CELEX: 62006TJ0054
Language: en
Date: 2011-11-16
Title: Judgment of the General Court (Fourth Chamber) of 16 November 2011.#Kendrion NV v European Commission.#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.#Case T-54/06.

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;
               
            
         
                  2.
               
               
                  
               
               
                  	Orders Kendrion NV to pay the costs.