Appeal brought on 27 December 2018 by the European Commission against the judgment of the General Court (Fifth Chamber) delivered on 18 October 2018 in Case T-640/16: GEA Group AG v Commission

(Case C-823/18 P)

(2019/C 93/42)

Language of the case: English

Parties

Appellant: European Commission (represented by: T. Christoforou, P. Rossi, V. Bottka, Agents)

Other party to the proceedings: Gea Srl

Form of order sought

The appellant claims that the Court should:

— set aside the judgment under appeal;

— order GEA to bear the entirety of the costs of these proceedings and those at first instance.

Pleas in law and main arguments

The Commission bases its appeal on the following two grounds of appeal:

The Commission submits, the General Court committed two errors of law. First, it incorrectly applied the principle of equal treatment, it disregarded the case law on the notion of an undertaking and on joint and several liability, and also erred on the consequences of a fine reduction which can be attributed only to a former subsidiary of the infringing undertaking. Specifically, the Commission considers that, with the judgment under appeal, the General Court has deviated from the Court’s case law according to which the notion of joint liability for the part of the fine that is common to all addressed legal entities is a manifestation of the concept of an undertaking for the purposes of Article 101 TFEU (see C-231/11 P, Siemens Österreich, § 57). Hence, the legal entities belonging to the same undertaking at the time of the infringement are by definition all jointly liable for the fine corresponding to the undertaking’s participation in the infringement (up to the maximum amount for which each legal entity is individually liable). The judgment’s logic is based on an application by analogy of the theory on internal shares of joint liability, which also aimed to exclude co-debtors from liability for parts of the jointly imposed fine. However, that theory was rejected by the Court in Case C-231/11 P, Siemens Österreich and the joined cases C-247/11 P and C-253/11 P, Areva. In addition, the Judgment disregards the case law according to which a parent company cannot benefit from the lower 10 % cap of its own former subsidiary (C-50/12 P, Kendrion, § § 58, 68 and 70). Therefore, the judgment is affected by errors of law in the interpretation and application of established case law of the Court, it creates legal uncertainty, and affects the margin of discretion which the Commission has in setting fines on an undertaking for having violated Article 101 TFEU.

Second, the Commission considers that the General Court has erred by holding that the time limit for paying the fine for all jointly liable legal entities in the undertaking (including the parent GEA) starts anew from the notification of an amending decision reducing the fine for only one of these legal entities (ACW, a former subsidiary of GEA). This is an error in law because the Commission is entitled to reduce with an amending decision the fine for only one of the legal entities jointly liable, if there is a material error affecting that legal entity only, without having to amend the fines in the other parts of the decision addressed to the remaining legal entities. Equally, the Commission is entitled (but not obliged) in such circumstances to set a new due date for one or more legal entities, which can be at an earlier date than the notification of the latest amending decision. This is because amending the fine does not amount to replacing it. Similarly, when the Court reduces a fine for a legal entity, that does not amount to setting a new fine with a new due date (Case C-523/15 P, WDI, § § 29-48 and 63-68 and Case T-275/94, Groupement des cartes bancaires, § § 60 and 65). If maintained, the errors on which the judgment is based can affect the deterrent effect of the Commission's fines because it would mean that a modification of a fine for one addressee would lead to the loss of interest generated on the maintained part of the fine for the entire undertaking.

Finally, on both aspects covered by the grounds of the appeal, the judgment is unclear and insufficiently reasoned.