Judgment of the General Court (Fourth Chamber) of 16 November 2011 – Kendrion v Commission

(Case T-54/06)

Competition – Agreements, decisions and concerted practices – Plastic industrial bags sector – Decision finding an infringement of Article 81 EC – Economic entity – Joint and several liability – Proportionality – Equal treatment – Fines – Maximum limit of 10% of turnover – Real ability to pay

1. Competition – Community 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 on a company seeking to rebut that presumption (Art. 81(1) EC) (see paras 49-52, 65-67)

2. Competition – Fines – Assessment by reference to the individual conduct of the undertaking – Irrelevant that another economic operator not penalised (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 77-78)

3. Competition – Fines – Amount – Determination – Maximum amount – Calculation – Turnover to be taken into consideration – Cumulative turnover of all the companies constituting the economic unit acting as an undertaking – Limits (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 91-92)

4. Competition – Fines – Amount – Determination – Principle of equal treatment – Differences between undertakings arising from application of the maximum amount – Lawfulness – No prohibition on imposing a higher fine on small and medium-sized undertakings (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03) (see paras 106-107, 110-111, 149)

5. Actions for annulment – Judgment annulling a measure – Effects – Annulment of a Commission decision finding a breach of the competition rules – No effect in relation to addressees which did not bring an action (Arts 81 EC, 230 EC and 249 EC) (see para. 119)

6. Procedure – Application initiating proceedings – Formal requirements – Brief summary of the pleas in law on which the application is based – Admissibility of a reference to documents submitted to the same court in another case – Essential condition – Parties, in particular the applicants, must be the same in both cases – No possibility of remedying an infringement of the principle by reproducing the pleas concerned in the reply (Statute of the Court of Justice, Art. 21; Rules of Procedure of the General Court, Art. 44(1)) (see paras 125-127)

7. Competition – Community rules – Infringements – Fines – Determination – Criteria – Raising of the general level of fines – Lawfulness (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 133-134)

8. Competition – Fines – Amount – Determination – Criteria – Overall turnover of the undertaking concerned – Turnover corresponding to the goods covered by the infringement – To be taken into consideration – Limits (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2)) (see paras 141-143)

9. Competition – Fines – Amount – Determination – Criteria – Financial situation of the undertaking concerned – To be taken into consideration – No obligation on the Commission to request detailed information on the financial situation of the undertaking (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 5(b)) (see paras 161-163, 165)

10. Competition – Fines – Amount – Determination – Division of the undertakings concerned into different categories – Conditions (Art. 81(1) EC; Council Regulation No 1/2003, Art. 23(2); Commission Notice 98/C 9/03, Section 1A) (see paras 182-183)

Re:

APPLICATION for annulment of Commission Decision C (2005) 4634 final of 30 November 2005 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.354 – Industrial bags), in so far as it is addressed to the applicant, concerning a cartel on the market for plastic industrial bags, and application for annulment or, in the alternative, reduction of the fine imposed on the applicant.

Operative part

The Court:

1. Dismisses the action;