257, paragraphs 137 and 138, and of 24 March 2011 in Tomkins v Commission, T‑382/06, ECR, EU:T:2011:112, paragraph 57).

82 Second, the Court has also held, after the adoption of the contested decision, that, as regards payment of a fine imposed for breach of the competition rules, the joint and several liability between two companies constituting an economic entity could not be reduced to a type of security provided by the parent company in order to guarantee payment of the fine imposed on the subsidiary and that an argument that that parent company could not be ordered to pay a fine higher than the fine imposed on its subsidiary was therefore unfounded (judgments of 26 November 2013, Kendrion v Commission, C‑50/12 P, ECR, EU:C:2013:771, paragraph 58, and 19 June 2014 in FLS Plast v Commission, C‑243/12 P, ECR, EU:C:2014:2006, paragraph 107).

83 Thus, the applicant was entitled, at the time of the administrative procedure leading to the adoption of the contested decision, to dispute the amount of its proposed fine compared with the amounts of the fines imposed on its subsidiaries for their infringing conduct. ...

On those grounds, THE GENERAL COURT (Fourth Chamber) hereby:

1. Annuls Commission Decision C(2010) 727 of 8 February 2010 amending Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/38589 — Heat Stabilisers), in so far as it concerns GEA Group AG.

2. Orders the European Commission to pay the costs.

Prek Labucka Kreuschitz Delivered in open court in Luxembourg on 15 July 2015. [Signatures]

( *1 ) Language of the case: German.

( 1 ) Only the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.